Wednesday, 30 November 2016

QCA6: The Questions before the Court

Today was the last day of hearings by the Quebec Court of Appeal in the Blais-Létourneau case.  Last Friday, each side had been instructed that today they would each have up to half an hour for further pleadings, starting with the tobacco companies. 

The companies, however, demurred, saying they had said it all last week. Barely 5 minutes in, it was over to the plaintiffs’ lawyers. 

Bruce Johnston offered up a stout defence of Judge Riordan’s decision and his call for collective recovery in this class action.  He described any attempt at individual recovery to be unworkable,  Any such attempt would deny justice to plaintiffs with legitimate claims.

This was also the view expressed by his side in the text they submitted yesterday. On Friday, the Court of Appeal had asked each side to elaborate on what issues might be considered if mini-trials were required of each claimant to allow the tobacco companies to challenge or rebut the presumption that smoking had caused their disease or that it was the industry's wrongdoing that had led them to smoke.

Such a process, said Mr. Johnston's team, would be equivalent to a massive denial of justice, and it would extend the systemic advantages that have so far protected the tobacco companies  from liability for the harm they intentionally caused.  As a taste of the types of questions that would be put to each claimant, they listed some of the questions that the companies had planned to put to class members -- a list that had been cited by the same Court of Appeal more than 7 years ago when it upheld Justice Riordan's decision to refuse such pre-trial questions. Questions like: -

Whether the class members “knew or could have known” of the risks associated with smoking; 
The class members' knowledge of the policies adopted by the Defendants;
The class members’ knowledge of any public statements made by the Defendants and whether those statements had any impact on their behavior;
The class members’ knowledge of the marketing strategies and the advertising made by the Defendants, and whether those strategies and advertising had any impact on their behavior
When the class members starting smoking;
What type of cigarette they smoke (or smoked) and how many per day;
Whether the class members ever attempted to quit smoking and whether they were successful in doing so;
When, if ever, the class members became aware that they were addicted; 
Whether the class members were ever advised by medical professionals of the risks associated with smoking or the necessity of quitting smoking;
The reasons that led the class members to start smoking. 

The companies' submission on what individual recovery would address was not so dissimilar, if you ignore the extraneous comments and finger-pointing. They said that in such a series of reviews, each claimant would have to demonstrate:

• whether they meet the requirements of the class definition;
• personal history, education, employment, etc.;
• the details of their smoking history;
• their reasons for smoking;
• their knowledge of the risks;
• their medical records and related information about their disease, treatment and
exposure to other risk factors.

As a protective barrier against collective recovery, the companies continued to push the idea that some "undeserving" individuals would be able to receive money from the class action, and that the estimated number of class members was bloated. 

Mr. Johnston pointed to Justice Riordan's explanation of the reasonableness of a few individuals being "compensated incorrectly" in a case of this size. But against this was the counter-balance of  a much greater number who would be denied compensation because of the decision by Justice Riordan to increase the eligibility threshold from 5 to 12 pack-years. Mr. Johnston said this removed 25,000 smokers from the class.

Under-counting! Over-counting! Proof! No Proof! And so it went, back and forth. So much so that after about an hour Judge Morissette characterized the ongoing debate as a “dialogue of those who cannot hear” (“dialogue des malendants”).

The question for appeal court judges

Judge Riordan was handed a difficult question (Who is to blame for the tobacco epidemic?)  He presided over a trial that ran several years and took six months to write his judgment. His answer was: “The tobacco companies, mostly.” (He did, however, assign 20% of the blame to some smokers who had started smoking after 1976 in the Blais case and after 1992 in the Létourneau case.) 

By contrast the five appeal court judges have a relatively simpler, if somewhat wordy question to answer – Given that we were not there, we should defer to Judge Riordan’s conclusions on the facts, but did he nevertheless commit errors of law so serious that we should overturn part or all of his judgment? 

The significant challenge was acknowledged. Justice Hilton, with disarming modesty, said that this was the first class action he had ever been involved in and he was hoping to learn a great deal about class actions from the lawyers.
Judge Riordan relied on the 2009 Tobacco-related Damages and Health Care Costs Recovery Act that allows for proof to be made "on the sole basis" of statistical or epidemiological evidence of the sort proferred by the plaintiffs' expert epidemiologist, Jack Siemiatycki.

Judge Hilton wanted to know how much deference should be given to Judge Riordan with respect to his acceptance of Jack Siemiatycki’s epidemiological evidence.  After all, he said, no fewer than three tobacco industry experts were very critical of Dr. Siemiatycki’s evidence.

In response to Judge Hilton, tobacco company lawyers Simon Potter and Guy Pratte were quick to point to jurisprudence that supported their view that little deference was required.  According to them, legal errors were made and the epidemiological evidence should be set aside.

Plaintiffs’ lawyers Bruce Johnston and Gordon Kugler asserted that Judge Riordan had provided an extensive justification of over 70 paragraphs of his reasons for accepting Professor Siemiatycki’s evidence (paragraphs 695 to 767 of his judgment) and had therefore committed no error, much less any error of law.  According to Gordon Kugler, there was “no error at all, even less a palpable and overriding error.”

It was no surprise that on this last day, Mr. Siemiatycki's evidence (and Justice Riordan's rationale for accepting it) continued to come under fire from tobacco company lawyers. So too did the intricate interlacing of when the clock had run out on the defendants' liability (prescription) and the events and laws that were in place over the 50 year period.

In this “dialogue des malendants” the ball bounced back and forth many more times during the morning. All five judges had questions, to which they got a choice of opposing answers.

It must have been riveting for them: there was no mid-morning recess.

The court did break, however, for a few minutes around 12:15. When the judges returned, they provided each side with an opportunity to provide further details and references to their comments over the past week, provided they did so within two weeks and 10 pages. They also signalled that they, the judges, may be asking further questions of the parties.

Don't hold your breath for a decision, Justice Morissette hinted: There will be no decision before the new year.

After 18 years, this trial has passed another milestone.  The next will be the judgment of this Court, sometime in 2017.

This post has been back-dated to provide consistency in indexing.

Friday, 25 November 2016

QCA 5: The Appeal Court goes into overtime

Let's put the spoiler first: the last day scheduled day of the Quebec Court of Appeal hearing on the Montreal tobacco trials ended with a surprising development.

At the of the extended day, Justice Yves-Marie Morissette called a short break, asking the still-full room to wait while he and his four colleagues conferred. (He prompted one of the few laughs of the week when he assured the room that they would NOT be coming back with the big question settled.)

The decision he brought back to the room some 15 minutes later will likely keep the lights on in several law firms this weekend. Each of the parties is to file its views on what questions would remain to be asked if an individual recovery process were put in place and if the defendant tobacco companies were able to contest whether individuals smoked as a result of their actions or whether they became ill as a result of smoking.

All of this within the context of the way 'individual recovery' works in Quebec procedural law.

He referred to section 599 of their Code of Civil ProcedureA judgment ordering individual recovery specifies what issues remain to be decided in order to determine individual claims. It sets out the content of the judgment notice to class members, which must include explanations as to those issues and as to the information and documents to be provided in support of an individual claim and any other information determined by the court. Within one year after the publication of the notice, class members must file their claim with the office of the court in the district where the class action was heard or in any other district the court specifies."

