New Brunswick v. Rothmans Inc. et al.

• Jurisdiction: New Brunswick
• Judge: Cyr, J.
• Citation: (2009), 342 N.B.R.(2d) 171 (TD),2009 NBQB 60
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Date: 10 March 2009

N.B. v. Rothmans Inc. (2009), 342 N.B.R.(2d) 171 (TD);

    342 R.N.-B.(2e) 171; 878 A.P.R. 171

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Temp. Cite: [2009] N.B.R.(2d) TBEd. MR.040

Renvoi temp.: [2009] N.B.R.(2d) TBEd. MR.040

Her Majesty the Queen in Right of the Province of New Brunswick (plaintiff) v. Rothmans Inc., Rothmans, Benson & Hedges Inc., Carreras Rothmans Limited, Altria Group Inc., Philip Morris U.S.A. Inc., Philip Morris International, Inc., JTI-MacDonald Corp., R.J. Reynolds Tobacco Company, R.J. Reynolds Tobacco International Inc., Imperial Tobacco Canada Limited, British American Tobacco P.L.C., B.A.T. Industries P.L.C., British American Tobacco (Investments) Limited, and Canadian Tobacco Manufacturers' Council (defendants)

(F/C/88/08; 2009 NBQB 60; 2009 NBBR 60)

Indexed As: New Brunswick v. Rothmans Inc. et al.

Répertorié: New Brunswick v. Rothmans Inc. et al.

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Fredericton

Cyr, J.

March 20, 2009.

Summary:

Résumé:

New Brunswick commenced an action under the Tobacco Damages and Health Care Costs Recovery Act for the recovery of tobacco-related health care costs against a number of tobacco product manufacturers. New Brunswick filed a motion for case management, requesting a procedural timetable up to the setting down for trial of the action and an order providing for the electronic discovery of documents. The defendants who had attorned to the court's jurisdiction did not oppose case management. However, one defendant filed a motion (the conflict of interest motion) challenging the constitutionality, legality and ethical integrity of an alleged contingency fee agreement entered into by New Brunswick with a consortium of lawyers hired to conduct the action. The defendants asserted that this raised a critical threshold question that had to be determined before any other aspect of the litigation.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision reported at 340 N.B.R.(2d) 313; 871 A.P.R. 313, adjourned New Brunswick's motion pending the court's decision on the conflict of interest motion. In support of the conflict of interest motion, the defendants filed the affidavits of Professor H. Patrick Glenn, attaching his expert report (the Glenn Report) and Professor C. Hazard Jr., attaching his expert report (the Hazard Report). New Brunswick filed a motion asking the court to strike the affidavits or declare the reports inadmissible.

The New Brunswick Court of Queen's Bench, Trial Division, denied the motion regarding the Glenn Report and granted the motion regarding the Hazard Report.

Evidence - Topic 7002

Opinion evidence - Expert evidence - General - Acceptance, rejection and weight to be given to expert opinion - New Brunswick commenced an action under the Tobacco Damages and Health Care Costs Recovery Act for the recovery of tobacco-related health care costs against a number of tobacco product manufacturers - The defendants filed a motion (the conflict of interest motion) challenging the constitutionality, legality and ethical integrity of an alleged contingency fee agreement entered into by New Brunswick with a consortium of lawyers hired to conduct the action - In support of the conflict of interest motion, the defendants filed the affidavit of Professor H. Patrick Glenn, attaching his expert report which addressed the ethical and professional standards that applied to government lawyers in Canada and the public policy issues that were raised when an Attorney General retained outside counsel under a contingency fee agreement - Asserting that the report was inadmissible, New Brunswick moved to strike the affidavit - The New Brunswick Court of Queen's Bench, Trial Division, denied the motion - The report met the requirements of relevance and necessity - Its admission was not precluded by any exclusionary rule - First, ethical and professional standards for lawyers were not rules of law and the application of such standards in particular circumstances was an issue of fact to be resolved by the trier of fact - To the extent that the report addressed the ethical, professional and public policy issues, these were issues of fact for which it was proper to receive expert evidence - Second, references to domestic and foreign cases and legal authorities for the sole purpose of elucidating expert evidence as it related to factual issues relevant to the conflict of interest motion did not render the report inadmissible - However, any other use of the domestic authorities was unnecessary and any other use of the foreign authorities was irrelevant - Third, to the extent that the report related directly to the ultimate issue of the conflict of interest, it was not inadmissible on that basis - All transgressions of the ultimate issue rule, if there were any, could be ignored by the trier of fact because the judge alone made the final decision on all issues here - See paragraphs 25 to 66.

