2019 QCCA 358, 2019 QCCA 358

Unofficial English Translation of the Judgment of the Court Imperial Tobacco Canada ltée c. Conseil québécois sur le tabac et la santé 2019 QCCA 358 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL Nos.: 500-09-025385-154, 500-09-025386-152 and 500-09-025387-150 (500-06-000070-983 and 500-06-000076-980) DATE: March 1, 2019 _________________________________________________________________ CORAM: THE HONOURABLE YVES-MARIE MORISSETTE, J.A. ALLAN R. HILTON, J.A. MARIE-FRANCE BICH, J.A. NICHOLAS KASIRER, J.A. ÉTIENNE PARENT, J.A.

No.: 500-09-025385-154 IMPERIAL TOBACCO CANADA LIMITED APELLANT / CROSS-RESPONDENT - defendant v. CONSEIL QUÉBÉCOIS SUR LE TABAC ET LA SANTÉ JEAN-YVES BLAIS CÉCILIA LÉTOURNEAU RESPONDENTS / CROSS-APPELLANTS - plaintiffs And JTI-MACDONALD CORP. ROTHMANS, BENSON & HEDGES INC. IMPLEADED PARTIES - defendants No.: 500-09-025386-152 JTI-MACDONALD CORP. APPELLANT / CROSS-RESPONDENT - defendant v. CONSEIL QUÉBÉCOIS SUR LE TABAC ET LA SANTÉ JEAN-YVES BLAIS CÉCILIA LÉTOURNEAU RESPONDENTS / CROSS-APPELLANTS - plaintiffs And IMPERIAL TOBACCO CANADA LIMITED ROTHMANS, BENSON & HEDGES INC.

IMPLEADED PARTIES – defendants No.: 500-09-025387-150 ROTHMANS, BENSON & HEDGES INC. APPELLANT / CROSS-RESPONDENT - defendant v. CONSEIL QUÉBÉCOIS SUR LE TABAC ET LA SANTÉ JEAN-YVES BLAIS CÉCILIA LÉTOURNEAU RESPONDENTS / CROSS-APPELLANTS - plaintiffs And JTI-MACDONALD CORP. IMPERIAL TOBACCO CANADA LIMITED IMPLEADED PARTIES - defendants TABLE OF CONTENTS I. BACKGROUND____________________________________________________ 9 1. CLASS ACTIONS ....................................................................................................................... 9 1.1.

Blais file ............................................................................................................................ 10 1.2. Létourneau file .................................................................................................................. 10 1.3. Description of the appellants ............................................................................................. 11 A. ITL ................................................................................................................................ 11 B.

JTM .............................................................................................................................. 11 C. RBH............................................................................................................................... 12 2. GENERAL CHRONOLOGY......................................................................................................... 12 2.1. Evolution of perceptions (1950–1972) ................................................................................ 13 A.

Early confrontations ........................................................................................................ 13 B. The 1962 Statement of Principle ...................................................................................... 15 C. Ad Hoc Committee of the Canadian Tobacco Industry, Canadian Tobacco Manufacturers Council and the LaMarsh Conference ...................................................................................... 15 D. Report of the United States Surgeon General (1964) and its aftermath ................................ 16 2.2.

Voluntary Adherence (1972–1988)....................................................................................... 1 8 A. Voluntary codes ............................................................................................................. 18 B. Warnings ....................................................................................................................... 18 C. Advertising .................................................................................................................... 20 D.

Internal news-letters ....................................................................................................... 21 2.3. Government Interventions (1988–1998) .............................................................................. 23 A. Legislative framework ..................................................................................................... 23 B. Constitutional challenge .................................................................................................. 24 2.4.

Positions of the Representatives ....................................................................................... 25 A. Jean-Yves Blais ............................................................................................................. 25

B. Cécilia Létourneau .......................................................................................................... 25 3. PROCEDURAL HISTORY........................................................................................................... 2 5 3.1. Superior Court................................................................................................................... 2 5 A. Motions for authorization to institute a class Action ........................................................... 25 B.

Authorization and filing of claim ....................................................................................... 26 C. Hearing and composition of the evidence........................................................................... 27 i. May 2, 2012, judgment concerning the authenticity of certain exhibits ........................... 27 ii. July 3, 2013, judgment on the amendment of the class

definitions ................................ 27 iii. May 13, 2014, judgment on access to medical records ................................................ 28 D. Judgment a quo ............................................................................................................. 28 3.2. Court of Appeal ............................................................................................................... .28 A. Application to quash the order for provisional execution .................................................... . 28 B.

Application for an order to provide security ...................................................................... . 28 C. Motion to stay the trial proceedings ................................................................................ . 29 D. ITL's motion for particulars ............................................................................................. . 30 E. Hearing of the appeals ................................................................................................... . 30 II. JUDGMENT A QUO 31 III. GROUNDS OF APPEAL 35 IV.

ANALYSIS______________________________________________________ 36 1. LIABILITY OF THE APPELANTS UNDER THE GENERAL LAW AND

SECTION 53 C.P.A. ........... . 36 1.1. Preliminary remarks .......................................................................................................... 36 A. Standard of review ......................................................................................................... 36 B. Main findings of fact ...................................................................................................... 37 1.2. Regimes of civil liability .................................................................................................. 5 3 A.

Background .................................................................................................................. 53 B. Basis of the claims: extracontractual liability, contractual liability,

section 53 C.P.A., subsequent purchaser's situation and option .............................................................................................................. 60 C. Civil liability of the manufacturer marketing a dangerous product: general regimes ………….80 i.

Summary of the judgment a quo regarding liability ....................................................... 81 ii. General comments on the rules of liability................................................................... 91 iii. Obligation to provide information and civil liability of the manufacturer:

article 1053 C.C.L.C .; articles 1457, 1468, 1469 and 1473 C.C.Q. ................................. 93 a. Overview of the manufacturer's obligation to provide information pursuant to the C.C.L.C. or the C.C.Q. ………………………………………………………………………. 9 4 b. Specific issues ……………………………………………………………………………117 b.1. Articles 1053 C.C.L.C., 1457 C.C.Q., general fault and defence of knowledge defence ………………………………………………………………………………….…11 8 b.2. Knowledge defence: the extent of the victim's knowledge …………………… 12 5 b.3. Sharing of liability between the user and the manufacturer (art. 1478 C.C.Q.) ……………………………………………………………………………………...… 13 7

b.4. Burden of proof: a few clarifications ……………………………………………… 13 9 iv.

Section 53 C.P.A....................................................................................................... 154 D.

Summary of the applicable regimes ................................................................................ 163 1.3. Application of the law to the facts: civil liability of the manufacturer under common law and s. 53 C.P.A............................................................................................................. 170 A. Appellants' failure to fulfill their duty to inform .................................................................. 171 B. Victims' knowledge of the dangers .................................................................................. 200 i.

General ..................................................................................................................... 200 ii. Apparent danger........................................................................................................ 203 iii. Actual knowledge of the danger by each Class member.............................................. 203 iv. Presumed knowledge of class members ................................................................... 20 6 a.

Was the notoriety of the toxic and addictive effects of cigarettes acquired during the 1950s, 1960s or 1970s? …………………………………………………………………20 8 b. Were the toxic and addictive effects of smoking well known in 1980 (diseases) and 1996 (addiction) 21 6 C.

Summary .................................................................................................................... 2 30 D. Causation .................................................................................................................... 231 i. General treatment of this issue under common law....................................................... 231 ii. Effect of the Tobacco-related Damages and Health Care Cost Recovery Act ................ 235 a. The apparent scope of the T.R.D.A. 236 b. The appellants’ critique of the scope of

section 15 T.R.D.A. ……………………….. 2 40 iii. Issue joined at trial ................................................................................................... 250 iv. An aspect of the conduct of the proceedings at first instance ................................... 254 v. Appellants' complaints regarding evidence of causation............................................. 263 vi. Evidence of causation and its assessment by the judge ............................................ 268 a. Medical causation 269 a.1. Blais file 269 a.2. Létourneau file 282 b. Conduct causation 282 c. Dependence and definition of the Létourneau Class 292 vii.