These options will be discussed at an additional hearing next Wednesday, November 30th, during which each side will have up to a half hour to cover points that may not have been able to fit into the past week. ("No repetitions!")

So much to speculate on!

(It's hard for me to see how an Engle-type solution would work in Canada, where damages are capped at an amount below $400,000 for the type of damages that were sought in this case. This would not likely cover the costs of going to trial against an industry whose litigation strategy, demonstrated in these class actions, is to try to exhaust the resources of potential claimants.

The 100,000 Quebecers who are still waiting for the compensation afforded them by Justice Riordan may hope that details on such a process will be an additional argument in favour of a simpler collective recovery process.)


In defence of the ruling

The day began with Bruce Johnston returning to the evidence which justified Justice Riordan's harsh judgment against the companies.

He returned to the saga of Imperial Tobacco and its counsel destroying incriminating research report. Perhaps he felt that he had not yet convinced them that the destruction of documents by Imperial Tobacco was, as the trial judge found, an "an unacceptable, bad-faith and possibly illegal act designed to frustrate the legal process."

He drew from one of those destroyed documents (Exhibit 58.59) to show that Imperial Tobacco was aware for decades that individuals with hereditary susceptibility to emphysema were at particular risk if they were smokers. He reminded them that even now the companies maintained that it was his genes, and not their products, that caused Mr. Blais' emphysema. (Mr. Blais' widow, Lise Blais, was in court for much of the week.)

Mr. Johnston ended his comments by pulling up a 1964 speech by one of the company presidents -- shortly after the landmark Surgeon General's report. Mr. Tennyson (Rothmans) concluded that despite health concerns, they also had a "natural interest in protecting the economic welfare" of those who supplied tobacco products and a responsibility to shareholders, whose interests could not be sacrificed "on the flimsy evidence" that their products caused cancer.

What? No Cross Appeal?

Yesterday, Mr. Johnston had raised addiction as the driver of tobacco use, and the underlying agent of disease. At the end of his submission this morning, a question from the bench made clear that at least one of the judges listening to this appeal understood his point.

Justice Kasirer asked whether the knowledge date of addiction (1998) should be the point at which individuals bore any responsibility for their smoking, and not the knowledge date of disease (1980) as Justice Riordan concluded. "Why did the judge exclude these people?" "Why didn't you contest this?"  
(You can imagine the smiles that this question brought to those who were in the court as supporters of this class action)

The class action plaintiffs had the right to file their own complaints with Justice Riordan's decision and, given the many times he ruled against them, there was a lot to chose from to make their own cross-appeal.

Their decision, however, was to stand behind the entirety of the ruling, even when it was not in their favour. This had been made clear in the first words of Gordon Kugler yesterday  -  that the ruling was "Excellent" and "Correct in every respect."

Mr. Johnston explained that it would not have made a big difference to the overall outcome if Justice Riordan had used the later date because of the way that the industry was still held 80% responsible for smoking after that date because of the other faults they committed. "He found another way of sharing responsibility".

The next remark from Justice Kasirer made it even harder not to smile. He wondered whether this could be seen as a way that the judge "cut the pie" to ensure that the companies got the benefit of the doubt -- as he did when he raised the threshold smoking history to 12 pack years from five.

Collective recovery 

For the final three of their seven hours of hours of court time, Mr. André Lespérance explained the scientific rationale and legal reasoning applied by Justice Riordan when he decided that the companies were responsible for the diseases suffered by Quebec smokers.

In the first half of the week, the companies' lawyers had argued strongly against linking all smoking against industry behaviour, and against linking all smokers' diseases against tobacco use.

But without conclusions that apply so broadly to all of the claimants, the application of a collective recovery process is imperiled, even if individual claims might be allowed. Mr. Lespérance cautioned against going down the road of requiring proof for each sick smoker. "Individual claims are not possible. Access to justice is denied by requiring them."

He reminded the court that Justice Riordan had made the same point in this ruling: [1193] The Plaintiffs displayed an impressive sense of clairvoyance in their Notes when they opted to renounce to making individual claims, declaring that "Outside of collective recovery,  recourses of the members against the defendants are just impossible". The Court agrees.

He explained that it was to allow for collective recovery that the class action had been filed only for those diseases for which smoking was the over-riding and principal issue -- cancers in the lung and respiratory tract and emphysema.

He pointed to other class actions where some uncertainty was understood to be inevitable - where, as Justice Riordan had put it, the court should not allow "an impossible pursuit of perfection" or "an overly rigid application of traditional rules" to thwart the goals of class action system.

The tobacco class actions were philosophically within the territory already upheld by the Supreme Court, said Mr. Lespérance. "Are we pushing the envelope? We think we are well within it."

"We do not plan to give money to people who aren’t deserving – but there has to be wiggle room ('marge du manoeuvre'). The best way is collective recovery."

He argued that a collective recovery mindset had been used by both sides during the trial, except for the defendants' refusal to use it for medical causation.

"They contested each comma of Dr. Siematycki’s report, but presented nothing themselves. The experts admitted that 95% of such cancers were caused by smoking, but were unable to say that any individual likelihood was there. Even at 150 pack years – 3 packs a day for 50 years – they felt they could not say that someone's cancer was due to smoking."

He urged the court to see that without collective recovery, and without proof of aggregate causation, the legal system favoured defendants like the tobacco company. To make this point, he referred to this court's recent acknowledgement of the reasons behind new rules for tobacco litigation being adopted by the legislature.

As an example of imbalance that exists between such well-financed litigants and ordinary smokers (and the costs of individual suits), he cited the number of days to which the representative class members had been grilled by lawyers: 12 days for Mme Létourneau and more than 18 for Jean-Yves Blais. "It is impossible to manage these claims on an individual level. We need a new paradigm - and that is collective recovery."

Presumptions and common sense

In making a link between the actions of the companies and people smoking, Justice Riordan had provided a detailed explanation of when it was valid to apply presumptions of causation and how they applied in this case.  (See paras 494 and onward in his ruling) Mr. Lespérance pointed to the similarity in the logic and jurisprudence used by the Supreme Court the following year.

Mr. Potter had refuted the idea that people smoked because of industry advertising and "underwarning". He had cited the current smoking prevalence (20% by his count) as proof that a large number of people would smoke anyway. 

Mr. Lespérance did not deny that in the absence of industry misbehaviour there would be some smoking behaviour. (I inferred that there was a legal argument that in the presence of fault this did not matter). He framed the smoking rate as the net effect of efforts of governments and others to discourage smoking and the efforts of the companies to increase it. The falling rate reflected the waning influence of the industry.

He showed the court the dramatic drop in youth smoking that happened after 2000 (when graphic warnings were put on packages and advertising and industry denial faded). "It takes time, but in 10 years it fell by half!" If you wanted to consider a baseline of smoking, he said, it would be no higher than the youth prevalence at the end of this period - around 12%.

The impact of social acceptability of smoking was well known to the companies, said Mr Lespérance, showing some of the documents that had been used as evidence of this during the trial. He referred to the evidence provided by "Nobel laureate" James Heckman to justify Justice Riordan's decision to dismiss his argument that advertising bans had no effect. Mr. Heckman's econometric model failed to include measures for when advertising was in place (sponsorship marketing) or when it was removed (the Tobacco Act).

