500-09-025386-152 COURT OF APPEAL OF QUÉBEC · 500-09-025386-152 COURT OF APPEAL OF QUÉBEC...

500-09-025386-152

COURT OF APPEAL OF QUÉBEC

(Montréal)

On appeal from a judgment of the Superior Court, District of Montréal, rendered on May 27, 2015 and rectified on June 9, 2015 by the Honourable Justice Brian Riordan.

_______

Nos. 500-06-000076-980 – 500-06-000070-983 S.C.M.

JTI-MACDONALD CORP.

APPELLANT / INCIDENTAL RESPONDENT

(Defendant)

v.

CONSEIL QUÉBÉCOIS SUR LE TABAC ET LA SANTÉ

JEAN-YVES BLAIS

CÉCILIA LÉTOURNEAU

RESPONDENTS / INCIDENTAL APPELLANTS

(Plaintiffs)

- and -

IMPERIAL TOBACCO CANADA LTD.

ROTHMANS, BENSON & HEDGES INC.

MIS EN CAUSE (Defendants)

FACTUM OF THE APPELLANT JTI-MACDONALD CORP.

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Me Guy J. Pratte Me François Grondin Me Patrick Plante Borden Ladner Gervais LLP Suite 900 1000 De La Gauchetière Street West Montréal, Québec H3B 5H4 Tel.: 514 879-1212 Fax: 514 954-1905 [email protected] [email protected] [email protected]

Me Doug Mitchell Me Catherine McKenzie Irving Mitchell Kalichman, LLP Place Alexis Nihon Tower 2, suite 1400 3500 De Maisonneuve Blvd. West Montréal, Québec H3Z 3C1 Tel.: 514 935-2725 (Me Mitchell) Tel. : 514 934-7727 (Me McKenzie) Fax: 514 935-2999 [email protected] [email protected]

Co-Counsel for Appellant / Incidental Respondent JTI-Macdonald Corp.

Me André Lespérance Me Philippe H. Trudel Me Bruce W. Johnston Me Gabrielle Gagné Trudel, Johnston & Lespérance Suite 90 750 Place-d’Armes Hill Montréal, Québec H2Y 2X8 Tel.: 514 871-8385 Fax: 514 871-8800 [email protected] [email protected] [email protected] [email protected]

Me Marc Beauchemin De Grandpré Chait LLP Suite 2900 1000 De La Gauchetière Street West Montréal, Québec H3B 4W5 Tel.: 514 878-3219 Fax: 514 878-5719 [email protected]

Me Gordon Kugler Me Pierre Boivin

Kugler Kandestin LLP Suite 2101

1 Place Ville Marie Montréal, Québec H3B 2C6

Tel.: 514 878-2861 ext. 106 / 103

Fax: 514 875-8424 [email protected] [email protected]

Counsel for Respondents / Incidental Appellants

Conseil québécois sur le tabac et la santé, Jean-Yves Blais and Cécilia Létourneau

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Me Deborah Glendinning Me Craig Lockwood Me Éric Préfontaine Osler, Hoskin & Harcourt LLP Suite 2100 1000 De La Gauchetière Street West Montréal, Québec H3B 4W5 Tel.: 514 904-8100 Fax: 514 904-8101 [email protected] [email protected] [email protected] Counsel for Mis en cause Imperial Tobacco Canada Ltd.

Me Simon V. Potter, Ad. E. Me Michael Feder Me Pierre-Jérôme Bouchard McCarthy Tétreault LLP Suite 2500 1000 De La Gauchetière Street West Montréal, Québec H3B 0A2 Tel.: 514 397-4100 Fax: 514 875-6246 [email protected] [email protected] [email protected] Counsel for Mis en cause Rothmans, Benson & Hedges Inc.

TABLE OF CONTENTS i) Appellant’s Argument Page

ARGUMENT OF APPELLANT JTI-MACDONALD CORP.

PART I – FACTS ..................................... 1 1. Overview ..................................... 1

2. Procedural Background ..................................... 4

2.1 The class actions ..................................... 4

2.2 The Judgment ..................................... 5

3. Factual background ..................................... 9

3.1 Corporate history of JTIM ..................................... 9

3.2 The role of the Federal Government ..................................... 9

3.2.1. Throughout the Class Period, the Federal Government knew about the risks of smoking and informed Canadians accordingly ................................... 11

3.2.2 The Federal Government’s

supervision and control of tobacco products ................................... 17

3.3 Public awareness of the risks of disease and

dependence ................................... 18

3.3.1. Survey evidence concerning the risks of disease ................................... 18

3.3.2. Survey evidence concerning the risk

of dependence ................................... 20 3.3.3. Media coverage of the risks of

disease and dependence ................................... 21

3.4 Causation ................................... 23

3.4.1 Conduct causation ................................... 23 3.4.2. Medical causation ................................... 24

3.5 Punitive damages ................................... 25

TABLE OF CONTENTS ii) Appellant’s Argument Page

PART II – ISSUES IN DISPUTE ................................... 26

PART III – ARGUMENTS ................................... 27 1. The Judge erred in law and in fact in finding that JTIM

failed to warn class members of the risks of disease and dependence throughout the class period ................................... 27

1.1 The Judge erred in law in holding that JTIM could be held liable for a failure to warn after the Knowledge Dates ................................... 28

1.1.1. The Judge erred in law in holding that an obligation to warn subsisted beyond the Knowledge Dates ................................... 28

