Tuesday, 2 June 2015

Something to whet your appetite

I would not want to discourage anyone from setting aside an afternoon to find a comfortable chair and read the ruling made public yesterday by Justice Riordan in the Blais-Létourneau case.

I have now read it one (fast) and a half (slower) times. It is a delight. You will have trouble remembering to take a stretch-break. 

Justice Brian Riordan
Justice Riordan writes clearly, simply and peppers his analysis with loverly turns of phrase. (He describes, for example, the efforts of historians who pointed to health stories in newspapers while avoiding mentioning the advertisements sometimes on the same pages as "tracing their opinions with a scalpel in order to justify sidestepping such an obviously important factor.")

His ruling is thought-provoking in what it says (that companies breached laws that were in effect for decades) and in what it leaves unsaid (why did it take this private action for these laws to be enforced? Are the industry's actions in 2015 fully consistent with those same laws?). He carefully includes as attachment the relevant laws so that those who are not familiar with the Quebec legal system can follow his train of thought.

While isolating individual quotes from his ruling does a disservice to his careful integration of issues, it is an easy way to fill a blog. And one, I hope, that encourages others to read the entire thing.


Riordan on protecting the public from corporate wrongdoing...
[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?
[1038] The Companies' actions and attitudes over the Class Period were, in fact, "particularly reprehensible" and must be denounced and punished in the sternest of fashions. To do so will be to favour prevention and deterrence both on a specific and on a general societal level...
Riordan on the behaviour of the companies
[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.
[288] ... Nonetheless, knowingly exposing people to the type of dangers that the Companies knew cigarettes represented without any precaution signals being sent is beyond irresponsible at any time of the Class Period. It is also intentionally negligent.
[337] Yet ITL stuck to the industry's policy of silence and made no attempt to warn what it knew to be an unsophisticated public. The Plaintiffs argue that this is a gross breach of the duty to inform of safety defects and demonstrates not just ITL's insouciance on that, but also its wilful intent to "disinform" smokers. The Court agrees.
[338] Here again, ITL's attitude and behaviour portray a calculated willingness to put its customers' well-being, health and lives at risk for the purpose of maximizing profits. There is no question that this violates the principles established in the Civil Code, both with respect to contractual and to general human relations. It also goes much further than that. 
[339] It aggravates the Company's faults and pushes its actions so far outside the standards of acceptable behaviour that one could not be blamed for branding them as immoral. Moreover, as seen below in our analysis of the other Companies, they, too, are guilty of similar acts, although to a lesser degree....
Riordan on the impact of the industry on government regulations
[272] The history of the implementation of the Warnings, even after the enactment of the TPCA, shows constant haggling between Canada and the Companies, initially, as to whether pack warnings were even necessary, and then, as to whether they should be attributed to Health Canada, and finally, as to the messages they would communicate. The Companies resisted the Warnings at all stage and attempted, and generally succeeded, in watering them down. 
[274] The Warning on addiction was not introduced for another six years, presumably at least in part as a result of the CTMC's interventions  
[287] Throughout essentially all of the Class Period, the Warnings were incomplete and insufficient to the knowledge of the Companies and, worse still, they actively lobbied to keep them that way. This is a most serious fault where the product in question is a toxic one, like cigarettes. It also has a direct effect on the assessment of punitive damages. 
[463] The reaction of the Canadian tobacco industry, through the CTMC, was to continue its efforts not only to hide the truth from the public but, as well, to delay and water down to the maximum extent possible the measures that Canada wished to implement to warn consumers of the dangers of smoking. ...
Riordan on the company's failure to warn
[313] ...Silence can trivialize and, indirectly, deny, but that is not the important question. The real question is to determine whether the Companies met their duty to warn. The Companies' self-imposed silence leads to only one possible answer there: they did not 
[267] On the other hand, many of the Companies' statements were technically accurate. Science has not, even today, been able to identify the actual physiological path that smoking follows in causing the Diseases. That, however, is neither a defence nor any sort of moral justification for denying the link. As noted in our review of the manufacturer's obligation to inform, its knowledge that its product has caused bodily damage in other cases triggers the principle of precaution whereby it should warn of that possibility.
 [268] Thus, one can only wonder whether the people making such comments were remarkably naïve, wilfully blind, dishonest or so used to the industry's mantra that they actually came around to believe it. Their linguistic and intellectual pirouettes were elegant and malevolent at the same time. They were also brutally negligent.
[269] ITL and the other Companies, through the CTMC and directly, committed egregious faults as a result of their knowingly false and incomplete public statements about the risks and dangers of smoking. 
