The August 31 deadline for Quebec victims to seek compensation for tobacco industry wrongdoing has now passed, and attention is being turned to the difficulties in processing those claims.
Some media have reported on on frustrations with Quebec victims in accessing the necessary documentation, such as medical records and estate documents. More information on these challenges was provided during a court hearing on September 9th. This post reports on that hearing.
Background: two groups of victims, but one claims administrator
The global settlement to resolve tobacco lawsuits in Canada established two groups of individual victims. The first was the members of the Quebec class action lawsuit (QCAP) whose court victory triggered the settlement process. The second was a class of analagous victims across Canada (PCC, the Pan Canadian Class) which was constructed for the purpose of releasing the companies from liability for any other injuries. Information on eligibility and claims process for each class is provided on the website www.tobaccoclaimscanada.ca.
Responsibility for administering both sets of claims was assigned to the firm EPIQ, which is also tasked as agent for the PCC victims. All of EPIQ's costs associated with the PCC claims are paid for by tobacco companies (and thus indirectly by the provinces which are in line to receive most of the net proceeds of tobacco sales). All of EPIC's costs associated with the QCAP claims will be deducted from the amount available to those victims. Assistance in preparing QCAP claims was provided until August 31st, and was paid for by the law firms involved from their legal fees, without further diluting the payments to victims.
A request to modify directions to EPIQ...
A few days before the August 31st deadline for Quebec claims, the courts overseeing the implementation of the settlement were presented with a request to modify the administrative responsibilities for EPIQ while managing the claims process.
The paperwork filed in connection with this request focused on the the budgetary concerns related to EPIQ, and are summarized in Justice Jessica Kimmel's support of the request (and the modified court order) following a somewhat fractious hearing on September 9th. For the most part, these dealt with how and when EPIQ was to provide information on estimates and actual expenditures.
As expressed by the Quebec government in advance of the hearing to consider this proposal, provincial governments stand to receive any moneys not spent by EPIC or not provided to claimants, and seemed motivated by a desire to ensure that these expenditures are no more than is necessary
.... which included information on the status of the claims ...
These filings also provided a glimpse into EPIQ's process and progress towards helping PCC victims and processing claims for both victims gorups. Examples include:
* How EPIQ plans to increase awareness of the PCC plans process, and how it will communicate the claims process to victims (Global Notice Plan, p. 52)
* How it will spend its estimated $91.9 million fee. (p. 159)
* Information on the success rate of claims to date. EPIQ tabulates that 80,000 claims had been submitted by mid August, of which 17,362 had been reviewed. Of these, 56% were approved, 40% were considered incomplete and 3% were rejected. (p. 43).
* Notice that on the last few days before the deadline, EPIQ received 50,000 claims through its web portal, many of which are suspected of being fraudulent. (para 27, p. 36)
... and cautions about potential further delays
Lawyers representing QCAP victims shared information on their experience to date with providing assistance in submitting claims. In doing so, they cautioned that without further direction from the court, it was likely that the processing of their clients' claims would be unnecessarily delayed.
Some of the challenge they attributed to the notable success in generating awareness among victims of their entitlements. They estimated that by the deadline, about 80,000 QCAP claims have been filed, which is 8 out of 10 of the number of potential victims that had been estimated by epidemiology.
One result of the success in generating interest is the number of requests that have been made to Quebec's health care system to obtain medical records. Santé Quebec has struggled to keep up with demand, and it was reported that about 25% of claimants are still waiting for official medical records.
Other challenges flowed from the decades-long delay in resolving the lawsuit, which resulted in most of the victims (75%) having died. Although heirs of these victims are able to file claims, this requires clarity about succession entitlements which can be time consuming and/or difficult to establish. "The delay in finding and compiling the required succession documents is a further explanation as to why many claims were filed in incomplete form."
From their year-long effort to support victims in processing claims, the lawyers report that significant work is required to address claimants' concerns and questions. "Claimants have been waiting an inordinately long time for their compensation and are understandably frustrated and upset by the delays. This results in claimants calling many times for status updates, especially in view of the advanced age of so many of the claimants. Each time any written communication is sent out, the QCAP Agent receives thousands of calls from claimants asking for explanations."
Given the volume, complexity and importance of processing claims in a timely way, these lawyers recommended that EPIQ be given greater protection in how it conducts this work. Specifically, they proposped that EPIQ be given the same level of immunity as is already in place for other eparties in the settlement process. Without this, they predict that EPIQ's concerns about liability will motivate additional red tape, such as duplicated reviews, and will slow the process down.
In light of these circumstances, they flagged that they intend to ask the court to direct that an interim payment be sent to approved QCAP claims.
