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mardi 16 juin 2015

A critical class action against JTI-MacDonald Corp., Imperial Tobacco and Rothmans, Benson & Hedges before the Quebec Superior Court: the leading Canadian cigarette companies condemned to pay important moral and punitive damages

By Fanny Albrecht


Did JTI-MacDonald, Imperial Tobacco and Rothmans, Benson & Hedges manufacture, market and sell a product dangerous and harmful to the health of consumers? Did JTI-MacDonald, Imperial Tobacco and Rothmans, Benson & Hedges know or were they presumed to know of the risks and dangers associated with the use of their products? Is tobacco a product that creates dependence of the sort that can generate legal liability for the manufacturer? Those very specific issues have notably been raised before the Quebec Superior Court which handed down a decision in Létourneau v. JTI-MacDonald Corp., 2015 QCCS 2382 on June 8th, 2015. The Court ruled that "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 context 
In 1998, two motions for authorization to institute a class action were served on JTI-MacDonald, Imperial Tobacco and Rothmans, Benson & Hedges ("the Companies"). 

In 2005, the Court authorized these two class actions, the first one (the Blais File representing nearly 100,000 smokers) instituted on behalf of persons with lung cancer, throat cancer or emphysema and, the second one (the Létourneau File representing nearly one million people) instituted on behalf of persons who were dependent on nicotine.

In the Blais File, the claim for moral damages notably cited loss of enjoyment of life, physical and moral pain and suffering, loss of life expectancy. In the Létourneau File, the moral damages were described as an increased risk of contracting a fatal disease, reduced life expectancy, social reprobation, loss of self-esteem and humiliation. 

In 2015, the Quebec Superior Court awarded more than 15 billion dollars in moral and punitive damages (including interest and additional indemnity). In the Létourneau File, there was no condemnation for moral damages but only for punitive damages. Indeed, the Court considered that the evidence did not establish with sufficient accuracy the total amount of the claims of the members.

The decision
In its decision handed down on June 8th 2015, the Quebec Superior Court pointed out that:
"[47] In fact, none of the Companies today denies that smoking is a cause of disease in some people, although each steadfastly denies general statement that it is the major cause of any disease, including lung cancer.
[48] The real questions, therefore, become not whether the Companies sold a dangerous and harmful product but, rather, when did each of them learn, or should have learned, that its products were dangerous and harmful and what obligations did each have to its customers as a result […]".
Moreover, the Quebec Superior Court held that:
"[183] Dependence on any substance, to any degree, would be degrading for any reasonable person. It attacks one's personal freedom and dignity. When that substance is a toxic one, moreover, that dependence threatens a person's right to live and personal inviolability. The Court has no hesitation in concluding that such a dependence is one that can generate legal liability for the Companies.
[184] To the extent that the Companies knew during any phase of the Class Period of the dependence-creating properties of their products, they had an obligation to inform their customers accordingly. The failure to do so in those circumstances would constitute a civil fault, one that has the potential of justifying punitive damages under both the Québec Charter and the Consumer Protection Act".
In this respect, the Court considered that:
"[232] Where the manufacturer knows that the information provided is neither complete nor sufficient with respect to the nature and degree of probable danger, the duty has not been met. That is the case here. We earlier held that the Companies were aware throughout the Class Period of the risks and dangers of their products, both as to the Diseases and to dependence. They thus knew that those risks and dangers far surpassed what either Canada, through education initiatives, or they themselves, through the pack warnings, were communicating to the public. That represents a grievous fault in light of the toxicity of the product".
The Quebec Superior Court finally concluded that:
"[1198] In light of the delays in these cases, it takes no great effort to sympathize with the plight of the Members, particularly in the Blais file. Initiated some 17 years ago, these cases are far from being over. The Plaintiffs estimate that the appeals process will likely take another six years. The Court finds that optimistic, but possible.
[1199] (...) Class Members are dying, in many cases as a direct result of the faults of the Companies. In our opinion, this represents serious and irreparable injury in light of the time required for the appeal. And there are other reasons sufficient to require order of provisional execution".
To read this decision in its entirety, click here.


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