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N.B. scores early legal victory against Big Tobacco

The New Brunswick government has won a preliminary battle in its lawsuit against several big tobacco companies, which were fighting to block a team of outside lawyers from working on the court case.

The province is seeking millions of dollars in damages for health-care costs resulting from people smoking, and is suing companies including Rothmans, Benson & Hedges, Philip Morris, R.J. Reynolds and Imperial Tobacco.

New Brunswick Court of Queen's Bench Judge Thomas Cyr rejected a preliminary motion filed by 15 tobacco companies named in the lawsuit that sought to remove the team of lawyers representing the province.

The province's legal team consists of private practitioners Philippe J. Eddie and Chris Correia from New Brunswick, as well as the firms Siskinds LLP, Fasken Martineau DuMoulin and Bennett Jones from Ontario, Richardson, Patrick, Westbrook & Brickman of South Carolina and Martin & Jones of North Carolina.

The lawyers are seeking unspecified millions in damages. If they're successful, the legal team will divide up to 25 per cent of any financial award or settlement.

That contingency-fee arrangement was the problem, according to the tobacco companies. The tobacco industry lawyers argued there was a conflict of interest between the government lawyers' potential private financial gain and their duty to act impartially in the public interest when the province hired them.

But Cyr ruled that a civil lawsuit is not the same as a criminal prosecution, which requires Crown attorneys on the public payroll to be impartial.

"The assertion advanced by the defendants that all government lawyers have a duty distinct from any owed by non-government lawyers to act 'impartially' is, in my view, incorrect," Cyr's decision stated.

"The public interest duties applicable to government lawyers in civil litigation matters are distinct from those applicable to Crown prosecutors in that government lawyers acting in civil litigation matters are not subject to a duty of impartiality."

The tobacco companies also said the agreement to give the legal team a cut of any financial windfall was against the law and the Constitution.

Cyr rejected those arguments, too, but he wrote that there appeared to be no precedents for this kind of situation anywhere in Canada, which could make the case ripe for appeal.

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