Case information

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Civil procedure - Third party claims - Striking of third party notices - Crown law - Crown liability - Crown immunity - Legislation - Interpretation - Torts - Duty of care - Negligence - Whether the claims alleging negligent misrepresentation in the third party notice should have been struck on the basis that it is plain and obvious that no duty of care arises between the appellant and the respondent or the appellant and smokers on the facts as pleaded.

Persons who had purchased light or mild brands of their cigarettes in British Columbia during a certain period brought a class proceeding against the respondent Imperial Tobacco seeking damages pursuant to consumer protection legislation under the Business Practices and Consumers Protection Act (“BPCPA”). They claimed the refund of monies paid by them for the purchase of light and mild cigarettes, as well as punitive and exemplary damages. They did not seek the return of that portion of the purchase price paid to the appellant Canada as taxes. Imperial Tobacco filed a third party notice against Canada, on the basis, inter alia, that officials at Health Canada had directed it to develop, market and promote products in furtherance of the government’s programme to develop and promote light and mild cigarettes and made representations and gave advice to it and to smokers about such things as the relative safety of light and mild products and the actual deliveries of smoke constituents. Canada also developed strains of tobacco suitable for incorporation into light and mild products, and collected license fees and royalties from the sale of that tobacco. Canada brought a motion to strike the third party notice as disclosing no reasonable cause of action.