So what will the lawyers representing provincial governments and injured smokers include in their demands to settle their long-fought suits? And what will the companies offer to avoid further litigation?
Your guess is as good as mine. Or - if you are a provincial government health worker - it is hopefully better. Perhaps the health ministries have been let in on the discussion.
Over the past 20 years, government lawyers have not canvassed Canadian communities for suggestions on how to resolve these suits in a way which will prevent future disease, and this July they did not break with that tradition. This lack of engagement is a worrying signal that the provinces have not kept the transparent development of health outcomes uppermost in their demand list -- contrary to their international obligations to do so.
International law and Canadian tobacco lawsuits.
It is hard to imagine that a settlement which is purely financial will meet the international obligations of Canadian provinces to deal with tobacco liability in the context of public health. Nor is it obvious how a settlement which includes public health measures which has been secretly negotiated could satisfy expectations under global treaties to conduct negotiations with tobacco companies in a transparent way.
The requirement to direct litigation against tobacco companies towards tobacco control objectives is embedded in the global tobacco treaty to which Canada (and the provincial governments) are bound.
The Framework Convention on Tobacco Control encourages governments to address the liability of the tobacco industry, but requires them to do within the context of public health and tobacco control. The requirements to use litigation "for the purpose of tobacco control" and to make it "part of comprehensive tobacco control" are set out in Articles 4 and 19:
FCTC Article 19.1. For the purpose of tobacco control, the Parties shall consider taking legislative action or promoting their existing laws, where necessary, to deal with criminal and civil liability, including compensation where appropriate.
FCTC Guiding principle Article 4.5. Issues relating to liability, as determined by each Party within its jurisdiction, are an important part of comprehensive tobacco controlThe FCTC also instructs governments to protect tobacco policies from interference by tobacco companies. This general obligation of parties is set out in Article 5.3 of the treaty, for which interpretive guidelines have been in place for over a decade. Among these is the guiding principle of transparency.
Principle 2: Parties, when dealing with the tobacco industry or those working to further its interests, should be accountable and transparent.The government department responsible for coordinating Canada's implementation of the FCTC is Health Canada. Just this week, lawyers for that federal department were added to the service list of the CCAA proceedings. Perhaps they will be brought in to the discussions.
14. Parties should ensure that any interaction with the tobacco industry on matters related to tobacco control or public health is accountable and transparent.
Fingers crossed!
-------------------
"Common Service List" for the CCAA proceedings (July 29, 2019)
Party
|
Law
firm
|
Applicant Tobacco
Companies
|
|
JTI Group
|
|
1.
JTI-Macdonald
Corp
|
Thornton Grout Finnigan LLP
|
2.
The
Monitor of JTI-Macdonald Corp
|
Deloitte Restructuring INC
|
3.
Deloitte
Restructuring INC., in its capacity as Monitor of JTI-Macdonald Corp.
|
Blake, Cassels & Graydon LLP
|
4.
Chief
Restructuring Officer of JTI-Macdonald Corp.
|
Bluetree Advisors INC.
|
5.
JT
Canada LLC INC. and PricewaterhouseCoopers INC., in its capacity as receiver
of JTI-Macdonald TM Corp.
|
Torys LLP
|
6.
Receiver
and Manager of JTI-Macdonald TM Corp.
|
Pricewaterhousecoopers
|
7.
R.J.
Reynolds Tobacco Company and R.J. Reynolds Tobacco International Inc.
|
Chernos Flaherty Svonkin LLP
|
BAT Group
|
|
8.
British
American Tobacco p.l.c., B.A.T. Industries p.l.c. and British American
Tobacco (Investments) Limited
|
Stikeman Elliott LLP
|
9.
Imperial
Tobacco Canada Limited and Imperial Tobacco Company Limited
|
Osler, Hoskin & Harcourt LLP
|
10.
FTI
Consulting Canada INC., in its capacity as Monitor of Imperial Tobacco Canada
Limited and Imperial Tobacco Company Limited
|
Davies Ward Phillips & Vindeberg LLP
|
11.