Other industry experts that had been sidelined were similarly discussed, with Mr. Lespérance pointing the court to testimony that would have justified Justice Riordan's decisions to do so.

La réplique

As Mr. Lespérance finished his presentation, I felt that the volume of evidence cited by both sides put these judges in the position of having to decide which side was believable and which was not.

It's a clubby business, lawyering, and Imperial Tobacco's lawyers are not members of the Montreal branch of the club. As Mr. Craig Lockwood (from Toronto!) stood to present Imperial Tobacco's rebuttal, he may have felt he was facing an upwind reputational battle when Justice Morissette asked him to "remind me of your name."

Nor did it help move the judges from the 'he said/she said' credibility challenge when he focused his rebuttal on interpreting the trial evidence cited by his opponents: "Not the company positions". "Conceptual documents." "Measures considered but never undertaken." 

He also tried to frame historical events in a light more sympathetic to the industry, evoking the action-in-warranty claim that failed four years ago. "The industry left the issue of warnings to the purview of Health Canada." "Health Canada was responsible or risk communication."

(It seemed like an odd call to me, to quibble about evidence instead of speaking more philosophically about law. This is a cerebral bench indeed: three of the judges -Justices Kasirer, Morisette and Bich - were appointed directly to the Appeal Court from university positions. Between these three, there is hardly any experience as practicing lawyers, and no experience in judging evidence. It's hard to imagine that they want to go there - especially in a trial with so much evidence to argue about.) 

Mr. Mahmud Jamal (another Toronto-based lawyer on the ITL team) returned the focus to questions of law by pushing for the right of his clients to rebut the presumptions made by the judge. The basis for this, in his view, was that the judge had found a "knowledge date" after which people should have known that smoking was dangerous.

Justice Kasirer used the French expression for "have your cake and eat it too" ("le beurre et l'argent du beurre") when asking Mr. Jamal why the companies were against the judge using the knowledge date for collective recovery while using it themselves for a defence. If there was a good answer to this question, it did not make it into my notes. 

Mr. Jamal turned instead to countering the interpretation of some of the key cases that have been cited in this trial. He also raised concerns about a new lens being used at this late stage of the trial. "It is being packaged as a latent defect claim - recast in these last days!"

In his lengthy and exuberant reply, Mr. Potter (a very prominent member of the Quebec bar and counsel for RBH) discouraged the judges from applying very much from the law passed in 2009 to facilitate tobacco lawsuits. This law, except for 1 small section, was only for government lawsuits, hesaid.

He similarly asked them to put a narrow scope on how the courts managed this lawsuit. He expressed concerns that the boundary of civil litigation had been crossed, and that the plaintiffs were treating this as a commission of inquiry. "They want to get away with just throwing allegations out there ... and to come to a commission of inquiry type conclusion that something wrong has been done."

Mr. Guy Pratte (well-known to the bench, and counsel for JTI-Macdonald) focused his comments on the significance to future lawsuits if the "substantive law" were changed by an aggregate assessment of damage and harm without consideration of individual circumstances. "[The need to establish individual-level cause] is more than just an incantation – it is not a mantra - it is a foundational principle of class actions."

(He also spent some time trying again to explain why the noted epidemiologist, Jack Siemiatycki, made an eggregious error in his calculations. During this I noted others were also tempted to admire the ceiling.)

He closed with a challenge to Gordon Kugler's view that a decision in favour of the industry would weaken public confidence in the justice system, saying that such a decision would actually underscore the value of an independent judiciary. "Judicial independence a fundamental core of our decision. Every time the courts make a decision that displeases government or an editorialist they prove why they are deserving of our confidence. Commitment to the rule of law, not public opinion, is required." 

It was after this appeal to forego public concerns for justice that Justice Morissette adjourned the court and returned with the decision detailed at the head of this blog.

While we were waiting I reflected again on the tension between maintaining the way things have always been done, as Mr. Pratte had urged, and the way others want them to go. Would it be easier, I wonder, in a system not quite so burdened with protocols and structures -- of dress, of speech, of architecture -- that date back hundreds of years? 

Thursday, 24 November 2016

QCA 4: Let us not forgot what got us here.

This morning was the fourth day of the Appeal Court hearing on the Montreal tobacco trial decision.

The industry's time to detail the "palpable and overriding errors" they saw in Justice Riordan's ruling against them had run out. Now it was the turn of the lawyers representing 100,000 seriously ill Quebec smokers to bolster the higher court's confidence in the lower court's reasons.

It was apparent from the moment that Gordon Kugler began his introduction that an entirely different approach was being engaged. Over the first three of this five-day hearing, the court had heard virtually nothing about the way that cigarettes had been bought and sold in Quebec, about the actions or decisions of the companies, or about the facts contained in the hundreds of thousands of pages of the court record.

Theirs was a focus on the fit between the law as they saw it (individual causation!) and the judgment that they did not like (collective recovery). The underlying message was that this ruling, if upheld, would taint the legal record.

Today, the focus was on the breadth of the evidence, the intensity of the effort that had produced the ruling, the benefit of the doubt that had been extended to the defendants and the chicanery of the industry before courts. The underlying message was that this court should recognize that this ruling, if upheld, would be solidly aligned with the facts and with the trajectory of legal reforms.

Access to justice

Gordon Kugler
The introduction to the plaintiffs' argument was made by Mr. Gordon Kugler, who did not do the daily work of the trial, but who is always on hand for special moments, like today.

He is a very effective communicator. For his 30 plus minutes he had the rapt attention of the bench and of the 100 or so lawyers who had turned up to watch the proceedings (including many from out of province).

He knew better than to interrupt the flow of his ideas with references to compendium tabs, pages and paragraph numbers. Instead he kept a steady rhythm of short sentences, simple language, clear points.

"Excellent. Correct in every respect"

Although Justice Riordan upheld their claim against the companies, he had rejected many of the proposals put to him by the plaintiffs. He dismissed, for example, the suggestion that cigarettes be considered so dangerous that it was a fault to sell them, that 'light' cigarettes were misleading, or that their marketing to children was especially inappropriate.

Nonetheless - and in stark contrast to the it-is-riddled-with-errors position of the industry, Mr. Kugler said that the verdict in the class action trial was "Excellent. Correct in every respect." 

He situated the decisions of the judge within the long history of the trial and the social importance of class actions.

An "enormous responsibility" had been placed on Justice Riordan. "He was required to fulfill the three goals of class actions: The first was to provide real and meaningful access to justice for class members - Not an easy task for the nearly 1 million people involved. The second was to deter reprehensible conduct not only for these appellants but for all manufacturers of dangerous if not lethal products. Thirdly, he had a responsibility to try to achieve an economy of judicial resources."

He pointed to two court decisions subsequent to the ruling that should strengthen this court's confidence in the ruling. The first was a recent Supreme Court decision on the role of trial judges on matters of evidence and inferences (Banhaim). The second was this court's upholding the Tobacco-related Damages and Health Care Costs Recovery Act (TRDA), and the special rules that it made for class actions against tobacco companies.

The companies had challenged the TRDA because they said that the way that it changed the rules of evidence and the determination of causation was unfair to them. "Now, surprisingly, they argue that it doesn’t change anything."

The amount of the damages

Mr. Kugler gave the court a number of reasons to reject the claims of the companies that the fines levied against them were unreasonably high. 