Summary ................................................................................................................ 296 2. CONSUMER PROTECTION ACT ( sections 219 , 228 and 272 C.P.A. ) ........................................ 296 2.1. Background...................................................................................................................... 296 2.2. Analysis .......................................................................................................................... 29 8 A. Adoption and scope of application of the C.P.A. ............................................................. 298 B. Conditions of application of the remedy set out in

section 272 C.P.A. ............................... 299 i. Violation of an obligation imposed by Title II of the C.P.A............................................ 300 a. Failing to mention an important fact ( s. 228 C.P.A. ) ………………………………… 300 b. False or misleading representations ( s. 219 C.P.A. ) 306

c. End of the prohibited practices 308 d.

Summary 311 ii. Knowledge of the prohibited practices ....................................................................... 311 iii. Contracts subsequent to the prohibited practices ...................................................... 312 iv. Sufficient nexus ....................................................................................................... 315 C. Scope of the irrebuttable presumption of prejudice .......................................................... 318 D. Penalties imposed on the appellants pursuant to

section 272 C.P.A. ................................ 321 i. Availability of moral damages ................................................................................... 321 ii. Availability of punitive damages ................................................................................ 322 2.3.

Summary.......................................................................................................................... 32 2 3. CHARTER OF HUMAN RIGHTS AND FREEDOMS .................................................................... 323 3.1. Background...................................................................................................................... 323 3.2. Analysis .......................................................................................................................... 32 4 A.

Field of application and coming into force of the Charter ..................................................... 324 B. Unlawful interference with the right to life, personal security and inviolability ........................ 326 i. The right to life, personal security and inviolability ......................................................... 326 ii. Unlawfulness of the interference................................................................................... 329 C. Intentional interference ................................................................................................... 332 3.3.

Summary.......................................................................................................................... 337 4. PRESCRIPTION ………………………………………………………………………………………………337 4.1 Prescription of compensatory damages………………………………………………………….337 A. Background …………………………………………………………………………………………….. 337 B. Analysis ………………………………………………………………………………………………….338 4.2 Prescription of punitive damages………………………………………………………………….347 A. Background …………………………………………………………………………………………….. 347 B. Analysis ………………………………………………………………………………………………….348 i. Blais file …………………………………………………………………………………………….. 349 a.

Charter ……………………………………………………………………………………………349 b. C.P.A. ………………………………………………………………………………………..…..350 ii. Létourneau file ……………………………………………………………………………………….351 a. C.P.A. ……………………………………………………………………………………………352 b. Charter ………………………………………………………………………………………..…..353 4.3

Summary ………………………………………………………………………………………………...353 A. Claims for compensatory damages …………………………………………………………………………..353 B. Claims for punitive damages ………………………………………………………………………………….354 5. ALLOCATION AND QUANTUM OF PUNITIVE DAMAGES……………………………………………..354

5.1 Main Appeal…………………………………………………………………………………………………..354 A. Background …………………………………………………………………………………………………354 B. Analysis ……………………………………………………………………………………………………..355 i. Blais file …………………………………………………………………………………………………357 ii. Létourneau file ………………...………………………………………………………………………357 a. Arguments relating to the award of punitive damages ……………………………………….357 b. Arguments relating to the determination of quantum …………………………………………360 5.2 Cross-Appeal ………………………………………………………………………………………………369 5.3

Summary ……………………………………………………………………………………………………..369 6 . INTEREST AND ADDITIONAL INDEMNITY …………………………………………………………. 7. APPROPRIATE METHOD OF RECOVERY ………………………………………………………….. 8. INTERLOCUTORY JUDGMENTS AND EVIDENCE ................................................................... 378 8.1. Background ..................................................................................................................... 378 8.2. Analysis .......................................................................................................................... 37 8 A.

Mootness of the ground of appeal..................................................................................... 378 B. Parliamentary Privilege ................................................................................................... 381 C. Authenticity and preparation of exhibits .......................................................................... 384 D. Solicitor-client privilege ................................................................................................. 389 8.3.

Summary.......................................................................................................................... 3 90 9. TRANSFER OF THE OBLIGATIONS OF MTI ............................................................................ 390 9.1. Background ..................................................................................................................... 390 9.2. Analysis .......................................................................................................................... 391 10.

DESTRUCTION OF DOCUMENTS BY ITL................................................................................. 392 10.1. Background ..................................................................................................................... 392 10.2. Analysis .......................................................................................................................... 395 V. CONCLUSION___________________________________________________ 397 SCHEDULES______________________________________________________ 40 3

SCHEDULE I: Abbreviations and acronyms used .......................................................................... 40 4

SCHEDULE II: Basis for calculating interest and the additional indemnity..................................... 40 6

SCHEDULE III:

Definitions of Blais and Létourneau Classes.......................................................... 40 9

SCHEDULE IV: Extracts from the “ Special Report on Smoking and Health ”, The Leaflet , Vol. 5, No. 5, June 1969 (Exhibit 2 at et seq . - see supra note 580)................................................. 412

JUDGMENT [ 1 ] The Court is asked to determine the outcome of three appeals and one cross-appeal contesting a judgment rendered on May 27, 2015, [1] and corrected on June 9, 2015, by the Superior Court, District of Montreal (the Honourable Brian Riordan), in the context of two class actions [2] whose origins date back to 1998.

The judgment ordered the collective recovery of $6,858,864,000 in compensatory damages for the injury caused to the members in one of the class actions and the collective recovery of a total of $131,090,000 in punitive damages in both files. [ 2 ] In that judgment, the Honourable Brian Riordan condemned the appellants, three cigarette manufacturers, to pay moral and punitive damages due to the multiple faults they committed over the course of the second half of the twentieth century.

The appellants’ liability is invoked on several fronts, involving the regimes of extracontractual liability under the general law, the provisions of the Charter of human rights and freedoms [3] (the “ Charter ”), those of the Consumer Protection Act [4] (the “ C.P.A. ”) and the regime of manufacturer’s liability. Added to that are the provisions that derogate from the general law in the Tobacco-related Damages and Health Care Costs Recovery Act [5] (the “ T.R.D.A. ” ), enacted by the National Assembly in 2009.

The appellants are alleged to have conspired, for close to five decades, to silence or minimize the risks inherent to smoking and to have, if not created, at least maintained a controversy surrounding the state of scientific knowledge to encourage smoking.

It is alleged that this policy of silence and this scientific controversy, inter alia , are faults that caused the members’ smoking and, consequently, the development of certain diseases among some and tobacco addiction among others. [ 3 ] In the Blais file, which groups together tens of thousands of persons who developed certain types of cancer and emphysema, the appellants were condemned to indemnify the victims of these diseases by paying moral damages ($6,858,864,000) and a symbolic amount of punitive damages ($90,000).

In the Létourneau file, which groups together hundreds of thousands of persons who have developed an addiction to tobacco, the judge found the appellants liable but refused to award compensation to the members. He nevertheless condemned the appellants to pay substantial punitive damages totalling $131,000,000. Collective recovery was ordered in both files. [ 4 ] In these appeals, the appellants allege that the trial judge made numerous errors.

In addition to his conclusions on fault, causation and the assessment of damages, the appellants challenge a series of contingent conclusions, including the application of the general principles governing class actions, collective recovery, the prescription of certain claims, the applicability of the Charter and the C.P.A., the calculation of the quantum of punitive damages, the starting point for the calculation of interest and the additional indemnity, as well as various findings of fact concerning certain actions of the appellants and the admissibility or use of certain exhibits. [ 5 ] After carefully reviewing the reasons of the trial judge and the French translation accompanying them, the Court has concluded that only the English version should be considered authoritative.

