En français, naturellement
The ruling is in French, as one would expect from a Quebec Court. I have no doubt that teams of translators have by now provided the multinational head offices with an English version. For the time being, however, the rest of us will have to make do with our own resources. Here are loose translations of a few paragraphs that give the gist of the court's approach.
[1277] On appeal, the appellants failed to demonstrate errors of law or overt and decisive errors in the judgment of the Superior Court, except in certain minor respects. Accordingly, their appeals should be allowed for the sole purpose of correcting some inaccuracies in the judgment, but to confirm this judgment in all other respects.
[986] The finding that the appellants violated the right to life, safety and integrity of the members of both groups is unassailable.
[1121] It is true that the overall amount awarded against the three appellants ($ 131,000,000) far exceeds the amounts that are generally awarded by the courts in respect of punitive damages. Just think of Cinar ($ 500,000), Enico ($ 1,000,000), Markarian ($ 1,500,000), Pearl ($ 1,856,250) or Biondi ($ 2,000,000) to be convinced. However, in the present case, the seriousness and the impact of the injurious conduct and the wrongful actions have nothing in common with the cases generally studied and are of a completely different scale.
[1123] In view of the extreme gravity of the appellants' faults, their duration, their persistence, the need to prevent the occurrence of similar behaviours
in the future and to denounce them, the opportunity to strip a legal person of profits acquired in contravention of the law and the patrimonial situation of the appellants,
the amounts awarded in this case are truly rationally connected to the objectives of setting an example, deterrence and denunciation.
In their appeal of Justice Riordan's ruling, lawyers for the three tobacco companies (Imperial, Rothmans, Benson and Hedges and JTI-Macdonald), repeatedly claimed that Justice Riordan had made several "palpable and overriding" errors when he ruled against them. One after another, the companies' teams identified problems: Justice Riordan had ignored the standards of the time, he made errors of fact, he erred in rejecting the testimony of their experts, he erred in linking the industry's behaviour to smokers' illnesses, etc. etc.
The lawyers representing Quebec smokers had taken a diametrically different approach. They broached no criticism of the ruling, and said nothing about the elements of their case that had been rejected by Justice Riordan. They abandoned the elements of their case that focused on attempts by the companies to target children, to deceptively market low tar cigarettes as safer, to sell a product that was so harmful that it should not be on the market. They made clear to the Appeal Court that in their view, Justice Riordan's ruling was "Excellent" and "Correct in every respect."
The Appeal Court disagreed with both these characterizations. They found no significant mistakes - but nor did they find that the ruling was "correct in every respect". On more than a few occasions they hinted that Justice Riordan should have gone further -- and that if the plaintiff lawyers had raised these issues, the judgment would now be even more severe. Examples? - the companies were likely faulty with respect to targeting children [139], the knowledge date was set too early [642], maintaining false scientific controversies is a fault [477].
The only aspect of his judgment which they amended was the date on which interest was calculated - Canada's largest damage award has now been reduced by a fraction of a percent.
The only aspect of his judgment which they amended was the date on which interest was calculated - Canada's largest damage award has now been reduced by a fraction of a percent.
A text-book case and a story retold
As might be expected in a ruling that was penned by 3 former law professors (Justices Bich, Morisette and Kasirer), there is a text-book quality to much of the decision. In each of the elements and laws they dive in to -- causation, duty to warn, etc -- they take considerable pains to lay out the history and cases behind them, anchoring each principles to the key Quebec statutes (the Consumer Protection Act, the Civil Code, the Tobacco-Related Damages and Health Care Costs Recovery Act, Charter of Human Rights and Freedoms).
A fair amount of attention is also given to recounting the actions of the industry. While acknowledging that it is the first judge that gets to work out the facts, they clearly spent considerable time going through the testimony and exhibits. The result? Some of the more compelling exhibits that Justice Riordan had not cited were dusted off and put to use.
These zingers included some of the most damning acknowledgements by Imperial Tobacco's marketer that "If our product was not addictive, we would not sell a cigarette next week." (Exhibit 266), and Philip Morris' Spokesperson guide from 1990 (Exhibit 846-AUTH) that instructed companies on how to avoid making admissions of disease or addiction. (Many of these documents, as noted below, were (strategically?) absent from Justice Riordan's telling of the story.)
And with these documents, the Court retells the story of the companies' strategies to block knowledge of the harm of their products in a way that is remarkably like the story told by the plaintiff's expert witness, the historian Robert Proctor. In a dozen pages, the ruling opens with a recap of the 1953 Frank Statement, the silencing of the Canadian CEO Patrick O'Neil-Dunne who acknowledged the cancer risk (in order to promote his brands), the 1962 golf club meeting of the companies and their signing of a secret agreement. The court critiques the inadequacy of the voluntary warnings that were adopted in the 1970s, and notes the sustained efforts of the companies to prevent any government warnings on addiction.
A deeper conviction
We now have two substantial rulings against the companies which total more than 600 pages of fact and law. Each reflects the circumstances and responsibilities of the authors.
An over-riding aspect of the Blais-Létourneau trials was the delaying tactics of the companies. Many times, things that should have happened - like an expert witness on light and mild cigarettes -- were ditched in order to avoid giving the defendants another opportunity to delay. (One of the hanging threads in the case is a hearing on whether the companies are guilty of 'abuse of process').
An over-riding aspect of the Blais-Létourneau trials was the delaying tactics of the companies. Many times, things that should have happened - like an expert witness on light and mild cigarettes -- were ditched in order to avoid giving the defendants another opportunity to delay. (One of the hanging threads in the case is a hearing on whether the companies are guilty of 'abuse of process').
The need to get the trial to an end drove the plaintiff lawyers decisions (they had already been fuelling their own tank for 15 years), and it also seemed to drive Justice Riordan's choices. From the beginning, he had made clear that his job was to protect access to justice by ensuring a timely trial.
Justice Riordan systematically ruled quickly and decisively. In his final decision, he narrowed his focus and pulled his punches. He found the companies guilty on the core issues of failing to warn and causing disease, but generally let them off on the secondary issues (targeting kids, low tar, scientific controversy). He was silent about their *star* witness, Nobel laureate James Heckman. He avoided using '2M' documentary evidence that was entered without a witnesses being available to speak about it. He identified the faults and left some vagueness about how they were connected to the law.
The Court of Appeal, by contrast, took time and went deeper into the behaviour of the companies. Their doing so has now filled in some of the gaps left by Justice Riordan's prudent approach. The use of a scientific controversy and the targetting of children have now been denounced. James Heckman's testimony has been discredited. The possibility that cigarettes could be so harmful that it is a fault to sell them has been acknowledged. Precision linking the faults to legal doctrine has been provided.
The common element in Justice Riordan's ruling and yesterday's decision by his 5 Appeal Court colleagues is an eye for the next stage in this long process. Everyone seems to be writing for the next level of judges.
With its exhaustive review and analysis of the case in the context of Quebec's specific and unique legal system, its hard not to see it as an attempt to give the Supreme Court good reason to let this be the last word and to reject any leave to appeal. Six judges have now found them at fault. The Supreme Court will need to figure out whether the views of 7 more are really needed -- especially when doing so will require the victims in this case to wait another few years.
