Thursday, 9 October 2014

Day 242: The "Obedient Regulatee"

This is not a commission of inquiry. This is not a trial to determine whether a certain government policy was right or wrong. This is a civil liability trial.
The plaintiffs had a burden to prove three essential elements [fault-damages-causation]. They didn't do it. They admit they didn't do it. They are asking for presumptions to get them over that burden. But the presumptions are so novel, so far reaching, so wrong, so unpermitted by law or the civil code... that cannot be allowed.
The plaintiffs are asking this court to issue a judgment that would be full of error.
I am not however asking for a judgment [for the defendant RBH] because it would be an error in law. I am saying that my client acted responsibly during this difficult period. The government tried. My client tried. The result is that less than 20% of the population is now smoking, and they are smoking low delivery products....
[The judgment in this case] should say that people lived through hard, difficult, socially complex problems during those years and that RBH dealt responsibly with them."

Simon Potter
RBH Closing Argument
October 9, 2014 

It did not take even the morning for Simon Potter, counsel to Rothmans, Benson and Hedges, to complete his final arguments to Justice Riordan. With a heavy emphasis on the law and a very light touch on the questions that were the focus of two years' evidence-gathering, he seemed focused on knocking the legal pillars out from under the plaintiff's case.

Let's not presume that people don't want to harm themselves

He began by listing the presumptions that he feels Justice Riordan has improperly been asked to make when deciding if Quebec smokers became addicted or ill as a result of his client's actions. 

First among these was the idea that people would not voluntarily harm their health. This, he said, was "manifestly false." Proof lay in the fact that people "still chose to start" smoking even decades after warnings appeared on package and a "tidal wave" of information about the risks of smoking hit the public.

Cigarettes were no more harmful than people should expect. Like other risky products (he again mentioned motorcycles) people "make their choices". When the risk materializes, "they don't get to come and sue people on the fact that this is an erroneous choice." 

He said it was not plausible to presume that no smoker ever had full knowledge of the risks, or that they had not smoked just because they liked it. 

He spent some time showing why the same kind of presumption used in cases cited by the plaintiffs (Biondi vs. Montreal, Richard v. Time) was not supported by the evidence in this case. (He said the evidence that would be necessary would include proof that people do not smoke unless they have received a false representation, that the defendants made false representation, that each and every class member was exposed to the false message and that at least some members actually did start smoking because of the falsity.)

Signal to noise: noise to signal

People's understanding of the risks of smoking was diminished because there were plentiful and positive images of smoking in cigarette advertisements, the plaintiffs have claimed. Simon Potter today turned this argument on its head.

He used the same logic to say that the effect of advertisements was diminished in the "context of the tidal wave of health information" provided to the public. For that reason, Justice Riordan could not presume that any typical member of the public would have believed any misleading cigarette ads.

Mr. Potter seems to recall a more energetic health effort than is held in my memory. He said today that the message about the harms of smoking was "reinforced by every visit to every doctor. Every time you turn on the TV practically, the government was telling you not to smoke."

No need for punitive damages: the companies have already been deterred

Mr. Potter identifies several reasons why Justice Riordan should not/could not make any award for "punitive" damages.
  • He said that because the two laws that provide for these awards (The Consumer Protection Act and the Quebec Charter of Human Rights and Freedoms) were not adopted until mid-way through the class period, any actions of the companies before the mid 1970s were not relevant to assessment of punitive damages.
  • He said that the behaviour of the companies had changed, and that further deterrence was not required. He displayed a check-list of contentious marketing behaviour that was no longer in place: an end to lifestyle advertising, to displays at retail, the placement of large warnings. He cited the search and seizure powers under the federal Tobacco Act as deterrence enough.
  • He said punitive damages cannot be awarded until compensatory damages are calculated -- a calculation Mr. Potter feels cannot be done under the current circumstances.
  • Punitive damages are time-limited (the term used in Quebec is "prescribed"). The Quebec law that removed the limitation period for this class action did so only for compensatory and not for punitive damages. The industry challenge to this law is not yet resolved.
In addition to these legal issues, Mr. Potter said there would be no justification for punitive damages, given that his client had never acted with maliciousness or intent to harm.