1.1.2 The Judge erred in law in apportioning liability between the Appellants and the class members for the period after the Knowledge Dates ................................... 32

1.2 The Judge erred in law in assessing the class members’ knowledge from a strictly collective basis ................................... 35

1.3 The Judge erred in law and in fact in his determination of the Knowledge Date in Blais ................................... 36

1.3.1. The Judge erred in law when he considered the effects of information on class members ................................... 38

1.3.2 The Judge erred in law and in fact with respect to the historians’ evidence ................................... 39

1.3.3 The Judge erred in law in relying on Prof. Proctor’s evidence ................................... 40

1.3.4 The Judge erred in fact in holding that the public had to be aware that smoking is likely or highly likely to cause cancer before there could be a Knowledge Date ................................... 41

TABLE OF CONTENTS iii) Appellant’s Argument Page

1.3.5 The Judge erred in law and in fact

with respect to the state of the art ................................... 43

1.3.6 The Judge erred in law in failing to assess Appellants’ duties in light of the circumstances and standards applicable at the time ................................... 47

1.3.7 Conclusion ................................... 49

1.4 The Judge erred in law and in fact in his determination of the Knowledge Date in Létourneau ................................... 50

1.4.1 The Judge made errors of law and palpable and overriding error of fact with respect to the Knowledge Date ................................... 51

1.4.2 The Judge erred in law in failing to consider the introduction of the addiction warning as the last possible date for awareness ................................... 54

1.4.3 The Judge erred in fact in finding that JTIM knew more than the public concerning whether smoking was difficult to quit ................................... 55

1.5 The Judge erred in fact in finding JTIM had conspired with the other Appellants ................................... 56

2. The Judge erred in law and in fact in holding that the Respondents had proven causation for all class members ................................... 58

2.1 Conduct causation ................................... 59

2.1.1 The Judge’s reasons ................................... 59

2.1.2 The Judge erred in law by applying the wrong standard for causation ................................... 60

TABLE OF CONTENTS iv) Appellant’s Argument Page

2.1.3 The Judge erred in law by relying on

“common sense” to create a presumption of causation that is contradicted by the evidence ................................... 64

2.1.4 The Judge further erred in law by rendering his presumption irre-buttable ................................... 69

2.1.5 The Judge’s errors of law and of fact with respect to the CPA ................................... 72

2.2 Medical causation ................................... 72

2.2.1 Section 15 does not permit the use of unreliable statistics ................................... 72

2.2.2 Dr. Siemiatycki’s “critical amount” theory and method ................................... 73

2.2.3 The “critical amount,” the balance of probabilities, and the necessity that “critical amount” be statistically reliable ................................... 75

2.2.4 Uncontradicted evidence that no critical amount could be estimated on the data was totally discarded by the Judge ................................... 78

2.2.5 The Judge’s request for “some additional calculations” ................................... 80

2.2.6 The Judge erred in law and in fact in imposing his own “critical amount” ................................... 81

2.2.7 The Judge erred in law and in fact in accepting that there was a “critical amount” of smoking at all ................................... 83

2.2.8 The Judge erred in law in refusing to consider evidence rebutting his presumption of causation, and in making his presumption irrebuttable ................................... 85

TABLE OF CONTENTS v) Appellant’s Argument Page

2.2.9 Conclusion with respect to medical

causation ................................... 87

3. The Judge erred in law and in fact in finding tobacco dependence for the whole Létourneau class ................................... 88

3.1 The Judge erred in fact in defining tobacco dependence as four years of daily smoking ................................... 88

3.2 The Judge erred in fact in finding that 95% of daily smokers are tobacco dependent ................................... 90

3.3 The Judge erred in law by including individuals who are not tobacco dependent in the Létourneau class ................................... 92

4. The Judge erred in law in awarding collective recovery ................................... 93

5. The Judge erred in law and in fact in finding JTIM liable under the Québec Charter ................................... 95

5.1 The Judge erred in law in holding JTIM liable in the absence of a civil fault ................................... 95

5.2 The Judge erred in law and in fact in finding that the class members’ injury was caused by JTIM’s conduct ................................... 96

5.3 The Judge erred in law in holding JTIM liable to class members who took up smoking prior to the enactment of the Québec Charter ................................... 97

5.4 The Judge erred in law in holding JTIM liable to class members who took up smoking or continued to smoke while aware of the risks ................................... 98

6. The Judge erred in law and in fact in finding JTIM liable under the CPA ................................... 99

6.1 Advertising (section 219 CPA) ................................... 99

TABLE OF CONTENTS vi) Appellant’s Argument Page

6.1.1 The Judge erred in law and in fact in

finding that JTIM’s advertisements constituted false or misleading representations pursuant to s. 219 CPA ................................... 99

6.1.2 The Judge erred in law and in fact in finding that all class members satisfied the requirements for a remedy under s. 272 CPA ................................. 101

6.2 The failure to mention an important fact (section 228 CPA) ................................. 104

6.2.1 The Judge erred in law in applying s. 228 CPA outside of any specific representation ................................. 104

6.2.2 The Judge erred in law in failing to examine what constitutes an “important fact” for the purposes of s. 228 CPA ................................. 105

6.2.3 The Judge erred in law and in fact in finding that all class members satisfied the requirements for a remedy under s. 272 CPA ................................. 106