He put the $131 million punitive damage claim in the context of their earnings -- less than 20 percent of one year's income.

JTIM's lawyer, Mr. François Grondin, had yesterday argued that additional punitive damages against them were uwarranted because its practice of losing money in Canada was a tax issue that had been erroneously interpreted by Justice Riordan.

In debunking this claim, Mr. Kugler revealed a fact that had been concealed until this date. He pointed to a different paragraph in the same document used by Mr. Grondin: this one revealed that the company told the federal revenue department that the reason was to ensure it was creditor proof (i.e. judgment proof).

The law on trial

In closing, Mr. Kugler asked the court to consider the consequences of a decision to come down on the side of the companies.

"It will deny access to justice to these people. It will permit and even encourage these appellants and other manufacturers of other legal products to behave as these appellants have behaved."

He said it would be a big victory for the companies if their appeal were maintained. "It would be an even bigger victory if you allow them to have mini trials of all these people. That would take 50 years minimum, and would require the judicial resources of all of you hundreds and hundreds of times over." 

He warned them that allowing "big tobacco" to intentionally harm millions of people and get away with it would seriously erode public confidence in the justice system. "They have turned the legal system on trial. You didn’t hear a word about their faults. They turned it around to you so that the courts are now on trial. That's not right. This appeal should be dismissed."

The trap of addiction

The second part of the plaintiff-respondent's arguments were presented by Bruce Johnston. His chief focus was 'fault' and his approach was to take the court on whistle-stop tour of key findings of the ruling, illustrating with each why Justice Riordan had more than enough evidence to support his conclusions.

He began with an element that had been rather swept aside in the beginning of the week - addiction and its power to entrap new users. 

He introduced this theme with one of the most condemning pieces of evidence - a handwritten memo by the eventual president of the company, Bob BexonIf our product was not addictive we would not sell a cigarette next week

This memo allowed Mr. Johnston use the voice of a tobacco executive to make key points: that that most people want to quit, but can't, that addiction is a psychological burden, that addiction is the driver of tobacco use.

He took the judges back to documents from the 1960s, 1970s and 1980s that showed the companies were aware of addiction and its importance to tobacco use decades before any warning of addiction was put on cigarette packages (1994). 

He showed evidence of the speed with which addiction to nicotine could set in - "no more than three or four cigarettes"  - turning a young person into a regular smoker. He displayed industry research on young people which noted that the health risks were dismissed by young people because they believed that they would not become addicted.

"These young people maybe knew in a general sense that it was harmful to smoke. But it is very different to know that you are on the edge of a hole that if you fall in you will never be able to crawl out."

He contrasted these reports with the position of the company - communicated to Health Canada and the public in the late 1980s and 1990s - that an addiction warning was inappropriate and inaccurate.

Proof of the proof

Mr. Johnston's repeated linking of Justice Riordan's findings to evidence was a straightforward exercise, but when done with the speed required to condense so many topics into so short a presentation, it left a daunting picture of the amount of material that was behind the ruling. What judge in their right mind want to wade into that volume of information to change a finding of fact?!

Boosting confidence in Justice Riordan was one thing. Shaking any confidence in the reliability of information from the industry teams was another theme of the day.

Mr. Johnston elaborated on the story, begun by Mr. Kugler earlier in the day, ITL's destruction of scientific documents. He showed how the reason for this was not spring cleaning, but to ensure these reports were beyond the reach of courts in countries where litigation was possible (BAT did not sell cigarettes in England, where the documents were retained). The veil of solicitor-client privilege was used in the selection and removal. The agent of destruction, not identified by name in court today, was sitting watching from the appellants' bench. (The document destruction story is told in paragraphs 642-662 of their final written arguments in the main trial). 

Justice Riordan had been soundly criticized for rejecting the views of the companies' witnesses. Today Mr. Johnston used the example of Dominique Bourget, JTIM's witness on addiction, to illustrate the questionable quality of these individuals, and their lack of expertise in tobacco.

It was not only that she had little specific knowledge of tobacco, but also that she was willing to base her submissions on material provided to her by lawyers (and to parrot the company line) that made Justice Riordan's rejection of her testimony seem more than reasonable. (Dr. Bourget is already known to this court from her role in a controversial defence in a sensational murder trial).

Expert witnesses were a natural segue to the broader community of academics who worked with the industry to maintain a false scientific controversy about the harms of smoking.

From the long stable of collaborators, Mr. Johnson focused on the role played by Hans Selye and showed evidence of Dr. Selye extracting money from the companies before being willing to testify to parliament. He showed evidence of the impact of Dr. Selye's testimony about the benefits of smoking -- including subsequent repetition by the then Minister of Health (Marc Lalonde) and in newspapers reports.

(This example may have helped put a familiar face on Justice Riordan's conclusions about the scientific controversy. These judges, like me, are old enough to remember Hans Selye as a prominent and respected Montreal scientist.) 

Mr. Johnston elaborated on the "strategic choice" made by their team to rely on presumptions to establish a link between the wrongdoing of the companies and the fact that people smoked. He referred the court to early decisions and other court documents that corroborated this foundation of their argument.

He reminded them that their case was already a decade old when the Quebec government passed legislation that altered the rules of class actions for tobacco litigation and that it had been under the cloud of a constitutional challenge until after Justice Riordan issued his ruling.

He then turned the tables to the "strategic choices" made by the defence. He pointed to evidence of how Imperial Tobacco had committed to calling individual witnesses -- promising the Appeal Court they would do so, demanding plaintiffs provide and prepare 150 witnesses for this purpose. It was only at the last minute that they reversed course. (I am not sure he communicated how disruptive and dramatic this sequence of events was -- maybe you had to be there!)

Yet more legal theories!

It is another "strategic choice" that has caught the attention of at least one of this panel. Justice Bich especially seems interested in expanding this review of the ruling to include what did not happen at trial.

From her comments this week, I learned that a letter had been sent to the parties last week asking them to comment on the relevance of sections of the Consumer Product Act and the Civil Code which relate to product liability.

In response, brief submissions have been made against (and then for) the idea that cigarettes are a product with latent defects, and that they pose risks that are not immediately apparent to the purchasers. 

This was not a claim made by the plaintiffs before Justice Riordan, nor is it one that he raised during the trial or reflected on in his judgement, as near as I can remember. Yet, with questions and prodding from Justice Bich, it has been put on the table at this late date. A plot twist perhaps?

Tomorrow the plaintiffs in the class action complete their defence of Justice Riordan's decision.

Wednesday, 23 November 2016

QCA 3: In search of a technical victory

One thing I have learned during the past years of court-watching - the most interesting parts of the day are often when the judges are speaking.

Let's just say that today - the third day in the Court of Appeal's review of the judgment against Canada's tobacco companies - was very interesting indeed!

The comfortably-filled Louis-H Lafontaine room had barely settled and Mr. Mahmud Jamal had not yet cleared his throat to resume his presentation on behalf of Imperial Tobacco Canada when Justice Yves-Marie Morissette announced on behalf of his four colleagues that "out of their discussions emerged a problem which troubles us" and turned to Justice Kasirer to explain.

The problem, it would seem, related to a key issue in this trial - causation.