When analyzing reasons of this magnitude, which make abundant reference to legal, technical and scientific terminology that is often highly specialized or uncommon, it is advisable to follow the example of the Supreme Court of Canada and defer to the language used by their author in drafting them. As the judge noted in paragraph 1205 of his reasons, that language is English. The Court will therefore cite herein only the reasons filed in English, and the same will apply for the excerpt from the conclusions of the trial judgment reproduced in the conclusions of this judgment.

In the footnotes that appear in support of these reasons, references to the case law (except for the judgment a quo ) and to certain statutes systematically reproduce the complete reference to the original source. Due to the length of the judgment, it seemed preferable to proceed in this way for the reader’s convenience , rather than by supra and infra references in the footnotes . An exception to this rule, however, is made for the footnotes referring to commentary.

In general, the page references refer to the page numbers of the exhibit referred to; if the exhibit does not have page numbers, the references refer to the page numbers of the joint schedules (“J.S.”). The titles of exhibits are indicated only when relevant to the understanding of the reasons. I. BACKGROUND 1. CLASS ACTIONS [ 6 ] The two class actions that were before the Superior Court concern the period from 1950 to 1998 (“ the relevant period ”).

Within the framework of each of the actions, the respondents alleged that the appellants committed numerous faults that caused injury to hundreds of thousands of Quebec residents. These faults originate in four principal sets of circumstances. They result from (

i) a failure to fulfil the general duty not to cause injury to another (art. 1053 C.C.L.C . and art. 1457 C.C.Q.); (ii) the failure to comply with the manufacturer’s obligation to inform (duty to warn) (arts. 1468 and 1473 C.C.Q.); (iii) violations of the fundamental rights of the members set forth in the Charter ; and (iv) violations of the merchant’s or manufacturer’ duties imposed by the C.P.A.

The respondents furthermore allege that the Appellants intentionally took concerted action and cooperated in order to delay public awareness of the dangers of tobacco. [ 7 ] We reiterate that these cases concern tobacco sold in the form of cigarettes. Consequently, where dealing with the issues of cigarettes, tobacco or smoking, it is agreed that these terms refer solely to cigarettes or the consumption of cigarettes by inhalation. 1.1. Blais file

[ 8 ] The Blais claim was filed in the Superior Court in November 1998 and was authorized on February 21, 2005. The class whose members are represented by Mr. Jean-Yves Blais (“ the Blais Class ”) is comprised of smokers who developed cancer of the lung, larynx, oropharynx or the hypopharynx or contracted emphysema (“ the diseases at issue ”) prior to March 12, 2012, after having smoked a stipulated quantity of cigarettes manufactured by the appellants (“ the critical dose ” of smoking). The threshold for this dose was established as being 12 pack years by the trial judge.

A pack-year is equivalent to the consumption of one pack of 20 cigarettes per day for one year or any equivalent consumption. In other words, this measurement corresponds to 7,300 cigarettes per annum for a total of 87,600 cigarettes. [ 9 ] At trial, the judge found the appellants liable and ordered them to pay moral damages to the members who had received a diagnosis of any of the diseases at issue, i.e., $100,000 for cancer of the lung, larynx, oropharynx or hypopharynx and $30,000 for emphysema.

He concluded, however, that the members who were not yet addicted to nicotine as of January 1, 1980, i.e., the moment when the public became aware that tobacco caused the diseases at issue (“ the date of public knowledge ”) were entitled to only 80% of the moral damages on the ground of their contributory negligence. He also established the period for becoming addicted to tobacco as being four years. The Judge ordered the collective recovery of the sums for an aggregate amount of $6,858,864,000.

He also ordered the appellants to pay punitive damages which, due to the significant amount of moral damages awarded, were limited to the amount of $30,000 per appellant. 1.2. Létourneau file [ 10 ] The Létourneau claim was filed in the Superior Court in September 1998 and authorized on February 21, 2005. The class, whose members are represented by Ms. Cécilia Létourneau (“ the Létourneau Class ”), is estimated to include nearly one million smokers who developed an addiction to nicotine contained in cigarettes manufactured by the appellants. The judge defined addiction to nicotine as resulting (

i) from the consumption of cigarettes over a minimum period of four years and (ii) consumption at the time of assessment of this addiction of a minimum daily average of 15 cigarettes. [ 11 ] At trial, the judge found that the appellants had caused the addiction of the members of the Létourneau Class. He nevertheless refused to award them moral damages due to a lack of sufficiently precise evidence of the aggregate total of claims and due to the indeterminate number of members.

However, he ordered the appellants to pay punitive damages totalling $131,000,000, a sum providing for collective recovery in accordance with terms to be established at a later time. 1.3. Description of the appellants [ 12 ] The appellants are three cigarette manufacturers who carried on trade in Quebec and in Canada under various corporate forms throughout the period governed by the two class actions. They underwent major changes in their corporate structure and their shareholdings.

Although it is not necessary for the purposes of this Appeal to relate this in every detail, a brief description of each of them is necessary for a proper comprehension of these reasons. [ 13 ] Furthermore, to facilitate this comprehension, the appellants will be referred to using their current name and not their prior corporate identity, save and except where necessary in order to make the necessary distinctions. A.

ITL [ 14 ] Imperial Tobacco Canada Ltd. (“ ITL ”) is, in terms of market share, the largest of the appellants, having held on average 50.38% of the market share of the appellants during the relevant period. [6] Today, and since a considerable period of time, it has been owned, either in whole or in part, depending on the time, by British American Tobacco (“ BAT ”), a company based in London. B.

JTM [ 15 ] JTI-Macdonald Corp. (“ JTM ”) is the smallest of the appellants in terms of market share, having held on average 19.59% of the market share of the appellants during the relevant period. [7] At the time of trial, it was indirectly owned by the company Japan Tobacco. [ 16 ] Originally, this was a Montreal company founded by the McDonald brothers – their name would eventually be changed to MacDonald – towards the mid-19th century. From 1917 to 1974, the company was owned by the Stewart family.

In 1974, the company, which at that time was called Macdonald Tobacco Inc. (“ MTI ”), was acquired by the American conglomerate R.J. Reynolds Tobacco Company. Initially, MTI continued operating under the same name, but its activities were eventually merged into a new corporate entity, RJR-Macdonald Inc. (“ RJRM ”), which is directly or indirectly owned by R.J. Reynolds Tobacco Company. MTI was eventually dissolved. Finally, in 1999, R.J.

Reynolds Tobacco Company split from RJRM and, in the wake of a succession of agreements among the various corporate structures of the companies, RJRM became the indirect owner of Japan Tobacco and henceforth was known under the current name of the appellant, JTI-Macdonald Corp. [8] C.

RBH [ 17 ] Rothmans, Benson and Hedges Inc. (“ RBH ”) is the second largest entity among the appellants with respect to market share, having held on average 30.03% of the market share of the Appellants during the relevant period. [9] [ 18 ] The appellant RBH is the result of a merger of two companies in 1986: Rothmans of Pall Mall Canada (“ RPMC ”) and Benson & Hedges (“ B&H” ). Whereas B&H were present in Canada prior to the commencement of the relevant period, RPMC commenced carrying on business in Canada in 1958.

After their merger in 1986, the RBH shareholding was comprised of the Philip Morris and Rothmans groups. Since 2008, Philip Morris International Inc. is the sole shareholder of the appellant RBH. [10] 2. GENERAL CHRONOLOGY

[ 19 ] Due to its abundance, the evidence filed in the trial record creates certain constraints and calls for a preliminary remark. It is certain that, at least viewed from the angle of the size of the body of evidence, the matter exceeds the complexity of most cases previously heard before the Quebec Superior Court. Thus, it is not desirable to attempt at this time to present a

summary of all the facts read into the court record as the reader would risk becoming lost in a maze of details. In the following pages, the numerous complaints formulated by the appellants against the judgment a quo will be dealt with in order, and each of them will be accompanied by a

summary of the evidence most relevant to it. [ 20 ] It is nevertheless appropriate to offer as a reference point a general chronology of the legal framework within which the consumption of cigarettes has evolved since the commencement of the period defined by the trial judge, running from 1950 to 1998. [ 21 ] One can draw a portrait of the relevant period in three phases. From 1950 to 1972, the public debate on tobacco and health existed, but no significant government measures resulted therefrom.