7. The Judge erred in law and in fact in awarding punitive damages against JTIM ................................. 106

7.1 The Judge erred in law and in fact in his application of prescription to punitive damages ................................. 107

7.1.1 The Judge erred in law and in fact in finding that the causes of actions of the Létourneau class members did not arise until Knowledge Date ................................. 107

7.1.2 The Judge erred in law in the application of prescription to the Blais class members ................................. 110

TABLE OF CONTENTS vii) Appellant’s Argument Page

7.2 The Judge erred in fact in finding that JTIM

had intentionally interfered with the Québec Charter rights of the class members ................................. 110

7.3 The Judge erred in law and in fact in finding that JTIM’s conduct was deserving of punitive damages under the CPA ................................. 112

7.4 The Judge erred in law and in fact in relying on the “Integration Transactions” to award and assess punitive damages ................................. 113

8. Other grounds of appeal ................................. 117

8.1 The Judge erred in law in allowing prescribed claims to be revived by the 2013 amendments to the class definition in the Blais File ................................. 117

8.2 The Judge erred in law in awarding legal interest from the date of service of the Motion for Authorization in Blais ................................. 118

8.3 The Judge erred in law in concluding that RJRMI succeeded to the rights and obligations of MTI ................................. 119

8.4 Interlocutory Judgments ................................. 120

8.4.1 The May 2, 2012 judgment (403 CCP) ................................. 120

8.4.2 Documents introduced into the record pursuant to art. 2870 CCQ ................................. 121

8.4.3 Parliamentary privilege ................................. 121

8.4.4 Exhibit 1702 (privileged) ................................. 122

PART IV – CONCLUSIONS ................................. 123 PART V – AUTHORITIES ................................. 124

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Appellant’s Argument Facts

ARGUMENT OF APPELLANT JTI-MACDONALD CORP.

PART I – FACTS

1. OVERVIEW

[1] Class actions are designed to promote access to justice and allow plaintiffs to

assert individual claims that may not otherwise be brought. They are not intended to

change substantive law, deprive defendants of grounds of defense, or remove or lower

burdens of proof. They are not intended to allow a judge to ignore uncontradicted

evidence or substitute his own “common sense” for a lack of evidence. They are not

intended to allow claims that would fail on an individual basis to succeed. Yet JTIM

respectfully submits that this is precisely what occurred in these cases.

[2] People who take decisions in the face of known risks are responsible for the

consequences of those decisions. This basic principle, which is one of the underpinnings

of Québec civil law, is undermined by the Judgment and is at the heart of these appeals.

[3] The evidence showed that Quebecers were sufficiently aware of the health risks

of smoking throughout the Class Period. Respondents, who had the burden of proving

otherwise, did not lead any evidence to establish that any class member, let alone all of

them, either started or continued smoking because they were unaware of the health risks,

or because of JTIM’s alleged faults. Nor was it explained how this could logically be the

case when people still take up smoking today in the absence of advertising and

notwithstanding undeniable and universal knowledge of the health risks involved or the

presence of explicit graphic warnings occupying 75% of cigarette packages.

[4] Despite this, the Judge:

(a) Treated each class as if not a single member was aware of the health risks

before January 1, 1980, or of the fact that smoking may be difficult to stop

before March 1, 1996. He then acted as if the entire class in each case

suddenly became aware of these facts at the stroke of midnight on those

dates, as if an instantaneous mass epiphany had occurred, when the

uncontradicted evidence shows that class members knew, or should have

known, of the risks long before then;

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(b) Awarded collective recovery to all class members whether they started

smoking before or after January 1, 1980 or March 1, 1996, so that class

members who knew of the risks (based on the Judge’s own conclusions)

are nonetheless compensated;

(c) Repeatedly ignored or discarded uncontradicted expert evidence directly on

point but inconsistent with his ultimate conclusion, and relied instead on

single statements made by unqualified experts or on his own “common

sense”;

(d) Devised his own definition of addiction in the absence of a scientifically

accepted definition that could allow him to conclude that the entire class was

addicted and without hearing any class members. He then presumed,

against all the evidence and without any basis, that his definition could be

applied universally to all class members; and

(e) Adopted the entirely novel untested concept that there existed a single

“critical dose” that could serve as a proxy for establishing medical causation

for all class diseases in all class members, despite the uncontradicted

expert evidence showing that no such critical doses could be reliably

derived. Then, having rejected the critical doses proposed by Respondents’

expert, he substituted his own in the absence of any evidence whatsoever

validating its statistical reliability.

[5] Moreover, the Judge entirely ignored the role of the Federal Government which

regulated the manufacture, marketing and sale of tobacco products throughout the Class

Period as it felt appropriate and in full awareness of the risks of smoking as they were

known to science. Despite this, decades after the fact and through the lens of today’s

norms, the Judge substituted his own opinion with respect to the sufficiency of the

warnings it mandated. He also condemned JTIM to punitive damages, notwithstanding

its compliance with all pertinent regulations and erroneously held that it is a civil fault not

to warn someone of a risk that is already known (or should be known) by that person.

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[6] Damages should not be awarded when resulting from the freely made choices of

millions of people simply because the Judge believes that those choices are “stupid.”

Judges must ground their decisions in the law as applied to facts established on the basis

of the admissible and reliable evidence before them. They must respect informed

individual choices, even if they do not approve of them. That is what our legal system

requires, JTIM submits that it is what the Judge in the court below failed to do.

