Kenneth Knight v.
Imperial Tobacco Ltd.

 

May 8, 2003:
With Kenneth Knight as a representative of a class of smokers, Vancouver law firm Klein Lyons files a class action suit in the Supreme Court of British Columbia, against Imperial Tobacco.  The suit claims that ITL deceived smokers into believing 'light' and 'mild' cigarettes were less harmful than regular cigarettes.

The suit asks for a permanent injunction to stop Imperial Tobacco from marketing or selling 'light' or 'mild' cigarettes and a refund for all the cigarettes he and any other members of the class paid to purchase the allegedly misrepresented cigarettes.

 

April 30, 2004:
Imperial Tobacco Canada filed its Statement of Defence and also filed a third party notice against the Attorney General of Canada.  In this third party notice, the company argues that light cigarettes were manufactured to comply with federal requirements, and that the government should be required to pay any damages, should they be determined.

September 24, 2004
Affadavit supporting Iperial tobacco filed by Former Health Canada Assistant Deputy Minister, Albert Liston

October 14, 2004
The federal government sides with tobacco compannies in petitioning the court to not certify the Knight case.

October 25 - 29, 2004
Hearing on Class Action certification before B.C. Justice Satanove.

Feb. 8, 2005
B.C. Supreme Court Justice Satanove rules that the class action can be certified.

December 1, 2005
Imperial Tobacco amends its third party claim

May 11, 2006
B.C. court of appeal upholds the certification.

July 3, 2007
The B.C. Supreme Court rejects the Third Party Notice issed by Imperial Tobacco to the government of Canada.  The government of Canada is no longer party to the case.

March 3, 2009

 

June 1-8, 2009
B.C. Court of Appeal hears arguments to overturn ruling of dismissal of third party claim

December 12, 2009
B.C. Court of Appeal rules that the third party claim must be amended, but can continue against federal government.

July 29, 2011
The S
upreme Court rules on third party notices, disallowing the industry claim against the federal government (ruling)

 


Media Coverage


 

B.C. class-action suit over light cigarettes filed against Imperial Tobacco

 Fraser, Keith. Canadian Press NewsWire. Toronto:May 8, 2003.

VANCOUVER (CP) - A class-action lawsuit aimed at stopping Canada's biggest tobacco company from using the words "light" and "mild" to describe its cigarettes was filed in B.C. Supreme Court Thursday.

The representative plaintiff, 46-year-old Kenneth Knight from Roberts Creek on B.C.'s Sunshine Coast, smoked Imperial Tobacco light brands, usually Player's Light, for 17 years.

He claims that while he thought he was choosing a safer option, in fact it was just as dangerous and debilitating as regular cigarettes.

"What this case is about is a deceptive marketing practice," said Knight's lawyer, David Klein.

"In fact, Health Canada has said that it's going to ban the use of the descriptors light and mild," said Klein. "Although the regulations have been in the works for about two years, it hasn't actually occurred."

Klein said his client is seeking two types of relief - an injunction to stop Imperial from using the words, and compensation from sales in British Columbia that could run into the hundreds of millions of dollars.

He said a recent class-action suit in Illinois, which resulted in a verdict of $10 billion was an impetus for the B.C. case, which applies only to smokers who buy products in the province.

Klein said there is plenty of evidence to prove that light smokes are as bad for your health as regular ones, including a warning from Health Canada based on a wide range of research and academic studies.

The case is supported by a Burnaby-based non-profit organization, Airspace Action on Smoking Health.

The organization's president, Heather Mackenzie, said more than 45,000 Canadians die every year from smoking and part of the problem is the deceptive use of light and mild brand names.

Yves-Thomas Dorval, director of public affairs for Montreal-based Imperial Tobacco, said his company had not been notified of the court case and could not comment on the specifics.

But he said the company has always co-operated with the government and has indicated they are willing to drop the light and mild descriptors if certain conditions are met, including a suitable replacement system that would not confuse consumers.

"We said we're willing to co-operate, but these are the conditions ... but they never came back to us," he said.

(Vancouver Province)

Indexing (document details) Subjects: Crime, Health, Litigation Classification Codes 9172 Companies: Imperial Tobacco Canada Ltd. Author(s): Fraser, Keith Publication title: Canadian Press NewsWire. Toronto: May 8, 2003. Source type: Periodical ProQuest document ID: 509753201 Text Word Count 373

Tobacco row

The Globe and Mail. Toronto, Ont.:Oct 25, 2004. p. A.12

The federal government finds itself in a British Columbia court on the opposite side of a position it argued only three years ago. Circumstances may justify its tactics, but its 2001 argument should direct its actions.

In 1968, federal health minister John Munro said it was important to tell

smokers how much tar and nicotine their cigarettes contained. "We know of no safe cigarettes or safe way to smoke," he said, but the publication of tar and nicotine levels would help smokers, "if they wish, avoid those with high and choose those with low levels."

In 1976, Canadian tobacco companies began to list those levels. This was useful consumer information. They also promoted the cigarettes that contained less of those harmful ingredients as "mild" and "light." This was not useful.

