The de-prescribed and expanded Blais class

I am not proud to admit that there were several trial moments when my attention wandered while the lawyers argued about "prescription". (Prescription is the Quebec term for the limited period of time in which someone can file a lawsuit )

Generally speaking in Quebec a lawsuit has to be filed within 3 years of experiencing the issue that will be the subject of the suit. But the tobacco class actions are nothing if not exceptional, and it was the exceptions that kept the discussion hopping.

One exception was the 2009 law passed by Quebec (the Tobacco Damages and Health Care Costs Recovery Act) which lifted prescription for both the government and private class action lawsuits filed before 2012. In case that wasn't validation enough, the plaintiffs argued that the companies' wrongful actions should preclude them from being sheltered by the limitation period. And then there was the question of whether prescription really applied to some of the laws which were held to have been broken - like the Quebec Charter.

It was a very tangled web of arguments. I figured I would wait and see how it came out in the wash. And -- barring the rinse cycle of the appeals -- it has indeed come out in a way very favourable for the plaintiffs.

Justice Riordan's decisions on prescription have opened the door for many more Quebecers to be included in the Blais lawsuit than were originally anticipated.

The original body count: 110,000

The Blais case was filed in 1998 and authorized by the Quebec Superior Court some 7 years later. In the 2005 authorization ruling, the class was defined as those who were suffering from lung, larynx or throat cancer or emphysema "at the time the motion was served". - That is to say they would have had to be sick in November 1998.

The estimate of the number of people involved in the case was based on the report by Jack Siemiatycki, which considered only those diseases diagnosed after January 1995 and until the end of 2006. (Exhibit 1426.1) At that time, there were an estimated 110,000 potential class members identified who were sick and who would have smoked more than the then-proposed critical-dose of 36,500 cigarettes.

The forward looking change

After a year in court, the plaintiffs were encouraged to apply for a new definition of their class, one which would adopt a pack-year history as a criterion for inclusion and which would also move forward in time to include those who became ill after the suit was filed.

The plaintiffs asked for the class to be defined to those who were diagnosed between November 1998, when the suit was filed, and March 2012, when the trial started.

The two-step backward looking change

In July 2013, Justice Riordan approved this redefinition, but added his own twist. He removed the requirement that a claimant be diagnosed after November 1998.

Under normal rules of prescription, the effect might have been the same as if the November 1998 date had remained in the definition. Eligibility would have reached back three years before filing (to 1995) and anyone who became ill before then would be excluded.

When he ruled that prescription did not apply to the case, Justice Riordan opened the door to the pre-1995 group. As the class now stands, any resident of Quebec who became ill between 1950 and March 12, 2012 with one of the Blais diseases and who smoked 12 pack years or more before November 1998 is eligible to make a claim. If they died after 1998, their heirs are entitled to receive the money. (The class definition is pasted below).

The maybe-not-so-final numbers

The number of smokers newly qualified in the class is unknown.

Jack Siemiatycki's original estimate was crunched and re-crunched to adjust to trial developments, but it was never adjusted for this final change. (Those who became ill after 2006 were included, which added several thousand. Those who had immigrated were excluded, which eliminated 12% of potential claimants. The threshold amount was raised from 5 to 12 pack years, further reducing the class.)

The final estimate used by the judge was 99,957 eligible smokers. On this basis, he calculated that the companies would be liable for $6.86 billion. With interest to 2015, this grew to $15.5 billion.

But this estimate does not include the (unknown) number of people who became ill prior to 1995 and were still living in November 1998.

Justice Riordan acknowledges the discrepancy, but said he would let it ride.  "In its role as defender of the class's interests, the Court has the final word there. ...[we] wee no justification there to exclude otherwise eligible Disease victims from claiming compensation."

There will be no shortfall as "the plaintiffs will have the right to petition the court for additional deposits."

Will more money be needed? Perhaps not. Only a small percentage of an estimated 60,000 or more** Quebecers who were diagnosed with lung cancer before 1995, would have survived until 1998.

The final Blais class definition All persons residing in Quebec who satisfy the following criteria: 1) To have smoked, before November 20, 1998, a minimum of 12 pack/years of cigarettes manufactured by the defendants (that is, the equivalent of a minimum of 87,600 cigarettes, namely any combination of the number of cigarettes smoked in a day multiplied by the number of days of consumption insofar as the total is equal to or greater than 87,600 cigarettes). For example, 12 pack/years equals: 20 cigarettes a day for 12 years (20 X 365 X 12 = 87,600) or 30 cigarettes a day for 8 years (30 X 365 X 8 = 87,600) or 10 cigarettes a day for 24 years (10 X 365 X 24 = 87,600); 2) To have been diagnosed before March 12, 2012 with: a) Lung cancer or b) Cancer (squamous cell carcinoma) of the throat, that is to say of the larynx, the oropharynx or the hypopharynx or c) Emphysema. The group also includes the heirs of the persons deceased after November 20, 1998 who satisfied the criteria mentioned herein.

---------------------------------------------

** Estimate based on filling in data missing from Statistics Canada Table 103-0550 and the Canadian Cancer Statistics from 1987.

The expert witnesses (2)

Should history every allow for Justice Riordan to talk about his ruling on the Blais-Létourneau class action trials, I would not be surprised to hear him identify the use of epidemiology as the "landmark" in this landmark trial.

Epidemiologists (like judges in a class action) look at the shared and often common health circumstances of a group of individuals. This is different than a clinical approach (or an individual trial) where the focus is on individualistic and often distinctive health circumstances.

From early in the trial, Justice Riordan resisted efforts to have the court examine the circumstances of a sample group of individuals. His reasons were re-stated in his final ruling:

"We have repeatedly held that, in class actions of this nature, the usefulness of individual testimony is inversely proportional to the number of people in the class. As we shall see, the number of people in the Classes here varies from 100,000 to 1,000,000. These proportions render individual testimony useless..." **

Justice Riordan made clear that it was the testimony of experts which would inform his decisions about the harms experienced by Quebec smokers. There were no experts in this trial whose views were more crucial to the outcome of this trial than the epidemiologists, statisticians and physicians who testified.

The epidemiologists and disease experts

On behalf of the plaintiffs in the Blais case, the court was presented with the views of (left to right) epidemiologist Jack Siemiatycki, otorhinolaryngologist Louis Guertin, and lung specialist Alain Desjardins.


Jack Siemiatycki supported the plaintiffs' position that it was appropriate to consider that smokers who suffered from the diseases in question were more likely than not to have become ill as a result of smoking.

Drs. Guertin and Desjardin testified about the link  between smoking and disease, and also the suffering that was experienced as a result of these cancers and emphysema. (The issue of suffering was not one that was contested).

