Monday, 8 July 2013

Three midsummer rulings

There appears to have been some judicial clearing-of-the-desks before the summer break set in. Not one but three rulings were issued by Quebec Courts over the past two weeks:

The first was on June 26th when the Court of Appeal issued its rejection of Imperial Tobacco's request for a review of Justice Riordan's decision to allow certain records to become trial evidence in the Class Action trials. (These were mostly documents authored by people who are dead or otherwise unable to come to the court to testify).

Three justices of the Appeal Court listened to both the request for leave and the substantive issues that would be raised, but decided to rule only on the question of whether leave to appeal could be allowed. As it has consistently since the trial opened 16 months ago, the Appeal Court said no to the request and repeated its decision to not engage while the trial was underway.

The second summer ruling came a week later, when Justice Riordan issued his July 3rd decision to allow a redefinition of the two classes of smokers included in the combined lawsuits. Justice Riordan had identified a number of concerns with the definitions that had been established in the 2005 rulings that gave a green light to these lawsuits. In response to his requests, the plaintiffs had proposed adjustments. (The companies were steadfastly opposed to all changes, even though, as Justice Riordan points out in his ruling, some of these had the effect of reducing their exposure by disqualifying some smokers - such as immigrants or others who had smoked cigarettes manufactured by different companies.)

The redefined classes, with my clumsy translation, are shown below. The plaintiffs are ordered to prepare new notices to the public before the hearings resume mid August.

Some things in the ruling that would likely have cheered the plaintiff's team:

* Justice Riordan adjusted the time limits for each case in a direction which opened the door to more class members. In the case of people who suffered from cancers and emphyzema, he extended the eligibility period to all those who were diagnosed up until the opening day of the trial. In the case of people who were addicted, he constrained the time that they had to have continued smoking to be considered addicted. Smokers who were eligible in this class in 2005, but who subsequently succeeded in quitting smoking, are not excluded from the Letourneau case.

* The judge revealed that some of his views on addiction are in line with the plaintiff's case (although his ruling stressed that there may be changes after the industry's witnesses have testified). He seems to have rejected the argument frequently presented by the companies' lawyers and employees that the very notion of addiction is inconsistent with a smoker successfully quitting. Justice Riordan openly addresses the fact that a smoker can suffer from addiction even after they have quit -- raising the question of how long a "period of time a person remains dependant - and is negatively affected by their  dependence - after having quit smoking. ("La period de temps pendant laquelle une personne demeure dépendante - et est sérieusement dérangée par sa dépendance - après avoir cessé de fumer.")

The third ruling was made the following day (July 4th) by Justice Stéphane Sansfaçon of the Quebec Superior Court. He is the judge presiding in the Quebec government's case for recovery of damages against the Canadian tobacco companies. The provincial damage recovery suits, unlike the Quebec class action cases, also name the multinational parent companies as co-defendants.

Justice Sanfaçon's ruling was in response to a request from the companies to have the case against their parent companies dismissed. Their view is that the Quebec Court has no jurisdiction over these companies.

There is some 'déja vue all over again' to this issue. Similar complaints were made to and rejected by courts in British Columbia, New Brunswick and Ontario, and are surfacing in provinces like Manitoba where the provincial lawsuits are also winding slowly their system. Justice Sansfaçon is the fourth provincial trial judge to say that the foreign companies are not exempt from provincial suits.

The new class definitions                

The Blais-CQTS class
Previous description

All persons residing in Quebec who had lung, larynx or throat cancer or emphysema at the time the motion was served or who have developed lung, larynx or throat cancer or emphysema since the motion was served after directly inhaling Cigarette smoke and smoking a minimum of fifteen cigarettes per period of twenty-four (24) hours over a prolonged and uninterrupted period of at least five (5) years, as well as the assigns of any person who met the above-mentioned requirements and who has died since the motion was served.
Current Description

The group includes all persons residing in Quebec who meet the following criteria:

1. Before November 20, 1998, had smoked cigarettes manufactured by the defendants for a minimum of 5 pack years (the equivalent of a minimum of 36,500 cigarettes, or any combination of the number of cigarettes smoked per day multiplied by the number of days of consumption were the product is equal to or higher than 36 600 cigarettes).

For example, 5 pack years equals:
 20 cigarettes per day for 5 years (20 x 5 x 365 = 36,600), or
25 cigarettes per day for 4 years (25 x 4 x 365 = 36500) or
10 cigarettes per day for 10 years (10 * 10 * 365 = 36,500) or
50 cigarettes per day for 2 years (50 x 2 x 365 = 36,500)

2. Had developed before March 12, 2012:
a) lung cancer, or
b) cancer (epidermoid carcinoma) of the throat, that is to say cancer of the larynx, the oropharynx, the hypopharynx), or
c) emphysema.

The group also includes the legal heirs of people who died after November 20, 1988 who satisfied the above criteria.

The Letourneau class

Previous description

All persons residing in Quebec who, at the time of the service of the motion, were addicted to the nicotine contained in cigarettes manufactured by the defendants and who remained addicted, as well as the legal heirs of persons who were included in the group at the time of the service of the motion but later died without first quitting smoking.

Current Description

The group is composed of all persons resident in Quebec who, on the 30th of September 1998, were dependent on the nicotine contained in the cigarettes manufactured by the defendants and who also satisfy the following criteria :

1) They started smoking before September 30, 1994 using cigarettes manufactured by the defendants
2) On September 30, 1998 they were daily smokers of cigarette manufactured by the defendants
3) On February 21, 2005 they were still smoking cigarettes manufactured by the defendants, or were doing so until their death if it preceded that date.

The group also includes the legal heirs of people who satisfied the above criteria.

The trial resumes on August 18, when it is expected that a third historian - Mr. Robert J. Perrins - will testify for the tobacco companies.