Evidence - Topic 7002

Opinion evidence - Expert evidence - General - Acceptance, rejection and weight to be given to expert opinion - New Brunswick commenced an action under the Tobacco Damages and Health Care Costs Recovery Act for the recovery of tobacco-related health care costs against a number of tobacco product manufacturers - The defendants filed a motion (the conflict of interest motion) challenging the constitutionality, legality and ethical integrity of an alleged contingency fee agreement entered into by New Brunswick with a consortium of lawyers hired to conduct the action - In support of the conflict of interest motion, the defendants filed the affidavit of Professor C. Hazard Jr., attaching his expert report which addressed, from a United States perspective, the ethical and professional standards that applied to government lawyers and the public policy issues that were raised when an Attorney General retained outside counsel under a contingency fee agreement - Asserting that the report contained opinion evidence on a question of foreign law and was, therefore, irrelevant, New Brunswick moved to strike the affidavit - The New Brunswick Court of Queen's Bench, Trial Division, granted the motion - The report did not meet the requirements of relevance and necessity - No issue of foreign law had been raised - Expert evidence regarding the ethical, professional and public policy issues from a U.S. perspective was neither relevant nor necessary for the court to arrive at the factual determination of the appropriate standards applicable in Canada - Nor was the information relevant and/or necessary for the court to arrive at a legal conclusion regarding whether a disqualifying conflict of interest existed - Nothing prevented the defendants from referring to jurisprudence from other jurisdictions by making legal submissions, but this was a matter of argument, not evidence - See paragraphs 67 to 86.

Evidence - Topic 7075

Opinion evidence - Reports by experts - Admission of (incl. objection to) - [See both Evidence - Topic 7002 ].

Evidence - Topic 7153

Opinion evidence - Prohibited opinions - Re legal conclusions - [See first Evidence - Topic 7002 ].

Evidence - Topic 7154

Opinion evidence - Prohibited opinions - Re basic or ultimate issue to be decided - [See first Evidence - Topic 7002 ].

Practice - Topic 3665

Evidence - Affidavits - Striking out - Argument - [See second Evidence - Topic 7002 ].

Practice - Topic 3666

Evidence - Affidavits - Striking out - Irrelevant or improper matters - [See second Evidence - Topic 7002 ].

Preuve - Cote 7002

Témoignages d'opinion - Preuve d'expert - Généralités - Acceptation ou rejet d'une opinion d'expert ou poids à lui donner - [Voir Evidence - Topic 7002 ].

Preuve - Cote 7075

Témoignage d'opinion - Rapports d'expert - Admission en preuve (y compris objection) - [Voir Evidence - Topic 7075 ].

Preuve - Cote 7153

Témoignage d'opinion - Opinions interdites - En matière de conclusions de droit - [Voir Evidence - Topic 7153 ].

Preuve - Cote 7154

Témoignage d'opinion - Opinions interdites - En matière de l'ultime question à trancher - [Voir Evidence - Topic 7154 ].

Procédure - Cote 3665

Preuve - Affidavits - Annulation - Argumentation - [Voir Practice - Topic 3665 ].

Procédure - Cote 3666

Preuve - Affidavits - Annulation - Aspects non pertinents ou inappropriés - [Voir Practice - Topic 3666 ].

Cases Noticed:

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241, appld. [para. 1].

R. v. D.D., [2000] 2 S.C.R. 275; 259 N.R. 156; 136 O.A.C. 201, refd to. [para. 21].

CCH Canadian Ltd. et al. v. Law Society of Upper Canada, [2000] 2 F.C. 451; 169 F.T.R. 1 (F.C.), refd to. [para. 27].

Canadian Pacific Ltd., Re, [1990] O.J. No. 606 (H.C.), refd to. [para. 27].