The defence focused their efforts on attacking the evidence of Jack Siemiatycki about how to decide whether any specific individual's disease was caused by smoking. Their goal seemingly was to convince this court (or the appeal courts that will later review evidence in this trial) that such an approach was neither solid nor appropriate. Their arguments all supported the need for individual assessments of each smokers' circumstances. (Shades of Howard Engle?)

To support this position, they brought four experts to court: (left to right) statisticians Bertram Price and Laurentius Marais, epidemiologist Kenneth Mundt, and pathologist Sanford Barsky.

 The "novel approach" of Jack Siemiatycki.

In his efforts to estimate how many class diseases were 'more likely than not' to have been caused by smoking, Montreal epidemiologist Jack Siemiatycki setttled on the idea of a pack-year threshold. (Each pack year represents 7,3000 cigarettes smoked - or one package per day per year).

Those who had smoked more than 5 pack years had a more than doubled risk of lung cancer, he said. Their cancer could therefore be considered more likely than not to have been caused by smoking. Mid-trial, Justice Riordan accepted this critical-dose threshold as the basis for a redefinition of who would be included in the class action.

This, it would appear, is a new way of proving things in court. As Justice Riordan explains:

This was indeed a unique approach to determining causation. No expert that testified in this proceeding, including Siemiatycki, identified any other instance in which epidemiology had been used to establish a threshold number of lifetime cigarettes smoked that would allow one to conclude that a disease case in an individual was caused by smoking.

When later publishing his work in the American Journal of Public Health, Mr. Siemiatycki himself described his method as a "novel approach".

It's never easy to be first. As might be expected for any "novel" legal approach, the critical-dose method to establish causation came in for extensive criticism from the defendants' lawyers and their experts.

This will likely be the centrepiece in the appeals that the companies will launch later this week. No surprise, then, that in his ruling, the judge gave the Appeal Courts a full explanation of why he relied so heavily on Mr. Siemiatycki and why he chose to reject the experts who challenged this method.

The "most credible and convincing witness" and those who weren't allowed to be

No other expert received the level of praise that was directed at Mr. Siemiatycki. Justice Riordan identified him as a "highly-respected member of the world scientific community" with long experience in studying the impact of tobacco on the health of Quebecers.

The judge found that this witness' willingness to err on the side of caution, and to be "unafraid to admit weaknesses that might exist" made him who "fulfilled the expert's mission perfectly." 

By contrast, he found the experts offered by the companies failed to respect their responsibilities to "enlighten the court... objectively, impartially and thoroughly".  He did not criticize the skills or knowledge of these experts, and instead laid the blame with the way the defence lawyers managed their witnesses:

"The Court would have welcomed any assistance that the Companies' experts could have provided on this critical question, but they were almost always compelled by the scope of their mandates to keep their comments on a purely theoretical or academic level, never to dirty their hands with the actual facts of these cases."

"the Companies, who religiously refrain from allowing their experts to offer their own views on medical causation between smoking and the Diseases." ...

"the companies did not allow their experts even to try to make such evidence." 

"the Companies studiously avoided dealing with the base issue of the amount of smoking required to cause a Disease. Their strategy with almost all of  their experts was to criticize the Plaintiffs' experts' proof while obstinately refusing to make any of their own on the key issues facing the Court, e.g., how much smoking is required before one can conclude that a smoker's Disease is caused by his smoking. The Court finds this unfortunate and inappropriate."

It is not enough to criticize

In his ruling, Justice Riordan repeated the views he had expressed during the testimony of these experts. It was not enough for them to criticize the methods used by Jack Siemiatycki - they were expected to support an alternative answer --- to give "proof of a different reality." 

Without this, the judge had only one option before him. How the companies would have answered the epidemiological questions was a "page ... left blank" "Thus, the Court will never know how, or if, their opinions would have changed had they applied their expertise to the actual legal situation in place. 

He essentially disqualified the contribution of the defence experts. "...the Court finds no use for Dr. Marais's evidence." "...the Court finds no use for Dr. Price's evidence."

Most of the testimony of Drs. Barsky and Mundt was similarly rejected - except where they agreed to the idea that pack-years were a valid assessment of risk.

Defence epidemiologist Dr. Mundt had said there was "little or no risk of lung cancer below 10 to 15 pack years," so the judge raised the smoking threshold for eligibility in the Blais class from 5 to 12 pack years. Now, in order to qualify as a member of the Blais class, one must have smoked 87,600 cigarettes before November 20, 1998 and have been diagnosed with one of the specified diseases before March 12, 2012.

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**This approach was given a boost in 2009 when the Quebec legislature passed the Tobacco-related Damages and Health Care Costs Recovery Act (TDRA). Article 15 of that law directs the court to allow statistical evidence in tobacco class actions.

But well before that green light, this trial was headed in that direction. Even before the TDRA was introduced to the legislature, Justice Riordan had ruled in favour of an epidemiological approach. And epidemiologist Jack Siemiatycki's expert report for the plaintiffs, which would have been in the works for months previously, was filed in the same month that the law was adopted. 

Back again to the Appeal Court

Yesterday, tobacco lawsuits were again the subject of discussion at the Montreal Court of Appeal. This time the industry's lawyers were trying to persuade the court to declare that the Quebec Tobacco-related Damages and Health Care Costs Recovery Act was inconsistent the provinces own Chart of Rights and Freedom.

In particular, they wanted to court to rule that the 2009 Quebec law is law was inconsistent with s. 23 of the Quebec Charter which assures every person (including corporate persons) with the right to "a full and equal, public and fair hearing by an independent and impartial tribunal". 

The Quebec law, similar to tobacco litigation adopted by the other nine provinces, facilitates the government's lawsuit against the companies by shifting the burden of proof on a couple of key links in the chain which connects the wrongful actions of the company and the consequences of those actions. It also removes the barrier of the limitation period (the Quebec term is 'prescription'), so that the court can consider actions which happened decades in the past. (As discussed below, it also has implications for the Blais-Létourneau class action).

These are elements also included in the similar British Columbia law, which was adopted 15 years ago, challenged as unconstitutional by the same tobacco companies, yet upheld by the Supreme Court of Canada in 2005.

In the eyes of the industry's lawyers, the Supreme Court did not settle the issue in Quebec. Their view is that Quebec's Charter offers a different (and higher) level of protection to its citizen than does the Canadian Charter. 

They failed to convince Superior Court Justice Robert Mongeon of this when they first argued this position before him in the fall of 2013. His rejection of their request was issued in March 2014, 

Their task this morning was to convince three judges of the Appeal Court - Manon Savard, Paul Vezina and Geneviève Marcotte - to see the issue differently.

Distinct Charter rights.

Simon Potter (representing Rothmans, Benson and Hedges) laid the ground work for the three companies. 

