Update on Fire-Safe Cigarettes Litigation

BurningLeave Granted to Continue Proceeding as Individual Action on Behalf of Plaintiffs and their Families

On January 11, 2000, a proposed class action was commenced against Imperial Tobacco Canada Limited ("Imperial Tobacco"), Rothmans, Benson & Hedges Inc. ("RBH") and JTI-MacDonald Inc. ("JTI-M"). (The claim against RBH and JTI-M was subsequently dismissed on December 5, 2000.)

The loss giving rise to the action was a house fire which claimed three young lives. The cause of the fire is alleged to have been an unextinguished cigarette. The claim alleges a cigarette manufactured by Imperial Tobacco, that one of the residents had been smoking, came into contact with the couch and that the unextinguished cigarette smouldered for some time before the couch burst into flames whereupon the fire spread quickly.

The action was brought by the plaintiffs on their own behalf and on behalf of all persons in Canada who suffered injury, or a loss, as a result of a fire that occurred after October 1, 1987 where the fire was caused by a cigarette manufactured by the defendants igniting upholstered furniture or a mattress. The estates of deceased persons and persons with derivative claims were also included in the proposed class.

The essence of the plaintiffs' case was that by October 1, 1987, Imperial Tobacco had a duty to design and manufacture cigarettes that had a lower ignition propensity for igniting upholstered furniture and mattress fires (commonly referred to as "fire safe" cigarettes), and then to phase out its conventional cigarettes, replacing them with fire safe cigarettes. In failing to do so, using reasonable and available methods, the claim alleged that Imperial Tobacco breached this duty and is therefore liable for the reasonably foreseeable harm caused by its defective products.

Certification of this proposed class action was denied by order dated October 31, 2005. The plaintiffs thereafter appealed the denial of certification to the Divisional Court. The appeal was unsuccessful and the plaintiffs sought leave to appeal to Court of Appeal for Ontario. The motion for leave to appeal was dismissed on August 26, 2009.

Following the expiry of the plaintiffs' appeal rights in relation to the certification motion, the plaintiffs brought a motion granting leave pursuant to section 7 of the Class Proceedings Act, 1992 to allow the proceeding to continue in an altered form. By Order dated October 18, 2011, Justice Horkins allowed the plaintiffs' motion and leave was granted allowing the action to continue as a traditional proceeding on behalf of the named plaintiffs and their family members. Click here for a copy of the Order dated October 18, 2011. Click here for a copy of the decision of Justice Horkins dated October 18, 2011.

If you have any questions with respect to the fire-safe cigarette litigation do not hesitate to contact Joel Rochon at jrochon@rochongenova.com or Suzanne Chiodo at schiodo@rochongenova.com of Rochon Genova LLP.