From 1972 to 1998, the Canadian tobacco industry was self- regulating – under the threat of legislative intervention – and as a result, public awareness increased. It was during this period that the initial warnings began to appear on cigarette packages. Finally, from 1988 to 1998, governments intervened in order to oversee the industry both with respect to advertising and warnings. In what follows, solely the salient facts of these three periods will be discussed, as will be the case for the specific matters of Mr. Blais and Ms. Létourneau. 2.1.

Evolution of perceptions (1950–1972) [ 22 ] Although we can retrace the origins of the legislative framework for tobacco use (for example to the Tobacco Restraint Act , [11] enacted in 1908), it has long since been reduced to its most simple expression. A.

Early confrontations [ 23 ] During the 1950s, certain initiatives intensified, which led governments to increasingly direct their attention to the issue. [ 24 ] Thus, in 1953, the American industry created a common strategy for the half century to come during a meeting that will remain known as the Plaza Hotel Meeting . [12] The Tobacco Industry Research Committee, an American association of cigarette manufacturers, issued a release titled Frank Statement to the Public by the Makers of Cigarettes [13] on December 28, 1953.

It acknowledged the existence of certain studies that linked lung cancer with cigarette smoking, but pointed out that several other causes of lung cancer had been identified, that there existed no scientific consensus, that there was no proof that tobacco use was a cause of lung cancer, and finally that the statistics related to smoking could apply “to any one of many other aspects of modern life.” [14] As the founding act of the Tobacco Industry Research Committee, the Frank Statement united several American cigarette manufacturers. [15] It contained a promise to cooperate with public health authorities and to lend assistance to research into tobacco and health.

This document illustrates the tone that would be adopted by cigarette manufacturers during the years to come. [ 25 ] In 1957, the United States Surgeon General published a notice on tobacco and health further to which it affirmed that excessive smoking was one of the underlying factors contributing to lung cancer. [16] [ 26 ] On June 21, 1958, Rothmans International published in the Globe and Mail a release, which it qualified in the following manner: “ A N ANNOUNCEMENT OF MAJOR IMPORTANCE . ” [17] It stated therein that the Canadian Medical Association disclosed, during its annual congress, that there existed a link between smoking and lung cancer.

Rothmans International declared that it wished to seek a solution in cooperation with medical authorities, or alone if necessary. It considered various proposals, including improving cigarette filters, using only tobacco containing lower tar and nicotine levels (the Virginia), and promoting King Size cigarettes, i.e., longer cigarettes where the combustion generates less warmth and thus less tar.

The company concluded by noting that with moderation, “smoking can still remain one of life's simple and safe pleasures.” [18] Furthermore, it added, “Rothmans would like it known that the problem of the relationship between cancer and smoking has for many years engaged the attention of the Research Division of its worldwide organization . ” [19] Several weeks later, Rothmans International issued a release [20] during a meeting of the International Cancer Congress held in London. At that meeting, it clarified its position: it accepted the statistical evidence of a link between cancer and heavy tobacco use.

It reiterated that the biological cause of cancer remained unknown, and it committed to remaining transparent in the future. These announcements of Rothmans International were very poorly received by the tobacco industry and forced Mr.

Patrick O'Neil-Dunne, Rothmans’ executive and principal instigator behind the announcements in question to explain himself before the Tobacco Industry Research Committee. [21] [ 27 ] In 1962, the Royal College of Physicians and Surgeons of the United Kingdom published a report titled A Report of The Royal College of Physicians of London on Smoking in relation to Cancer of the Lung and Other Diseases , [22] which noted a substantial increase in the number of lung cancers in the United Kingdom from 1910 to 1950 (also credited, it should be added, to the improvement in diagnostic techniques).

However, by indexing several retrospective and prospective studies, the body concluded that there existed a “strong statistical association” between tobacco use and lung cancer, even going so far as to speak of a relation of cause and effect. It underlined that the laboratory experiments did not establish a causal link but did reveal several compatible elements pointing to a form of causation.

On addiction, the report was less explicit: it disclosed popular beliefs – shared by doctors – further to which tobacco created a “ addictive habit” but expressed the view that there existed no decisive evidence in this regard.

The report used the expression “habit ” and concluded that tobacco use is generally “much more habit-forming than drinking.” [23] It recommended that preventive measures be taken, including the removal of hazardous products transported by the smoke, the implementation of educational and tax measures against smoking, the reduction of advertising and a ban against smoking in certain public places.

B. The 1962 Statement of Principle [ 28 ] On October 12, 1962, the appellants or their successor companies, [24] as applicable, signed the Policy Statement by Canadian Tobacco Manufacturers on the question of tar, nicotine and other smoke constituents that may have similar connotations (“ Statement of Principle ”). [25] At the instigation of Mr. Edward C.

Wood, President of Imperial Tobacco Company of Canada Ltd. (the forerunner of ITL) a letter was sent to the other companies encouraging them to sign the Statement of Principle. [26] This document required the companies to refrain from using the words “tar,” “nicotine” or other terms that could have a similar connotation in advertising or public communications. The companies were of the view that they were acting in the public interest because such labelling, in their minds, would only serve to confuse consumers.

This document also contains guidelines concerning media interventions by cigarette manufacturers, in a schedule. [27] The guidelines state that voluntary comments by companies on health and tobacco should be avoided, that the companies would not attribute special advantages to cigarette brands and that the components of smoke would not be disclosed. C.

Ad Hoc Committee of the Canadian Tobacco Industry, Canadian Tobacco Manufacturers Council and the LaMarsh Conference [ 29 ] It is also necessary to mention the Ad Hoc Committee of the Canadian Tobacco Industry (“ Ad Hoc Committee ” ), formed in 1963, whose actions would intermittently mark the remainder of the relevant period. [ 30 ] During the summer of 1963, correspondence [28] between ITL and the Ministry of National Health and Welfare of Canada and the Minister at that time, Ms.

Judy LaMarsh, suggested that the industry was getting organized with a view to a conference devoted to public health issues related to tobacco use scheduled to take place in November 1963 in Ottawa (the LaMarsh Conference). In August 1963, the cigarette manufacturers established the Ad Hoc Committee at Royal Montreal Golf Club, in all likelihood to prepare for that.

This Ad Hoc Committee changed its name in 1971 and became the Canadian Tobacco Manufacturers Council (“ CTMC ”). [29] [ 31 ] The Conference, chaired by Minister LaMarsh, was held on November 25 and 26, 1963. [30] On behalf of the cigarette manufacturers, Messrs. John Keith, L.C. Laporte, L.P. Chesney and N.A. Dann (ITL), Messrs. J.H. Devlin and G.J. McDonald (RPMC), Robert Leahy and Jos. Secter (B&

H) and Mr. René Fortier (MTI) attended, in addition to associations of tobacco farmers, the Canadian Medical Association, the Canadian Cancer Society and various other Intervenors. [31] D. Report of the United States Surgeon General (1964) and its aftermath [ 32 ] January 11, 1964, was a milestone date. On this date, the Surgeon General published a key report titled Smoking and Health: Report of the Advisory Committee to the Surgeon General of the Public Health Service . [32] . Among other findings, it stated as follows: (

i) tobacco use increases the specific mortality rates of men and to a lesser extent women; (ii) there is a causal link between smoking and lung cancer among men, which increases the risk of contracting lung cancer by a factor of 10 (average smoker) to 20 times (heavy smoker); (iii) smoking increases the risk of contracting emphysema but no causal link is established; (iv) smoking “appears” to be linked with other types of cancer (larynx, bowel), but causation is not established; and (

v) smoking (“habitual use”) is principally related to psychological and social impulses that are reinforced by the pharmacological effect of nicotine.

