The Framework Convention Alliance for Tobacco Control

Tobacco Litigation: A milestone is reached in Canada

Cynthia Callard
Association pour la santé publique du Québec

The recent conclusion of a twinned trial of two class action suits in the Canadian province of Quebec demonstrates how governments can support the implementation of Article 19 of the WHO Framework Convention on Tobacco Control (FCTC) with law reforms and administrative support.

In late 1998, two separate class action suits were filed in Quebec courts. The first (known as Létourneau) seeks compensation for Quebec smokers who became addicted to cigarettes. The second (known as CQTS/Blais) seeks compensation for Quebecers whose lung cancer, throat cancer or emphysema was caused by smoking. After the judge who authorised the suits ordered that they share the same trial, the lawyers representing the cases unified their efforts, and the suits effectively became one legal action.

Map of lawsuits pending globallyThe tobacco companies named in the suits are three of the world’s four large multinationals: Imperial Tobacco Canada Ltd (wholly owned by British American Tobacco and not related to the United-Kingdom based Imperial Tobacco Group PLC), Rothmans, Benson and Hedges (wholly owned by Philip Morris International) and JTI-Macdonald (wholly owned by Japan Tobacco International).  There are no other large cigarette manufacturers legally operating in Canada. 

The Court is being asked to award each eligible Quebec smoker a payment ranging from C$5,000 ($US4,016) (for addiction) to $100,000 (for cancer of the lung or throat) to compensate for the impact on their health and enjoyment of life. Additional punitive damages of $5,000 per smoker were also demanded, bringing the total claim (before interest) to about $20 billion. 

235-day trial

By the standard of the amount of damages sought and the length of proceedings, this is one of the largest and longest trials in Canadian history. When it concluded in December 2014, Justice Riordan of the Quebec Superior Court had heard 253 days of evidence and argument, including the testimony of 76 witnesses. Excluding several thousand news clippings, there were over 8,000 exhibits filed with the court. These 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 tobacco industry was united in its defence, and there were many signs that the defence was directed from their international headquarters. Expert witnesses, for example, were recruited by law firms located in the United Kingdom and the United States, and there was a steady presence of non-Canadians in the defendants’ area of the courtroom throughout the trial. 

The companies engaged similar strategies and tactics demonstrated in U.S. lawsuits. These included attempts to exhaust the resources of the plaintiffs by delaying the trial (more than 13 years passed between the filing of the suits and the opening of the trial) and emphasising that the risks of smoking were “common knowledge” since the 1950s. They also introduced new lines of argument, attempting to put legal responsibility on the federal government as a third party to the case. Even when this failed, the role of government was the largest part of the companies’ evidence. 

Justice Riordan is expected to issue his judgment in 2015. This decision will be subject to review by the Quebec Court of Appeal, and may also be reviewed by the Supreme Court of Canada. As a result, the questions raised in the trial may not be finally resolved for several years. 

A supportive environment

Quebec governments have adopted a number of legal reforms that were designed to make it easier for consumers and  citizens to challenge wealthy defendants. These include facilitating class action suits, in part by providing financial support for the costs of cases which are considered to be in the public interest. Lawyers may work on a contingency fee basis, receiving a percentage of any final award. The consequences of failure are less in Quebec than in other jurisdictions, as unsuccessful litigants do not have to pay all the legal costs of the winning side.

Because Quebec follows a civil law system, changes to law made by legislature have a greater influence on court rulings than in systems that give higher weight to legal precedents. Among the Quebec laws designed  to support litigation against tobacco companies is the 2009 Quebec Tobacco-related Damages and Health Care Costs Recovery Act.  This set the stage for the pending Quebec government suit, but also instructed the courts to consider statistical evidence as proof of causation in tobacco class action suits.

The Quebec Government indicated its moral support for the case in other ways, including by financing civil society monitoring of the trial. The Quebec Public Health Association produced regular reports in both English and French, and made them available as daily blogs. (The lawyers representing the lawsuits have provided access to the trial transcripts and exhibits through a specially-purposed website. )

Of course, none of these reforms would be meaningful were it not for the leadership and perseverance of the four small Montreal law firms that have worked together for more than a decade to finance and manage this lengthy and important court battle.

A 'fault' to sell cigarettes?

In their closing arguments, the plaintiffs introduced a forward looking request for the trial to become an instrument of policy change.  They asked the judge to consider that cigarettes are such a harmful product that they should not be marketed at all, and to rule that “it is a civil fault to design, sell, and manufacture an addictive, useless product that causes death in half of its long term users”.

In their response to this suggestion, the companies say that any such ruling would effectively ban cigarettes and would go against “the considered and repeatedly confirmed federal and provincial policy decision that selling cigarettes, despite their known dangers, should be lawful”.

A workshop detailing this experience will be held at the World Conference on Tobacco or Health on March 17, 2015 in Abu Dhabi. 

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