Sunday, 27 May 2018

Three years and counting ...

This weekend, three years have passed since Justice Brian J. Riordan first issued his ruling on the Quebec tobacco class actions that were first filed in the fall of 1998.  

Today is as good a moment as any to pause and take note of what has happened - and what has not happened - since the tobacco companies were found guilty of breaking 4 Quebec laws.

The "time required for appeals" just keeps dragging on

Justice Riordan considered that an estimate of six years for the appeals to two levels of court (the Quebec Court of Appeal and the Supreme Court of Canada)  was "optimistic, but possible." Even more optimism may now be required.

Already half that time has elapsed, and we are yet to have a ruling from the Quebec Court of Appeal.  545 days have passed since that court heard arguments for and against the ruling. That is a long time for 5 people to come to a decision! (Or is it 4 who will be deciding? -- Justice Etienne Parent had only a short stay on the Appeal Bench before he was re-assigned last year to the Superior Court in Shawinigan.)

After that, the Supreme Court will almost certainly be asked by the loser for another kick at the can.

Meanwhile, you could die waiting

Justice Riordan was sensitive to the fact that the time required for appeals would further harm the victims. "In the meantime, Class Members are dying, in many cases as a direct result of the faults of the Companies. In our opinion, this represents serious and irreparable injury in light of the time required for the appeals."

His solution was to require that the companies put forward $1 billion before the appeals were heard, and that this money be made available to those smokers. This suggestion was shot down by the Court of Appeal in short order, although the same Court soon afterwards required that the same amount of money be posted as a security lest the companies be tempted to pull out of Canada without paying any of the court-ordered damages.

By now, many if not most of the injured smokers will most certainly have died. The smokers who were eligible for compensation were those who had:
  • smoked at least 87,600 cigarettes before November 20th, 1998 
  • have developed one of the following diseases: lung cancer, throat cancer (larynx, oropharynx or hypopharynx), emphysema. 
  • received the diagnosis for this disease before March 12th, 2012.
  • lived in Quebec at the time of the diagnosis.
Only a small minority of lung cancer victims are diagnosed at an early stage, and only a minority of those are still alive 5 years later. The probability of any of the industry's  estimated 72,000 eligible lung cancer victims being still alive when the case is finally settled is slim indeed. (If Justice Riordan's ruling is upheld, heirs will be entitled to receive the compensation).

$18 billion and counting

Justice Riordan awarded $100,000 to members of the Blais class who had been diagnosed with lung or throat cancers, and $30,000 to those who had been diagnosed with emphysema. With almost 100,000 people injured, the total amount was almost $7 billion. Interest - calculated at the "legal rate" of around 5% is about $1 million a day, meaning that the amount under discussion has now crept upwards of $18 billion.

And one less full-time judge

Last October's announcements of judicial appointments contained the news that Justice Riordan had elected to become a supernumerary judge.