Blais-Létourneau Background

September 2014 Update


Background:

Quebec Courts have approved two class actions against the three multinational tobacco companies operating in Canada.
  • The Létourneau[1] case seeks compensation for each Quebec smoker for the harms caused by addiction to cigarettes.
  • The Blais-CQTS[2] claims is for compensation for Quebec smokers who suffered from lung cancer, throat cancer or emphysema caused by smoking. 

The defendant companies are Imperial Tobacco Canada Ltd, which is wholly-owned by British American Tobacco; Rothmans, Benson and Hedges, which is wholly-owned by Philip Morris International; and JTI-Macdonald, which is wholly-owned by Japan Tobacco International.

Both cases were initially filed in 1998 and were authorized to proceed as class actions in 2005.[3] The trial stage opened on March 12, 2012. The trial is scheduled to end in November 2014.

Justice Riordan is expected to make his ruling in the first half of 2015, following which appeals to the Quebec Court of Appeal and subsequently the Supreme Court of Canada are most likely.

The financial demand

The plaintiffs have asked for financial awards which, before interest assessed from 1998, would total over $20 billion.
  • The proposed award per individual member of the classes ranges from $5,000 to $100,000 and for all members a punitive award of $5,000 is requested. This sum represents the combined earnings of Canadian companies for more than 20 years.[5]
  • The plaintiffs are seeking a requirement that the companies make immediate payment of 25% of any award pending appeals (“provisional execution”) in recognition of the procedural delays unreasonably caused by the companies.


Financial claims – Blais/Létourneau class actions


Amount per member
Number of Members
Amount
claimed
Blais-CQTS



Lung cancer
$100,000
86,882
$8,688,240,000
Throat cancer
$100,000
8,320
 $831,952,000
Emphysema
$30,000
47,506
$1,425,177,600
Punitive damages
$5, 000
142,708
$713,539,200
Total Blais


$11,658,908,800




Létourneau



Addiction
$5,000
918,218
$4,591,090,000
Punitive damages
$5,000
918,218
$4,591,090,000
Total Létourneau


$9,182,180,000




Total claimed
(before interest is applied)


$20,841,088,800


The class members

Not all Quebec smokers will be eligible to be members of the Létourneau class, and not all Quebec smokers who suffer from emphysema, lung cancer or throat cancer will be eligible to be members of the Blais class.[6]

The Létourneau class includes Quebec smokers who started to smoke before September 30, 1994 by smoking the defendants’ cigarettes, provided they were a daily smoker of the defendants cigarettes by September 30, 1998 and they continued to smoke the defendants cigarettes on February 21, 2005.

The Blais class includes Quebec residents who were diagnosed before March 12, 2012 with one of the diseases listed, and who had smoked the equivalent of 5 pack years[7] of the defendants’ cigarettes before November 20, 1998. 
 

The role of governments in this trial

Neither federal nor provincial governments are involved in this trial, although almost all of the provincial governments have filed lawsuits against the same companies to recover the costs of health care for tobacco-caused disease. Unlike the Quebec class actions, the provincial suits also make claims against the foreign owners of the Canadian subsidiaries.

At earlier stages, the federal government was a party as a result of an action in warranty claim against it laid by the defendant tobacco companies. This was discharged as a result of a decision of the Court of Appeal in November 2012.[8] Because of its earlier involvement, many hundreds of documentary records from the federal government were entered into the trial record by the defendant companies. 

The trial record

Over the 234 days of trial, 76 witnesses testified. Fact witnesses included current and past tobacco company executives, federal public servants, and a former federal minister of health. No members of either class testified. Both sides presented several expert witnesses: 8 for the plaintiffs and 16 for the defendants.

The transcript of the trial exceeds 24,000 pages. Excluding several thousand news-clippings, there are over 8,000 exhibits filed with the court: approximately 4,000 for the plaintiffs, 2,500 for imperial Tobacco, 2.000 for JTI-Macdonald and 400 for Rothmans, Benson and Hedges. These exhibits include industry and government records from the early 1950s to the late 1990s, as well as scientific papers and other external documents up to the present day.

The questions this trial is expected to answer

Justice Riordan requested that in their written arguments/notes and authorities the parties provide their views on the legal framework of the case as well as answers to the questions such as the following:

A. Did each defendant manufacture, market and sell a product that was dangerous and harmful to the health of consumers?

B. Did it know or was it presumed to know of the risks and dangers associated with the use of its products? (At what date did it know? When did the government and the public health community know? When did the public know?)

C. Did it knowingly put on the market a product that creates dependence? (Did it choose not to use the parts of the tobacco containing a level of nicotine sufficiently low that it would have had the effect of terminating the dependence of a large part of the smoking population?)
D. Did it trivialize or deny or employ a systematic policy of non-divulgation of such risks and dangers?

E. Did it employ marketing strategies conveying false information about the characteristics of the items sold?
F. Did it conspire to maintain a common front in order to impede users of its products from learning of the inherent dangers of such use?
G. Did it intentionally interfere with the right to life, personal security and inviolability of the class members?
The trial period, which begins in the early 1950s, ends in 1998 when the lawsuits were filed. Subsequent actions of the defendant tobacco companies are not being reviewed during this trial.


Footnotes:


[1] Cécilia Létourneau v. Impérial Tobacco Canada Ltée and Rothmans, Benson & Hedges Inc. and JTI-Macdonald Corp. (500-06-000070-983)

[2] Conseil québécois sur le tabac et la santé and Jean-Yves Blais v. JTI-Macdonald Corp and Imperial Tobacco Canada Ltée and Rothmans, Benson & Hedges Inc. (500-06-000076-980).

[3] Decision available at: http://t.soquij.ca/Hn38N

[4] A report on each day of trial can be found in English at www.tobaccotrial.blogspot.ca and in French at www.procesdutabac.blogspot.ca.

[5] The exact profits from Canadian operations are not public, but it is thought that the annual income of the three companies is in the $1 billion range.

[6] The notice to class members can be found at:
http://lblavocats.ca/en/class-actions/tobacco-victims/active/documents/Notice_New_definitions.pdf

[7] A pack year is the equivalent of 20 cigarettes per day for each day in a year. Those who are eligible must have smoked 36,500 cigarettes before November 20, 1998.

[8] 2012 QCCA 2034. The Supreme Court had struck down similar claims in B.C.’s damage recover claim in 211. (2011 SCC 42).