The report advised remedial action: “Cigarette smoking is a health hazard of sufficient importance in the United States to warrant appropriate remedial action.” [33] This report received significant coverage by Quebec media outlets [34] and was characterized as being “seminal” [35] or a “bombshell ” [36] by an expert witness. [ 33 ] Several years later, in 1969, in the wake of the work of the Surgeon General, the Standing Committee on Health, Welfare and Social Affairs of the House of Commons of Canada published in turn its report. The Committee, chaired by Dr.

Gaston Isabelle, titled its 1969 report, Report of the Standing Committee on Health, Welfare and Social Affairs on Tobacco and Cigarette Smoking . [37] It contained several recommendations following consultations with various Intervenors: (

i) restrict and reduce the promotion of cigarette sales; (ii) affix warnings on packages and promotional materials and, ultimately, (iii) eliminate advertising related to cigarettes. The experts concluded that “there is no longer any scientific controversy regarding the risk created by cigarette smoking.

The original statistical observations have been validated by clinical observation and the evidence is now accepted as fact by Canadian medicine.” [38] [ 34 ] On June 10, 1971, bill C-248, introduced by the Minister of Health and Welfare, John Munro, the Cigarette Products Bill , underwent its initial reading before the House of Commons. There would not be a second or third reading. [39] Subparagraph 3(1) of the bill prohibited virtually any form of tobacco advertising.

Several exhibits on the record [40] retraced the debates that were held between the powers within the Trudeau government of that time. [ 35 ] Four months earlier, on February 19, 1971, the Surgeon General had published “a major reworking ” [41] of its 1964 report titled “ The Health Consequences of Smoking . ” [42] Among its findings, the report stated that smoking is the principal cause of lung cancer among men and one of the causes among women, that it is a significant risk factor in the development of cancer of the larynx and of the mouth and that it is associated with cancer of the oesophagus.

Smoking was also the most significant cause of chronic obstructive pulmonary disease (“ COPD ” [43] ). [ 36 ] At that time, no warning appeared on cigarette packs sold in Canada and advertising, as it appears in samples filed with the Court record, flourished. It is within this context, and particularly that of bill C-248, that the industry would henceforth practice a form of “voluntary” submission, but which was not unrelated to government pressure. [ 37 ] Thus, on September 8, 1971, the CTMC held a meeting. [44] The participants [45] discussed the scientific controversy and

estimated that it was preferable to reduce to a minimum any public interventions. According to Mr. Paul Paré (president of ITL and the CTMC), the CTMC had a responsibility towards (

i) its member companies, (ii) the Canadian tobacco industry, and (iii) the worldwide tobacco industry. In his view, notwithstanding the divergent interests, it was necessary to fully assume these three responsibilities. Conscious of the bills that were reviewed in the House of Commons, [46] the CTMC decided to establish a line of conduct inspired by the voluntary actions taken in the United Kingdom and the American legislation. 2.2. Voluntary Adherence (1972–1988) A.

Voluntary codes [ 38 ] With the approval of representatives of the Canadian Government with whom the appellants had jointly consulted, the latter adopted several Voluntary Codes as of 1972. It is true that these Codes had been preceded in 1964 by a Cigarette Advertising Code , [47] which had been published by the appellants.

The trial judge saw in this a precursor to the Codes of the 1970s but added that, as opposed to these latter codes, the evidence did not allow for a determination as to whether the Cigarette Advertising Code of 1964 had been adopted after consultation with the government. [48] [ 39 ] On January 1, 1972, the first Voluntary Code [49] endorsed by the appellants was adopted. This Code provided for (

i) the television and radio advertising ban, [50] (ii) the affixing of warnings (which will be analysed in the next

section of this chronology) and (iii) a ban against advertising to minors. [ 40 ] In 1975, two new versions of the Voluntary Code were adopted and replaced that of 1972. [51] The attendant regulations were also adopted. [52] Subsequent versions succeeded in 1976, 1984, 1985, 1995 and 1996. [53] . In this regard, the trial judge concluded that the rules limiting advertising that were included in the voluntary codes scarcely changed from 1972 to 1988. [54] B. Warnings [ 41 ] Also in 1972, the first warnings appeared on cigarette packages.

The trial judge noted that the industry reacted “under threat of legislation.” [55] The 1972 Voluntary Code [56] provided at rule 2, that any package produced after April 1, 1972, would bear the following statements: [ 42 ] These warnings were also reproduced in small font letters on cigarette packages, presumably on the lateral sides of the packages, [57] or as footers to advertising posters. [58] [ 43 ] In 1975, once again “under threat of legislation,” [59] the following warnings appeared henceforth on packages.

They were stipulated in rule 12 of the new Voluntary Code: [60] WARNING: Health and Welfare Canada advises that danger to health increases with amount smoked - avoid inhaling. AVIS: Santé et Bien-être social Canada considère que le danger pour la santé croit [sic] avec l'usage - éviter d'inhaler.

[ 44 ] The regulation accompanying the 1975 Voluntary Code decreed that the warnings had to appear in 10 point or 7 point font according to certain specific terms. [61] These warnings would appear until 1988 on the packages and would have for the most part the same appearance and take up the same space as their previous 1972 version. [62] [ 45 ] A second version of the 1975 Voluntary Code, that of October, provided for the same warnings. [63] The 1976 Code maintained these warnings and added the content in tar and nicotine in milligrams in addition to modifying the font size of characters. [64] The Voluntary Codes of 1984 [65] and 1985 [66] provided the same warnings.

C. Advertising [ 46 ] The trial judge considered that “[t]he Companies certainly viewed the Codes as a means to avoid legislation in this area. ” [67] This statement is solidly supported by the evidence.

He also concluded, relying upon the evidence offered by the Defence that the appellants “scrupulously complied with the codes.” [68] It is necessary, however, to realize that the restrictions to advertising imposed by these codes, although they evolved further to a gradual reinforcement of constraints that the appellants imposed upon themselves, still left room for several other forms of advertising and promotion of their products. The 1972 Code prohibited cigarette advertising on radio and television.

The 1975 Code added certain prohibitions that can be found in the 1984 Code [69] 69 and that remained in effect thereafter. [ 47 ] The prohibitions in the 1984 Code prohibited (

i) the promotion of sports and other sponsorships by the same media, i.e., radio and television (rule 1), (ii) any advertising stating that a particular brand improved physical health (rule 8) and (iii) any advertising relying upon “the testimony of athletes or celebrities from the world of entertainment” (rule 9). We note, however, that the authors of the Code reserved the possibility of interpreting this so as to allow for the use of other advertising techniques.

Thus, in reference to the three prohibitions just mentioned, a regulation supplements the Code ( Regulations Re Cigarette and Cigarette Tobacco Advertising and Promotion ).

In force since January 1, 1976, it states as follows in the January 1, 1985, version: [70] Rule 1 of the Code shall be interpreted to permit broadcast media to use film, video or radio tapes of sports or other popular events sponsored by Member Companies and for which production charges are borne by a manufacturer provided no time or other charges are paid directly or indirectly to the station or network and provide [sic] such films, video, or radio tapes do not infringe on Rules 8 and 9 of the Code. [ 48 ] We are far from the regime that would be implemented by the Canadian Parliament in 1997 and that the Supreme Court of Canada would rule constitutionally valid in 2007.

These issues are addressed further on. D. Internal newsletters [ 49 ] During the relevant period, certain appellants, the Smokers Freedom Society (“ SFS ”) and the CTMC published newsletters addressed to their employees, both active and retired. An overview follows. [ 50 ] For a certain period of time, ITL published The Leaflet / Le Feuillet , a newsletter addressed to its employees and their families. [71] Generally, it contained a varied range of articles, for example, on employee retirement conditions and on the harmlessness of secondary smoke, etc.