Monitor
of Imperial Tobacco Canada Limited and Imperial Tobacco Company Limited
|
FTI Consulting Ccanada INC.
|
PMI Group
|
|
12.
Rothmans,
Benson & Hedges, INC.
|
Mccarthy Tétrault LLP
|
13.
Monitor
of Rothmans, Benson & Hedges, INC
|
Ernst & Young INC.
|
14.
Philip
Morris International INC
|
Gowling WLG (Canada) LLP
|
15.
Ernst
& Young INC, in its capacity as court-appointed monitor of Rothmans,
Benson & Hedges, INC.
|
Cassels Brock & Blackwell LLP
|
Insurers to the
Applicant Tobacco companies
|
|
16.
North
Atlantic Operating Company, INC.
|
Miller Thomson LLP
|
17.
AIG
Insurance Canada
|
Miller Thomson LLP
|
18.
La
Nordique Compagnie D’Assurance du Canada
|
Blaney McMurtry LLP
|
Tobacco company
suppliers
|
|
19.
Westrock
Company
|
|
20.
The
Bank of Nova Scotia
|
McMillan LLP
|
21.
Labstat
International
|
|
22.
Citibank
Canada
|
McMillan LLP
|
23.
Top
Tube Company
|
BCF LLP
|
24.
Sobeys
Capital incorporated
|
Stewart Mckelvey
|
Provincial government
claimants
|
|
25.
Provinces
of British Columbia, Manitoba, New Brunswick, Nova Scotia, Prince Edward
Island and Saskatchewan, in their capacities as plaintiffs in the HCCR
Legislation claims
|
Bennett Jones
|
26.
Financial
Advisory for the Provinces of British Columbia, Manitoba, New Brunswick, Nova
Scotia, Prince Edward Island and Saskatchewan, in their capacities as
plaintiffs in the HCCR Legislation claims
|
KSV Advisory INC.
|
27.
Attorney
General British Columbia
|
Ministry of the Attorney General
|
28.
Her
Majesty the Queen in Right of Ontario
|
Ministry of the Attorney General
|
29.
Her
Majesty the Queen in Right of Alberta
|
Jensen Shawa Solomon Dugid Hawkes LLP; Paliare Roland
Rosenberg Rothstein LLP
|
30.
Her
Majesty the Queen in Right of Newfoundland
|
Paliare Roland Rosenberg Rothstein LLP; Roebothan McKay Marshall
|
31.
Province
of Quebec
|
McMillan LLP
|
Class Actions and
individual claims
|
|
32.
Conseil
québécois sur le tabac et la santé, Jean-Yves Blais and Cécilia Létourneau
(Quebec Class Action Plaintiffs)
|
Fishman Flanz Meland Paquin LLP; Chaitons LLP;
Trudel Johnson Lespérance
|
33.
Lawyers
for the representative plaintiff, Kenneth Knight, in the certified British
Columbia class action, Knight v. Imperial Tobacco Canada Ltd.
|
Klein Lawyers
|
34.
Class
Action Plaintiffs (MLG)
|
Merchant Law Group LLP
|
35.
The
Ontario Flue-Cured Tobacco Growers’ Marketing Board
|
Strosberg Sasso Sutts LLP
|
36.
Imperial
Tobacco claimant
|
Lecker & Associates
|
Other government
interests
|
|
37.
Superintendent
of Financial Services, Ontario
|
Ministry of the Attorney General
|
38.
Minister
of National Revenue, Canada
|
Attorney General of Canada
|
39.
Health
Canada (or Public Security?)
|
Attorney General of Canada
|
40.
Retraite
Québec
|
Vaillancourt & Clocchiatti
|
Other
|
|
41.
Former
Genstar U.S. Retiree Group Committee
|
Kaplan Law
|
42.
Grand
River Enterprises Six Nations Ltd
|
Brauti Thorning LLP
|
43.
Court-Appointed
Mediator
|
Lax O’sullivan Lisus Gottlieb LLP
|
44.
Canadian
Cancer Society
|
Fogler, Rubinoff LLP
|