He opened by casting his concerns about the errors in Justice Mongeon's ruling within a larger set of principles that this particular court had not yet waded into. He urged them to consider the importance of clarifying what kind of protection the Quebec Charter gave its citizens to a fair trial.

He encouraged them to see that justice in Quebec was different than and stronger than the rest of Canada. Justice Mongeon, he said, had erred in not understanding that Charter rights in Quebec went farther.

Those points were covered in the first two minutes of his presentation. I won't report much on the following 90+ minutes, or the presentation of Eric Préfontaine (Imperial Tobacco) and François Grondin (JTI-Macdonald), not even the many legal authorities they cited. To these ears, it sounded similar to the arguments presented to Justice Mongeon 20 months ago. 

Simon Potter made their case more colourfully to the media which, unusually, attended yesterday's hearing. "We're going to have a rigged trial... the dice are loaded" he told the Canadian Press. 

They were not given an easy ride. Justices Savard and Vezina challenged the idea that the principles in the Quebec Charter had not been considered by the Supreme Court and that the legislator did not have the right to establish different rules of procedure. 

(If the questions they put to to Benoît Belleau, who presented the Quebec government's position later in the morning were similarly doubting, it went over my head).

To these ears, this panel of judges did not sound very keen on starting a turf-war with the Supreme Court about defining rights at civil trial. But their decision, when it comes, may well prove me wrong!

This Appeal and the Blais-Létourneau case.

The provisions of the Tobacco-related Damages and Health Care Costs Recovery Act (TDRA) which govern the use of statistical proof and removing limitation periods were relied on by Justice Riordan in his May 27th ruling. 

Particularly important in his ruling is the ability to make proof on a statistical basis (i.e. to use epidemiology to assess how many people were hurt instead of having to consider the circumstances of each individual). He notes that requiring individual testimony is "totally incompatible with the class action regime" even though "the case law appears to favour" it. The way out of this conundrum as Justice Riordan saw it was the TDRA.

[692] The objective of the TRDA is to make the task of a class action plaintiff easier, inter alia, when it comes to proving causation among the class members. When the legislator chose to favour the use of statistics and epidemiology, he was not acting in a vacuum but, rather, in full knowledge of the previous jurisprudence to the effect that each member of the class must suffer the same or similar prejudice. It thus appears that the specific objective of the act is to move tobacco litigation outside of that rule. 

[693] The Court must therefore conclude that, for tobacco cases, adequate proof of causation with respect to each member of a class can be made through epidemiological evidence. The previous jurisprudence calling for proof that each member suffered a similar prejudice is overridden.

In a footnote, Justice Riordan seems to see expanding the right to use statistical evidence as an advance in providing access to justice. 

It will be interesting to see if the National Assembly eventually chooses to broaden the scope of this approach to have it apply in all class actions. Although such a move would inevitably be challenged constitutionally, its implementation would go a long way towards removing the tethers currently binding class actions in personal injury matters. 

If the companies convince the Court of Appeal to strike down the TDRA, the plaintiffs' victory in the Blais-Létourneau case may be undone.

No wonder there were so many from that legal team in Court yesterday watching the proceedings!

The expert witnesses (part 1)

"The expert’s role is to assist the court in understanding and assessing the evidence on scientific or technical issues. The expert should be reminded that his duty is to be objective and impartial toward the court and is paramount to any obligation he may have to the party that hired him or who is paying for his services. Moreover, the expert’s role is not under any circumstances to be substituted for that of the judge, who has the sole responsibility for assessing the evidence ."

Montreal Bar 

Best Practice Guidelines

The Blais-Létourneau trial suffered from no lack of expertise and no dearth of expert witnesses.

Sixty-six trial days were spent allowing Justice Riordan to hear the considered opinions of the 16 experts hired by the defendant tobacco companies and the 8 experts engaged by lawyers representing Quebec smokers.

In his ruling on the case, made public 2 weeks ago, Justice Riordan identifies those experts whose opinions were used to substantiate his decisions, and those whose opinions he found unreliable. Sprinkled among his decisions are a few hoist-on-their-own petard moments, when the judge uses the testimony of defence experts to support his findings against the companies.

A quick look today at his receptiveness to the experts in two subject areas - "common knowledge" and addiction.

The "common knowledge" historians

There were no fewer than 6 witnesses brought to court to help establish what the public knew about the harms of smoking and when.

Three of these were historians:  David Flaherty (left) and Jacques Lacoursière (centre) testified for the defence, and on behalf of the plaintiffs, Robert Proctor (right) offered a criticism of this historical approach.

Mssrs. Flaherty and Lacoursière testified that the date at which one could say Quebecers knew about the disease and addiction risks of tobacco ranged from the mid 1950s to the mid 1960s. They based their opinion on a systematic review of newspaper articles and other circulated material. 

The failure to consider the potential impact of advertising on public knowledge and David Flaherty's changing explanations for this exclusion did not sit well with the judge. 

"They seem to have been tracing their opinions with a scalpel in order to justify sidestepping such an obviously important factor. In doing so, they not only deprive the Court of potentially valuable assistance in its quest to ascertain one of the key facts in the case, but they also seriously damage their credibility."

But even the underlying premise that public knowledge could be gleaned from newspaper reports was something the judge did not buy into. "Professor Flaherty talks of "common knowledge", but all either he or Professor Lacoursière is showing is the level of media attention given to the issue. That is not knowledge. That is exposure."

Although he did not "give any credence" to their reports with respect to common knowledge of Quebecers, Justice Riordan nonetheless used their reports to establish when the companies would have known about these issues. This was double whammy for the defence - their famous "common knowledge" historical defence not only failed to help the companies, it was used against them.

Justice Riordan's use of Robert Proctor's criticisms of the "common knowledge" defence is not the only area in which this American historian's impact in the ruling is found. His views on when the (American) public was aware of the harms of smoking and addiction was one that Justice Riordan ultimately adopted for Quebec.

The survey experts

Other experts who testified about "when" the public knew about the harms of smoking were survey specialists Raymond Duch and Claire Durand (left and middle, for the defendants) and Christian Bourque (right, for the plaintiffs). 

Justice Riordan made no complaints about the credibility or credentials of any of these three, but neither did he accept their findings without making his own adjustments. 

Raymond Duch had reviewed the findings of Gallop and other survey firms and concluded that by the mid 1960s people believed that smoking may cause cancer. This was not a high enough level of awareness to satisfy the law when a dangerous product is involved, said Justice Riordan. "The minimum acceptable level of awareness should be much higher than that, for example, 'is likely' or 'is highly likely'." 