[7] Indeed, in the absence of any evidence from a single class member, the Judge

awarded an unprecedented 6.9 billion dollars, amounting to over 15 billion dollars with

interest and the additional indemnity. In so doing he ignored the law, the uncontradicted

evidence and reality, preferring repeatedly to rely on his “common sense” or unfounded

presumptions as a basis for extrapolation and conclusions.

[8] To reach this remarkable result, JTIM submits that the Judge took a one-size-fits-

all approach to fifty years of evolving circumstances and a vast array of characteristics

personal to each class member. He made critical errors of law and used myriad shortcuts

to fill evidentiary gaps or ignore evidence to arrive at his unprecedented condemnations.

The fact that the cases covered complex issues over a period of more than fifty years,

involved over a million class members or that the trial was lengthy, does not relieve or

lessen the Judge’s obligation to follow the law based on the evidence presented.

[9] JTIM recognizes that the above criticisms of the Judge and the decision of the

court below are severe. JTIM respectfully submits, however, that they are justified in light

of the many critical errors of law, manifest and palpable errors of fact, and numerous

violations of the rules of evidence outlined in this factum and to be demonstrated in these

appeals. These errors, JTIM submits, justify this Court in reversing the Judgment on

appeal.

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2. PROCEDURAL BACKGROUND

2.1 The class actions

[10] This appeal concerns two class actions filed against the Appellants on behalf of

two separate classes. The two actions were joined both at the authorization stage and on

the merits.

[11] The action of the Respondents Jean-Yves Blais and Conseil québécois sur le

tabac et la santé (the “Blais File”) was filed on behalf of Québec smokers who have been

diagnosed with lung cancer, cancer of the throat or emphysema. The action of the

Respondent Cécilia Létourneau (the “Létourneau File”) was filed on behalf of Québec

residents who are addicted to the nicotine contained in the cigarettes made by the

Appellants.

[12] The two actions were authorized by the Superior Court on February 21, 2005 (the

“Authorization Judgment”).1 The Authorization Judgment set out eight questions to be

dealt with collectively.2 The actions cover the period from 1950 until 1998 (the “Class

Period”).3

[13] The trial began on March 12, 2012 and concluded on December 11, 2014 after

251 days of hearing. The Judge rendered judgment granting the two class actions in part

on May 27, 2015 (the “Judgment”).4

[14] Throughout the interlocutory phase, Justice Riordan (the “Judge”) rendered

decisions in which he refused any form of individual evidence (including dismissing a

motion to examine class members on issues such as their awareness of the risks of

smoking and of the difficulty of quitting, their knowledge of public statements made by the

Appellants and whether those statements had any impact on their behaviour, and the

1 Conseil québécois sur le tabac et la santé v. JTI-MacDonald Corp., EYB 2005-85974 (QC SC)

[Authorization Judgment]. 2 Authorization Judgment. 3 Authorization Judgment. The Motion in the Blais file was served on November 20, 1998; The Motion

in the Létourneau File was served on September 30, 1998. 4 Létourneau v. JTI-MacDonald Corp., 2015 QCCS 2382 [Judgment]. The Judgment was rectified on

June 9, 2015.

5


reasons they took up smoking), and consistently held that this evidence was not relevant

and useful at this stage, reiterating that the trial would only deal with common issues and

that individual issues would be dealt with at a later stage.5 In his Judgment, however, the

Judge made final determinations on all issues relating to awareness and causation and,

by granting collective recovery, ruled out any possibility of individual trials.

2.2 The Judgment

[15] The Judgment grants the actions in part. In the Blais File, the Judgment awards

over $6.8 billion in moral damages on a solidary basis, which translates to approximately

$15 billion with interest and the additional indemnity. The Judgment also condemns JTIM

to pay Blais class members a “symbolic” sum of $30,000 in punitive damages. In the

Létourneau File, the Judgment dismisses the claim for moral damages because the

“nature and degree of the moral damages claimed make it impossible to establish with

sufficient accuracy the total amount of the claims,”6 but awards class members an

aggregate award of $131,000,000 in punitive damages, $12,500,000 of which is ordered

against JTIM. The Judgment orders collective recovery pursuant to art. 1031 of the

Code of Civil Procedure (the “CCP”).

[16] In particular, the Judge finds that the Appellants committed faults under four

different headings: (i) the “general rules of civil liability” (art. 1457 of the Civil Code of

Québec (the “CCQ”); (ii) a “safety defect in cigarettes” (art. 1468 and following CCQ); (iii)

an “unlawful interference” with a right under the Charter of Human Rights and Freedoms

(the “Québec Charter”); and (iv) a prohibited practice under the Consumer Protection Act

(the “CPA”).7

5 Judgment on examination of class members on discovery, Conseil québécois sur le tabac et la santé

v. JTI-MacDonald Corp., 2009 QCCS 830, leave to appeal to QCCA refused, 2009 QCCA 796. The Judge made similar statements in judgments rendered on October 4, 2010 (judgment on a motion to obtain certain information regarding group members), May 9, 2013 (judgment on a motion to dismiss), and on September 3, 2013 (judgment on a motion to quash subpoenas): See Conseil québécois sur le tabac et la santé v. JTI-MacDonald Corp., 2010 QCCS 4759, at paras. 23-24; Conseil québécois sur le tabac et la santé v. JTI-MacDonald Corp., 2013 QCCS 1924, at paras. 15, 18-19; Conseil québécois sur le tabac et la santé v. JTI-MacDonald Corp., 2013 QCCS 4863, at paras. 39-42, 55.

