[Intl-tobacco] Canada: Top court makes firms liable for cover-ups (fwd)

[Robert Weissman]

Top court makes firms liable for cover-ups
by KIRK MAKIN / JUSTICE REPORTER
Source: Globe and Mail, Friday, 3/23/01

The Supreme Court of Canada paved the way yesterday for a cancer victim's
estate to claim damages from two tobacco companies that allegedly
destroyed records proving they knew long ago about the dangers of smoking.

The implications of the ruling are broad in that it supports the principle
that the willful destruction of evidence, in itself, can be considered
grounds for compensation.

"It is going to have a very significant impact on people who engage in the
destruction of evidence as part of a coverup," said Andreas Seibert, a
lawyer representing the estate of Mirjana Spasic.

"What is so important about this case is that it affects not just tobacco
companies," he said. "It sends a message out that if you destroy evidence
as a means of covering up your own wrongdoing, you face damages."

Mr. Seibert said the 53-year-old woman's husband, Ljubisa, will now pursue
his product-liability action against the cigarette makers, as his dying
wife had wished.

The lawsuit claims the companies conspired over several decades to get rid
of medical and laboratory reports showing that smoking could have
disastrous effects.

    "The woman's case is very compelling," Mr. Seibert said. "She wanted
to act to set an example for teenagers."

Yesterday's ruling came about when the Supreme Court refused a request
from the companies -- Imperial Tobacco Ltd. and Rothmans, Benson & Hedges
Inc. -- to hear an appeal of an earlier ruling made by the Ontario Court
of Appeal.

The Ontario court had decided last July that bad-faith destruction of
evidence ought, in itself, to be considered grounds for compensating a
party who claims to have been wronged.

"This ruling would apply where you have injured somebody in some way, you
know that you are at fault, and you engage in destroying evidence," said
Mr.  Seibert, a lawyer with the Toronto firm of Sommers & Roth. "This
issue has been fought for three years -- that will give you an idea how
important it is."

He said typical instances could include a doctor destroying medical
records showing he botched a case, or a person who destroys records
revealing that he dumped toxic waste in a place where it ultimately caused
harm to others.

Ms. Spasic, a resident of Hamilton, died at the age of 53 in 1998. The
lawsuit alleges that the tobacco companies negligently manufactured
defective and hazardous products and conspired to deceive the public about
their dangers.

The issue originally arose at trial when lawyers for the Spasics tried to
introduce a novel cause of action -- in legalese, a tort -- known as
spoliation of evidence.

Mr. Seibert argued before the trial judge that the ends of justice are
thwarted when a defendant purposely destroys evidence, effectively
depriving a plaintiff of any chance to prove his or her allegations.

"If you are a wrongdoer and you destroy the evidence before I can launch
my action, there is very good likelihood that I'll never be able to pursue
you in court," Mr. Seibert explained yesterday.

He said that while the trial judge ruled that the law does not recognize
spoliation as a valid cause of action, the Ontario Court of Appeal
directed him to consider it as a cause of action unto itself.

By refusing the tobacco companies' request for leave to appeal yesterday,
the Supreme Court gave the ruling its stamp of approval.

"The defendant's strategy was to prevent the trial judge ever deciding
whether Canadian law ought to even consider a new tort," Mr. Seibert said.

"The Ontario Court of Appeal said, let it go to trial. If the judge feels
that the effect of the alleged destruction is such that the plaintiff
would lose access to the justice to which he is entitled, let him find a
remedy -- including crafting a tort of spoliation."