After making "reasonable adjustments" to allow public opinion "to move from 'may cause' to 'is highly likely'," he found that the views of Rayond Duch and plaintiff witness Robert Proctor were "consistent". Quebecers did not know about the harms of smoking until the late 1970s and not about addiction for a further 20 years. Mr. Duch's testimony was thus used to validate a "knowledge date" some 20 years later than the defence intended when they brought this witness to court.

Christian Bourque's conclusions were also used in a way not foreseen during the trial. He had used Imperial Tobacco's surveys to ground his opinion on what the public knew and when. After listening to the "vociferous" and "uncontradicted"  and "ill-focused" criticisms levelled by Mr. Duch and Ms. Durand, the judge decided to "exclude the Internal Surveys as a source of reliable information as to the actual knowledge of the general public".

Nonetheless, he accepted Mr. Bourque's report as proof of "what ITL perceived and believed, accurately or not, about the public's knowledge of the dangers of smoking."   That the company did nothing to inform consumers even as it believed that smokers were unaware of the harms was decried by the judge as being "so far outside the standards of acceptable behaviour that one could not be blamed for branding them as immoral." 

Addiction

Justice Riordan's ruling on the addiction issues in the trial were briefly discussed here last week.

These were informed by the submissions of three experts on addiction: Dr. Juan Carlos Negrete (right) testified for the plaintiffs and the defendants experts were Dr. Dominique Bourget (centre) and Professor John Davies (left).

Those who watched or read the testimony will not be surprised that the views of these last two were heavily discounted by the judge.

British psychologist John Davies' iconoclastic approach to addiction was one that Justice Riordan could not put faith in. "[163] Professor Davies is very much a man on a crusade, too much so for the purposes of the Court. He has a theory about drug misuse and he defends it with vehemence. ... [it] is inappropriate and counter productive for an expert witness..."

Nor could he rely on Canadian psychiatrist and frequent expert witness, Dr. Dominique Bourget, about whom he seems to regret having qualified. "In hindsight, despite her extensive experience testifying in criminal matters, we have serious doubts as to her qualifications in the areas of interest in this trial." 

Dr. Negrete's "occasionally dramatic language" may not always have been to the judge's liking, but his analysis that nicotine diminished ones ability to stop smoking, and that nicotine addiction sets in about 4 years' of smoking, was one that he accepted. "[O]n all matters dealing with dependence, the Court prefers his opinions to those of the two experts in this area called by the Companies."

Moreover, Dr. Negrete was the last man standing after the two addiction experts chosen by the defendants flamed out. "Earlier, the Court held that it cannot rely on the expert reports of Professor Davies and Dr. Bourget. Consequently, the only proof of the effect that tobacco dependence has on individuals is provided by Dr. Negrete."

Of the 6 defence experts who testified in the areas of addiction and common knowledge, the credibility and capacity of 4 were found wanting.

In the coming days, a look at the experts in epidemiology and disease. 

"Maintained in part"

When the story runs "Judge awards $15 billion", it is easy to think that the plaintiffs in the Quebec Class action won their entire case.

But, as described in an earlier post, the ruling by Justice Riordan refused a mechanism for addicted Quebec smokers to receive any compensation from the companies. Although he said their case was supported by the three-legged stool of civil liability (fault-damages-causality), he then knocked that stool out from under them by denying a method of recovery.

This was not the only area in which Justice Riordan was not convinced by the plaintiffs' arguments. Among his findings are several which will disappoint the public health community, including his decision that the companies had not been proven to have acted improperly when they designed and marketed light cigarettes or by advertising to youth.  A game-changing moment was lost when Justice Riordan soundly rejected the plaintiffs' request for a decision that cigarettes were too harmful and too useless to be on the market.[1]

No fault for light cigarettes or nicotine manipulation

The quantity of nicotine that was provided in tobacco leaves, in cigarettes, and to the lungs of smokers received a lot of air-time during the trial.

The companies were accused of making sure there was enough nicotine in cigarettes to keep smokers addicted, especially in "light" cigarettes which were designed to give low readings of tar and nicotine to smoking machines.

To accomplish this, the companies were said to have encouraged the cultivation of higher-nicotine tobacco blends, to have chosen the leaves that had higher levels of nicotine and to have designed their low-tar/light cigarettes so that it was easy for smokers to pull out as much nicotine as their addiction required. The plaintiffs also argued that the marketing of light cigarettes one way that the companies gave false reassurance to smokers that they could reduce the risks of smoking.

Against these charges, the companies denied that they had done anything other than comply with government policy. They said the development of higher nicotine tobacco was the brain-child of Agriculture Canada and Health Canada. [2] As for the risk that smokers would over-smoke low-tar cigarettes  - this was a concern that they had communicated to government as early as 1971. Although smokers might get more from a low-tar/light cigarette than the packaging label would suggest, they still got less than they would from a regular strength cigarette. [3].

On all of these nested issues, Justice Riordan ended up on the companies' side. He did not even give them a yellow card.

No fault in using higher-nicotine tobacco:"... Accepting that they did choose tobacco with higher levels of nicotine, the Companies were in a very practical way forced to do so by Health Canada. Moreover, in the context of the time, far from being a nefarious gesture, this could actually be seen as a positive one with respect to smokers' health. ...ITL was neither attempting to keep its customers dependent nor committing a fault."

No fault in selling compensatable cigarettes, once they had warned Health Canada

"Once they had warned Health Canada of the situation regarding compensation, it is difficult to fault the Companies for not intervening more aggressively on that subject. To do so would have undermined the government's initiatives and possibly caused confusion in the mind of the consumer. Perhaps more importantly, at the time it was genuinely thought that reduced delivery products were less harmful to smokers, even with compensation...we find no fault on their part for not doing more than they did with respect to warning of the dangers associated with compensation."

Not false reassurance,
just normal business practice

No fault in advertising low tar brands is not a fault, as they were produced under pressure from Health Canada

"We conclude that Health Canada was the main advocate of reduced-delivery products in conjunction with its "if you can't stop smoking, at least switch to a lower tar and nicotine cigarette" campaign. We also note that the Companies were under pressure to cooperate with that by producing low-tar brands. Under such circumstances, it was simply normal business practice to research the market for such brands. If that research showed that some smokers switched as a way of easing their guilt or anxiety about smoking, it would be normal to use that knowledge in developing advertising for them. The Court sees no fault in that."

The use of ‘light’ and ‘mild’ descriptors was not misleading.
"There seems to have been a fair degree of confusion among all concerned as to how to market reduced-delivery products to the consumer. Accepting that, the Court does not see any convincing evidence that the use of the descriptors "light" or "mild", in the context of the times, was any more misleading than any other accurate terms would have been, short of adding a warning containing all the relevant information that the Companies knew about their products. As such, we do not find a fault in the Companies' use of those descriptors." 

