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From the Regions - Lawsuits loom for tobacco industry in Nova Scotia, New Brunswick

|Written By Beth Marlin
From the Regions - Lawsuits loom for tobacco industry in Nova Scotia, New Brunswick

From coast to coast, tobacco companies are facing massive lawsuits to recoup smoking-related government healthcare costs. Nova Scotia and New Brunswick are the latest provinces to flex their legal muscle.

From coast to coast, tobacco companies are facing massive lawsuits to recoup smoking-related government healthcare costs. Nova Scotia and New Brunswick are the latest provinces to flex their legal muscle.

The East Coast move follows British Columbia’s 2005 win of a constitutional challenge of its legislation by the tobacco industry at the Supreme Court of Canada. The Tobacco Damages and Health-care Costs Recovery Act, introduced for first reading by Nova Scotia Justice Minister Michael Baker on October 13, was soon passed in record time — receiving royal assent by December 8.

One day earlier, on December 7, New Brunswick Attorney General Brad Green introduced the Tobacco Damages and Health-care Costs Recovery Act in the legislature. Some observers have suggested several Atlantic provinces may soon band together and proceed as a unified front rather than individually sue the tobacco companies.

Baker says a legal team will be put together immediately to begin constructing Nova Scotia’s case to recoup smoking-related health care costs, which total $170-million a year. “This legislation is all about holding the industry accountable for the huge sums of taxpayer dollars spent to fight lung cancer and related illnesses,” he says. “More than 1,600 Nova Scotians die each year from smoking-related illnesses, another 200 from second-hand smoke. The tobacco industry must bear financial responsibility for that devastation.”

Other N.S. & P.E.I. initiatives
Nova Scotia is also the first province in Canada to introduce legislation allowing the use of electronic ankle monitors and global positioning system (GPS) satellite technology to track offenders under house arrest. “We’ll begin with a trial project this winter, as we continue to improve programs that make sure offenders live up to their court-ordered obligations,” says Baker. The legislation will also allow the monitoring of phone calls and restrict the use of telephones by offenders in custody.

Also, an independent tribunal — composed of chairman Bruce P. Archibald, Ronald A. Pink and Terry L. Roane — recently authorized an increase in salaries for Nova Scotia Provincial Court and Family Court judges of 3.4 percent over three years. Provincial and family court judges in Nova Scotia now earn $163,342.
And the Family Violence Protection Act will soon allow applications for Emergency Protection Orders to be made on an ex parte basis, 24 hours a day, seven days a week without a lawyer. It received legislative assent by the Newfoundland and Labrador Legislature in December.

“We are expanding access to justice for people residing in areas where there is no court,” Newfoundland and Labrador Justice Minister Tom Marshall said in the House of Assembly during debate on the proposed legislation in November. “Through Emergency Protection Orders, this legislation would provide, among other things, for the victim to remain in the family home where they can have uninterrupted access to school, family, employment and community support.”

In Prince Edward Island, meanwhile, the government is reviewing the Employment Standards Act and Youth Employment Act governing hours of work, sick leave, holidays and working conditions for about 57,000 non-unionized employees, and expects to have new legislation ready by fall of 2006.

The Lamer inquiry
Former Chief Justice of the Supreme Court of Canada Antonio Lamer, now senior advisor to Stikeman Elliott LLP, has been granted a five-month extension to complete his public inquiry into why Newfoundland and Labrador has seen a disproportionate number of wrongful murder convictions.

Appointed in March 2003, he was originally given until December 31, 2005 to review and report on the investigations and circumstances surrounding the resulting criminal proceedings against Gregory Parsons and Randy Druken, and determine why Ronald Dalton’s appeal of his murder conviction took eight years to be heard by the Newfoundland and Labrador Court of Appeal. The report from the inquiry, which wrapped up in June 2005, is now expected June 1, 2006.

On December 29, 2005, Newfoundland and Labrador Justice Minister Tom Marshall said, “Commissioner Lamer asked for more time to complete his report and it is in the best interest of the administration of justice in this province to provide him with the time he needs to make the appropriate recommendations,” Marshall explained. “Public inquiries are complex and require a thorough and comprehensive examination of the facts.”


