Steven I. Sofer

The appellants challenged the constitutional validity of the Tobacco Damages and Health Care Costs Recovery Act, which allows the government of British Columbia to sue tobacco manufacturers to recover health care costs related to tobacco exposure.

The appellants argued the Act was ultra vires due to extra-territoriality, violated judicial independence, and offended the rule of law.

The Supreme Court of Canada dismissed the appeals, holding that the Act's pith and substance is property and civil rights in the province, it does not interfere with the adjudicative role of the courts, and it does not violate the unwritten constitutional principle of the rule of law.

The respondent tobacco company sought a declaration that s. 6 of the Saskatchewan Tobacco Control Act, which bans the display of tobacco products in premises where persons under 18 are permitted, was inoperative due to the federal paramountcy doctrine.

The respondent argued it conflicted with s. 30 of the federal Tobacco Act, which allows retailers to display tobacco products.

The Supreme Court of Canada held that the provincial legislation was not inoperative.

The Court found no operational conflict, as retailers could comply with both by either not admitting minors or not displaying the products, and the provincial law did not frustrate the federal legislative purpose of addressing a national public health problem.

The plaintiffs in two class actions moved to quash appeals brought by the defendants from an order declaring that the plaintiffs shared a common interest with the Receiver of YBM, and that the Receiver could produce a report to them without waiving privilege.

The Court of Appeal held that the order was procedural and interlocutory, as it did not resolve any substantive issue in the proceedings.

The court rejected the argument that the order was final simply because it involved a non-party (the Receiver), distinguishing prior case law.

The motions to quash were granted.

In a tobacco liability appeal, the estate challenged an order striking portions of a statement of claim alleging intentional spoliation of evidence by tobacco manufacturers.

The Court of Appeal held that the novel spoliation claim should not be struck on an interlocutory motion because it was not plain and obvious that it could not succeed, and questions about recognition of the tort should be determined at trial on a full record.

The court further held that omnia praesumuntur contra spoliatorem is a rule of evidence, not a point of law that must be pleaded, so that paragraph was properly struck.

The appeal was allowed in part, the cross-appeal was dismissed without costs, and the appellant received costs of the motion and appeal.