No fault for marketing to youth 

Not clear enough that
they were targeting youth?

More than a decade ago, the marketing practices of tobacco companies were thrashed out before the Quebec Superior Court before Justice André Denis. Many of documents used in that trial were also used in this class action. (The legal proceedings started about 18 months apart).

Justice Denis was convinced that tobacco companies targeted youth. In his 2002 decision, he wrote that it was "completely unrealistic to claim that tobacco advertising does not target people under 19 years of age." ...  "Internal marketing documents introduced at trial strongly suggest that tobacco companies see advertising as the cornerstone of their strategy for reassuring current smokers and expanding the market by attracting new smokers, mainly young people."

This finding and his conclusions were upheld by the Supreme Court in 2007, which makes it all the more surprising that Justice Riordan did not find that the evidence was strong enough to find fault with the companies for having tried to recruit young teens.

By contrast, Justice Riordan found "The evidence is not convincing in support of the allegation of wilful marketing to Young Teens. There were some questionable instances, such as sponsorships of rock concerts and extreme sports but, in general, the Court is not convinced that the Companies focused their advertising on Young Teens to a degree sufficient to generate civil fault. ...The proof does not support a finding that ITL, or the other Companies, were guilty of such targeting."

He did agree that there was evidence that the marketing hit smokers younger than 18, but here again the companies were shielded by government policy and by the curious views of the judiciary that sponsorship advertising is not cigarette advertising.

"The evidence is strong in showing that, in spite of pious words and industry marketing codes to the contrary, some of the Companies' advertising might have borne a sheen that could appeal to people marginally less than 18 years of age. That, however, cannot be an actionable fault, given that the federal and provincial legislation in force allowed the sale of cigarettes to anyone 16 years of age or older until 1993 and that from 1988 to 1995 the Companies were not advertising at all."

That is not to say that Justice Riordan took the issue lightly. It was the argument that failed to satisfy, not the concern.
"Let us be clear. Were there adequate proof that the Companies did, in fact, target Young Teens with their advertising, the Court would have found that to be a civil fault. If it is illegal to sell them cigarettes, by necessary extension, it must be, if not exactly illegal, then certainly faulty - dare one say immoral - to encourage them to light up." 

No fault for marketing to adult non-smokers

In their arguments and through their expert witness, David Soberman, the tobacco companies denied that their marketing was intended to reach anyone but adult smokers. Justice Riordan did not buy their argument -- but nor did he find any fault with their marketing to adult non-smokers.

Tobacco advertising was aimed at both smokers and non-smokers.
"It is simply too unbelievable to accept that the highly-researched, professionally-produced and singularly-attractive advertising used by JTM under RJRUS, and by the other Companies, neither was intended, even secondarily, to have, nor in fact had, any effect whatsoever on non-smokers' perceptions of the desirability of smoking, of the risks of smoking or of the social acceptability of smoking. The same can be said of the effect on smokers' perceptions, including those related to the idea of quitting smoking. 

The "mature market" argument is bogus
"His [defence marketing expert David Sobertman] testimony boils down to saying that, where a company finds itself in a "mature market", it loses all interest in attracting any new purchaser for its products, including people who did not use any similar product before. This flies so furiously in the face of common sense and normal business practice that, with respect, we must reject it." 

Marketing to non-smokers did not offend the law
"Hence, the Court finds that, perhaps only secondarily, the Companies' targeted adult non-smokers with their advertising. So be it, but where is the fault in that? Not only did the law allow the sale of cigarettes to anyone of a certain age, but also the Companies respected the government-imposed limits on the advertising of those products... we do not see how the advertising of a legal product within the regulatory limits imposed by government constitutes a fault in the circumstances of these cases."

No fault for selling such a dangerous product

Justice Riordan readily accepted that cigarettes were a "dangerous and harmful" product, and that among the dangers they posed was the risk of addiction. It was the companies knowledge of those dangers and its failure to inform consumers about the dangers that resulted in Canada's highest damage award.

But the plaintiffs had asked him to go a step further, and to rule that the risks of using cigarettes were so high and the benefits so low that selling them should be viewed as causing a harm to others in a way not permitted under the Quebec Civil Code.

This far Justice Riordan would not go.
"[T]he Court finds no support in the case law and doctrine for a principle of civil law similar to the one that the Plaintiffs wish to invoke."

To my reading, it was the manner of sale, and not the product, that was the problem for this judge.
"...the Companies manufactured, marketed and sold a product that was dangerous and harmful to the health of the Members. As noted, that is not, in itself, a fault or, by extension, an unlawful interference. That would depend both on the information in the users' possession about the dangers inherent to smoking and on the efforts of the Companies to warn their customers about the risk of the Diseases or of dependence, which would include efforts to "disinform" them."

Footnotes

[1]. This argument was made in the plaintiffs Notes and Authorities on page 8.
[2]. These events were recently described by Neil Collishaw. 
[2]. See, for example ITL's Notes and Authorities, page 82.

One week later....

A week after Canadian tobacco companies are hit with a stupendous penalty for having neglected their manufacturers' responsibilities and harmed Quebec smokers, it would appear that life goes on pretty much as it did before. And so does business.

The stock market's "muted" reaction

It is often to the stock-market that observers look for validation of the significance or impact of a legal ruling.

Those who set store by the collective wisdom of investors will have noted that in the week following the Quebec ruling, share prices of the multinational owners of the guilty Canadian operations went down slightly. Over the week, the value of Japan Tobacco stock fell by 3.42%, Philip Morris International by 3.65% and British American Tobacco by 4.5%. (See graphs pasted at the end of this blog)

The sky did not fall, but the roof bowed slightly.

Justice Riordan's ruling sheds light on the Canadian earnings of those companies, allowing us to compare the adjustment in share value with the proportion of multinational earnings that come from the Canadian companies. (How to adjust for currency fluctuations makes this exercise vulnerable to legitimate quibbles: I used average annual exchange rates).

                      Five-year average, 2009-2013
                      in millions of Canadian dollars

	Global earnings	Canadian earnings	Canadian  earnings (%)
BAT/ITL	$7,561	$483	6.4%
PMI/RBH	$11,435	$460	4.0%
JAPAF/JTIM	$5,230	$103	2.0%

Was the market response a muted one? Certainly investors had their choice of reassuring columns to read over the week. The consensus view seems to be that the penalties will be reduced by the higher courts.

 "Managers snub out unease over more tobacco lawsuits" reports the U.K.'s Financial Times, over a story quoting an investment analyst who predicts that the company will not have to "stump up the cash, or at least think the appeals process will kick the can into the very long grass."

"$15B tobacco ruling barely dents stocks as analysts predict penalty will come down", soothed Canada's Financial Post with a similar message that "the final payout will probably come down later in the appeals process."

