Thursday, 13 November 2014

Day 248: A "no" from every direction

Oh, la la! My head hurts.

It has been an exhausting experience listening to Suzanne Côté's rapid-fire explanations of the many and varied legal obstacles to the plaintiff's case against Imperial Tobacco succeeding. So many principles! So much jurisprudence! So many slides with small print! So many sentences squeezed together!

For a day and a half, Ms. Côté has taken Justice Riordan through a forest of legal theories and case issues to support her client's case. Prescription. Contractual liability. Manufacturers' duties. Causation. Fin de non recevoir. Adverse inference. Punitive damages. Novus actus interveniens. Provisional execution. Collective Recovery.

By mid-day, even those lawyers who had no more to do than watch were showing signs of exhaustion. (In front of the bar were the usual large teams involved in this case, but in the public seats were many involved in other Canadian tobacco suits). All the more reason to admire the stamina of Justice Riordan and Ms Côté, who completed this marathon session without seeming to break a sweat (or a yawn).

No. No. and No. 

Regretfully, my grasp and retention of the details of Ms. Côté's dense presentation are limited. But even I could follow the central link to each of the issues she raised: the plaintiffs did not have a legal leg to stand on, and the judge would be in error if he ruled in their favour.

On prescription (time limitation): The entirety of the Létourneau case for addiction is barred, as more than three years passed between the time the companies put the addiction warning on their products (September 1994) and the filing of the lawsuit in 1998.

The addiction suit was filed too late!
On the Quebec Tobacco-Damages and Health-Care Costs Recovery Act (which lifts the time constraints for lawsuits underway in 2009: This Blais-Létourneau cases cannot benefit from this exemption, as they were not specifically identified in the law. This "exhorbitant" law must be interpreted restrictively, and in any event should not be applied until the industry's challenges to it have been exhausted.

On whether the companies have liability: No, cigarettes were no more dangerous than smokers could reasonably expect. No, smokers assumed the risks of using these products. No, smokers had the responsibility to act prudently, such as informing themselves of the risks of tobacco use. No, even if the company had done something wrong to initiate smoking, the fact that smokers continued to smoke means that they assumed the risks.

On whether any smokers' disease can be linked to tobacco use: No, general causation can be established, but specific causation cannot. To establish specific causation, the plaintiffs would have to show that smoking caused disease in each and every class member, to prove  that the defendants were at fault and to prove that this fault was causally connected to smoking.

On whether it is wrong to sell something as dangerous as cigarettes: No, selling a dangerous product is not a fault in and of itself. The idea of balancing the risks of a product against its benefits is not part of Quebec law.

On whether the judge can make any presumptions about faults, or causation or damages: No, the law requires that any such presumptions be "serious, precise and concordant" - and this has not been established in this case.

On whether the absence of health warnings can be considered a fault of the manufacturers: No, this happened before the Consumer Protection Act was adopted (in 1980). No, the conduct of the manufacturers must be considered in light of the standards of the time, and the absence of warning labels was consistent with the absence of labelling on any products.

On whether a class action should succeed if members of the class have not testified. No, and Mr. Blais (who did not die until mid-2012) and Ms. Létourneau attended some sessions of the trial, demonstrating that they were available to testify.

On whether the heirs of smokers who would have been members of the class should be entitled to any award for compensation: No, Quebec law does not allow for heirs to have the benefit of any judgment.

On whether collective recovery (one big payment) can be assessed against the companies: No, the evidence will not allow for a sufficiently accurate calculation of the total claim -- therefore individual proceedings should be required for each of the 1 million claimants.

The above barely scratches the surface of a day's arguments covering not layers of details and many layers of potential scenarios. The back-up positions in this business seem to be given as much emphasis as the core arguments.

As was the case yesterday, it was Justice Riordan's questions which captured attention. The exchange he had with Ms Côté shortly before the lunch break will have triggered some noon-time discussions.

After umpteen comments about the inability to find a one-size solution for 1 million smokers, the judge pointed to an alternative option available to him.

"What if I decide that individual recovery is impossible and too expensive for compensatory damages?... What if I find fault, I find damages, and I find sufficient causality, and I decide that ...only punitive damages apply? 

He cited Article 1034 of the Quebec Civil Code (pasted below) which (I think) allows for an award to be assigned to an entity, such as a charity.
Quebec Civil Code
Article 1034. The court may, if of opinion that the liquidation of individual claims or the distribution of an amount to each of the members is impossible or too expensive, refuse to proceed with it and provide for the distribution of the balance of the amounts recovered collectively after collocating the law costs and the fees of the representative's attorney.
Ms. Côté responded by saying that he would be in error to do so. (He smiled). She later elaboratesd that in such a scenario - with individual claims waived -- then the class action would no longer be valid, and the suits would have to be dismissed. 

Tomorrow and Monday, ITL will present its views on the evidence gathered during the trial, and respond to the factual claims made against it. 

The trial schedule has again been altered. Next Friday (November 21), some lingering issues around confidentiality will be discussed, as will the parties' varying views on prescription/ time limits. The plaintiffs rebuttal and any potential re-rebuttal by the companies have now been rescheduled to mid-December (8th, 11th, 12 and 15th).