6 Judgment at para. 950. 7 Judgment at para. 643.

6


[17] The Judge finds further that the “faults under article 1468 [CCQ]” ceased on

January 1, 1980 in the Blais File and on March 1, 1996 in the Létourneau File (the

“Knowledge Dates”), because the public “knew or should have known” of the risks of

disease and dependence respectively as of those dates.8

[18] He also holds, however, that, “under article 1457 [CCQ], a reasonable person in

the Companies’ position also has a duty to warn”9 that is different from the one imposed

by art. 1468 and following CCQ and that the Appellants failed to satisfy this separate

obligation.10 Having found that, under this obligation, “the consumer’s knowledge would

not cause the fault, per se, to cease,”11 the Judge further holds that the Appellants are

liable beyond the Knowledge Dates.12 He also finds that the faults under the Québec

Charter and CPA continued beyond the Knowledge Dates.13

[19] With respect to the existence of a causal relationship between the faults and the

class members’ decision to smoke, the Judge, while ostensibly accepting that the

Respondents have the burden of proof, rejects the Appellants’ position that the

Respondents had to prove, on a balance of probabilities, that the class members would

not have smoked in the absence of a fault by the Appellants. In his opinion, “it is [not]

necessary to go that far in a claim for tobacco-related damages.”14

[20] The Judge prefers instead the “it-stands-to-reason” test proposed by the

Respondents, which “would have the Court presume, in light of the gravity of the

Companies’ faults, that it stands to reason that such faults were the cause of people’s

starting or continuing to smoke, even if there is no direct proof of that.”15

8 Judgment at paras. 121,133, 644. 9 Judgment at para. 240. 10 Judgment at paras. 312-313. 11 Judgment at para. 242. 12 Judgment at para. 644. 13 Judgment at para. 644. On the other hand, the Judge also found that the Appellants (i) did not choose

tobacco that contained higher levels of nicotine in order to keep class members addicted and rejected Respondents’ contention that the Appellants could have manufactured a “non-addictive cigarette”; (ii) did not fail to warn the public about the dangers of compensation since they had advised the Federal Government about it; (iii) did not commit a fault simply by marketing and selling cigarettes; (iv) did not employ marketing strategies that conveyed false information about the characteristics of their products or focus their advertising on underage smokers; (v) did not commit a fault by marketing lower-tar cigarettes, as “Health Canada was the main advocate of reduced-delivery products”; and (vi) did not commit a fault by creating and adhering to the Voluntary Codes.


7


[21] The Judge bases this finding on a proof by presumption, which allows proof of an

unknown fact by inference from a known fact.16 He finds that the Appellants’ faults are

themselves “known facts” from which he can infer causation.17 As for the “serious, precise

and concordant” nature of the presumption, he finds:

[803] […]. Mere common sense dictates that clear warnings about the toxicity of tobacco would have had some effect on any rational person. Of course, that would not have stopped all smoking, as evidenced by the fact that, even in the presence of such warnings today, people start and continue to smoke.18 [emphasis added]

[22] Although recognizing that clear warnings would not have stopped all smoking,

the Judge nevertheless holds that this presumption was made out with respect to all class

members, both for the years prior to and after the Knowledge Dates.

[23] The Judge finds, however, that the class members who started smoking less than

four years19 before the Knowledge Dates (i.e. the “Smoking Dates”) and continued

thereafter “assumed the risk” and committed a contributory fault by smoking even though

it could lead to disease or dependence. This contributory fault, which he describes as

“essentially stupidity,”20 results in a sharing of liability. He accordingly attributes 80%

liability to the Appellants and 20% to the class members.21

[24] As for the class members who started smoking before the Smoking Dates, the

Judge, notwithstanding evidence to the contrary, treats their claims as if they were all

unaware of the risks and attributes 100% of the liability to the Appellants.

[25] With respect to medical causation, the Judge establishes a single universal

“critical dose” of 12 pack years, which he finds represents the level of smoking required

to satisfy the balance of probabilities at law for all Blais class members, regardless of their

individual characteristics.22 As for class membership in the Létourneau File, in the

16 Judgment at para. 800. 17 Judgment at para. 800. 18 Judgment at para. 803. 19 The four year period is explained by the Judge’s finding that it takes four years to become tobacco

dependent. See Judgment at paras. 820-821. 20 Judgment at para. 833. 21 Judgment at paras. 828-834. 22 Judgment at paras. 758-759. As discussed further below, this 12 pack-year critical dose was a

creation of the Judge and unsupported by the evidence.

8


absence of an accepted medical definition of tobacco dependence, the Judge finds that

dependence will be established where a class member: (i) started to smoke before

September 30, 1994; (ii) has continued to smoke cigarettes principally manufactured by

the Appellants; (iii) smoked on average at least 15 cigarettes per day between

September 1 and 30, 1998; and (iv) was still smoking that amount per day by February 21,

2005 or their death, if earlier.