According to the issues, volumes and the years of editions filed in evidence, this newsletter was published commencing in 1964 and up until at least 1994. The judge concluded that this publication drew a favourable portrait of smoking and cultivated scientific controversy in that regard. [72] [ 51 ] The SFS was initially directed by Mr. Michel Bédard, but the effective management of the group, in addition to its financing, appears to have derived in good part from the CTMC, [73] - thus the appellants.

The SFS published the first issue of its newsletter Calumet during the winter of 1986–1987. [74] Other newsletters would follow. It presented a visual portrait of famous smokers (such as Winston Churchill, John Steinbeck and Simone de Beauvoir). It encouraged letters to the editor. Among other things, the newsletter disclosed that the ban of cigarettes in the workplace would have no impact on the quality of air and that according to a study, secondary smoke did not cause lung cancer. It argued for the accuracy of facts on tobacco and health.

In the Autumn 1987 edition, an editorial recalled that the SFS “recognises and accepts that non​smokers are what they are” but that they took issue with those who, as affirmed by the author of the editorial, refused to allow smokers access to health services. [75] It also stated that, according to a Dutch study, keeping birds in cages at home was responsible for half of all lung cancers and that a kilogram of meat cooked on a barbecue contains the same number of carcinogens as 600 cigarettes. [76] Finally, the Spring 1989 edition referred to an epidemiologist named Siemiatycki (one of the expert witnesses cited by the respondents at trial), who concluded that bus drivers had 50% more chances of suffering lung cancer due to gas exhaust. [77] The publication of Calumet continued until 1989.

Some copies of the newsletter are found under the English title Today’s Smoker in 1993. [78] [ 52 ] The CTMC published the Revue du Tabac / The Tobacco Review , from at least f1978 to 1980. [79] Then, in as of autumn 1988, the CTMC published the quarterly Tabacum “[a] liaison bulletin for the tobacco industry.” [80] The first issue reported on the constitutional challenge to the Tobacco Products Control Act [81] and voices joining with those of the tobacco industry. The issue concerned the ban against tobacco sales to children under the age of 16. It provided an overview of the 1988 tobacco harvest.

In short, the information disclosed was still varied in nature. In the summer of 1989, Tabacum published the “ Charter of Rights and Freedoms of Smokers ” formulated by the SFS. One reads therein that an adult smoker is entitled, inter alia , “to scientific honesty in the addressing of questions related to tobacco.” [82] During the winter of 1990, it strenuously criticized the report of the Royal Society of Canada of August

31, 1989, sponsored by Health and Welfare Canada. The Tobacco Revue criticized the Royal Society for coming to the preliminary conclusion that tobacco was addictive and that the definition of dependence (or the definition of addiction therein) was vague, arbitrary and based on vacillating scientific foundations. [83] [ 53 ] For a certain time, RJRM published the journal Contact , of which only one example of which appears to have been filed as evidence.

That issue (1979) sets out RJRM’s position: “We were unable to establish any scientific relationship of cause and effect between tobacco and certain diseases.” [84] 2.3. Government Interventions (1988–1998) A. Legislative framework [ 54 ] On January 1, 1987, the Act respecting the Protection of non-smokers in certain public places [85] was adopted in Quebec.

It prohibited smoking in various locations including certain zones in public bodies, public transportation (metro, ambulance, etc.) and certain other locations (judicial institutions, childcare centres and the waiting rooms of health professionals). [ 55 ] In 1988, the Surgeon General published a report titled The Health Consequences of Smoking: Nicotine Addiction . [86] According to the findings of this report, cigarettes and other forms of tobacco are addictive and nicotine is the component of tobacco which causes addiction.

The pharmacological and behavioural processes that determine tobacco addiction are similar to those of heroin or cocaine. This was the 20th report of the Surgeon General on tobacco. [ 56 ] In 1988, the Tobacco Products Control Act [87] was adopted, banning most types of tobacco advertising and imposing new warnings. The same year, the Non​smokers Health Act [88] was adopted, banning smoking in certain types of public transportation including trains and planes.

One year later, the Ordre des pharmaciens du Québec encouraged its members to cease selling cigarettes. [89] [ 57 ] On August 31, 1989, the Royal Society of Canada published a report titled Tobacco, Nicotine, and Addiction [90] at the request of the Ministry of Health and Welfare of Canada, who had asked which term (“addiction”, “dependence” or “habit formation”) was appropriate to characterize the risk of addiction to nicotine and tobacco products.

The Royal Society [91] concluded that smoking induced for the most part an “addiction” and that this term was preferable to the terms “dependence,” “habituation” and “habit”. The Society wrote in its conclusion: [92] Drug addiction is a strongly established pattern of behaviour characterized by (1) the repeated self-administration of a drug in amounts which reliably produce reinforcing psychoactive effects; and (2) great difficulty in achieving voluntary long-term cessation of such use , even when the user is strongly motivated to stop. [Emphasis added.] B.

Constitutional challenge [ 58 ] Subparagraph 4(1) of the Tobacco Products Control Act [93] provides as follows: “No person shall advertise any tobacco product offered for sale in Canada.” Several other provisions of that Act determine the scope of this general prohibition. appellants ITL and JTM (RJRM at the relevant time) challenged the constitutionality of the Act from two standpoints, i.e., that of the separation of federal / provincial legislative powers and that of the protection of freedom of expression.

This challenge went as far as the Supreme Court of Canada, where the appellants were partially successful. [94] A majority of the judges of the Supreme Court came to the conclusion that the considerations related to the separation of legislative powers was no impediment to the adoption of this law by the Canadian Parliament. On the other hand, the Court deemed that the impugned provisions (concerning advertising and promotion of tobacco products) infringed the freedom of expression guaranteed by the Canadian Charter of Rights and Freedoms [95] (the “ Canadian Charter ”) .

Furthermore, for a majority of the judges of the Court, the same provisions did not constitute “reasonable ... limits” as contemplated by

section 1 of the Canadian Charter and were therefore invalid. [ 59 ] In the wake of this decision, the Canadian Parliament adopted a new law, the Tobacco Act [96] of 1997, which was less restrictive than the Tobacco Products Control Act , [97] but nevertheless contained numerous prohibitions and requirements in relation to promotion and advertising ( inter alia “lifestyle” or “attractive for young people”) and tobacco product sponsorships, as well warnings on packages. Chief Justice McLachlin described this new broadly drafted scheme at paragraphs 18 to 31 of Canada (Attorney General) v.

JTI- Macdonald Corp . [98] Once again challenged on constitutional grounds, but this time by the three appellants currently before this Court, the law was upheld by a unanimous Supreme Court: sections 18, 19, 20, 22, 24 and 25 of the Act, and of the Tobacco Products Information Regulations , [99] adopted pursuant to the enabling statute, constituted an infringement of freedom of expression, but the infringement was deemed to be a “reasonable ... limit” as contemplated by

section 1 of the Canadian Charter .

[ 60 ] As we have already seen, the claims by the Blais and Létourneau Classes were filed several years prior to this 2007 Judgment and were authorized by the Superior Court in 2005. 2.4. Positions of the Representatives [ 61 ] A few remarks are in order regarding the particular situation of each of the representatives of the two groups. A. Jean-Yves Blais [ 62 ] In 1997, at the age of 53, Mr. Jean-Yves Blais was diagnosed with lung cancer and underwent a lower right lobectomy. He was monitored thereafter by medical personnel.

His total smoking consumption was assessed to be in the order of 100 packs per year by Dr. Desjardins during a 2006 consultation. At that time, his daily smoking was estimated to be 50 cigarettes, and Dr. Desjardins emphasized his heavy addiction to cigarettes. He observed in 2006 a decline in Mr. Blais’s pulmonary function and a progression of COPD. [100] [ 63 ] Dr. Desjardins concluded that Mr. Blais’s smoking was the most probable cause of his lung cancer and his advanced COPD. [101] The trial judge retained the finding of Dr. Desjardins and ruled that Mr.

