From Tobacco Info No. 7 - October 2011
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Class action lawsuit over tobacco industry practices
March 2012: Canadian cigarette makers will finally go to trial in Quebec Superior Court
Par Pierre Croteau
Whenever our governments have tried to introduce measures to make it harder to recruit new smokers, Imperial Tobacco Canada (ITC), Rothmans, Benson & Hedges (RBH) and JTI-Macdonald (JTI-Mac) have contested the legality of such measures before the courts.
This time, though, ITC, RBH and JTI-Mac, as well as their parent companies abroad, will find themselves in the unusual position of having to defend themselves before a Canadian court from people affected by tobacco-related illnesses. In fact, they will have to defend the way in which the tobacco industry has operated for the past 50 years, at least.
The trial, which is to begin in Montreal in March 2012, will pit the tobacco companies – with their armies of lawyers – against millions of industry victims, many of whom will die prematurely from smoking before they can obtain any kind of redress.
These people – who feel deceived and are suffering for it – will be bolstered by physicians, surgeons and researchers of many different specialties, as well as a talented team of lawyers who will make up for their small numbers with the strength of their convictions. They are fully aware that their years of effort in strategizing and researching may be unrewarded financially.
At the trial, the claimants will not just be taking ITC, RBH and JTI-Mac to task for selling addictive products that harm health: they will accuse these three Canadian companies and their respective parent companies, British American Tobacco, Philip Morris International and Japan Tobacco International, of having known about these risks for a very long time without having warned consumers about them; of having instead done their best to obscure the facts, to manufacture controversy, to perpetuate reassuring myths and to continue to manufacture and sell cigarettes designed to maximize the risk of creating and maintaining an addiction to nicotine.
This time, the cigarette industry has a lot to lose, including, if the claimants win, a minimum of $22 billion in damages to victims (or their estates) or to a fund dedicated to smoking prevention and to the support for victims of tobacco addiction. More significantly, though, the industry could lose the ability to continue to profit from their current methods. “The cigarette companies are fighting for their future,” said Michel Bélanger, Esq. of Lauzon Bélanger Lespérance, one of the four law firms that are ferrying this claim through the courts. It is no wonder then that the three Canadian companies have used every legal means possible to avoid going to trial, and, once it seemed that a trial could no longer be avoided, to try to secure the best conditions for their purposes.
In April 2010, the claimants, defendants and the judge assigned to hear the trial, the Honorable Brian Riordan, agreed to begin proceedings on October 17, 2011 at the Montreal Courthouse. On August 10, 2011, the judge granted in part the companies’ new motions for trial directions and ordered that the trial commence on March 5, 2012.
That’s when the real battle will begin – more than 13 years after a request for permission to file a class action suit against ITC, RBH and JTI-Mac was first made to the Quebec Superior Court. Along the way, there have been many judgments, many surprises and lots of hurdles.
Two claims, one trial
Originally, two requests were filed in Quebec for permission to pursue a class action suit in the name of victims of the tobacco industry: one for individuals addicted to tobacco and another for those with cancer of the lung, larynx or throat, or those with emphysema. The first suit was filed in September 1998 and the second in November of the same year.
An application for class certification – and any ensuing lawsuit – generally bears the name of one representative claimant whose injuries are typical of the entire group’s. The first request was made in the name of Cécilia Létourneau and the second, by the Quebec Council on Tobacco and Health, in the name of Jean-Yves Blais on behalf of other victims of diseases caused by tobacco products.
Since both claims involve an action against the same trio of tobacco companies and are more or less based on the same serious allegations, the courts decided, first, to deal with both claims at once; and, second, to hear one trial – although with separate rulings for each claim.
Surmounting obstacles and Quebec law
It sounds simple enough. However, it wasn’t until 2005 that counsel for the victims of the practices of ITC, RBH and JTI-Mac was able to argue the merits of the case before a judge. This occurred after having received, in February 2005, permission to file the two class action suits; a decision that, fortunately for the applicants, can’t be appealed under Quebec law.
Quebec will finally have its trial next spring, but in the rest of Canada, the tobacco industry has managed to stall several attempted class action suits, including, in some cases, after permission to file had already been granted. Lawyer Michel Bélanger modestly attributes the success in Quebec to the particularities of Quebec law.
In Quebec, unlike elsewhere in the country, a class action suit is not a discretionary remedy and the court is obliged to allow it when it believes that the conditions listed in the Code of Civil Procedure are met. Justice Pierre Jasmin of the Quebec Superior Court pointed this out in his ruling on February 21, 2005, certifying the two class action suits against ITC, RBH and JTI-Mac.
Nor was there any question, according to Justice Jasmin, who cited case law, of demanding at the authorization stage the same degree of precision in the allegations as would be required at a full hearing of the merits of the case.
In spring 2009, when the tobacco companies asked for permission to interview 150 of the individual claimants, the Superior Court refused, and the Court of Appeal refused to hear an appeal on this ruling.
For Michel Bélanger, it’s clear that the courts don’t want to see this trial turn into a parade of smokers and ex-smokers confessing their youthful mistakes – their addiction and their negligence – as though they were the ones on trial.
The smokers’ fault: they should have known
All the recent tobacco multinational defence strategies are cited in these court proceedings that will continue next spring: after having pretended for decades that there was insufficient proof that smoking caused cancer, emphysema, asthma or heart attacks, for example, the tobacco companies are now suggesting that smokers merely had to be more careful, that they should have known that smoking was hazardous to their health and that nicotine causes addiction.
At the trial, counsel for the class action will not only call experts to the stand, it will also produce thousands of public documents, as well as internal documents from the tobacco companies, proving that the latter’s behaviour was deceptive and irresponsible.
Expert testimony and funding
Unlike so many of the trials we see on TV, where key witnesses emerge just minutes before the end of the show, witnesses in actual trials are always expected by both parties. In the case of expert witnesses, testimony is presented in writing to both sides before the hearing. This is to facilitate preparation of objections and cross-examinations.
For this trial, a Quebec class action assistance fund has advanced the money to prepare the expert testimony. If the victims win at trial, the fund will be reimbursed, and the lawyers and claimants will receive a percentage of the damages. If the verdict is unfavourable, the claimants will not have to repay the fund; however, nor will they have any money to pay their counsel: a risk of the trade.
Meanwhile, in the rest of the country
In the other Canadian provinces, five class action suits have been launched against the tobacco industry since 1995. The only one that is current is Kenneth Knight vs. Imperial Tobacco Ltd., which started in Vancouver in 2003, and is seeking damages for the misleading marketing of so-called light and mild cigarettes.
On December 8, 2009, the British Columbia Court of Appeal ruled in favour of the tobacco industry’s third-party claim against the federal government in both the Knight and BC government actions. Big Tobacco said it has always relied on advice, representations, requests and directions from the Government of Canada. Therefore, if tobacco companies were liable to the plaintiffs, officials of the federal government neglected to pay duties owed to tobacco companies; thus, Ottawa is liable for contribution and indemnity.
On July 29, 2011, the Supreme Court of Canada unanimously ruled that Imperial Tobacco Canada Ltd. could not name the federal government as a third-party defendant in the Knight class action. The nine judges also unanimously decided that if the tobacco industry is forced to pay damages to provincial governments for tobacco-related health care costs, the federal government will not be required to reimburse the tobacco industry for those damages.