RSS FeedN.B. Sues Big Tobacco
The Attorney General of New Brunswick, T.J. Burke, announced last week a suit will be launched by the province against 14 tobacco companies.
The claim? People are dying prematurely in the province due to smoking, which costs the province health dollars. Grounds have been presented of alleged misrepresentation of the hazards of tobacco smoke.
Health Minister Mike Murphy said,
The suit is on behalf of people whose health has been harmed by tobacco products, families who have lost loved ones to tobacco-related illness, and taxpayers who have borne the added costs to the health-care system
Legislative Basis
New Brunswick follows a previous suit in 2001 by B.C. on similar ground, which has yet to be resolved. Rothmans, Inc. states that the suit was not unexpected,
The legal action has been brought pursuant to the Tobacco Damages and Health Care Costs Recovery Act (New Brunswick) which was recently proclaimed in force.
The new Act states,
2(1) Her Majesty in right of the Province has a direct and distinct action against a manufacturer to recover the cost of health care benefits caused or contributed to by a tobacco-related wrong…
2(4) In an action under subsection (1), Her Majesty in right of the Province may recover the cost of health care benefits
(a) for particular individual insured persons, or
(b) on an aggregate basis, for a population of insured persons as a result of exposure to a type of tobacco product.
The two-year limitation period stipulated in s. 6 would have expired this June, making the suit more than likely within the next few months.
A Money Grab, or Good Social Policy?
Tobacco manufacturers are disputing the claims. Imperial Tobacco states that the government earns 18 times more in tobacco taxes than the entire industry combined, and that this is motivated by nothing more than greed.
Imperial Tobacco President and CEO, Benjamin Kemball, said,
It is hypocritical that governments, like New Brunswick, turn around and sue a legal industry that they oversee and license while allowing an illegal tobacco industry to flourish…This lawsuit is a waste of taxpayers’ money and will never result in the monetary windfall the New Brunswick government hopes for.
But the province is specifically seeking damages to subsidize health care costs, which are skyrocketing across the country, in no small part due to the rise of tobacco-related illnesses. The epidemiological information cited in s. 5 of the Act could prove a substantial causal link.
Should manufacturers be held liable in this manner?
In the end, the lawyers always win.
Kemball predicts that the suit will be unsuccessful, and take many years to resolve.
But he does concede that someone will benefit from the entire ordeal – the lawyers.
A Sweet Class-Action v. Chocolate
Eaten chocolate since February, 2004?
Chances are you have. And that might make you eligible for this class-action lawsuit against chocolate manufacturers.
Juroviesky and Ricci filed an action in the Ontario Superior Court of Justice for violations of the Competition Act and provincial consumer protection acts against major chocolate producers.
The suit claims that the Defendants conspired to inflate the price of
their products by 5% or more at least three times during the Class Period, in
violation of a variety of statutes including the Competition Act, and the
various provincial Consumer Protection Acts. Chocolate sales in Canada in 2007 were approximately $1.4 Billion.
When Contracts Go Postal
No Obligation without Acceptance
In general, a contract is not formed until there is communication of acceptance.
Carmichael v. Bank of Montreal (1972), established that the offerer must be available to receive the acceptance for the contract to be valid.
There are no contract and no obligation until the acceptance is received from the offeree.
However, there is an exception to this general principle, often called the Mailbox Rule.
The Mailbox Rule
The mailbox rule states that acceptance is provided as soon as it is posted. This means a contract is concluded before the offerer even knows that an offer has been accepted, in the interests of protecting the offeree.
Offerors can prevent this situation by stipulating a means of accceptance other than via mail in the offer. Based on Eliason v. Henshaw (1819), 4 Wheaton 225, 4 U.S. (L. Ed.) 556, the offeror has the right to dictate the terms of acceptance.
In cases where such stipulations are present, such as Holwell Securities v. Hughes, [1974] 1 W.L.R. 155, [1974] 1 All E.R. 161 (C.A.)., the mailbox rule may not be upheld.
An interesting twist to the mailbox rule is that it is still valid even if the offeror does not recieve the acceptance. In Household Fire & Carriage Accident Insurance v. Grant (1879), 4 Ex. D. 216 (C.A.)., the offeror did not even receive the notice, but was still held to the contract. Thesiger L. J. explained how the use of a caluse stipulating receipt of acceptance can further protect the offeror,
There is no doubt that the impliacitn of a complete, final, and absolutely binding contract being formed, as soon as the acceptance of an offer is posted, may in some cases lead to inconvenience and hardship…
It is impossible… to adjust conflicting rights between innocent parties.
…An offeror, if he chooses, may always make the formation of the contract which he proposes dependent upon the actual communication to himself of the acceptance.
New Technologies in the Modern World
In general, the mailbox rule is still upheld with the use of instantaneous forms of communication. But changes in correspondences have also modified the rule as well.
Brinkibon Ltd. v. Stahag Stahl Und Stahlwarenhandelsgesellschaft mbH, [1983], demonstrated in an international contracts case using telex that the location (and jurisdiction) of acceptance is the place where the acceptance is received by the offeror.
The Electronic Commerce Act further established that electronic contracts are still valid, with components of the contract (including acceptance) able to be demonstrated electronically.
Part 2 states,
Formation and operation of contracts
20. (1) Unless the parties agree otherwise, an offer or the acceptance of an offer, or any other matter that is material to the formation or operation of a contract, may be expressed
(a) by means of an electronic document; or
(b) by an action in electronic form, including touching or clicking on an appropriately designated icon or place on a computer screen or otherwise communicating electronically in a manner that is intended to express the offer, acceptance or other matter.
(2) A contract shall not be denied legal effect or enforceability solely by reason that an electronic document was used in its formation.
But as opposed to the typical mailbox rule, where acceptance is determined at the time of postage, electronic acceptance through formats such as e-mail are presumed to be received once it enters the offeror’s information system and is capable of being retrieved.
On-line Contracts
Law school students can be particularly litigous in ambiguous areas of the law.
In Rudder v. Microsoft Corp. (1999), two recent graduates brought a class action against Microsoft for charging credit cards of MSN users.
The users had apparently agreed to such charges by clicking on an “I Agree” button.
The court found that electronic contracts are still binding, even if they have not been read in their entirety, as long as they have been acknowledged and accepted.
Class Action over Agent Orange to Proceed
Canadian soldiers have launched a class-action lawsuit for exposure to Agent Orange between 1956 and 2004.
Agent 00range
No, it’s not a James Bond character or the antagonist in a bad spy novel.
Agent Orange was a defoliant used extensively in the Vietnam War that contained chemicals called hexachlorolbenzene (HCB) and dioxins. Underbrush was destroyed to avoid enemy combatants from hiding in it, but American servicemen were frequently exposed to it as well.
Medical research subsequently concluded that Agent Orange could cause a wide range of health-related conditions, including:
- Chronic lymphocytic leukemia (CLL)
- Soft-tissue sarcoma
- Non-Hodgkin’s lymphoma
- Hodgkin’s disease
- Chloracne
Previous American Suit
American veterans established their own class-action suit. In 1984, a $180 million compensation fund was established for class members.
But veterans in the U.S. still experience challenges in obtaining medical coverage for their conditions.
New Canadian Suit
The new suit in Canada was launched July 14, 2007 by Merchant Law Group on behalf of 440,000 soldiers, staff and their families around CFB Gagetown in New Brunswick.
The case was certified by the Supreme Court of Newfoundland and Labrador yesterday.