The mantra and mini trials

Over the past two days the court has been told that the plaintiffs never proved that the companies' actions caused any individuals "let alone all individuals" to smoke or to become ill. Conduct causation! Medical causation!

The idea that class actions do not alter the burden of individual-level proof has been described variably as "the mantra" (by Justice Morissette) and "the well anchored principle" (by JTI-Macdonald counsel, Guy Pratte).

To hammer this point home, the industry lawyers have repeatedly displayed a few short lines from a decision written by Justice Bich in early 2014. That would be the same Justice Bich who is sitting second from the right on the panel. Again and again, paragraph 41 - rough translation below - was flashed on the screen and read aloud.

Their clear message was that this court had given assurance that the mantra would be upheld in this case.

Justice Marie-France Bich has sat silently during all of this. She did not even smile, as far as I could see, to the mannered praise given by Simon Potter on Monday - "particularly beautifully written". 

She maintained her silence again this morning as Justice Nicholas Kasirer directed Mr. Jamal to a different paragraph from a different ruling by a different court. This one, written by Justice Beverley McLachlin, Chief Justice of the Supreme Court of Canada, suggests that the mantra might not hold for all time.

"What does it look like if causation is inherently indeterminate?"

Justice Kasirer asked Mr. Jamal and his colleagues to reflect whether the Supreme Court was opening the door for cases where it is harder to establish who has been hurt than it is to establish that some people have been hurt. He suggested that "the Mantra cannot be the complete answer."

Mr. Jamal did not immediately deviate from his efforts to keep any such door closed. He instead continued to support the scenario, building over the past two days, that if the Appeal Court upholds the decision against them, it should reduce the number of eligible claims and ensure that the smoking and medical history of every recipient of a damage reward is scrutinized.

"Certain things should be taken off the table."  Mr. Jamal said no one who started smoking after 1976 should be eligible for damages for disease. "These people assumed the risk." 

Put back on the table should be the ability of the industry to challenge every claim and to examine every claimant's circumstances. Collective recovery should be abandoned in favour of individualized claims. Mr. Jamal said the companies should have "the right to defend fully and completely on what remains." He wanted the companies to be able to challenge whether each individual smoked as a result of the companies' actions. "The presumptions would be rebuttable on an individual stage."  

Mr. Jamal said that "small trials" for each claim need not jettison the class action trial entirely. "Was the whole trial of 250 days plus a waste? – No. If you uphold any class questions, it has not been a wasted process."

"Eight hundred thousand mini trials??!!" Justice Kasirer's interjection about the number of potential claimants did more than highlight the administrative challenge. It also hinted that abandoning collective recovery in favour of individual claims could also restore the ability of addicted smokers to seek the compensation that Justice Riordan had denied them when he decided that collective recovery was not workable for the Létourneau class.

Late in the day, in the closing moments of the companies' arguments, Mr. Jamal returned to the issue of indeterminate causation. He cautioned that it would be a "pretty radical thing to change the but-for standard". 

But for the Tobacco-related Damages and Health Care Costs Recovery Act, Justice Kasirer might have agreed with him. His last comment for the day was that this law had changed the 'but for' test of causation by introducing the language "caused or contributed to".  

Unravelling the decision

The excitement of the early morning judicial intervention over, Mr. Jamal returned to his dissection of Justice Riordan's reasoning. To these ears, it seemed he was trying to unravel the fabric of a decision that had interwoven multiple faults against four laws in order to hold each thread up against a technical legal standard it could not meet.
  • He melded all of the faults into "failure to warn" - all the rest, he said, were related to information and all ceased to have meaning after people "knew" the risks. 
  • He drew a line under the date that the judge had set as a "knowledge date" -- when everyone knew or should have known that cigarettes caused disease (January 1, 1980). 
  • He measured each fault against this time. There was no failure to warn after that time, no conspiracy, no misleading advertising, no lulling into complacency. "It's not a fault to fail to warn the warned." 
  • He measured the laws against the Blais knowledge and smoking date - discounting the relevance of the Consumer Protection Act and the Charter, which were enacted around the same time.
Later in the day, he similarly took multiple swipes at the assessment of punitive damages. The penalty levied in the Létourneau case (in the absence of compensation to individuals) was $131 million. Mr. Jamal suggested that the principle of "restraint" would suggest punitive damages in the range of $5,000 to $25,000. 

Punitive damages could be warranted if deterrence were needed, he said, but the companies were already completely compliant with government regulations on warnings. This drew another interesting comment from the bench, with Justice Bich drawing his attention to the section of the federal Tobacco Act (s. 16) which ensures that regulated warnings to not pre-empt the manufacturers other duties to warn.

Punitive damages under the Quebec Charter were also inappropriate, as any violations on thatact were technical, and lacked intentionality. (Justice Kasirer wondered whether fuelling a scientific controversy to maintain doubt about the effect of smoking and health was a purely "technical" violation).

The common knowledge of risk

Craig Lockwood, unlike Mr. Jamal, represented Imperial Tobacco during the tiral before Justice Riordan. His role during this Appeal today was to show that Justice Riordan made judicial errors when he rejected their evidence that everybody knew that smoking was hazardous and hard to quit since the 1960s.

Craig Lockwood
The trial judge wrongly imposed the standards of today on the behaviour of previous years, said Mr. Lockwood. "Justice Riordan failed to contextualize the duty to inform and never tried to ground himself in the applicable standards of the time." 

It was the defence experts who had presented the best evidence, and judge should not have ignored it.

Especially egregious was the judge's decision to favour a comment by Robert Proctor over the detailed written reports of the industry's historians and pollsters. Robert Proctor! Who never did any research in Canada! Who acknowledged expressly that he had a bias and was not impartial!

It was their witnesses - Mssrs. Flaherty, Lacoursière, Duch whose evidence should have established that the risks of smoking were common knowledge in the 1950s and 1960s. "The failure on the part of a trial judge to take central evidence into consideration is grounds for an intervention [by the Appeal Court]." 

It was after repeated statements about the harms of smoking being known in the 1960s that Justice Bich reflected about the nature of such knowledge. "You may be told that something is dangerous, but you do not fully appreciate the danger, because you are not educated enough, or the information is contradictory."

She gave examples of the current uncertainties about the harmfulness of sugar and fats, and the challenges people have in processing such information even today. Years ago, it was even harder, she said.  "In the 1950s and 1960s, half the population did not have a secondary degree -  with what you could see in magazines and television, could you really say that people really understood the actual and real dangers of tobacco?"  

During the trial the spectrum of  'awareness', 'knowledge' and 'beliefs' had frequently been alluded to. Justice Bich is the first one I have noted to put her finger on the space ahead of awareness of news reports when she toyed with the term 'internalize' to describe the acceptance of the information.

The role of government has had little air time in this hearing, other than Mr. Lockwood's criticisms today that Justice Riordan had wrongly made inferences from government policy decisions, and had wrongly ignored the testimony of the former public officials who had testified in their defence. "The trial judge doesn’t engage squarely with the issue of  the role of government." 

Sharing the blame

Much of the last two hours of the industry's appeal were focused on the concerns of individual companies -- especially those related to Imperial Tobacco and JTI-Macdonald getting additional penalties resulting from what Justice Riordan saw as their greater contribution to fault.

