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?