Monday, 21 November 2016

QCA 1: Round Two Begins

The opening of the hearing by Quebec's Court of Appeal made today 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.
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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.