The tobacco market's non-reaction

Warning-free cigar
and the purchase price

I have not yet observed any changes in the way tobacco products or other addictive and/or harmful consumer goods are presented for sale.

Justice Riordan sent a message - but to whom?
"[1037] Over the nearly fifty years of the Class Period, and in the seventeen years since, the Companies earned billions of dollars at the expense of the lungs, the throats and the general well-being of their customers. If the Companies are allowed to walk away unscathed now, what would be the message to other industries that today or tomorrow find themselves in a similar moral conflict?

I had occasion to drop by a tobacconist yesterday, and noted that there remain tobacco products for sale that still did not carry warnings. On its web-site, the company that manufactures this cherry-flavoured mini-cigar says it holds as a principle of responsible stewardship "that tobacco products should convey clear and accurate warnings about the potential risks associated with tobacco consumption". But the website is as silent as the package on what those risks might be.

Cigar, anyone?

The governments' non-response

I have been unable to find any instances of provincial or federal health authorities commenting on the ruling, nor their being pressured to do so by their elected peers or by the media.

The World Health Organization was a little more upbeat and issued its congratulations to the plaintiffs and their lawyers "on this hard-fought and important victory.""WHO and the WHO FCTC Convention Secretariat hail Canadian class actions against tobacco companies."

The distant cheering

The award for the most creative response to last week's event should surely go to a coalition of health groups in Western Australia, who used the event to encourage smokers to quit through a newspaper ad.

"However much tobacco companies may eventually pay in damages, it will never compare to the horrific suffering caused to smokers and their loved ones. Don't pay with your own life. Another good reason to quit smoking."



Share value, British American Tobacco, Philip Morris International and Japan Tobacco, last 30 days. The day of the ruling is indicated with a red line.
(Courtesy of Yahoo Finance)

Dependence? Addiction? "A rose by any other name would still have thorns."

Cécilia Létourneau

Through her innovative demand in small-claims court for reimbursement of the costs or nicotine patches, and by lending her name to one of Canada's largest class action, Cecilia Létourneau has pushed for almost 2 decades for compensation from cigarette companies her addiction to their products.

Twenty years later, she has yet to receive a dime. And last week's ruling by Justice Brian Riordan makes it unlikely she ever will.

The Superior Court judge decided that the wide variation in the experience of addiction made it inappropriate to assign a one-size-fits-most 'collective recovery' for the almost 1 million addicted Quebec smokers. Nor would he agree that individuals like Ms. Létourneau should be able to make claims, citing the high administrative costs and difficulties in assessing claims against the relatively low sum sought of $5,000 per smoker.

But by any other measure, Mme Létourneau has emerged from this lawsuit as a victor. The judge agreed that she and other smokers had been harmed by the companies' actions over decades, and that the companies broke three important Quebec laws.

The companies escaped having to pay individual smokers for the addiction they caused, but they must forfeit one of the largest punitive damage awards in Canadian history: $131 million .

This steep penalty was assessed, as Justice Riordan wrote, to send a "message to other industries that today or tomorrow find themselves in a similar moral conflict" and to prevent or deter similar wrongdoing.

Those facing similar moral conflicts might want to take note!

The many controversies of addiction

There was very little about addiction that was not the subject of fierce debate during the Blais-Létourneau trials. This topic was discussed with a ferocity otherwise reserved only for legal arguments. (By contrast, cancer, emphysema and other tobacco-caused disease were almost taken as given.)

The companies and the two experts who testified for them steadfastly refused to accept that the term addiction could be given any firm medical or legal meaning with respect to smoking. It did not affect reasoning, it did not intoxicate, smokers can still quit.

So in his ruling, Justice Riordan had to build his decision almost from first principles. Did tobacco products create a dependency? Is such a dependency an actual harm? Is this a harm to which legal liability can be attached? Only then did he turn to the questions of whether any such harms could by pinned on the companies or whether addicted smokers should be compensated for this injury.

Ditching the semantics 

"Vocabulary took on excessive proportions in the discussion on dependence." The judge noted that this was linguistic debate was a strategic one for the defence, whose experts had "used semantics as a way of side-stepping the real issue of identifying the harm that smoking causes to people who are dependent on tobacco."

He characterized their view as one where "nicotine is no more dependence creating than many other socially acceptable activities, such as eating chocolate, drinking coffee or shopping,"-  "a state of benevolent dependence, one that can be conquered by ordinary will power."

For his own part, Justice Riordan prefers the term "dependence," but for him, there is "little significance to the specific word used."

"What is important is the reality that, for the great majority of people, smoking will be difficult to stop because of the pharmacological effect of nicotine on the brain. That which we call a rose by any other name would still have thorns."

Measuring the harms of addiction

It was the addictiveness of cigarettes that made it inappropriate to place the responsibility for failing to quit on the smoker.

"[179] Will power certainly plays a role, but that is not the point here. Nicotine affects the brain in a way that makes continued exposure to it strongly preferable to ceasing that exposure. In other words, although it can vary from individual to individual, nicotine creates dependence."

He elaborated on the harms experienced by this difficulty in quitting.

"[183] Dependence on any substance, to any degree, would be degrading for any reasonable person. It attacks one's personal freedom and dignity. When that substance is a toxic one, moreover, that dependence threatens a person's right to life and personal inviolability."

He also accepted the plaintiffs' position on the specific harms that resulted:

• The risk of a premature death is the most serious damage suffered by a person who is dependent on tobacco
• The average indicator of quality of life is lower for smokers than for ex-smokers, especially with respect to mental health, emotional balance, social functionality and general vitality
• There is a direct correlation between the gravity of the tobacco dependence and  a lower perception of personal well-being
• Dependence on tobacco limits a person's freedom of action, making him a slave to a habit that permeates his daily activities and restricts his freedom of choice and of decision;
• When deprived of nicotine, a dependent person suffers withdrawal symptoms, such as irritability, impatience, bad moods, anxiety, loss of concentration, interpersonal difficulties, insomnia, increased appetite and an overwhelming desire to smoke.

Justice Riordan ruled that someone can be considered to be dependent on cigarettes if they are a daily smoker of at least 15 cigarettes per day who has been smoking for at least 4 years.

Did everybody know?

Justice Riordan again used the evidence of defence witnesses establish the date at which the companies would have been aware of the addictiveness of their products.

He ruled that if their expert historian, David Flaherty, felt that there was knowledge available from the mid 1950s that it was difficult to quit smoking, then the companies would have held this knowledge from this early date. (He also cited their industry correspondence acknowledging addiction in the mid 1970s).

But the general public did not have this knowledge for a further 40 years - almost a decade after the 1988 U.S. Surgeon General's report on the topic. The industry's ability to forestall a warning on addiction until 1994 came back to bite them in this ruling.

