A class action lawsuit by buyers of light cigarettes against Imperial Tobacco Canada included the government of Canada as a third party. Imperial claimed that the Canadian government played a critical role in encouraging smokers to switch to light and mild cigarettes by developing and promoting strains of tobacco used in light and mild cigarettes and dictating the warnings printed on the cigarette packages. A lower court ruled that Canada was immune from liability and struck the third party claims against it. In this appeals court decision, the court reinstated a portion of the third party claims against the Canadian government for negligent misrepresentation (e.g., claims to the public about the safety of light and mild cigarettes) and the negligent development of light and mild tobacco strains. However, the appeals court agreed with the lower court’s decision striking the claims (1) that Imperial Tobacco it is entitled to contribution and indemnity from Canada on the basis of the consumer protection law and (2) that Canada owned a duty of care to Imperial with respect to the design of the tobacco strains used in light and mild cigarettes.
Knight v. Imperial Tobacco Canada Limited, 2009 BCCA 541 (2009).
Some jurisdictions allow an individual or organization to initiate an action against another private party who is not following a particular law. For example, a person may sue a restaurant that allows smoking despite a smoke free law. If the plaintiff is claiming the violation of the law caused physical harm, this may also be a personal injury case.
Measures to regulate the marketing on tobacco packages. This includes both bans on false, misleading, deceptive packaging, as well as required health warnings on packaging.
(See FCTC Art. 11)
Any violation of a law designed to ensure fair trade, competition, or the free flow of truthful information in the marketplace. For example, a government may require businesses to disclose detailed information about products—particularly in areas where safety or public health is an issue.
The court might consider procedural matters without touching the merits of the case. These might include: improper joinder, when third parties, such as Health NGOs or government officials, seek to become parties to the suit; lack of standing, where a plaintiff fails to meet the minimum requirements to bring suit; lack of personal jurisdiction, where the court does not have jurisdiction to rule over the defendant; or lack of subject matter jurisdiction, where the court does not have jurisdiction over the issue at suit.
Type of Tobacco Product
None
Limitations regarding the use of quotes The quotes provided here reflect statements from a specific decision. Accordingly, the International Legal Consortium (ILC) cannot guarantee that an appellate court has not reversed a lower court decision which may influence the applicability or influence of a given quote. All quotes have been selected based on the subjective evaluations undertaken by the ILC meaning that quotes provided here may not accurately or comprehensively represent a given court’s opinion or conclusion, as such quotes may have originally appeared alongside other negative opinions or accompanying facts. Further, some quotes are derived from unofficial English translations, which may alter their original meaning. We emphasize the need to review the original decision and related decisions before authoritatively relying on quotes. Using quotes provided here should not be construed as legal advice and is not intended to be a substitute for legal counsel on any subject matter in any jurisdiction. Please see the full limitations at https://www.tobaccocontrollaws.org/about.
"On this appeal, Canada also argues that there are other policy considerations to negate the prima facie duty of care. It raises the topics of indeterminate liability, conflicting duties, other remedies and the government becoming an insurer. It says these policy reasons bear on the central point that Canada does not manufacture or market cigarettes and did not create the public health risks posed by the product. It also says no duty of care is appropriate given its regulatory role and duties to the general public. However, on my reading of the facts alleged in ITCAN’s third party notice, which must be assumed to be true for the purposes of a Rule 19(24) application, the allegations against Canada go beyond its role as a regulator. It is alleged that Canada made the decision to develop strains of tobacco that were less harmful to smokers than the strains of tobacco then being utilized (which could fairly be categorized as a policy decision) but it developed strains of tobacco that were actually more hazardous to the health of smokers, and it made misrepresentations to smokers about the relative safety of cigarettes containing the strains of tobacco. It is also alleged that Canada was paid licensing fees and royalties in respect of the tobacco strains it developed. The potential liability of Canada flowing from breaches of the duty of care would not appear to be indeterminate because the affected persons are identified as those who purchased the light and mild cigarettes (i.e., the class members). The concerns about conflicting duties and the government becoming an insurer of another’s product would not appear to apply. If the alleged actions had been taken by a private body rather than Canada, it seems to me that no one would seriously argue that the prima facie duty of care should be negated by policy considerations. In my opinion, without the benefit of evidence at trial to assist in the examination of the considerations, none of the policy considerations are determinative to negate the prima facie duty of care. On the basis of the pleadings alone, it is not plain and obvious that the prima facie duty of care owed by Canada to the class members should be negated."
"It is alleged that Canada developed strains of tobacco for incorporation into light and mild cigarettes and promoted the use of the cigarettes. While the alleged activities of Canada could fall within the category of promotion under clause (b) of the definition, the activities were not done in the course of business. The encouragement given to smokers to use light and mild cigarettes was alleged to have been done by Health Canada out of health considerations. It was not alleged to have been done by Canada in the course of a business carried on for the purpose of earning a profit. As a result, the chambers judge was correct in striking out the paragraphs in the third party notice relating to the claim for contribution and indemnity against Canada on the basis of allegations of breaches by Canada of the Trade Practice Act. It is not essential to deal with the second sub-issue containing the constitutional
question, and the jurisprudence is clear that courts should not decide constitutional issues that are not necessary to a resolution of the case or the appeal: see, for example, Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), [1995] 2 S.C.R. 97, 124 D.L.R. (4th) 129."
Limitations regarding the use of quotes The quotes provided here reflect statements from a specific decision. Accordingly, the International Legal Consortium (ILC) cannot guarantee that an appellate court has not reversed a lower court decision which may influence the applicability or influence of a given quote. All quotes have been selected based on the subjective evaluations undertaken by the ILC meaning that quotes provided here may not accurately or comprehensively represent a given court’s opinion or conclusion, as such quotes may have originally appeared alongside other negative opinions or accompanying facts. Further, some quotes are derived from unofficial English translations, which may alter their original meaning. We emphasize the need to review the original decision and related decisions before authoritatively relying on quotes. Using quotes provided here should not be construed as legal advice and is not intended to be a substitute for legal counsel on any subject matter in any jurisdiction. Please see the full limitations at https://www.tobaccocontrollaws.org/about.
A class action lawsuit by buyers of light cigarettes against Imperial Tobacco Canada included the government of Canada as a third party. Imperial claimed that the Canadian government played a critical role in encouraging smokers to switch to light and mild cigarettes by developing and promoting strains of tobacco used in light and mild cigarettes and dictating the warnings printed on the cigarette packages. A lower court ruled that Canada was immune from liability and struck the third party claims against it. In this appeals court decision, the court reinstated a portion of the third party claims against the Canadian government for negligent misrepresentation (e.g., claims to the public about the safety of light and mild cigarettes) and the negligent development of light and mild tobacco strains. However, the appeals court agreed with the lower court’s decision striking the claims (1) that Imperial Tobacco it is entitled to contribution and indemnity from Canada on the basis of the consumer protection law and (2) that Canada owned a duty of care to Imperial with respect to the design of the tobacco strains used in light and mild cigarettes.