Legal news and trends for Canadian in-house counsel and c-suite executives
Issue link: https://digital.canadianlawyermag.com/i/50160
F Five years ago John Kiser went looking for what he calls the right "field gen- eral" to put togeth- er and marshal a powerful Canadian litigation team as Imperial Tobacco looked ahead to its pending legal action in Canada. As legal consultant to the largest ciga- rette manufacturer in Canada, Kiser knew that if Impe- rial Tobacco was going to be pre- pared for the litigation work in Can- ada, it needed a cohesive team led by a strong co-ordinating leader from its outside counsel. A veteran of the tobacco industry, Kiser is responsible for advising on all major litigation for the company in both Canada and the United States. He was previously vice president and gen- eral counsel of Brown & Williamson Tobacco Corp. and was vice president of litigation for R.J. Reynolds Tobacco Co. He had managed complex multi- jurisdictional litigation in numerous countries throughout the world for more than two decades before com- ing to work for Imperial Tobacco in Montreal. Imperial Tobacco is facing class action suits from smokers who con- sumed their cigarettes. Two class action lawsuits have trial dates pending in Quebec this coming March. British Columbia wants tobacco companies to pay for the health-care costs associated with smoking-related illnesses, pass- ing legislation, the Health Care Costs Recovery Act, to allow it to try to hold tobacco companies accountable for those costs. Other provinces have since followed B.C.'s lead and all 10 provinces have similar legislation to the Health Care Costs Recovery Act. "I realized we were going to have span of control and communication issues because the litigation was going to grow, I knew that. I've been doing this for 20 years and so I knew I want- ed a more centralized approach," says Kiser, who grew up in Kentucky, speaks with an engaging southern drawl, and is himself a reformed smoker. He went looking for a lawyer he thought could both handle the trials if necessary, as well as manage the team of lawyers needed to prepare for the litigation. The most active cases at the moment are the two class actions in Quebec. The lawsuits allege damages on the part of millions of Quebeckers as a result of addiction to tobacco products and smoking-related illnesses. The B.C. government argues that by 1950, the tobacco companies knew or ought to have known that cigarettes were hazardous to health and that they failed to warn the public about the health risks of their products. Imperial Tobacco and others in the industry (including Rothmans Benson & Hedges Inc., Philip Morris Interna- tional Inc., and others) argued that the federal government should be a third party to the suits on several grounds. However, the Supreme Court of Can- ada ruled in July 2011 that the fed- eral government couldn't be drawn into lawsuits against tobacco companies and held liable for damages. That left the tobacco companies on their own in what is very new legal territory in Can- ada. "Canada is a very different animal when it comes to litigation when you compare it to the states or anywhere else," says Tamara Gitto, associate gen- eral counsel of litigation with Imperial Tobacco who has been with the com- pany 11 years. "You have the provincial jurisdictions and in Quebec you have the civil code and the civil law you have to take into account." 20 • DECEMBER 2011/JANUARY 2012 INHOUSE While Quebec has had a long his- tory with class actions, the western provinces have not, so some of the cases in those jurisdictions will end up being the test cases. "We are dealing with sev- eral different companies across several jurisdictions so you need to make sure you are on top of the law and under- stand each company's position and to the extent possible move forward in a co-ordinated and co-operative fashion," says Gitto. The development of the legal team and especially Kiser's relationship with Imperial's outside counsel point per- son was of utmost importance to him, especially since litigation of this nature is a multi-layered and complex endeav- our that involves the in-house counsel managing the expectations of the com- pany. Kiser and Gitto knew they needed a strong outside counsel partner who could work with them to develop and execute the strategy for the organiza- tion. The person they chose would have to work on an international co-ordinating committee of lawyers representing all members of the tobacco industry and make themselves available almost 24-7. Kiser and Gitto made their deci- sion fairly quickly after seeing Debo- rah Glendinning of Osler Hoskin & Harcourt LLP in action. Glendinning is the chairwoman of Osler's national litigation department. She acts as lead counsel on numerous multi-jurisdic- tional and cross-border corporate- commercial litigation matters. She is also the national co-ordinating coun- sel to Imperial Tobacco Canada. The effort requires extensive co-ordination across and between Canadian prov- inces and the U.S., which both Kiser and Glendinning know is critical to effectively executing a global litigation strategy. "The first time I saw Debo- rah in action we were involved in a regulatory matter with the Competition Bureau," recalls Kiser. "It was the first