"Although Canadians paid much attention to the Surgeon General Reports, the Court sees the new Warning on addiction as confirmation that the Quebec public did not have sufficient knowledge before its appearance.... If the government, with all its resources, was not sufficiently concerned about the risk of tobacco dependence to require a warning about it, then we must assume that the average person was even less concerned."

It would be a further two years (March 1996) before the "great majority" of Quebecers could have been considered to have absorbed this information, ruled the judge. "The impact of decades of silence and mixed messages is not halted on a dime. The Titanic could not stop at a red light."  

Even after that date, the companies had a liability for those who became dependent, although it was reduced to 80% in the case of those who started smoking after the threshold date of March 1, 1992. (Since dependence was considered to take 4 years to set in, these individuals could be considered to have become dependent after they knew of the risk).

The companies knew. The public didn't know. The companies knew that the public didn't know - a fact that Justice Riordan condemns.

"[239] By choosing not to inform either the public health authorities or the public directly of what they knew, the Companies chose profits over the health of their customers. Whatever else can be said about that choice, it is clear that it represent a fault of the most egregious nature and one that must be considered in the context of punitive damages."

The broken laws 

Although the issues were separately assessed, Justice Riordan came to the same conclusions with respect to the laws that were broken with respect to emphysema and cancer of the lung and throat and to addiction.

Their failure to warn went against several several parts of Quebec law, including the Civil Code general duty "not to cause injury to another," its obligations on manufacturers with respect to safety defects, the right to life and personal security guaranteed under the Quebec Charter of Human Rights and Freedoms and the Quebec Consumer Protection Act.

He ruled the companies' breach of their general duty to not harm others had continued to the end of the class period.

Victims, yes. Compensated, no. 

As noted above, this careful parsing of dates of knowledge and criteria of dependence are of little comfort to the almost one million Quebec smokers whom Justice Riordan has ruled were harmed by the wrongful acts of the companies, but who will receive no individual compensation.

The $131 million punitive damages must be paid by the companies within the next 60 days. What will happen to that money - during and after the inevitable appeals of this ruling -- is yet to be resolved.

Lifestyle advertising and misleading the "credulous and inexperienced consumer"

Is lifestyle advertising for harmful products inherently false and misleading if it fails to mention product risks?

In his ruling this week, Justice Riordan went some way to saying "yes".  Or it certainly looks this way to this "credulous and inexperienced consumer" of legal rulings.

Neutral Exhibit 40480 Misleading  Exhibit 152 Exhibit 1381.33 Exhibit 1534.2

The judge assessed whether the advertisements that had been widely displayed in Quebec after 1980 (when the Consumer Protection Act was adopted) complied with that law's provisions that: "219. No merchant, manufacturer or advertiser may, by any means whatever, make false or misleading representations to a consumer."

He reviewed some specific ads, including those displayed here, and decided that the law did not require smokers to get the impression that smoking was healthy in order for the ads to be misleading. "The test would be whether the general impression is true to reality. It would be enough if they suggested that it was not harmful to health."

Not all ads were misleading in this way, he found. He cited as a non-offending "neutral' advertisement one which had been used to promote Macdonald Select in 1982. 

Others, however, he found "contain a theme and sub-message of elegance, adventure, independence, romance or sport. As well, they use attractive, healthy-looking models and healthy-looking environments."  These, he decided, were misleading within the context of the Supreme Court's concern for the "credulous and inexperienced consumer." 

[536] From the viewpoint of a 'credulous and inexperienced' consumer, ads such as these would give the general impression that, at the very least, smoking is not harmful to health.

He ruled that the Consumer Protection Act had been violated and that the companies must pay both compensatory and punitive damages.

Interestingly, this was not exactly the argument that the plaintiffs had made to the judge. The view of their expert witness, Richard Pollay, that widespread advertisements created a "friendly familiarity" was not one that this judge bought into.

But having rejected the advice of the plaintiffs' marketing expert, the judge cast his own eye to the ads which had been shown during the trial. "It is by viewing them – through the eyes of a credulous and inexperienced consumer – that the Court can assess whether there is a contravention of this provision."

The plaintiffs may not have convinced the judge through their expert, but they did through their evidence. And it was the defendants' evidence that the judge used to make the link between these ads and the need for compensation.

The Supreme Court has set four criteria for a misleading ad to result in a financial award. Two of those require that the advertisement resulted in people buying the product and also that it was capable of influencing that decision.

Throughout the trial, the defendants had argued that the purpose of advertising was to win market share away from their competitors -- i.e. to get people to buy their cigarettes. Many marketers from the companies had spoken about the prolonged efforts and enormous sums that were spent on marketing to generate sales. So it was by their own admission that Justice Riordan ruled that the companies' misleading ads were able to and were successful at selling cigarettes.

This section of Justice Riordan's ruling is pasted below.

-----------------------------

II.G.2.c THE ALLEGED CONTRAVENTION UNDER SECTION 219 CPA

 [518] Section 219 reads as follows: 219. No merchant, manufacturer or advertiser may, by any means whatever, make false or misleading representations to a consumer.

519] Section 218 is also relevant for these purposes. It reads: 218. To determine whether or not a representation constitutes a prohibited practice, the general impression it gives, and, as the case may be, the literal meaning of the terms used therein must be taken into account.

 [520] With respect to the general impression mentioned there, it is "the impression of a commercial representation on a credulous and inexperienced consumer".267

 [521] The Plaintiffs argue at paragraph 154 of their Notes that "Throughout the class period, (the Companies) contrived and executed an elaborate strategy that used affirmations, behaviour, and omissions to deny the true nature of their toxic, useless product or mislead consumers about these important facts". In paragraph 155, they add: 155. Throughout the class period, the Defendants not only failed to inform consumers but also used every form of public interaction available to them to deny the harms and extent of risk associated with cigarette consumption. In the rare circumstances where they acknowledged that cigarettes could be dangerous or harmful, the Defendants trivialized those harms and the intensity of the risk. They further falsely represented cigarettes as providing smokers with benefits when they knew that were selling a pharmacological trap.

 [522] For reasons that are not clear, the Plaintiffs do not focus on marketing activities under this section of the CPA, reserving that for their arguments under section 220(a). In our view, that discussion should occur in the present section, and we shall proceed accordingly.

 [523] The extent of the Companies' representations to consumers during the part of the Class Period when this provision was in force was to advertise their products between 1980 and 1988, as well as between 1995 and 1998, and to print Warnings on the packages. This was the period of their Policy of Silence, so they were making no direct comments about smoking and health.

