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 rejected many of the proposals put to him by the plaintiffs. He dismissed 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.