Making waves at the Supreme Court of Canada
St. John’s litigation lawyer Gillian Butler, who represented the appellant in Young v. Bella, recently made waves at the Supreme Court of Canada, scoring a precedent-setting ruling on January 27, 2006 that advances the law on referencing and negligent misstatement in Canada. Lawyers from regional giant Stewart McKelvey Stirling Scales represented Professor Leslie Bella, William Rowe and Memorial University, while McCarthy Tétrault LLP represented the intervenor, the Child Welfare League of Canada.

In overturning an earlier Newfoundland and Labrador Court of Appeal decision, the Supreme Court reinstated $839,000 in damages that had been awarded at trial to Wanda Young, a Memorial University student who was wrongfully accused of child abuse after submitting an essay that included an unattributed textbook account of a female child abuse victim who went on to become an abuser. Wrongly assuming the passage was autobiographical, her professor reported the student to university officials, who notified provincial social services authorities — an action her lawyer argued barred Young’s future employment as a social worker.

“[Young] is of tremendous importance to employment law in Canada because it confirms that an employer can be held liable for negligent referencing, notwithstanding the defence of qualified privilege in defamation,” observes Stacey Ball, author of Canadian Employment Law. “Employers now have, clearly, a duty of care in giving a reference. Honesty and good faith are not enough. So it is a very important decision and it affects employment law directly.”

Ball says the Young case is significant because the Supreme Court adopted the reasoning of the House of Lords’ seminal judgment in Spring v. Guardian Assurance plc — a case Canada’s highest court had earlier rejected using in another case.

Single regulator
On December 7, 2005, the Crawford Panel on a Single Canadian Securities Regulator released “A Blueprint for A New Model,” which proposes a unified national securities regulator offering “opt-in” participation to the provinces and territories. Theoretically headquartered in one of Canada’s four largest provinces, it would be governed by common securities laws, a single fee structure and a separate adjudicative tribunal. Dawn Russell, former dean of Dalhousie Law School and former co-chair of the Nova Scotia Law Reform Commission, is Atlantic Canada’s representative on the panel.

Regional law firm mergers
Lips remain sealed on reports that 100-lawyer firm Patterson Palmer has resumed long-dormant merger negotiations with 99-lawyer regional firm Cox Hanson O’Reilly Matheson, following last year’s devastating defection of the former’s Halifax office.


Patterson Palmer chairman Peter Wright says: “I can’t really comment on that kind of thing, really, or on any other talks of that nature we might be having in a similar vein.” Cox Hanson’s managing partner Danny Gallivan could not be reached for comment and did not return several phone calls over the past month.
“The merging of the Halifax office of Patterson Palmer with the Halifax office of McInnes Cooper seems to be proceeding with no apparent shock waves in the outside world,” observes Carl Holm, a Halifax-based partner with another leading Atlantic Canada law firm, Wickwire Holm. “The situation will likely evolve.” Stay tuned for news on the merger front soon.

Political economy
Nova Scotia MP Peter MacKay, formerly a Crown attorney for the Central Region of the province, lost the federal Justice portfolio to Manitoba’s Vic Toews under Stephen Harper’s newly elected minority government. As Foreign Affairs Minister and Minister of the Atlantic Canada Opportunities Agency, however, MacKay will hold sway in his region.

As the energy sector continues to thrive with several offshore oil mega-projects, Newfoundland and Labrador Premier Danny Williams — affectionately known as Danny Millions — is taking a page from Alberta’s songbook, determined to negotiate a greater share of oil and gas revenues to pay down his province’s $12-billion debt.

Before the election, Williams had been negotiating to buy the federal government’s stake in Hibernia for less than open-market price. The province, however, is expected to ask for a piece of the action during ongoing negotiations with investors seeking approval for the Hebron Oil Field, the region’s fourth offshore project. Chevron Canada Resources and Petro-Canada are among the major investors in the proposed project.
All this activity bodes well for energy sector lawyers in Atlantic Canada. “Newfoundland, rather than Atlantic Canada generally, will be very strong in the energy field,” says Carl Holm at Wickwire Holm. “Other energy projects — liquefied natural gas facilities in Nova Scotia and New Brunswick, wind projects, possible development of the Lower Churchill in Labrador, etc. — all will add positively to the economy.”

Not all the legal work and economic spin-offs will be coming from the energy sector in Atlantic Canada, however. “Potentially, the most significant recent announcement is by RIM that it will be establishing a facility in Metro Halifax, which is expected in due course to employee upwards of 1,200 people,” says Holm. “[It’s] unknown at this point what spinoffs that could create for the economy and lawyers in particular.”


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