Blais’s lung cancer was caused by his smoking. [102] B. Cécilia Létourneau [ 64 ] The judgment a quo mentions only scant details on the particular case of Ms. Cécilia Létourneau, which can probably be explained by the file as constituted, but particularly by the fact that the judge did not make an order for compensatory damages in this file and did not assess the situation of Ms. Létourneau in the same manner as he did for Mr. Blais. [ 65 ] According to the allegations contained in the amended originating application of February 24, 2014, Ms.

Létourneau started smoking cigarettes at the age of 19, in 1964, without knowing that nicotine was addictive. Over the years, she attempted to quit smoking on numerous occasions without success. The last attempt mentioned in the claim allegedly failed in January 1998, several months prior to service of the motion for authorization to institute a class action. 3. PROCEDURAL HISTORY 3.1. Superior Court A. Motions for authorization to institute a class action [ 66 ] On September 30, 1998, [103] Ms.

Létourneau served a motion for authorization to institute a class action against the appellants [104] on behalf of [ translation ] “all persons residing in Quebec who are or have been dependent on the nicotine contained in cigarettes manufactured by the [defendants] and the legal heirs of the deceased persons comprised within the class.” [ 67 ] On November 20, 1998, the Centre québécois sur le tabac et la santé and Mr.

Blais served a motion for authorization to institute a class action against the appellants on behalf of: [105] [ translation ] all persons residing in Quebec who are or have been victims of cancer of the lungs, larynx or throat or who suffer from emphysema, after having directly inhaled cigarette smoke for a prolonged period of time in Quebec, and the successors and heirs of deceased persons who otherwise would have been part of the class. [ 68 ] On November 3, 2000, the Court of Appeal ordered the joinder of the two claims for the purpose of proof and hearing at the authorization stage. [106] B.

Authorization and filing of claim [ 69 ] On February 21, 2005, the Superior Court (the Honourable Justice Pierre Jasmin presiding) authorized the class actions, defined the classes in each matter [107] and identified the questions of fact and law to be collectively addressed. [108] [ 70 ] On September 30, 2005, the respondents filed originating applications in the Blais and Létourneau matters. These applications were amended several times. [109] C.

Hearing and composition of the evidence [ 71 ] The hearing of the matter took place on March 12, 2012, and December 11, 2014, during 241 hearing days before the Honourable Mr. Justice Brian Riordan. At trial, the parties produced more than 20,000 exhibits and more than 70 witnesses, including more than 20 experts. The appeal record contains approximately 265,000 pages of evidence. [ 72 ] During the hearing, the trial judge rendered numerous interlocutory judgments, including several that were appealed.

For the purpose of facilitating comprehension of the process of the trial hearing, it is appropriate to address three interlocutory judgments of particular importance. i. May 2, 2012, judgment concerning the authenticity of certain exhibits

[ 73 ] On May 12, 2012, the trial judge ruled on the respondents’ application seeking the filing of certain documents into evidence and the imposition of sanctions on ITL due to its refusal to recognize the genuineness of exhibits pursuant to

article 403 f.C.C.P. [110] By this application the respondents sought (

i) a declaration that ITL’s notices of denial were abusive, (ii) the striking of these notices, (iii) authorization to file the relevant exhibits into evidence and (iv) a statement that this principle could be used again at a later time. [ 74 ] The judge allowed this application in part, declaring ITL’s notices of denial an abuse of procedure pursuant to

article 54.1 f.C.C.P., ordered that they be struck and authorized the filing into the court record of the exhibits concerned by such notices. [ 75 ] During the hearing, the judge accepted the filing of several other exhibits pursuant to the principle established by the May 2, 2012, judgment. These exhibits are marked with the suffix “2m.” This decision deserves mention because the appellants call into question the factual conclusions drawn from certain exhibits admitted pursuant to the principle established by this decision. ii. July 3, 2013, judgment on the amendment of the Class

definitions [ 76 ] On July 3, 2013, following the plaintiffs’ evidence, the trial judge authorized certain amendments to the

definitions of the Blais and Létourneau Classes. [111] In the definition of the Blais Class, the judge specified the exact name of the cancers previously qualified as “throat cancers,” adopted the measure of pack years as a unit of calculation of smoking habits of members and added a closing date for membership in the class. In the course of defining the Létourneau Class, the judge clarified the notion of addiction and added a closing date for membership in the class. iii.

May 13, 2014, judgment on access to medical records [ 77 ] On May 13, 2014, [112] in a judgment written by Justice Bich, the Court of Appeal reversed in part a decision of the trial judge. [113] The Court allowed, inter alia , the examination by ITL of the successors of Mr. Blais and the examination of Ms. Létourneau, while authorizing the production of medical records of the two representatives, but not those of other members of the class that ITL was authorized to cross-examine. D.

Judgment a quo [ 78 ] In his May 27, 2015, judgment, subsequently corrected on June 9, 2015, the trial judge allowed in part the originating applications of the respondents, amended the class

definitions and ordered the appellants to pay eight billion dollars in moral and punitive damages. He also ordered them to pay initial deposits representing a portion of the compensatory damages payable in the Blais file and the full amount of punitive damages in the two matters, for an aggregate sum of $1,131,090,000, within 60 days of the judgment. He ordered the provisional execution of this initial payment. 3.2.

Court of Appeal [ 79 ] On June 26, 2015, each of the appellants filed an appeal of the judgment a quo , alleging that it contained numerous errors of law and fact that justified the intervention of the Court. Leaving aside the management measures ordered by Justice Savard, the appeal proceedings can be summarized in the following manner. A.

Application to quash the order for provisional execution [ 80 ] On July 23, 2015, [114] a panel of the Court of Appeal allowed the motions of the appellants seeking to stay the order for partial provisional execution of the judgment a quo , ordering them to deposit sums within 60 days of the judgment. The Court specified that there was no extraordinary urgency or sufficient reason to justify the ordering of provisional execution pursuant to

article 547 f.C.C.P. The Court dismissed the applications of ITL and RBH for the issuance of an order to place under seal certain documents filed in support of their application. B. Application for an order to provide security [ 81 ] On October 27, 2015, [115] Justice Schrager allowed in part the motions of the respondents seeking an order against the appellants ITL and RBH [116] to provide security to guarantee the payment of costs of the appeal and the amount of an order in the event that the judgment a quo were to be upheld. According to the judge, the respondents had demonstrated the existence of a “special reason” as contemplated by

article 497 f.C.C.P. Without the order for security, their rights recognized by the judgment would be at risk: “Both appellants have structured their affairs in a manner that drastically, if not completely, reduces their exposure to satisfy any substantial condemnation that might be made against them in this litigation.” [117] [ 82 ] Justice Schrager determined the amount of the security based on the sum of the initial security deposit ordered by the trial judge ($1,131,090,000).

He divided the sum between ITL and RBH according to their share of liability, i.e., 67% for ITL ($758,000,000) and 20% for RBH ($226,000,000). In order to protect their right of appeal, he ordered them to deposit the sums by successive instalments based on a calendar to be staggered over the period from December 2015 to June 2017. C.

Motion to stay the trial proceedings [ 83 ] After quashing the order for provisional execution of the order against the appellants, the trial judge wrote to the parties to ask them when and in what manner the respondents intended on complying with paragraph 1247 of the judgment a quo , which ordered them to file with the Court within 60 days of the judgment a detailed proposal with respect to distribution of the amounts of compensatory and punitive damages. At the same time, the judge also initiated correspondence with the parties concerning holding a case management

conference to rule upon (

i) the notice required by

article 1043 f.C.C.P., (ii) the powers of the judge with respect to issues not governed by the appeal and (iii) the issue of abuse of procedure. [ 84 ] In this context, the appellants ITL and RBH filed a motion to stay proceedings wherein they alleged that during an appeal, the judge cannot take any measures or render any decision whatsoever with respect to the execution of the judgment, abuse of procedure or the notice required by 1043 f.C.C.P. [ 85 ] On November 13, 2015, [118] a panel of the Court of Appeal dismissed the motion of ITL and RBH on the ground that the issues raised were moot but reiterated [ translation ] “the unequivocal wording of the first paragraph of

article 497” f.C.C.P., which suspends the provisional execution of the trial judgment. D. ITL’s motion for particulars [ 86 ] At the same time, ITL filed a “ motion ... for directions on the

schedule to furnish security,” pursuant to which it sought the amendment of the

schedule established by Justice Schrager on October 27, 2015, for payment of the security deposit. Notably, ITL sought to decrease the amount of the two initial instalments of the security deposit on the ground that the judge erred by failing to consider a loan of $100,000,000 contracted by the company and payable to a third party. [ 87 ] On December 9, 2015, [119] Justice Schrager dismissed the motion on the ground that it was tantamount to a disguised appeal.

