Thursday, 5 May 2016

"Dismissed With Costs"

Today the Supreme Court gave the final green light to the Quebec Tobacco-related Damages and Health Care Costs Recovery Act, (the TRDA).

An early-morning press release from the Court listed the appeals that it would hear over the coming months, and those that it turned down. Among the latter was JTI-Macdonald's request that the Court re-consider decisions of both the Quebec Court of Appeal and the Quebec Superior Court which found that this law was entirely consistent with Quebec's constitutional principles.

The decision against JTIM was made by Supreme Court Justices Cromwell, Wagner and Brown -- Justice Côté having recused herself from the file a month ago.

This law was adopted by the Quebec legislature in May 2009. Within weeks, the companies had filed a demand that it be struck down on the basis that it infringed the Quebec Charter. Although the Supreme Court of Canada had upheld a similar law from British Columbia in 2005, the companies hoped that the distinctive elements of Quebec's human rights laws would give them new cover. Their argument was strong enough to convince the Quebec courts not to reject their claim from the get-go, as they had been requested to do by the Quebec government.

Three strikes, and the companies' challenge to this law is finally "out".  But that is not to say that they did not emerge from this tussle as complete losers.

For one thing, for 7 years they were able to impose some level of uncertainty about the legitimacy of the government lawsuit against them. They were also able to place cloud over the parts of this law which are important to the Blais-Létourneau class action trials.

These cases were well underway when the Quebec government passed this law to establish the rules under which lawsuits against tobacco companies would be managed. The Quebec legislature included specific direction for epidemiological evidence to be accepted as proof of causation, and for the time limits on these suits (called 'prescription' in Quebec law) to be lifted. These provisions apply to both the government lawsuit and to private lawsuits like these class actions.

Justice Riordan was asked to suspend the class action trial until the constitutionality of this law was resolved. He decided against doing so, thinking that the case "would surely proceed through the courts sufficiently quickly" that it would be resolved before he was asked to apply the law to his case. "That seemingly cautious optimism proved to be ill founded," he acknowledged in his ruling issued almost a year ago - one in which he devoted several pages to laying out different scenarios for when the companies were liable for damages, depending on the outcome of their challenge to the TDRA.

All's well that ends well?  If you are still alive to see it, I suppose.