The trouble with portraying still-hazardous cigarettes as mild is that much depends on how they are smoked. Holes placed around the filter of a "light" cigarette permit air to cut the smoke, for instance; but if smokers cover the holes while inhaling, they will draw in a greater concentration of smoke than was measured in the laboratory. Some may suck more intently on light cigarettes than on regular ones to get the sensation they seek. And they may smoke more of them because, after all, the cigarettes are billed as milder and lighter.

In 2001, then-health-minister Allan Rock told the tobacco companies to strip the terms "mild" and "light" from their vocabulary, and threatened regulation or prohibition if they did not do so voluntarily. Then he was shuffled from the health portfolio. His successor, Anne McLellan, let the campaign lapse.

Today, B.C. resident Kenneth Knight hopes to pursue a class-action lawsuit against Imperial Tobacco Inc. He contends the company aggressively promoted "mild" and "light" cigarettes as benign even though it knew they were hazardous, particularly given the way people smoked them. And the federal government? It is arguing alongside the tobacco company that Mr. Knight's case be dismissed.

Ottawa's position has less to do with the truth of Mr. Knight's contention than with the fear of being held partly liable. Ottawa did, after all, encourage the promotion of low tar and nicotine levels, and Mr. Knight seeks to have smokers reimbursed for the cigarettes they have bought. The government's face may be red in this matter, but it is obliged to protect taxpayers from the consequences of a successful action.

Suit aside, however, Mr. Rock's argument made sense in 2001 and it makes sense now. The use of "mild" and "light" to market cigarettes, a known killer even when used as intended, is a bad idea. Current Health Minister Ujjal Dosanjh should pick up where Mr. Rock left off.

Indexing (document details) Section: Editorial Publication title: The Globe and Mail. Toronto, Ont.: Oct 25, 2004. pg. A.12 Source type: Newspaper ISSN: 03190714 ProQuest document ID: 1056142961 Text Word Count 449

Tobacco firms misled smokers, suit alleges:

:[Final Edition] Jonathan Fowlie. The Vancouver Sun. Vancouver, B.C.:Oct 26, 2004. p. B7

Man argues that Imperial Tobacco should face class action over 'light,' 'mild' labelling

Light and mild brands of cigarettes are deceptive to the public and a class action suit should be certified in B.C. to hold Canada's largest tobacco producer to account, David Klein, a consumer class action lawyer, argued in B.C. Supreme Court Monday.

Klein was arguing on behalf of his client, Kenneth Knight of Roberts Creek, who is attempting to initiate a class action suit against Imperial Tobacco Canada Ltd.

Knight's claim alleges that Imperial Tobacco misled smokers to believe that light and mild cigarettes are less harmful than regular brands, and calls for an order compelling the company to stop using the labelling.

It also asks for the company to either return "all sums [of money] class members paid to purchase light cigarettes" in the province, or for it to "disgorge all revenue or profits" it made on those products.

The claim cites research that suggests light cigarettes can be as harmful as regulars. "There's a phenomenon known as compensation, which people consciously and unconsciously do when they switch to a ... light or mild cigarette," Klein said outside the court Monday, explaining why the light and mild labels are deceptive, and reiterating what he argued in court.

"It involves taking longer draws, holding the smoke in your lungs for longer, smoking more cigarettes and blocking the vent holes -- consciously or unconsciously -- with your lips or fingers," he explained.

"The amount of tar and nicotine, and other smoke constituents, ends up being the same as if you smoked a regular cigarette."

In its statement of defence, Imperial Tobacco responds to the issue of compensation saying the phenomenon "varies from individual to individual," and "is rarely complete or permanent."

In his statement, Knight says he bought and daily smoked about one and a half packs of light cigarettes made by Imperial Tobacco for about 17 years. If the class action goes ahead, however, it will not seek to recover damages for personal injuries from anyone registered in the class.

For the case to go ahead as a class action suit, a B.C. Supreme Court judge needs to certify the claim.

Christina Dona, a spokeswoman for Imperial Tobacco in Montreal, said her company will argue during the hearing, which is scheduled to continue until Friday, that the class action should not be certified because the group being suggested is "too broad."

"There's no common ground," she said in an interview Monday.

In Knight's claim, he asks for the class to include all "persons who made purchases in British Columbia of 'light' and 'mild' cigarettes manufactured, sold and/or distributed by" Imperial Tobacco.

Dona also said her company has issued what's called a "third- party notice" to the government of Canada, effectively suing it in turn as a result of the claim.

In that notice, Imperial Tobacco says it began producing light and mild cigarettes decades ago to comply with a request from the federal government. It says the government made the request despite the fact that, as early as 1970, health department officials were warned the "light" cigarettes may offer no health benefit.

Paul Vickery, a lawyer for the government, said he will argue this week that Knight's action should not be certified, "primarily because it involves some overreaching in terms of the act's requirements."

Outside court, Vickery said the class is too broadly defined, covers too long a time period and too much has changed over the period in question.