[26] With respect to the Québec Charter, the Judge holds that the Appellants’ faults

under the CCQ constituted an “unlawful interference with the right to life, security and

integrity” of the class members and that this conduct was intentional for the purposes of

awarding punitive damages.23

[27] With respect to liability under the CPA,24 the Judge holds that the Appellants’

failure to warn constituted a failure “to mention an important fact in any representation

made to a consumer” pursuant to s. 228 CPA that lasted throughout the Class Period,

including after the Knowledge Dates, and that the conditions for the presumption of

prejudice were made out with respect to all class members.25

[28] In addition, after holding that the Appellants’ advertising did not convey “false

information about the characteristics of their products”26 and that “portraying smoking in

a positive light” and “advertising a legal product within the regulatory limits imposed by

government is not a fault,”27 the Judge nonetheless finds that ads containing “a theme

and sub-message of elegance, adventure, independence, romance or sport” and using

“healthy-looking models and healthy-looking environments”28 constituted “false or

misleading representations” pursuant to s. 219 CPA and that, again, the conditions for

the presumption of prejudice were made out with respect to all class members.29 The

Judge further holds that the CPA contraventions give rise to punitive damages.30

23 Judgment at paras. 479-488. 24 The relevant provisions of the CPA entered into force on April 30, 1980. 25 Judgment at paras. 510-517. 26 Judgment at para. 438. 27 Judgment at para. 384. 28 Judgment at para. 535. 29 Judgment at paras. 518-541. 30 Judgment at paras. 517, 541.

9


3. FACTUAL BACKGROUND

3.1 Corporate history of JTIM31

[29] Founded in 1858, Macdonald Brothers and Co. eventually adopted the name

Macdonald Tobacco Inc. (“MTI”) in 1957. Between 1917 and 1974, MTI was a Canadian

family operation owned by the Stewart family.

[30] On February 15, 1974, R.J. Reynolds Tobacco Company (“RJRTCo”) acquired

100% of the shares of MTI. The company continued to operate as MTI until 1978.

[31] In 1978, the decision was made to relocate the head office to Toronto. This led

to the creation of a subsidiary to be incorporated in Ontario under the name

RJR-Macdonald Inc. (“RJRMI”). It was further decided that RJRMI would elect to be

continued as a Canadian federal corporation and that the existing corporate entity, MTI,

would subsequently be liquidated under Canadian law. Accordingly, RJRMI was

incorporated under the laws of Ontario on September 18, 1978. On October 13, 1978,

RJRMI elected to be continued as a federal corporation under the Canada Business

Corporations Act. MTI was officially dissolved on February 15, 1983.32

[32] In 1999, Japan Tobacco International purchased RJRMI as part of its acquisition

of R.J Reynolds’ international assets. From that moment, RJRMI, which ultimately

became JTIM, ceased to have any relationship with RJRTCo.

3.2 The role of the Federal Government

[33] Throughout the Class Period and to date, it has always been legal to manufacture

and sell cigarettes in Canada. Tobacco advertising was also legal until the adoption of

the Tobacco Products Control Act (“TPCA”) in 1989.33

[34] Throughout the Class Period, the health risks of smoking were known to the

Federal Government and communicated to the public. The Federal Government34 was

31 The complete history of the company from its inception is set out in Exhibit 40000. 32 Exhibits 40616 and 40597. 33 Exhibits 40003A-1987, 40003A.1-1988, 40003B-1989 and 40003C-1989. 34 Primarily through its department of Health but also via Agriculture Canada.

10


heavily involved in supervising and regulating all facets of the manufacture and sale of

cigarettes, first through persuasive regulation (e.g., directives and agreements with the

tobacco manufacturers’ trade associations, such as the Canadian Tobacco

Manufacturers’ Council (the “CTMC”)), and later through formal statutes and regulations.

[35] As the former Minister of National Health and Welfare Marc Lalonde testified,

although the Federal Government was aware of the health risks, it never considered

prohibiting the sale of tobacco products.35 Though the Federal Government made sure

the public was aware of the risks, it considered that the ultimate choice lay with the

individual:

Bien, nous, en tant que gouvernement, c'est clair que, comme on connaissait les effets nocifs de la cigarette, on avait une responsabilité d'informer le public. Encore une fois, il n'était pas interdit de fumer, c'était pas illégal, mais... et ce qu'il fallait... ce qu'on visait, c'était de modifier la conduite, le style de vie des Canadiens par rapport à la cigarette. […]

Et alors, toute l'approche que j'avais à l'époque était d'essayer d'influencer le citoyen sans avoir recours à une manipulation inacceptable. Alors, vous faites... vous agissez dans un domaine où il faut respecter la liberté de choix, mais en même temps, au moins s'assurer que le consommateur, quand il fera son choix, ait la meilleure information possible. Et c'est ce que je cherchais à faire.36 [emphasis added]

[36] Minister Lalonde explained that the Federal Government managed to achieve its

health policy objectives through the threat of legislation and the cooperation of the

manufacturers.37 This is particularly true of the health warnings that appeared on

packages from 1972 onwards, the wording and placement of which were requested by

the Federal Government and were a part of its strategy of persuasive regulation.38

35 Testimony of Mr. Lalonde, June 17, 2013, at 144, l. 8-19. 36 Testimony of Mr. Lalonde, June 17, 2013, at 119, l. 4-11, 126, l. 21-25, 127, l. 1-4. 37 Testimony of Mr. Lalonde, June 17, 2013, at 44-46. 38 R. v. Imperial Tobacco Canada Ltd., [2011] 3 S.C.R. 45 at paras. 40, 58, 95.

