04 Jun 2015
Key findings in the 1 June decision of Justice Brian Riordan of Quebec Superior Court include:
- All three of the companies* were found to have broken the law in four ways: “They committed four separate faults, including under the general duty not to cause injury to another person, under the duty of a manufacturer to inform its customers of the risks and dangers of its products, under the Quebec Charter of Human Rights and Freedoms and under the Quebec Consumer Protection Act.”
- The companies are required to pay compensation for moral damages (i.e. illness, but not for the costs of health care or lost earnings) to those Quebec smoker who suffers from lung or throat cancer. This compensation will be more than $161,000 (an award of $CDN 100,000 plus interest), and those who suffer from emphysema will receive more than $48,000 (an award of $CDN 30,000 plus interest).
The decision is due in large part to the legal reforms that were implemented in Quebec in order to allow for greater ‘access to justice’ for consumers. These could inspire measures to strengthen implementation of Article 19 (concerning liability) of the WHO Framework Convention on Tobacco Control (FCTC), according to Cynthia Callard, Executive Director of Physicians for a Smoke-Free Canada.
“Nonetheless, knowingly exposing people to the type of dangers that the Companies knew cigarettes represented without any precaution signals being sent is beyond irresponsible at any time of the Class Period. It is also intentionally negligent.”
– Riordan judgment
Cynthia followed the entire trial and wrote about it in the blog Eye on the Trials.
Quebec adopted a number of legal reforms 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 that are considered to be in the public interest.
Legal costs waived
Also, lawyers in the province may work on a contingency fee basis, receiving a percentage of any final award. In addition, 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.
The 2009 Quebec Tobacco-related Damages and Health Care Costs Recovery Act not only set the stage for the Quebec government suit, but also instructed the courts to consider statistical evidence as proof of causation in tobacco class action suits.
The government indicated its moral support for the case in other ways, including by financing civil society monitoring of the trial.
According to Northeastern University Professor Richard Daynard, governments could be inspired by this decision to put in place measures that would facilitate legal action against tobacco companies. Such measures could – as in Quebec – include permitting class actions, contingency fees and statistical proof, and eliminating plaintiffs’ obligation to pay defendants’ costs if they lose the case, perhaps on a technicality.
Eliminating piecemeal appeals would be another form of support, added Richard, who has followed tobacco litigation for more than 30 years. Appeals delayed the Quebec case by more than a decade.
This week’s judgement was in response to two separate class actions, one on behalf of smokers who got lung cancer, throat cancer or emphysema, the other on behalf of all addicted smokers. The plaintiffs won both cases but the award for addiction was comparatively small (roughly $CDN 130 per smoker, or $80.4 million in all).
Both lawsuits were filed in 1998 and were tried together in a trial that started in March 2012 and ended in December 2014.
According to Cynthia, the ruling will be appealed. The companies have an automatic right to a hearing by Quebec’s Court of Appeal, which is expected to take around two years to complete.
Lawsuits seeking reimbursement for health care expenditures have been filed in all other Canadian provinces.
* JTI-MacDonald Corp (100 percent owned by Japan Tobacco International), Imperial Tobacco Canada Limited (100 percent owned by British American Tobacco), Rothmans, Benson & Hedges Inc (100 percent owned by Philip Morris International)