Very little court time was spent on the document destruction policy of BAT and Imperial Tobacco, or its the engagement of outside counsel to cull records. Mr. Lockwood said this series of events was irrelevant to any Quebec litigation, and that in any event no record had been identified as destroyed which had not been made available in this trial.

François Grondin 
Mr. François Grondin presented his reasons for JTI-Macdonald to be excused from any fine, and certainly any additional fine. As he explains it, RJReynolds acquired Macdonald Tobacco without assuming an obligations prior to 1978. And as for the way the company reorganized its business to avoid having any profits in Canada, the record was clear this was no more than a way to avoid taxes, and not a "cynical, bad-faith effort" to remain judgment-proof, as Justice Riordan interpreted it. (JTI's written argument claims that it now avoids $30 million a year!)

The wrap-up

It fell to Mr. Jamal to sum up the industry's requests to court. He framed their arguments in two themes: the responsibility of the plaintiffs for the errors in the judgment against them, and the injustices to the defendants if the judgment were upheld.

"We are where we are because of strategic choices made by plaintiffs. ... The extraordinary ambition of their case – their candid and daring admission that they were not even going to try to prove conduct causation for any members"

"The judge misdirected himself and set class action law on its head."

"Access to justice does not trump all else ... does not mean access to compensation, does not mean access to injustice for the defendants."

A moral loss. A technical victory.

The presentations over the past three days leave a somewhat different impression than the written briefs (ITCO, RBH, JTIM) submitted last year.

This week it seemed more apparent that the companies' fall-back position to a complete victory is something like the outcome for the Florida Engle class action.

They hardly challenged the aspects of the judgment that found them guilty of severe moral wrongdoing or ruthless disregard for the health of their customers.

Their arguments instead were focused on showing that the law was not written with their kind of wrongdoing in mind, and that it was the responsibility of individuals to manage the risks they assume. (Curiously, in all of the discussion about assumption of risk this week, no one has yet mentioned that most people start smoking at an age when they are not normally considered capable of assuming responsibility or risk).

Tomorrow the plaintiffs will begin their argument in support of Justice Riordan's decision.

This post has been back-dated to provide consistency in indexing.

Tuesday, 22 November 2016

QCA 2: The burden of proving every individual's case

The second day of the Appeal Court hearing on the Montreal tobacco trials opened with a much reduced sense of occasion than was evident yesterday.

It was a smaller audience that obediently stood at 9:30 to allow the five Justices to take their seats (and it would become smaller again before the end of the day). Even then, there were more present to watch Justice Riordan's decision be challenged than there had ever been in his court while he was developing it.

Medical Causation

Guy Pratte picked up where he had left off yesterday and began to layer more reasons why a determination that tobacco companies were responsible when smokers got certain cancers or lung disease was not consistent with legal reasoning in Quebec.

He spent most of the morning working to establish that there was insufficient and substandard evidence to conclude that those who smoked for 12 pack years or more AND who became ill with one of the debilitating or fatal diseases in the Blais class were entitled to the conclusion that it was cigarette smoking that caused their disease.

Guy Pratte
There was much that was familiar in what he said - and not only because it reasonably closely followed the written arguments (pages 58-92) that had been filed with the court almost a year ago.

The familiarity came also from repeated delivery: the arguments forwarded by Mr. Pratte today are virtually identical to those he used in a failed attempt to persuade Justice Riordan two years ago (see blog of October 23, 2014), in addition to the many times he raised them during the trial.

Indeed, his slice-and-dice critique of the simple pack-year test devised by  the plaintiffs' expert epidemiologist, Jack Siemiatycki, has not varied much since its first exposure so long ago. Nor has his insistent faith in the superior skills of Laurentius Marais, whom Mr. Pratte had hired to kick the stuffing out of the Siemiatycki method.

Mr. Marais looked on today as his efforts were detailed to the judges, and was doubtless pleased to have the court told that "Justice Riordan was wrong to dismiss Dr. Marais' evidence." 

There were some key differences in the story told today about  Mr. Marais contribution and my own memory of events and notes. Mr. Pratte made it sound as though Mr. Marais had provided Justice Riordan with constructive options to establish a statistical proof of causation. Justice Riordan responded to most of these in his ruling, identifying eight reasons to reject evidence. Today Mr. Pratte put a lot of weight on the plaintiffs' not having cross examined him on the methods he used to develop additional confidence intervals on the Siematycki data.

There were some new elements in Mr. Pratte's attack on the Siemiatycki method, including those which characterized Justice Riordan's use of them as judicial errors. The pack-year approach adopted by Justice Riordan, even with the additional margin of extending the threshold from 5 to 12 pack years, was not legally reliable, he claimed. "The scale you use to measure who has passed the balance of probabilities cannot in itself be measured on the balance of probabilities." ... "He fundamentally misunderstands the reliability that is critical if you develop the scale. ... He will never be able to tell who in the class has met the balance of probability. At best it will be probably probable." 

Mr. Pratte also tried to limit the way in which Quebec's special law for certain tobacco lawsuits (the Tobacco-related Damages and Health Care Costs Recovery Act) could be applied to the case. Statistical proof for medical causation might be acceptable under s. 15 of that law, he accepted, but it most certainly could not be used to justify presumptions to establish conduct causation.

For most of this exposition, Mr. Pratte was allowed to present his views with few questions or interventions from the bench. They teased him about being boring, and he good-naturedly played into it. In fairness, there are very few audiences that would find a criticism of epidemiological methods to be anything but dull. 

It was when he turned to the issue of addiction, however, that there was more of a spark about the construction of his arguments that drew criticism. Justice Kasirer took exception to the way addiction was not addressed head-on, and was couched instead in language of "hard to quit" and "dependence". "How is this different than the argument presented for decades [by the companies] that addiction is a good word for heroin, but not for tobacco?"  

Collective Recovery 

Mahmud Jamal 
Towards the end of the morning, Mr. Pratte changed places with Mahmud Jamal, a relatively new face at the head of the Imperial Tobacco team. (This is his second appearance in court on this case that I know of). 

Mr. Jamal's upper-class British accent seems to enhance his listenable way of presenting his case. To these ears, even decades after cultural decolonization, it seems also to lend him an air of authority. He certainly seemed to have the rapt attention of the bench as he elaborated on his reasons that collective recovery was a not justifiable conclusion to this case.

The administrative difference between collective and individual recovery is kindly explained by a Quebec lawfirm specializing in class actions:

When the evidence brought to court allows to do so, the final ruling orders collective recovery, in other words the court orders the defendant to pay an amount covering all the damages incurred by all the class members. The members are then asked to submit their claims to an administrator, who gives them the share of the total to which they are entitled.

Yet it is sometimes impossible to produce evidence that can be used to determine with sufficient accuracy the total amount of members' claims. In that case, individual claims have to be used. Thus each class member is asked to produce their claim and establish the value of the damages by a preponderance of evidence. The individual claims process can therefore entail a multitude of small court trials in which class members appear, one by one, to establish their right to be compensated.
Yet collective recovery is the rule, and the individual claims process the exception.

Mr. Jamal had a list of "principles" and "specific legal errors" which he felt justified the striking down of any decision to award a collective recovery for smoker suffering from disease - "any one of which is sufficient to set aside the award." 