11


3.2.1. Throughout the Class Period, the Federal Government knew about the risks of

smoking and informed Canadians accordingly

[37] The record shows that the Federal Government always kept abreast of smoking

and health issues, developed extensive knowledge with respect to same, concluded in

the early 1960s that smoking caused lethal diseases,39 and considered that it was its duty

not only to educate the public but also to take measures to convince Canadians not to

smoke.

3.2.1.1 Risks of Disease

[38] In 1940, the Department of Pensions and National Health issued a booklet

warning Canadians that smoking was “injurious to health,” caused “impairment of vital

organs” and was a “habit-forming drug.”40

[39] In 1955, the Federal Government undertook a study (the “Veterans’ Study”),

which was the first large-scale study of the association between smoking and lung cancer

in Canada. The preliminary results, published in 1960, concluded that there was a link

between smoking and lung cancer,41 and received widespread media attention.42

[40] In January 1963, the Department of National Health & Welfare (the “DNHW”)

established a Departmental Committee to formulate health education initiatives and

suggest possible activities for non-governmental organizations.43

[41] On June 17, 1963, in a statement that received widespread media attention,44 the

Minister of National Health & Welfare, Judy LaMarsh, declared before the House of

Commons:

39 Indeed the Respondents admitted at para. 277 of their final submissions that “The Public Health

community and Canada also knew that tobacco caused disease and strong dependency in the early 1960s.”

40 Exhibit 40346.20, PDF 3, 5, 8. See also testimony of Mr. Choinière, June 10, 2013, at 99-100. The Smoking pamphlet was also produced as Exhibit 40104.

41 Testimony of Mr. Choinière, June 10, 2013, at 99-113; Exhibits 40346.105 and 40346.106. 42 Expert report of Prof. Lacoursière (Exhibit 30028.1), PDF 37; Exhibit 30029.216. 43 Exhibits 40111, 40112 and 40113. 44 See for example Exhibits 40095, PDF 1 and 40346.114, PDF 17-18.

12


There is scientific evidence that cigarette smoking is a contributory cause of lung cancer, and that it may also be associated with chronic bronchitis and coronary heart disease. Health agencies, including my department, have a duty to inform the public about the risk to health connected with cigarette smoking.45 [emphasis added]

[42] In November 1963, the Federal Government hosted the first National Conference

on Smoking and Health (the “LaMarsh Conference”), bringing together scientists,

government representatives and much of the tobacco industry. During the LaMarsh

Conference, which received widespread media attention,46 the Federal Government

concluded that a causal relationship between smoking and lung cancer had been

established.47

[43] Accordingly, by 1963, the Federal Government publicly adopted the position that

smoking could cause lung cancer and launched an anti-smoking program.48

[44] On January 11, 1964, the U.S. Surgeon General released the first report of its

Advisory Committee on Smoking and Health, which concluded that smoking was a cause

of lung cancer and laryngeal cancer in men, a probable cause of lung cancer in women,

and the most important cause of chronic bronchitis. The report, which was known to the

DNHW,49 also received extensive media coverage in Canada.50

[45] In addition to the measures undertaken by the Federal Government to educate

the public about the health risks, beginning in the late 1960s, Agriculture Canada

undertook significant research efforts to develop a potentially less hazardous cigarette.

These efforts led to the development, in the mid- to late-1970s, of tobacco varietals that

were licensed by the Federal Government and sold to the Appellants.51 From then on, the

vast majority of tobacco production in Canada used these new varietals.52

45 Exhibit 519-PP, PDF 2-3. 46 Expert report of Prof. Lacoursière (Exhibit 30028.1), PDF 42; Exhibits 30029.267 and 30029.268;

Expert report of Prof. Flaherty (Exhibit 20063), PDF 15. 47 Exhibit 30029.267. See also Exhibit 40346.57. 48 Testimony of Mr. Choinière, June 10, 2013, at 46, l. 8-11, 63, l. 6-18, 98, l. 13-25, 99, l. 1-3. 49 Exhibit 40123, PDF 51-78. 50 See for instance Exhibits 30029.276, 30029.277 and 30030.2 (“Affaires publiques”). 51 Exhibits 20235.1, 20235.2, 20235.3, 20235.4, 20235.5, 20235.6, 20235.7, 20235.8, 20235.9,

20235.10 and 20235.11. 52 Exhibit 20235.

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3.2.1.2 The debate over “addiction”

[46] As accepted by the Judge, there is no fixed or universal definition of the words

“dependence” and “addiction.”53 The scientific, medical and public health communities

have used a variety of terms over the years to describe smoking behaviour and the

difficulty of quitting.54

[47] As early as the 1940s, the Federal Government warned that smoking was difficult

to quit.55

[48] In the 1960s, the Federal Government began to discuss the potential

addictiveness of smoking and to undertake research.56 This research was conducted

alongside that being carried out by the public health community (e.g., the Canadian

Cancer Society).57 Both the Federal Government and the public health community

recognized nicotine as an element that made cigarettes hard to give up for some.58

[49] It was not until the U.S. Surgeon General decided to abandon intoxication as a

criterion for addiction that it began, in 1988, to apply the term to cigarette smoking.59

[50] In Canada, there was considerable debate within the Federal Government on

whether smoking should be referred to as an addiction.60 Prior to 1989, some within the

