Quebec Court of Appeal upholds the constitutionality of Quebec's law to sue tobacco companies

Another season, another important ruling from Quebec's Court of Appeal on tobacco litigation.

Today's ruling comes a little over 3 months since this court hosted a hearing into the constitutionality of the Tobacco-related Damages and Health Care Costs Recovery Act, (TRDA) the law which set the groundwork for the Quebec government's attempt to sue tobacco companies for the costs of treating the diseases caused by their products.

On June 18th, lawyers representing the defendant tobacco companies had tried to convince the Court that this law prevented them from getting a fair trial and that it was inconsistent with those parts of the Quebec Charter of Human Rights and Freedoms which guarantee a "full and equal, public and fair hearing by an independent and impartial tribunal."

(This was the companies' second kick at the can: they failed in their first attempt before Justice Robert Mongeon, who ruled against them in March 2014. )

The trial would be rigged, they told both courts, by a law which set new rules for evidence, and which removed time limitations on seeking redress against these companies.

They did not succeed in persuading this panel of three judges (Manon Savard, Paul Vézina and Geneviève Marcotte).

To the contrary, these judges seemed to have no difficulty agreeing that the law was consistent with the constitution, and that they had not been convinced that their right to a fair hearing had been affected, even if they were deprived of some traditional means of defence.

[86] En bref, la suprématie parlementaire permet au législateur de modifier la loi comme il l’entend, dans la mesure où ces modifications respectent les limites constitutionnelles. Ici, les appelantes n’ont pas démontré en quoi l’élimination de la prescription, ou les autres changements apportés aux règles de preuve et de procédure civile, contreviendraient à leur droit à un procès équitable, même si, de fait, ils les privent de certains de leurs moyens de défense.  

The Appeal Court ruling also reflected on the provisions of the TDRA that directly affect the Blais-Létourneau class action suit by allowing for "proof of causation" to be "established on the sole basis of statistical information".

Justice Riordan relied on this in his judgment against the companies and their comment along the lines that it did not necessarily make his job easy will doubtless trigger some reflection by those who will be back before the Appeal court on the very same issues.

[81] De manière analogue, l’article 15 de la Loi vient remédier à l’inégalité systémique inhérente au droit commun en matière de responsabilité civile, alors que le jugement récent rendu dans le cadre des deux recours collectifs initiés contre les fabricants de produits du tabac illustre bien que la preuve de la causalité à l’aide de renseignements épidémiologiques ou statistiques n’est pas nécessairement aisée.

Is this the end of the road for the companies' attempts to block enabling legislation for lawsuits in Canada?  In theory, the Supreme Court could take another look. But after having substantially reviewed the B.C. law and given it the green light more than a decade ago, my bet is that they will not agree to do so.

And there's more to come!

Although it does not appear on the Court of Appeal rolls for next week, I understand that next Tuesday (October 6), the lawyers representing Quebec smokers in the Blais-Létourneau class action suits will ask that the tobacco companies be required to put some money aside while their appeal is being heard.