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.