Tuesday, 4 March 2014

Quebec Government cost-recovery suit easily survives another skirmish.

In recent weeks, I have periodically checked on Quebec's SOQUIJ web-site to see if Justice Robert Mongeon has yet ruled on the constitutionality of the 2009 law which underpins the Quebec government lawsuit to recover health care costs. (This law also has an impact on the current Blais and Létourneau class action suits.)

Five months have passed since he heard out the industry on its concerns that Quebec's Tobacco-related Damages and Health Care Costs Recovery Act offended the constitutional principles of this province.

The Quebec claim for damages is moving (slowly) on two fronts: this one on its constitutional legitimacy and the other on the substance of the suit. Justice Stéphane Sanfaçon is the man presiding over the main action, and little did I know that he also had some rulings in the hopper.

Last Friday he released rulings on some 'pre-trial' motions that were debated before him last November (15th and 22) and again in late December (20th). The first, weighing in at more than 300 pages, was one intended to force the government to provide oodles of information about its claim ("precision and production" of certain documents). The second addressed requests for certain sections of the government's claims against the companies to be struck down.

They are both likely to delight the government side. Justice Sanfaçon rejected virtually all of the industry's requests, barely tinkering with the government's claim. In this early skirmish, the government side came out without even breaking a fingernail.

A rich and detailed claim

Of the 9 provincial governments who have already filed damage recovery claims against the tobacco companies, only the Quebec government provided a detailed background to their claim.

Their demand (for $60 billion) is a 300-page / 975 paragraph synopsis of tobacco industry wrongdoing over several decades. I highly recommend it as a good read - and one which has thoughtfully been translated into English.

But with all that detail, there is lots for the companies to take aim at.

Hundreds of documents of concern

Seven legal teams (three companies plus separate representation from Imperial Tobacco's related owners) appear to have taken aim at virtually every paragraph of the government's claim, asking for nit-picky type information. You claim there was a meeting? Then when? Involving whom? 

Justice Sansfaçon wouldn't bite. He produced a 300 page table of their demands, and put "rejected" against all but two of them.

Four topics of concern

The second issue resolved was the particular objections of the defendants to certain information in the government's claim. These were:

* references to second hand smoke, given that there were no claims for damages arising from exposure to second hand smoke.

* references to judgments or settlements in the United States of America (i.e. the ruling by Judge Kessler or the 1998 Master Settlement Agreement), including any statements made by the companies to the media in connection with these developments

*  references to the "Document Retention" policy of BAT (i.e. the decision to destroy scientific documents in Canada and elsewhere).

* references to material that they thought was subject to parliamentary privilege or solicitor-client privilege.

Justice Sanfaçon agreed only to remove the references to second hand smoke, eliminating a very few words. (The amended sections are shown below). On questions about U.S. cases and document destruction, he turned the industry down. As for parliamentary privilege and solicitor-client privilege -- apparently that is being held over for another, later discussion.

Exhausting the plaintiffs? The court too!

It looks like it was a painful exercise for all involved. A strategy to exhaust the plaintiffs seems likely to also exhaust the judge. If they follow their usual game plan - next up for the wringer is the Court of Appeal.

Monday we return to the Blais-Létourneau class action suits, with testimony by epidemiologists and statisticians testifying for the companies. First up is Laurentius Marais.

Paragraphs amended as a result of Justice Sansfaçon's ruling:
402. Benson and Hedges propagated the public position taken by the PM Group and refuted both the existence of scientific proof associating smoking with health problems and the harmful effects of second-hand smoke:
721. From 1954 to the early 1990s, the industry’s misleading public position was also reinforced by a number of press releases issued by the CTR and the Tobacco Institute that denied a causal link between smoking and cancer and cardiovascular disease, the addictive effect of nicotine and the harmful effects of second-hand tobacco smoke:
750. The main objectives of those international organizations, which were funded by the founding members, were to sustain false scientific controversy over the link between smoking and various diseases, including the effects of second-hand smoke; to resist health warning legislation for as long as possible; and to neutralize or discredit the work of anti-tobacco groups and that of the World Health Organization.