"These things cannot be found in the context in which my client is the regulate - is actually doing the government's policy by putting the warnings on the package which the government approved" 

Justice Riordan suggested to Mr. Potter that past behaviour might be relevant ( "The gravity of a debtor's fault [is] grounded in the longevity of the action"). He also raised the view that punitive damages serve to discourage bad behaviour by other people. In reply, Mr. Potter appealed to the plaintiffs' description of cigarettes as a unique product, unlike no other.

Unless, of course, the "mere sale" of cigarettes is to be deterred.

The plaintiff's request that Justice Riordan should rule that the sale of cigarettes is a "fault" under Quebec law seems pretty big stuff to me, but it has curiously received only minor air-play in the final arguments so far. 

Today Simon Potter made a few tangential reference to this big-ticket item. In one, he acknowledged that this was the one activity where company behaviour had not changed. "It is impossible to conclude that deterrence is needed, except if the court agrees that the mere sale is to be deterred. That is the only thing that is happening now which was happening before..."

A question of slope

Several times this week, Mr. Potter has pointed to a slide showing a reduction in the percentage of Canadian men and women who smoke from 1965 to 2012. 

In Mr. Potter's view, this graph establishes that the actions of the company (through advertising, the introduction of light brands, comments to the public, etc) have had no impact. Otherwise, he suggests, the slope would have been different.

This, he says, is proof that the "government strategy worked - there has been a gradual disappearance." 

Disappearance?  "Now smoking is less than 20% of the adult population." Well, only 1 in 5, anyway. 

Justice Riordan has challenged Mr. Potter on many of his claims, but not on this one. Left standing was the idea that this historic trend did not show the footprint of the industry's actions. There has been no suggestion that this is not a very robust way to conclude impact, or that the slope might have been steeper if the companies had acted differently.

I have learned a few things during this trial: those who sit in front of the bar are very very smart, but when it comes to numbers and graphs, they are vulnerable to being bamboozled.

The Eight Trial Questions

It took less than an hour for Mr. Potter to give his answers to the common questions that were laid down for the trial when it was authorized, and which formed the structure for the written arguments.

He prefaced his comments by repeating that the issues covered by this evidence don't prove a connection between any individual's circumstances and the behaviour of the companies.

He urged the judge to see RBH's actions in an historical context, and again stressed the role of the government. 

"In the real world context of these decades... the court should come to the conclusion that my client handled those years and that context, with a great deal of responsibility - with a great deal of aplomb and a great deal of deference to the government which was certainly the lead actor in all of what happened." 

Did RBH manufacture a product dangerous and harmful to its consumers?
Yes But this only had legal significance "if the product delivers a GREATER danger than what consumers were entitled to expect in all the circumstances." Only on this question did he highlight much evidence - cycling through a dozen or more moments when the harms of cigarettes were acknowledged by governments and others. Among these were the one-time 1958 advertising campaign by Rothmans. 

Did RBH know of the risks and dangers?
Yes. This followed on from the answer to the first question.

Did RBH put on the market a product that causes dependence, and not take steps to make it less addictive?
Yes. As those words dependence and addiction are used in common parlance, they sold cigarettes that for some were hard to quit and in part because of nicotine, yes. That doe not mean that smokers could not stop, or that they lost autonomy.

As to the nicotine levels in cigarettes, these had never been controlled by RBH, there had been no work to make cigarettes compensatable, and the company had at all times deferred to the government's directions in cigarette design, such as low-tar cigarettes.

Did RBH trivialize the harms of smoking?
No. The company left public comments about the harms of smoking to others. "They consciously allowed the monopoly of the anti-cigarette message to be as dire as it could be."

Did RBH market its products in misleading ways?
No. "There is no evidence of such a strategy or implementation.No campaign of misinformation. No evidence that anything of the sort ever reached a consumer."

Mr. Potter rebutted the charge made by the plaintiffs last week that an ad of a roller coaster ride might have been designed to reach young people as young people went to amusement parks. "The Court has no evidence about attendance at ausement parks in 1973," said Mr Potter. "I took my kids there - I saw lots of other parents there too."

Did RBH conspire to impede people knowing about the harms of smoking.
No. The CTMC was a legitimate trade association, which served to facilitate communication between the companies and the government.

Did RBH interfere with the right to life, security and inviolability of class members?
No. "RBH throughout this piece was licensed, was a responsible licensee, was selling a legal product in a legal way and was doing so as either a real or an effective regulatee [of government].

The trial resumes on October 20 when JTI-Macdonald presents its final arguments. An updated calendar of these final weeks can be found at the bottom of this post.