Sommers & Roth Professional Corporation (S&R) has been representing injured smokers against the tobacco industry for many years.

January 13, 1995 — S&R filed Canada's first proposed tobacco class action, Caputo et al v. Imperial Tobacco Ltd. et al, on behalf of smokers suffering from many diseases. The lawsuit was structured to recover individual monetary damages on behalf of million of Ontario smokers and their families. The Court declined to certify the lawsuit on February 5, 2004 as a class action, given, among other reasons, the complexities, resources and time required to potentially assess the injuries of millions of class members and their entitlement to damages.

While the court declined to approve a personal injury lawsuit for individual monetary damages on behalf of millions of smokers, it recognized that individual lawsuits against the tobacco industry are unlikely to lead to access to justice. The Court’s February 5, 2004 judgment included the following:

The defendants assert that individual proceedings are preferable to a class proceeding in the present factual matrix. I am not persuaded that such is the case. The time, and doubtless many lawyer hours, spent on simply getting this action before the court on a certification motion, let alone an examination of the positions taken in the expert evidence filed by the defendants, is indicative that an individual attempting to pursue litigation would likely find his or her resources taxed beyond sustainable limits.

The Court’s ruling also left open the potential for other types of class proceedings against tobacco multinationals. Sommers & Roth continues to support smokers’ right of access to justice for tobacco-related harm.

January 12, 1996 — As a result of the proposed Caputo class action, defendant Imperial Tobacco Limited (now Imperial Tobacco Canada Limited) took the unprecedented step of suing two of its insurance companies, asking the court to order those companies to pay its legal costs and damages if the class action was successful. Documents filed by Imperial claim that it spent more than $1.3 million on lawyers' fees alone during the first nine months of the Caputo lawsuit.

February 9 , 1996 — Defendants bring largely unsuccessful motions to compel the plaintiffs to provide details relating to virtually all aspects of their claims. View the Particulars subsequently ordered on April 12, 1996 by Master Peppiatt hearing the defendants' motions in Caputo et al v. Imperial Tobacco et al.

May 1, 1997 — Ontario's first individual tobacco products liability lawsuit, Spasic v. Imperial Tobacco Ltd. et al, is filed against Imperial Tobacco (ITL) and Rothmans, Benson & Hedges Inc. (RBH) for alleged damages. See also Schedule "A" annexed to the plaintiff's statement of claim.

September 16, 1997 — Sommers & Roth files suit against B.A.T. Industries p.l.c. (now British American Tobacco, p.l.c.) the ultimate parent company of ITL. View our Statement of Claim.

May 31, 2000 — In Spasic v. Imperial Tobacco Ltd. et al, the Ontario Court of Appeal heard an appeal dealing with the issue of whether or not Canadian law should recognize a cause of action for intentional, bad faith destruction of evidence (or "spoliation") by a tortfeasor (i.e., a wrongdoer).

July 21, 2000 — The Ontario Court of Appeal in Spasic v. Imperial Tobacco Ltd. et al unanimously reversed a Superior Court judge's decision on the spoliation tort issue, and ruled that the trial judge should have all available sanctions at his or her disposal to deal with any alledged intentional, bad faith destruction of evidence, including a separate spoliation tort. News coverage in the Toronto Star.

For more information about this emerging tort please consult the The Canadian Bar Review, March-June, 1999: pgs. 38-70.

March 22, 2001 — In Spasic v. Imperial Tobacco Ltd. et al, the Supreme Court of Canada dismissed the defendants' leave applications with costs, concerning the issue of whether the trial judge may consider tort remedies, including punitive damages, in respect of their alleged intentional, bad faith destruction of evidence.

February 27, 2003 — The Honourable Mr. Justice Brennan rules that the defendants' motions seeking to strike out evidence destruction allegations were without merit following the Ontario Court of Appeal's ruling of July 21, 2000.

March 8, 2005 — The Honourable Justice Winkler rules in Caputo that the defendants are not entitled to any costs against the plaintiffs in respect of nine years of litigation or for the certification motion as it was a lawsuit involving public interest and health. The court also dismisses the defendants’ motion to recover costs against the plaintiffs’ lawyers, holding that “[a]ccess to justice and other laudable goals of the CPA [Class Proceedings Act] will only served as long as there are counsel willing to take risks in order to advance the cause of plaintiffs of modest means or modest claims. ... The “chilling effect” of inordinate or improperly founded costs awards against the plaintiffs or their counsel will likely have the effect of rendering the goals underlying the CPA [including defendant behaviour modification] unachievable.”

Selected links to key tobacco litigation-related sites:

Tobacco Control Archives
State Tobacco Information Center
Tobacco Documents Online
Tobacco Products Liability Project (TPLP)
tobaccopapers.org