Superior Court Dismisses Certification Motion

Justice Warren Winkler of the Superior Court of Justice dismissed, on February 5, 2004, the motion for certification in Caputo et al. v. Imperial Tobacco Limited et al. The plaintiffs claimed that the facts pleaded gave rise to nine causes of action: negligence; strict liability; products liability; breach of a duty to inform; deceit; negligent misrepresentation; unfair business practices; breach of implied warranty; and conspiracy, and sought damages for personal injuries allegedly caused by the use of the cigarette products of the defendants Imperial Tobacco Ltd., Rothmans, Benson & Hedges Inc. and JTI-Macdonald Corp.

The intended class proceeding was defined to include all residents of Ontario, whether living or deceased, who had smoked cigarette products manufactured, marketed or sold by the defendants. The proposed class was also defined to include all persons having claims under the Ontario Family Law Act, potentially resulting in a class size exceeding 15 million persons.

Justice Winkler determined that rather than positing an identifiable class, the plaintiffs had “melded a number of potential classes into a single proceeding…” The judge declared the proceeding unmanageable.

The judge rejected the plaintiffs’ proposed common issues, and declined to exercise his discretion to state common issues in the absence of a properly defined class. Further, certification was denied on the basis that the plaintiffs had failed to establish that a class proceeding would be the preferable procedure for the resolution of the potential class members claims. Given the magnitude of the potential class, concerns were expressed by the court as to whether the proceeding would be fair to either the proposed class members or the defendants.
Imperial Tobacco was represented by Osler, Hoskin & Hacourt LLP, with a team that included Lyndon Barnes, Deborah Glendinning, Nancy Roberts and Neil Paris. JTI-MacDonald was represented by Earl Cherniak, Q.C., and Susan Wortzman of Lerners in Toronto. Rothmans was represented by Steven Sofer and Marshall Reinhart of Gowling Lafleur Henderson LLP.

The plaintiffs were represented by Richard Sommers, Q.C., and Andreas Seibert of Sommers & Roth in Toronto; and by Robert Hart, Q.C., Kirk Baert and Robyn Matlin of Koskie Minsky LLP in Toronto.