Maple Leaf Foods Inc. v. Schneider Corp. - see Pente Investment Management Ltd. et al. v. Schneider Corp. et al.

Pente Investment Management Ltd. et al. v. Schneider Corp. et al. (1998), 62 O.T.C. 1 (Gen. Div.), affd. (1998), 113 O.A.C. 253 (C.A.), refd to. [para. 27].

Canada Post Corp. v. Smith, [1994] O.J. No. 2232 (Div. Ct.), refd to. [para. 27].

Zink v. Adrian (2005), 208 B.C.A.C. 191; 344 W.A.C. 191; 37 B.C.L.R.(4th) 389; 2005 BCCA 93, refd to. [para. 29].

Payne v. Pearson, [2005] A.R. Uned. 755 (Prov. Ct.), refd to. [para. 29].

Precision Remodeling Ltd. et al. v. Soskin, Soskin & Potasky LLP et al., [2008] O.J. No. 2560 (Sup. Ct.), refd to. [para. 30].

Noble v. Lourensse, [2001] N.B.R.(2d) (Supp.) No. 108 (Q.B.), affd. (2002), 253 N.B.R.(2d) 293; 660 A.P.R. 293 (C.A.), refd to. [para. 30].

Stewart v. Canadian Broadcasting Corp. et al. (1997), 32 O.T.C. 321; 150 D.L.R.(4th) 24 (Gen. Div.), refd to. [para. 30].

Transamerica Life Insurance Co. of Canada v. Seward (1997), 36 O.T.C. 92; 33 O.R.(3d) 604 (Gen. Div.), refd to. [para. 30].

Teskey v. Canadian Newspapers Co. (1989), 33 O.A.C. 383; 68 O.R.(2d) 737 (C.A.), folld. [para. 31].

MacMillan Bloedel Ltd. v. Freeman & Co. (1992), 78 B.C.L.R.(2d) 325 (S.C.), refd to. [para. 32].

MacDonald Estate v. Martin and Rossmere Holdings (1970) Ltd., [1990] 3 S.C.R. 1235; 121 N.R. 1; 70 Man.R.(2d) 241, refd to. [para. 33].

Carlingwood Motors Ltd. v. Nissan Canada Inc. et al., [2000] O.T.C. Uned. E64 (Sup. Ct. Master), not folld. [para. 38].

R. v. D.R., H.R. and D.W., [1996] 2 S.C.R. 291; 197 N.R. 321; 144 Sask.R. 81; 124 W.A.C. 81, refd to. [para. 39].

R. v. Burns (R.H.), [1994] 1 S.C.R. 656; 165 N.R. 374; 42 B.C.A.C. 161; 67 W.A.C. 161, refd to. [para. 39].

New Brunswick (Minister of Health and Community Services) v. B.H. and W.L. (1994), 153 N.B.R.(2d) 45; 392 A.P.R. 45 (C.A.), refd to. [para. 57].

United States of America v. Kinsella (2007), 322 N.B.R.(2d) 131; 829 A.P.R. 131(C.A.), dist. [para. 77].

Berthelot v. Rioux et al. (1996), 177 N.B.R.(2d) 144; 449 A.P.R. 144 (T.D.), dist. [para. 77].

Authors and Works Noticed:

Sopinka, John, Lederman, Sidney N., and Bryant, Alan W., The Law of Evidence in Canada (2nd Ed. 1999), p. 640, footnote 225 [para. 37].

Counsel:

Avocats:

Philippe J. Eddie, Q.C., Christopher Correia, Q.C., and Robin Ryan-Bell, for the plaintiff;

Charles D. Whelly, Q.C., for the defendants, Rothmans Inc., Rothmans Benson & Hedges Inc.;

Rodney J. Gillis, Q.C., for the defendants, Altria Group Inc. and Philip Morris U.S.A. Inc.;

Robert G. Basque, Q.C., for the defendant, Philip Morris International Inc.;

Thomas G. O'Neil, Q.C., Deborah A. Glendinning and Mahmud Jamal, for the defendant, Imperial Tobacco Canada Limited.

This motion was heard on March 10, 2009, by Cyr, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Fredericton, who delivered the following decision on March 20, 2009.