By Tracey Tyler, Toronto Star

The husband of a Burlington woman who died of lung cancer has won the right to sue Canada's tobacco companies for allegedly destroying evidence that would prove they had known since the 1950s that smoking was bad.

The Ontario Court of Appeal's unanimous decision yesterday dealt a blow to the cigarette makers' efforts to stop the lawsuit brought by Ljubisa (Lou) Spasic, which also alleges the tobacco makers deceitfully turned out dangerous products.

Spasic's wife, Mirjana, died of cancer two years ago at 53 after years of smoking.

His lawsuit, which seeks $1 million in compensatory damages and undetermined punitive damages, alleges Imperial Tobacco Ltd. and Rothmans, Benson & Hedges Inc. knew cigarettes were hazardous but deliberately deceived the public and destroyed documents proving the companies were well aware of the dangers.

The tobacco makers successfully attacked the claim in a lower court, arguing the right to sue over the alleged destruction of documents did not exist in law.

The appeal court, however, rejected that argument yesterday and parted company with earlier court rulings that tended to support the tobacco makers' view.

"The very few Canadian cases which have considered the question are far from definitive," said Mr. Justice Stephen Borins, writing for Justices James MacPherson and Robert Sharpe.

The decision sets the stage for delving into the document- shredding policies of the tobacco makers and whether evidence was shipped offshore, said Andreas Seibert, one of Spasic's Toronto lawyers.

"Now we're going to be able to fully pursue all evidence concerning the defendants' destruction policies and that of their affiliate companies," he said, adding that the implications of yesterday's decision are much bigger than this case.

"It is definitely sending out a message to alleged wrongdoers to beware, that the court is not going to allow you to be rewarded for having tried to cover up evidence."

Robert Hart, Spasic's other lawyer, said legal claims for monetary damages arising from document destruction are designed to cover situations where a plaintiff can't proceed with a lawsuit because evidence needed to prove the case has been destroyed.

Steven Sofer, a lawyer representing Rothmans, Benson & Hedges, said he thinks the company will seek leave to appeal yesterday's decision to the Supreme Court of Canada.

It flies in the face of rulings from the British Columbia Court of Appeal, Ontario's Divisional Court and several U.S. courts, which said claims arising out of document destruction don't constitute a "reasonable cause of action," he said.

Yesterday's ruling comes a week after a Miami jury awarded the biggest personal injury punitive damage award in U.S. history, a $145 billion judgment against Big Tobacco on behalf of ill Florida smokers.

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