[141] ...Both by their inaction and by their support of the scientific controversy, whereby the dangers of smoking were characterized as being inconclusive and requiring further research, the Companies actually impeded and delayed the public's acquisition of knowledge.  
[513] On the question of whether the Members saw the representations, the Companies insist that the Plaintiffs must prove that every member of both classes saw them. Whether or not that is true, an omission to inform must be approached from a different angle, since, by definition, no one can see something that is not there. Every member of society was thus subjected to the omission to mention these important facts. Hence, the condition is met, even according to the Companies' standard.    
[128] That said, even something as visible as a pack warning does not have its full effect overnight.
[129] The addiction Warning was one of eight new Warnings and they only started to appear on September 12, 1994. It would have taken some time for that one message to circulate widely enough to have sufficient force. The impact of decades of silence and mixed messages is not halted on a dime. The Titanic could not stop at a red light.  
 Riordan on conspiracy 
Referring to statements to parliament in 1969, as distributed by industry press release
[458] ...By attempting to lull the public into a sense of non-urgency about the health risks, this type of presentation, for there were many others, is both misleading and dangerous to people's well-being.
[459] Strong evidence existed at the time to support a causal link between cigarettes and disease and it was irresponsible for the Canadian tobacco industry to attempt to disguise that Sword of Damocles. By working together to this end, the Companies conspired to impede the public from learning of the inherent dangers of smoking and thereby committed a fault, a fault separate and apart from – and more serious than - that of failing to inform. 
Referring to industry agreements reached in secret in 1962 and 1977
[448] The Policy Statement was renewed in October 1977, although not in the exact form as in the original. Appearing to confirm the Plaintiffs' assertion that this was a "secret agreement", the Companies specified that the agreement was binding on them but it would not become part of the Voluntary Codes.
[449] Thus, it appears to be incontrovertible that, by adhering to the Policy Statement, these companies colluded among themselves in order to impede the public from learning of health-related information about smoking, a collusion that continued for many decades thereafter. They thereby jointly participated in a wrongful act that resulted in an injury, which is a criterion for solidary liability under article 1480 of the Civil Code.  
Riordan on ITL's destruction of scientific documents to avoid their being filed in court
[369] There is thus no doubt that ITL used the destruction as a way to avoid producing the documents, based on the assertion that they were not in its control or possession. One could query as to whether, under Ontario law, the arrangement with BAT to provide copies by fax meant that the documents were, in fact, in ITL's control, but that is not necessary. There is enough for us to conclude that ITL's actions in this regard constitute an unacceptable, bad-faith and possibly illegal act designed to frustrate the legal process.
[377] As a result, the Court is compelled to draw an adverse inference with respect to ITL's motives behind this incident. It was up to ITL to rebut this inference, yet the evidence it adduced had nothing but the opposite effect. We therefore find that it was ITL's intention to use the lawyers' involvement in order to hide its actions behind a false veil of professional secrecy.
[378] This constitutes an unacceptable, bad-faith and possibly illegal act designed to frustrate the legal process. This finding will play its part in our assessment of punitive damages. 
Riordan on the Charter rights of Quebecers
[485] ...We found that the Companies not only knowingly withheld critical information from their customers, but also lulled them into a sense of non-urgency about the dangers. That unacceptable behaviour does not necessarily mean that they malevolently desired that their customers fall victim to the Diseases or to tobacco dependence. They were undoubtedly just trying to maximize profits. In fact, the Companies, especially ITL, were spending significant sums trying to develop a cigarette that was less harmful to their customers.
[486] Pending that Eureka moment, however, they remained silent about the dangers to which they knew they were exposing the public yet voluble about the scientific uncertainty of any such dangers. In doing so, each of them acted "with full knowledge of the immediate and natural or at least extremely probable consequences that (its) conduct will cause". That constitutes intentionality for the purposes of section 49 of the Quebec Charter.
Riordan on whether smokers are the authors of their own misfortune
[833] ... it is clear that the fault of the Members was essentially stupidity, too often fuelled by the delusion of invincibility that marks our teenage years. That of the Companies, on the other hand, was ruthless disregard for the health of their customers. 
Riordan on JTI-Macdonald entering into a phoney debt arrangement to avoid having to pay taxes or liability.
[1103] ...The Interco Contracts represent a cynical, bad-faith effort by JTM to avoid paying proper compensation to its customers whose health and well-being were ruined, and the word is not too strong, by its wilful conduct...

Tomorrow, Justice Riordan's support for an epidemiological approach.