At the core of all of them was the risk that his client would have to pay more under collective recovery than they would under individual recovery. He raised concerns about "people who are fully aware of the risks" being compensated, the absence of evidence of the number of people who smoked as a result of an alleged fault, the increased penalty on the companies that arises from a lack of accuracy of the number of claimants, the differences between the circumstances of those who have smoked and who are ill. If the "vast majority" is considered to be aware of January 1st, then surely a majority would have known in the preceding weeks, and yet they would all be considered under this judgment to be members of the class.

Collective recovery would rob the defendants of their right to defend against claims by those who were not properly entitled. Only by individual assessment could this be made.

Justice Riordan increased the threshold of eligibility and therefore reduced the number of people who would otherwise be compensated if the standard of more likely than not (50% probabiliyt) had been applied. Mr. Jamal said that scaling back their liability in this way did not overcome their legal entitlement to not have to pay to anyone whose individual case might not succeed. 

Justice Hilton has asked a few questions over the past two days that signal his interest in whether the Quebec class actions should go the way of the Florida Engle case and its progeny. This afternoon he asked Mr. Jamal whether the collective recovery might be "transformable" into individual claims. Mr Jamal did not back down from the primary position that the whole case should be dismissed, but allowed that "it was open to the court to salvage some findings of fact and to develop a way for individual proceedings."

Justice Kasirer later picked up this theme, asking for further description of how Mr. Jamal thought individual claims could work, and wondering about the effect of mini trials on the goal of increasing access to justice. "Would it not risk undoing the benefits of class actions by creating a second stage that will render the first stage useless?"

(No-one has yet addressed the 'scorched earth' approach to litigation adopted by tobacco companies which have prevented and prevent individual trials from being economically viable, nor the cost to the court system of running 100,000 cases).
The absence of class witnesses

The plaintiffs have been given a constant drubbing over the past two days (as they did in the closing arguments) about the absence of any members of the classes on the witness list.  Today, a taste of the same medicine was offered to Mr. Jamal from the bench.

After suggesting that testimony by individual class members would have illustrated the unreasonableness of collective recovery, he was asked why his team had not called such witnesses, as they had originally planned to do.

(It was in the very closing days of the trial that the list of 60 witnesses was pulled from the list, a decision which was referenced in the "abuse of process" claim that the plaintiffs were not permitted to argue at the end of the trial. See page 567 and later in their Notes and Authorities).

Justice Kasirer asked him if it  would "not have been prudent [to call these witnesses in order] to shake the confidence of the judge in the uniformity of the group – to say 'look at the differences.'' 
It's not up to defendant to disprove a case that has not been made, Mr. Jamal responded. "These sorts of strategic choices are made."

Tomorrow Mr. Jamal will turn his focus to what he described as a "witches brew" of faults against varying Quebec statutes for which his clients were found liable.

This post has been back-dated to provide consistency in indexing

Monday, 21 November 2016

QCA 1: Round Two Begins

The opening of the hearing by Quebec's Court of Appeal this morning was a BIG DAY in the long saga of the Montreal tobacco class actions.

It was 18 years ago this month that the Conseil Québécois pour le tabac et la santé and Jean-Yves Blais filed a claim against Canada's three tobacco companies for compensation related to their emphysema, lung and certain throat cancers. Two months earlier, a claim on behalf of Cécilia Létourneau and other addicted smokers had also been filed.

And it was 18 months ago next week that these claims emerged victorious from the long trial at the Quebec Superior Court. Justice Brian Riordan Superior Court ordered the companies to pay $24 to $100 thousand dollars (plus interest) to each eligible member of the Blais class, in addition to more than $130 million (plus interest) in punitive damages.

The whole file was soon transferred across the street to the Quebec Court of Appeal, where it was expanded last December with the written arguments filed by the defendant companies (properly called the appellants), and a few months later by the response of the plaintiffs (respondents).These documents can be accessed at the bottom of the page linked here,

Louis-H Fontaine Room
Photo taken during jurists' meeting in 2015
There was the hum of a day much anticipated and a sense of occasion when the doors to the stately Louis-Hippolyte Fontaine room were opened well before the hearing began.

Legal teams for the companies sat in front and behind the bar on the left hand side of the court. Although many of the faces were familiar as occasional or regular visitors at the first trial, some were not.  A dozen or so of the 50 seats on that side were reserved for those from non-French-speaking places who had flown in for the event, but who needed interpretation services.

The seats on the right hand side, behind the lawyers representing Quebec smokers, were not full, but were comfortably occupied by health community workers, class members and other supporters.

Greetings always seem more of a thing in Quebec, but by 9:25 the two-cheek kiss rituals were over and everyone was in their seat, waiting for the show to open.

The Schedule

The hearing is scheduled for five days this week, with the possibility of a day for additional questions by the bench next Wednesday. The hearing will last four hours each day. The companies have eleven and a half hours to make their case (two hours for Rothmans, Benson and Hedges, four hours for JTI-Macdonald, and five and a half hours for Imperial Tobacco), and the class action team has seven hours to present theirs.

The Bench

No fewer than five judges were selected to hear this case. Sitting left to right as we saw them were Justices Nicholas Kasirer, Allan Hilton, Yves-Marie Morissette, Marie-France Bich and Étienne Parent.

Justice Étienne Parent is the most recent appointee to the court, and the only one to not previously ruled on any tobacco litigation. By my count, Justice Bich has been involved in the greatest number of tobacco-related rulings by this court (16 times), followed by Justices Hilton, Kasirer and Morissette (9, 5 and 3 times respectively).

Justices Hilton and Morissette have an additional experience in tobacco cases, having worked as lawyers during the Quebec court's review of the constitutionality of the federal Tobacco Act. Between them they may bring a balanced perspective: Justice Hilton worked for Rothmans, Benson and Hedges prior to his appointment to the bench in 1998 and Justice Morissette was an expert witness for the federal government on the same case. I have never heard any hint of concern about their personal histories with these clients.

The overture

It was Guy Pratte, counsel for JTI-Macdonald, who spoke first, standing up at 9:30 on the near-dot to present "the big picture and the overall context". 

It was a punchy 15 minute summary of the key points of the companies' appeal: whether or not it had been proved that any wrongdoing by the companies caused any individual to smoke ('conduct causation'), whether or not the methods used to establish that it was smoking that caused any diseases ('medical causation') were appropriate, whether or not the presumptions of facts that were made by Justice Riordan were properly arrived at.

Mr. Pratte began by repeating the long-held industry view that smoking is a choice made by adults exercising their free and informed will. The current rate of smoking in Canada (20% by his measure) showed that after the risks of tobacco use are better communicated, people knowingly assume the risks of smoking. "We must respect their choice no matter how much we disapprove of their decision."

He put a philosophical spin on the companies' insistence that a one-size-fits all approach to deciding why people smoke or how they became ill won't work. To do otherwise, as Justice Riordan had done, was to "effectively constructed an abstract universe stripped of any individuality."

It laid the fundamental blame with the plaintiffs and their "strategic choice" to "put all their eggs in the collective recovery basket. They could have chosen to seek to prove individual damages and to make defences in individual cases."

He reminded the court that the plaintiffs had made two arguments which were rejected by Justice Riordan: that the defence should be constrained (fin de non recevoir), and that the very act of selling a product as dangerous as cigarettes should be considered a wrongdoing.