He cautioned, however, that it would be wrong to suggest the government is aligning itself with big tobacco.

"Our interests may appear common to some degree at this point because we are both looking at the question of whether this proposed class action is appropriately brought as a class action, but it is only at this point of the action that that is the case," he said.

"We oppose the use of light and mild descriptors by tobacco companies, we've continually warned of the dangers of cigarette smoking in general and our position remains constant in that regard," he added.

"It's fundamentally a procedural objection to the nature of the class action that is being proposed."

Indexing (document details) People: Klein, David, Knight, Kenneth Companies: Imperial Tobacco Canada Ltd Author(s): Jonathan Fowlie Document types: Business Section: WestCoast News Publication title: The Vancouver Sun. Vancouver, B.C.: Oct 26, 2004. pg. B.7 Source type: Newspaper ISSN: 08321299 ProQuest document ID: 727597681 Text Word Count 698

.B.C. Supreme Court certifies class action suit against Imperial Tobacco

 Joyce, Greg. Canadian Press NewsWire.

VANCOUVER (CP) - The B.C. Supreme Court certified a class action suit against Imperial Tobacco on Tuesday over its marketing of cigarettes labelled "mild" or "light."

The decision was described as a legal breakthrough in Canada by an anti-smoking activist.

The plaintiff, Kenneth Knight, alleges the marketing of these cigarettes was deceptive because it suggested they are less harmful than regular ones.

Another court date sometime in the future will determine who can join Knight in the class action.

"This is the first class action suit ever in Canada to be certified (against a tobacco company)," said Cynthia Callard, the executive-director of Ottawa-based Physicians for Smoke-Free Canada.

Knight alleged in his statement of claim that light or mild cigarettes are not less harmful than regular cigarettes and they do not significantly reduce toxic emissions.

The class action seeks general and punitive damages and an injunction against marketing such cigarettes.

Imperial Tobacco, based in Montreal, said it will appeal the class action certification, arguing in part the federal government encouraged tobacco companies to develop and promote low-tar cigarettes.

Imperial spokeswoman Christina Dona called the lawsuit a copycat suit - an opportunistic attempt to cash in on American-style litigation that doesn't reflect the Canadian reality.

In her judgment, Justice Deborah Satanove said Knight's claim "is not the usual type of claim against cigarette manufacturers, nor is it the type of products liability claim this court is usually asked to certify as a class action."

"Although the claim arises from health concerns, it does not seek compensation for personal injury. It is a claim for pure economic loss."

She noted that the plaintiff was not seeking damages for each class member, but "rather an aggregate damage award that may be distributed in whole or in part to charitable institutions involved in researching and treating illnesses related to smoking."

The judge said the plaintiff alleges that Imperial Tobacco developed light or mild cigarettes as a result of studies that showed cigarette smoking was harmful to health.

"The basis of liability alleged by the plaintiff is that the defendant engaged in numerous deceptive acts or practices in the solicitation, offer, advertisement and promotion of cigarettes, contrary to provision of the Trade Practice Act."

In its statement, Imperial Tobacco said the decision is only a certification and not a judgment of liability.

The company also named the federal government as a third party in the suit, arguing that it instigated and authorized the development of lower-tar tobacco products.

The federal government encouraged Canadian tobacco manufacturers to develop, manufacture, sell and promote low-tar cigarettes in Canada, the tobacco company said.

The federal government also opposed the certification of the class action, said Callard.

"Health Canada does not want to be found liable," she said.

"The company said the federal government made us make them so the federal government should pay if there are any damages."

The defendant tobacco company, said the judge, opposed the certification because "the plaintiff has no cause of action without proof of causation and reliance with respect to each individual member of the class."

The company and the federal government both took the position opposing certification because the proposed class "is overly broad and unmanageable," said the judge.

But the judge disagreed, saying that their submissions failed to understand the nature of the plaintiff's claim, "which is to obtain the disgorgement of revenues and profits earned by the defendant through the alleged deceptive marketing of the product."

Callard also noted the uniqueness of the allegations and remedy sought.

"It's not about money (for health damage)," she said. "He (Knight) wants the company to pay and to stop doing this deceptive marketing."

Indexing (document details) Subjects: Crime, Social problems, Health, Litigation Classification Codes 9172 Companies: Imperial Tobacco Canada Ltd. Author(s): Joyce, Greg Document types: News Publication title: Canadian Press NewsWire. Toronto: Feb 8, 2005. Source type: Periodical ProQuest document ID: 791685151 Text Word Count 608

"They have not taken action on it. Their failure to take action on it appears to have lead to many, many hundreds of fatal fires."

The cigarette companies did not comment on the suit.

Indexing (document details) Subjects: Fire protection, Cigarettes, Production, Tobacco industry, Litigation Classification Codes 9172 People: Ragoonanan, Ravena Publication title: Canadian Press NewsWire. Toronto: Jan 11, 2000. Source type: Periodical ProQuest document ID: 385258751 Text Word Count 241

 



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