He found that “the factual premise of Petitioner’s motion is unfounded,” [120] and that the order for payment of the security deposit required no correction. Even supposing that the order was tainted by an error, he added, the doctrine of functus officio estopped the motion of ITL. E.

Hearing of the appeals [ 88 ] On September 8, 2016, two months prior to the appeal hearing, the assistant coordinator of the Court wrote to the appellants by email on behalf of the Court in order to specify the terms of the hearing and to ask them to precisely identify the exhibits they were challenging and the arguments in support of their claims, adding that the Court would not consider their arguments in the absence of such particulars due to the hundreds of exhibits related to their arguments. [121] On October 3, 2016, Mr.

François Grondin, on behalf of the appellants, responded, inter alia , that the appellants did not wish to challenge any exhibits other than those specifically referred to in their respective arguments. [122] [ 89 ] The hearing before the Court of Appeal was held from November 21 to 25 and on November 30, 2016. During the hearing, the Court asked the parties to submit an example of the claim form to be filled by a member in the event that individual recovery of the claims were to be substituted for collective recovery by the Court of Appeal, which they did on November 30, 2016.

Upon the conclusion of the last day of the hearing, the Court reserved judgment and granted the parties permission to submit observations in writing within 15 days, which they did on December 15, 2016. II. JUDGMENT A QUO [ 90 ] This

summary of the judgment a quo has the objective of presenting a general overview of the reasons and findings of the trial judge. To avoid repetition, the contextual components mentioned previously, concerning class actions, the general chronology and procedural history related to the judgment a quo , are for the most part excluded. [ 91 ] Did the appellants manufacture, market and sell a product [123] that was dangerous and harmful to the health of consumers?

The judge responded in the affirmative. [124] He defined as “dangerous” a product causing diseases to members of the Blais Class (lung cancer, cancer (squamous cell carcinoma) of the throat, i.e., of the larynx, the oropharynx or the hypopharynx, or emphysema), or causing the addiction of members of the Létourneau Class. [ 92 ] In the event of a safety defect in a thing, however,

article 1473 C.C.Q. provides two grounds of defence for the manufacturer, distributor or supplier: [125] (

i) the victim knew or could have known of the defect in the thing or could have foreseen the injury; (ii) this defect could not have been known at the time the thing was manufactured, distributed or supplied. The evidence discloses that the appellants knew the risks and dangers associated with the use of their products throughout the entire period covered by the two claims.

Consequently, the appellants cannot rely on the latter ground of defence. [126] On the first ground, the judge concluded that the public knew or could have known the risks and dangers of suffering a disease caused by tobacco as of January 1, 1980, i.e., the date of public knowledge in the Blais file. [127] He came to this conclusion by analyzing the impact of the warnings on cigarette packages with respect to the public. The first appeared in 1972, which, furthermore, was not sufficiently explicit with respect to the hazards of tobacco use.

It was only towards the end of the 1970s that the warnings became sufficiently clear. In relation to tobacco addiction, the first warnings appeared more precisely on September 12, 1994. The date of public knowledge in the Létourneau file should nevertheless be set as being March 1, 1996, in order to allow the warnings the necessary time to have their full impact on public awareness of addiction, which corresponds to a period of approximately 18 months. [128] [ 93 ] In

summary, as of the dates of notoriety set respectively in the Blais and Létourneau files, the responsibility of the appellants in relation to the safety defect of their products is no longer incurred. They may, however, be found liable in regard to other obligations

with which they were not compliant for the entire period covered by the two matters. [ 94 ] Firstly, the appellants knowingly marketed an addictive product, a fault likely to trigger their civil liability both pursuant to the Charter and the C.P.A. [129] On the other hand, it was not demonstrated that they chose to use tobacco containing a higher level of nicotine for the purpose of perpetuating this addiction. [ 95 ] The appellants failed to sufficiently inform the public of the risks and dangers of their products, and this omission constitutes a failure to fulfil the general duty not to cause injury to another under

article 1457 C.C.Q. [130] In other words, the duty to inform the public does not cease by virtue of the fact that, in accordance with the criterion set forth at

article 1473 C.C.Q., the public knew (or could have known) the risks and dangers of cigarette smoking (such knowledge could nevertheless trigger the contributory negligence of the victim). Several factual elements demonstrate that the appellants failed in this duty. They made public statements that they knew to be false or incomplete in relation to the risks and dangers of tobacco use, they demonstrated negligence by deliberately exposing consumers to the dangers of their products during the 22 years when no warning was affixed to cigarette packages.

The tobacco industry adhered to a policy of silence on these issues; and finally, by choosing to not inform the public health authorities or the public directly of what they knew, the appellants prioritized their profits to the detriment of the health of users of their products. [ 96 ] The judge then dealt with the common question dealing with the marketing strategies of the appellants.

Within the specific context of this question, he was of the view that it could not necessarily be concluded that there was a fault on their part due to the fact that such strategies did not aim to inform the public of issues related to health and tobacco (in the original version of the judgment a quo : “were not informative about smoking and health questions”). [131] [ 97 ] On the other hand, the appellants conspired in order to maintain a common front, the objective of which was to prevent users of their products from becoming informed of the dangers inherent to smoking. [132] By engaging in this collusion for several decades in light of the Declaration of Principle and the activities of the Ad Hoc Committee and thereafter the CTMC, the appellants jointly participated in a wrongful act which caused injury, thus triggering their solidary ( joint and several) liability pursuant to

article 1480 C.C.Q. [ 98 ] Further to the wrongful conduct of the appellants, punitive damages were also justified pursuant to the Charter and the C.P.A. [133] Firstly, pursuant to sections 1 , 4 and 49 of the Charter , they intentionally violated the right to life, security and integrity of the members of the Blais and Létourneau Classes. Furthermore, the appellants infringed sections 219 and 228 C.P.A. by making, as contemplated by the Act, “false or misleading representations” with respect to the risks and dangers inherent to their products and failing to mention “important facts.” After analyzing Richard v.

Time Inc. , [134] the judge concluded that the irrebuttable presumption of injury arising out of

section 272 C.P.A. could apply to any and all failures to fulfil the duties imposed by law, including those of an extracontractual nature. [ 99 ] After having responded to three questions of analysis for each of the classes, the judge concluded that the causal link was proved between the faults committed by the appellants and the diseases or addiction suffered by the members of the Blais and Létourneau Classes, respectively. [135] Within the framework of the class actions undertaken, the evidence of this link is facilitated by

section 15 T.R.D.A . This provision allows for the establishment of the causal link by relying solely on the epidemiological or statistical studies of medical and conduct causation. The proof of existence of this link in law is not as stringent as in the field of scientific research. It is sufficient to demonstrate it in accordance with the legal standard of proof on a balance of probabilities as set out in

article 2804 C.C.Q. [ 100 ] On the other hand, the members of the Blais Class who started smoking after 1976 and continued to do so after the date of public knowledge of January 1, 1980, must bear a share of responsibility with respect to damages incurred, in accordance with the principles of contributory negligence of the victim (art. 1478 C.C.Q.),. This share is set at 20%. [136] This is also true for members of the Létourneau Class who started smoking after 1992 and who pu

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