by Cynthia Callard
Directrice, Service d’information sur les procès du tabac
Association pour la santé publique du Québec
“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.”Justice Brian RiordanQuebec Superior CourtJune 1, 2015
On the 1 June 2015, Justice Brian Riordan of the Quebec Superior Court, ruled on two important tobacco class action lawsuits. The Létourneau case, on addiction, and the Blais case, on lung disease. Both lawsuits were filed in 1998 and were tried together in a trial that started in March 2012 and ended in December 2014. The class actions are against the Canadian operations of the world’s largest tobacco companies: Rothmans Benson and Hedges (wholly owned by Philip Morris International), Imperial Tobacco Ltd. (wholly owned by British American Tobacco) and JTI-Macdonald (wholly owned by Japan Tobacco).
This is an important judgement for Canada, and also significant world-wide. There are very few large lawsuits outside of the United States, and the success in Quebec is in large part due to the legal reforms which have been implemented in Quebec in order to allow for greater ‘access to justice’ for consumers. These reforms could inspire measures to strengthen implementation of the WHO FCTC Article 19. Among these reforms are permission for class actions, support for the costs of trials that are in the public interest, and laws which allow for the use of epidemiological evidence in tobacco cases.
Here are some key elements of Justice Riordan’s decision:
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.”
They 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 smokers who suffer from lung or throat cancer in the amount of more than $200,000 (an award of $100,000 plus interest), and those who suffer from emphysema will receive more than $60,000 (an award of $30,000 plus interest). Certain conditions are set to be eligible to receive a payment, including having smoked for 12 pack years or more.
The class of eligible smokers is thought to be around 100,000 people. If all of them make a claim, the amount which must be paid by the companies will be about CAD 15.5 billion. (10 billion euros). If fewer make claims, the amount will be lower.
They are not required to pay compensation to smokers who were addicted, even though the judge found them guilty of having caused addiction. The judge said it was too difficult to make a blanket assessment of the value of the harm of addiction because individual circumstances were too varied.
Smokers were held partially responsible if they started smoking after a year when the harms of smoking could be considered to have been widely known. The judge said this was 1976 for lung disease and 1992 for addiction. Even then, the companies were held responsible for 80% of the damage.
The companies are required to pay punitive damages in both cases, equal to a year’s income. This amount was both increased (for BAT and JTI because their behaviour was worse) and reduced (because the total compensation was already very high, and the judge had to consider the capacity to pay).
The punitive damages for the Létourneau case ($130 million) will not be distributed to smokers, as the amount per person is too small to warrant the administrative cost of doing so. Instead, the money will be used to pay for the costs of the trial, and also for some other cause to be established at a later date. By Quebec tradition, this will likely be some public-interest purpose, like research or services to the public.
The companies are required to post $1 billion plus within 60 days. This is unusual, as losers can usually wait until their appeals are exhausted before having to pay.
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 2 years to be completed. They do not have an automatic right to a hearing at Canada’s Supreme Court, although given the number of new legal issues in this case, it is likely that the Supreme Court will agree to hear the case. This could add a further 3 years or so before the judgement is final.
Further information and updates on the trial can be read on the Eye on the Trials blog.