Monday, 6 July 2015

The Appeals Begin

The deadline for the tobacco companies to file an appeal to Justice Riordan's decision in the Montreal tobacco trials came and went on Friday, June 26. Before it left, each of the three companies had duly filed their separate objections to his ruling.

As far as I know, only one of these documents is easy to access at the moment. It has been made so courtesy of Rothmans, Benson and Hedges web-portal on this case ( As the filings from the other companies become accessible, I will post them here.

Many judicial errors

In its Inscription in Appeal, Rothmans, Benson and Hedges has taken a broad-brush approach to criticizing the judgement. They identified no fewer than 33 specific errors which they say were made by Justice Riordan. His approach to the case was described as one in which he "disregarded the most fundamental limits on his judicial role." 

"The Trial Judge erred in finding that fault, causation and injury had been proven conclusively or at all; erred in awarding collective recovery of moral damages in Blais; erred in awarding punitive damages; erred in granting prescribed claims; and erred in ordering provisional execution. He also made palpable and overriding errors in his factual findings and treatment of the evidence, and fundamentally erred in his understanding of the class action procedure." 

The main themes of their concerns are the same as those which they presented during the main trial: individual harms have to be demonstrated, smokers knew about the risks and should be held responsible for their decisions, the shelter of government approval of package warnings.

(Noteworthy is the role of Philip Morris International in providing media commentary on this trial. Their director of Corporate Affairs Strategy and Planning, Anne Edwards, has provided a number of clips for media use on Among these is their view that the company "cannot be held liable for the government's own mandate.")

Reading RBH's appeal, I could identify no area in which they have adjusted their version of history in response to Justice Riordan's findings of fact. It would appear that the strategy of no concessions, no admissions is still in play.

The Provisional Execution

Each company has also filed a separate motion asking to be liberated from making the a $1.13 billion* payment required by Justice Riordan when he ruled in favour of such a 'provisional execution'.

His ruling required them to deposit this amount within 60 days of his ruling, i.e. by July 26th. With only a 30 day window to resolve this sub-issue, the Appeal Court quickly scheduled a hearing which will take place this Thursday morning, July 9th.

The companies have been ordered to drum up the equivalent of one year's earnings (for Rothmans) with a higher figure for the companies that were found more at fault (Imperial Tobacco and JTI-Macdonald).

I had rather expected them to increase the price of their cigarettes to help make these payments. This, after all, is what happened when all the U.S. companies found themselves on the hook to the U.S states after the Master Settlement Agreement was reached in 1998. There, the price of a package of cigarette increased by about $0.45 - or 20% of the price of a premium brand. 

Wholesale Price Increase in U.S. during and
after Master Settlement Agreement
U.S. Department of Agriculture

A similar tactic in Canada would involve a wholesale price increase of about $0.67* a package (or a little more if the higher price led some Canadians to buy fewer of the companies brands). There are about 30 billion manufactured cigarettes sold in Canada.

If there has been a wholesale price increase, it has not reached the stores in my neighbourhood. Then again, raising prices might conflict with the plea of poverty that will doubtless be spun to the Appeal Court later this week!
(*these numbers were corrected on July 9th)

Another Legacy

Documents from the Blais-Létourneau class action are now available on the incomparable Legacy Document site at the University of California San Francisco.  Search and enjoy!