- Refusal to share information: It was alleged that the Board was privy to information that it did not share with the producers that was critical to the survival of the industry.
- Negotiating an exit strategy: It was alleged that the Board shifted its emphasis from its duties as a regulator and marketer of tobacco to one that it is not authorized by statute to do: that is, to negotiate with the federal and provincial governments for a compensation package for tobacco producers that would result in tobacco production ceasing permanently in Ontario. This involved seeking compensation for the lost value of tobacco quota, lost income, lost property values and transitional assistance.
- Failure to properly negotiate annual crop sizes and to seek other markets: It was alleged that the Board called for an end to tobacco production in Ontario in 2006, and initially refused to negotiate the size of the 2006 crop. This had a negative effect on the actual crop size that was ultimately arrived at. In so doing, the Board acted negligently.
- Passing a regulation that prevented renting or share-growing quota: It was alleged that, in 2006, the Board wrongfully and without statutory authority passed a regulation which prevented the plaintiff from renting or share-growing its production quota if it sold the tobacco kilns located on its farm.
Justice Heeney found that the Statement of Claim issued against the Marketing Board did disclose a cause of action for negligent misrepresentation and ruled that this part of the claim could proceed toward trial. One important difference between the surviving claim and those that were dismissed was that the kiln conversion decision by the Board was an operational decision as opposed to a policy decision. Government bodies cannot generally be held liable for bad policy, but they can be held liable for negligently putting the policy into action.
Read the decision at: Marlor Farms Inc. v. The Ontario Flue-Cured Tobacco Growers' Marketing Board.
It's hard for me to read a case like this after growing up in tobacco country and paying my way through undergrad in the early 1990s by priming tobacco on a small family farm.
ReplyDeleteThe first paragraph of the court's decision contains a one-sentence summary of a story that affected many thousands of lives, a whole region and and entire way of life. It would take many, many pages to write the story summarized in that short sentence:
"[The plaintiffs'] experience reflects a broad and drastic decline in the tobacco industry in Ontario, which saw its total crop fall from 143.3 million pounds in 1999 to only 23.15 million pounds in 2008."
Thanks for reporting on this case. Keep up the good work.
One irony is that tobacco greenhouses were required to be retrofitted just as tobacco was being increasingly taxed (to the point that the OPP is now waiting outside of local native lands to nab those who purchase illegal smokes there) and as increasingly large amounts of tobacco were being imported from countries with absolutely no such government legislation--and therefore no such financial hurdle to their farmers--in place.
ReplyDeleteClearly, and especially in 2001, there was an undertaking of the double standard of imposing crippling costs on Canadian producers to make their tobacco less harmful while allowing unregulated and therefore doubly cheaper imports to undercut the physical health of those of its citizens who smoked and the financial health of those of its farmers who grew tobacco.
Also, given the toxicity of cigarettes, one could probably make a very strong case that the mandatory changeover of the burners, which, at the time, farmers claimed instantly reduced the value of the average tobacco farm by $100K, probably decreased the deadly effects of smoking by only about, say, 1% anyhow--and, therefore, that such requirement could be viewed as either misguided or punitive rather than effective of its purpose--unless that purpose was to destroy the local tobacco industry rather than to make smoking 'healthy'.