A class-action suit targeting a big tobacco company for making cigarettes that can easily ignite mattresses and upholstery has passed a major legal obstacle.
Mr. Justice Maurice Cullity of the Ontario Superior Court of Justice refused yesterday to throw out the lawsuit against Imperial Tobacco Canada Ltd., saying a judge or jury ought to be able to hear the evidence of expert witnesses and draw their own conclusions.
The families of three young people who burned to death launched the lawsuit, which seeks to represent all Canadians who were injured or killed in smoking-related fires since 1987.
The plaintiffs allege that Imperial knew or should have known that it could manufacture "fire-safe" cigarettes, yet failed to do so.
"After four years of litigating this important motion, this proposed class action is now well positioned to provide access to justice for Canadians who have needlessly suffered damages, burns and death from cigarette-related fires," Joel Rochon, a lawyer for the plaintiffs, said in an interview.
Three-year-old Jasmine Ragoonanan, Ranuka Baboolal, 15, and Philip Ragoonanan, 16, burned to death in a fire at the Ragoonanans' home in Brampton, Ont., on Jan. 18, 1998, when Philip allegedly fell asleep on a couch while smoking.
In its attempt to end the case, Imperial claimed that no link could be established between its conduct and the fire at the Ragoonanan home.
The company pointed to inconclusive results by the Ontario Fire Marshall's office and raised the possibility that the blaze was electrical. It also argued that the fire might have occurred regardless of whether Imperial manufactured fire-safe cigarettes.
Judge Cullity noted that a former senior Imperial employee is prepared to state that the company did research into the possibility of manufacturing fire-safe cigarettes "before a decision was made to terminate it and suppress any results that had been obtained. "
Fire-safe cigarettes feature special paper and an arrangement of concentric rings that retard burning. The plaintiffs allege that tobacco companies don't like them because untended cigarettes that go out can be relit later.
"We would hope that the defendant -- who previously lost another motion to strike out this case -- will now cease its obstructionist tactics and let the court get on with hearing the case on its merits," said Andrew Roman, another lawyer for the plaintiffs.
The motion consumed a week of testimony last fall. It included expert evidence involving the cause and location of the fire, Mr. Ragoonanan's smoking habits, and the flammability of the couch on which he was sitting.
Judge Cullity said the act of deciding whether there are issues that should be tried took him uncomfortably close to usurping the role of trial judge or jury. "Where the evidence is reasonably capable of supporting competing inferences, the process of weighing evidence and making findings of fact should be done at trial, and not on a paper record."