 [524] In section II.E.6 of the present judgment, we found no fault on the Companies' part with respect to conveying false information about the characteristics of their products. That is relevant to this question but, in light of sections 216 and 218, it is not conclusive. A different test is called for under the CPA. 267 Op. cit., Time, Note 20, at paragraph 70. 500-06-000076-980 PAGE: 117 500-06-000070-983

[525] In similar fashion, our rulings in section II.B.1 that the Companies' faults with respect to the obligation to inform about safety defects ceased as of January 1980 for the Blais File and March 1996 for the Létourneau File is not relevant to the CPA-based claims. Under the CPA, the consumer's knowledge of faulty representations does not exculpate the merchant.

[526] As stated in Turgeon, the CPA is "a statute of public order whose purpose is to restore the contractual [balance] between merchants and their customers".268 Its method is to sanction unacceptable behaviour on the part of merchants, regardless of the effect on the consumer269. Hence, the defence of consumer knowledge open to a manufacturer under article 1473 of the Civil Code is not available.

[527] Even though the Companies' ads did not convey false information, since they conveyed essentially no information, under the CPA the question is whether their representations would have given a false or misleading impression to a credulous and inexperienced consumer. For that, it would not be necessary for them to go so far as to say that smoking was a good thing. The test is whether the general impression is true to reality270. It would be enough if they suggested that it was not harmful to health.

[528] ITL and RBH plead a lack of proof, coupled with a complaint about overly general allegations and lack of interest. JTM argues in its Notes as follows: 215. As will be demonstrated below, there is nothing misleading or inappropriate with lifestyle advertising. The methods used by JTIM for its marketing were legitimate and similar to those used by other companies in other areas. JTIM’s advertisements did not make any implicit or explicit health claims, and there is no evidence whatsoever that any class member was misled by any of JTIM’s advertisements.

[529] JTM cites a 2010 Court of Appeal decision dealing with the purchase of a motor home that supports the position that banal generalities in advertising do not constitute false or misleading representations.271 Although not directly on point, that reasoning is relevant here.

[530] The Companies' argument about overly general allegations is well founded. The Plaintiffs point to few if any specific incidents in support of their argument. Their reference to paragraph 18.12 of Professor Pollay's report does them little good. We have already concluded that it is unconvincing on this question.

[531] The Plaintiffs accuse the Companies of using "labelling and lifestyle advertising to create a 'friendly familiarity' with (the Companies') product in order to falsely convince consumers that cigarette smoking was consistent with a healthy, successful lifestyle" 272, without explaining how they see that process working. In the absence of further explanation, the Court does not see the evidence as supporting this general statement.

 [532] All this seemingly leads to a conclusion that the Companies did not violate section 219. The problem is that none of it looks directly at the evidence in the record, i.e., the typical ads used by the Companies since 1980. It is by viewing them – through the eyes of a credulous and inexperienced consumer – that the Court can assess whether there is a contravention of this provision.

[533] It should not be controversial to assert that every single cigarette ad since 1980 for every single brand of the Companies' products attempted to portray those cigarettes in a favourable light. That does not necessarily mean that they all suggested that smoking was not harmful to health.

[534] A good example of a "neutral" ad is Exhibit 40480. It simply shows the packages of the three sub-brands of Macdonald Select cigarettes, with a short message aimed at "those who select their pleasures with care". There are other ads of this sort and none of them constitute violations of section 219 CPA. They, however, are the exception.

[535] As a general rule, the ads contain a theme and sub-message of elegance, adventure, independence, romance or sport. As well, they use attractive, healthy-looking models and healthy-looking environments, as seen in the following exhibits:

• Exhibit 1381.9 – Macdonald Select ad of 1983 showing an elegantly-dressed couple apparently about to kiss;

• Exhibit 1040B – Export A 1997 ad portraying extreme skiing

• Exhibit 1040C – Export A 1997 ad portraying mountain biking

• Exhibit 1381.33 – Belvedere 1988 ad showing young adults on a beach

• Exhibit 152 – two Player's Light 1979 ads273 portraying horseback riding and canoeing in the Rockies

• Exhibit 1532.4 – Belvedere 1984 ad from CROC magazine showing a tanned couple on the beach

• Exhibit 243A – Vantage 1980 ad from The Gazette, text only, explaining how Vantage delivers taste but "cuts down substantially on what you may not want"

• Exhibit 40436 – two Export A 1980 ads showing loggers and truckers

• Exhibit 40479 – two Export A 1982 ads showing a mountain lake and a man on top of a mountain

• Exhibit 573C – Export A 1983 ad portraying a windsurfer

• Exhibit 771A – Player's Light 1987 ad seeming to portray a windsurfer in Junior Hockey Magazine

• Exhibit 771B – Export A 1985 ad in Junior Hockey Magazine portraying alpine skiing and Viscount 1985 vaunting it as the mildest cigarette 273 Although this ad is from 1979, we assume it carried over at least into the next year.

[536] From the viewpoint of a "credulous and inexperienced" consumer, ads such as these would give the general impression that, at the very least, smoking is not harmful to health. In this manner, the Companies failed to fulfil one of the obligations imposed by Title II of the CPA.

[537] As for each and every Member of both Classes seeing the infringing representations, we dealt with this issue in an earlier section. The Companies admit that all Members would have seen newspaper and magazine articles warning of the dangers of smoking. Since the ads appeared, inter alia, in the same media, it is reasonable to conclude that all Members would have seen them, as well.

[538] We come to the third condition: that seeing the representation resulted in the Members' purchasing of cigarettes. In their proof, the Companies consistently emphasized that the purpose of their advertising was to win market share away from their competitors. To that end, they spent millions of dollars annually on marketing tools and advertising. Moreover, the Court saw the result of such marketing efforts, particularly through the success of ITL at the expense of MTI in the 1970s and 80s.

[539] This is sufficient proof to establish the probability that the Companies' ads induced consumers to buy their respective products. The third condition is met.

[540] The same evidence and reasoning shows that the final condition: that the prohibited practice was capable of influencing a consumer's behaviour with respect to the decision to purchase cigarettes, is also met.

[541] As a result, there is a contravention of section 219 CPA here. The Members may claim moral and punitive damages pursuant to section 272 CPA, subject to the other holdings in the present judgment.

Footnotes
268 Op. cit., Turgeon, Note 259, at paragraph 36. 269 Op. cit., Time, Note 20, at paragraph 50.

270 In Time, the Supreme Court calls for a two-step analysis for questionable representations: describe the general impression on a credulous and inexperienced consumer and then determine whether that general impression is true to reality: Op. cit., Note 20, at paragraph 78.

271 Martin v. Pierre St-Cyr auto caravans ltée, EYB 2010-1706, at paragraphs 24 and 25.

272 Plaintiffs' Notes at paragraph 157.