He implied that Justice Riordan was determined to find the companies guilty, even though the case was not strong enough once these arguments were dismissed. "The overarching error [of Justice Riordan] was to conclude that by aggregating all of the claims the cases became too big to fail and that obligated him to fill the holes left by the plaintiffs."

As he finished, the complexities of an Engle-type scenario were put firmly on the table by Justice Hilton, who raised a question that will apparently be addressed later this week:  "Assuming we accept fault, is it in our recourse to turn to individual claims?" 

Act 1: Rothmans, Benson and Hedges and Conduct Causation

Mr. Potter has the longest experience in representing tobacco companies: Since at least the 1980s his clients have included Imperial Tobacco and then Rothmans, Benson and Hedges. Those years have allowed him to apply his florid touch to the industry's positions on a variety of subjects.

Today, he spoke for three of his allotted two hours, focussing his comments on conduct causation. As Mr. Pratte had done, he characterized the conclusions made by Justice Riordan as errors triggered by the plaintiffs' shortcomings in presenting their case.

These, he said, were "palpable and overriding" errors in law that would justify the Appeal Court intervening. But even if they were to be considered errors in fact (for which the Appeal Court has less scope to intervene), they were sufficiently eggregious to be struck down. "The Court is not handcuffed simply because there is a finding of fact."

He identified what he saw as three main errors made by Justice Riordan:
* "He created a brand new legal test for causation"
* "He satisfied his own new legal test not on the basis of any evidence but on the basis of presumptions which were erroneously drawn, illegal drawn, manifestly false and, in fact, disproved."
* "[He made] these counterfactual presumptions effectively irrebuttable."

The judge, he said, was guilty of "conflating fault with causation". "In medical malpractice when a surgeon is faulted for not giving enough information, the question is not whether the information is relevant or useful. The question is whether if the patient had received the information, they would have avoided the operation. ...The courts require evidence about what the person would have done."

The plaintiffs' could have provided evidence on conduct causation without bringing in individual smokers to testify if they had drawn on expert witnesses. This, said Mr. Potter, was something they had promised the judge in 2009 that they would do, yet failed to follow through.

To the evident interest of Justice Morissette, Mr. Potter cited the evidence of  economist James Heckman, which was ignored in Justice Riordan's ruling."Heckman! A Nobel Laureate!! He looks at the numbers and says it is not possible to find any indication that an earlier warning would have made any difference."

He described the presumptions made by the judge as failing to meet the standard of  'serious',  'precise' or 'concordant' as required by Quebec's Civil Code (article 2849). "Presumptions aren’t meant to be judicial guesses or cherished certainties. If so, they are they are not serious."

Among the cases he cited in support of his arguments were recent Supreme Court decisions regarding government liability for failing to consider an appeal for wrongful conviction (Hinse vs. Canada), and medical liability for a delayed cancer diagnosis. (Benhaim v. St‑Germain).

There would be dire consequences if conduct causation were allowed to be determined as was done in this case, he concluded.  "This judgement left unchanged would hold manufacturers – all manufacturers – liable for damages statistically attributable to their product, no matter how aware consumers were of the risk. That’s untenable as a result."

Reflections from the bench

Mr. Potter is a man who does not understate his case, which often makes it easier to follow his line of argument. Today, as he hammered home with his highly inflected delivery at what he saw as the absolute failure of the plaintiffs to provide any evidence, Justice Kasirer advised him to take it down a notch, warning that "sweeping statements aren't that helpful". 

Nor did his view of the absence of any evidence to link industry behaviour to smoking go without comment. Justice Kasirer reminded him of the reflections of an ITL executive "in a private memo" to increase the social acceptability of smoking as a way to increase cigarette sales, "and this means to make more people start and fewer people quit". If Simon Potter recognized the point that this memo affirmed the presumptions of conduct causation, he did not let on.

Other comments made by Justices Morissette, Hilton and Kasirer suggest their interest in whether the rules can be modified  for class actions. The approach that class actions are a procedural tool only which do not alter the standards of proof was describe as "The mantra" at least twice by Justice Morissette, although Guy Pratte presented it as "the well anchored principle."

Act 2: JTI-Macdonald and shared liability

In the last hour of the day, Mr. Pratte began to present his client's concerns about each of the companies being found equally responsible. He spent some time establishing that after 1980 (the point in time determined by Justice Riordan when "everybody knew" that smoking was harmful to health), the companies could not be held responsible for any decisions to smoke.
This was a less captivating presentation than I usually expect from Mr. Pratte. His points were weighted down by long and quickly delivered citations, which were sadly nearly illegible on the screens. The presentation had turned to a more elaborate and technical delivery. No sweeping statements, for sure!

The bulk of his arguments will be presented and reported upon tomorrow.

This post has been back-dated for consistency in indexing. 

Tuesday, 1 November 2016

PMI asks the Supreme Court to "guide" provincial courts towards disclosing medical records

At the beginning of the year, an Ontario case manager exhorted the provincial governments who have launched cost-recovery lawsuits against the tobacco companies to pool efforts and reduce the burden on the system.

With each provincial court being asked virtually the identical questions in virtually identical lawsuits, Master Donald Short hinted at the squeeze that was put on judges to align their views on the complex questions put to them in pre-trial motions.

Consolidating the lawsuits, of course, also means consolidating the risks. An advantage of having ten separate proceedings instead of a single test case is that both sides get to hedge their bets that "judicial comity", as Master Short put it, will not always win the day.

But what should happen when provincial courts make opposing decisions on similar issues?

That is the challenge that was thrown to the Supreme Court earlier this fall by Rothmans, Benson and Hedges and other members of the PMI corporate family.

The specific issue at hand is whether the PMI group can have access to provincial health data useful to estimates the costs of treating diseases caused by tobacco use - the "quantum". Unlike the other defendants, the PMI group were not agreeable to the process put in place by the provinces with Statistics Canada.

PMI defendants have asked courts in B.C., New Brunswick and, by inference, Quebec, to grant them access to database/records that the provinces are reluctant to provide. In May 2015, the B.C. Court (Justice Smith) agreed, and ordered that the province provide anonymized data from provincial health care databases. (2015BCSC844) This summer, the New Brunswick Court (Justice Cyr) took a different view of essentially the same question, finding that the information involved was not discoverable. (2016NBQB106). I believe the Quebec Court has yet to consider the request.

Appeals on appeals

You can't please everybody -- and in both the B.C. and New Brunswick cases, the losing parties asked their respective Courts of Appeal to review the decision they did not like. The B.C. Court of Appeal granted leave, resulting in a hearing which took place last month, and was reported in the Globe and Mail. The decision is still under reserve. By contrast, the New Brunswick Court of Appeal decided to decline the request. 

Which brings us to the PMI group request for the Supreme Court to intervene. The basic pitch in its memorandum of argument is that the Supreme Court's intervention is needed to help make the same rules apply in both jurisdictions ("because lower courts have reached divergent conclusions, this Court's guidance is needed.") The province's response is that the company is a sore loser, and that the decision should stand ("attempts by the Philip Morris Group to relitigate the "fairness" ).

Stay tuned!

Links to Supreme Court of Canada Docket:
Rothmans, Benson & Hedges Inc., Philip Morris International Inc., Philip Morris U.S.A. Inc. and Altria Group Inc. v. Her Majesty the Queen in Right of the province of New Brunswick