Friday, 19 June 2015

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!