Health Protection Branch did not believe that “addiction” was an appropriate term and felt

that “dependence was a better way of describing […] the phenomenon that smokers

would become attached to their smoking habit.”61

53 Judgment at paras. 146-149. 54 Testimony of Dr. Perrins, August 19, 2013, at 177. 55 Testimony of Dr. Perrins, August 20, 2013, at 174; Exhibit 40346.20, PDF 3, 5, 8. 56 Exhibit 40302; Expert report of Dr. Perrins (Exhibit 40346), PDF 238-239, at para. 8.18;

Exhibit 40346.352. 57 For example, in the Canadian Medical Association Journal published in 1960, the Canadian Cancer

Society contributed an article which stated that “smoking is a form of addiction”: Exhibit 40346.99. 58 Expert report of Dr. Perrins (Exhibit 40346), PDF 18, para. 2.21. Testimony of Dr. Perrins, August 20,

2013, at 174. 59 This was described by Dr. Perrins as a “major shift”. Testimony of Dr. Perrins, August 20, 2013,

at 223. See also Exhibit 601-1988. 60 Testimony of Dr. Liston, December 11, 2013, at 69-75 and Expert report of Dr. Perrins

(Exhibit 40346), PDF 261-263; Testimony of Dr. Perrins, August 20, 2013, at 225-226. 61 Testimony of Dr. Liston, December 11, 2013, at 67. In 1986, Dr. Liston wrote to Dr. Somers arguing

that “addiction” should not be a term used to describe activities involving the Federal Tobacco Control Unit (Exhibit 40346.373). Other officials, such as Mr. Denys Cook shared this opinion (Exhibit 40001, PDF 2). Dr. Liston testified that to call tobacco “addicting” was technically meaningless, and could call into question the competence of the Department in scientific matters (Testimony of Mr. Liston, December 11, 2013, at 72).

14


[51] There was so much uncertainty over the terminology that, in 1989, Health Canada

commissioned the Royal Society to prepare a report on the issue.62 Noting that “earlier

definitions of drug addiction have evolved over the past forty years,”63 the Royal Society

sought to resolve the confusion, and proposed its own definition of “drug addiction.”64

Based on that new definition, it concluded that “[c]igarette smoking can, and frequently

does, meet all the criteria for the proposed definition of addiction.”65 [emphasis added]

[52] The Royal Society Report marked the first time the word “addiction” was generally

accepted in Canada in connection with smoking. Despite this, Dr. Liston and other officials

within the Government still disagreed with the use of the term “addiction” to describe

smoking.66 The Federal Government only chose to include an addiction warning on

packages in 1994.67

3.2.1.3 The Federal Government’s communications on the risks of disease

and dependence

[53] Following the LaMarsh Conference, the Federal Government developed a

nationwide program on smoking and health based on a two-pronged approach of

education/persuasion and research (the “Smoking and Health Program”). Two advisory

committees were created: (i) the Committee on Research Concerning Smoking Hazards,

and (ii) the Technical Advisory Committee to the Minister on Health Education Concerning

Smoking, set up to assist efforts to inform the public about the health risks of smoking, to

encourage smokers to quit, and to dissuade young people from smoking.

[54] In 1964, the Federal Government published the Smoking and Health Reference

Book,68 which canvassed the literature on smoking and disease, discussed the potentially

habit forming nature of tobacco,69 and set out the objectives of the Smoking and

62 Testimony of Dr. Negrete, April 3, 2013, at 116; Exhibit 212, PDF 7; “Statement of Work,

Project 302507”, May 9, 1989 (Exhibit 40346.362). 63 Exhibit 212, PDF 5. See also Exhibit 40346.360. 64 Exhibit 212, PDF 5. See also Exhibit 40346.360. 65 Exhibit 212, PDF 5. See also Exhibit 40346.360. 66 Testimony of Dr. Liston, December 11, 2012, at 93. See also Exhibit 20988. 67 Exhibit 40003F-1994. 68 Exhibit 40123. 69 Exhibit 40123, PDF 34 ff.

15


Health Program.70 The book was distributed through medical professionals and teachers

and sent to media outlets and to provincial departments of health.71

[55] Two years after the Smoking and Health Program was announced, a survey

conducted for the DNWH revealed that “[n]ine out of ten Canadians, 15 years of age and

over, are aware of the health issue associated with cigarette smoking and 60% are

convinced that a definite hazard is involved.”72 Minister LaMarsh expressed the

government’s satisfaction with these results: “The study indicates that, except for a small

minority, success has been achieved…”73

[56] The Smoking and Health Program issued frequent progress reports detailing its

extensive public information campaigns. Its March 1965 report noted:

The news media of Canada have provided nation-wide coverage of press releases, reports and speeches arising out of the Smoking and Health Program. In addition the relationship between cigarette smoking and disease has been receiving a great deal of spontaneous news and editorial attention. This continuing interest of press, radio, and television has resulted in these media becoming major contributors to the education of the public concerning the health hazards of cigarette smoking.74 [emphasis added]

[57] In 1966, the DNHW also produced and distributed a Resource Guide on Smoking

and Health for Canadian Teachers,75 which stated that the health risks of smoking “are

multiple and include three major disease groups – lung cancer, chronic bronchitis and

emphysema, and coronary heart disease.”76

[58] The Federal Government also publicized its research results as they became

available. For instance, on February 8, 1967, it issued a press release to announce the

70 Exhibit 40123, PDF 6. 71 Testimony of Mr. Choinière, June 10, 2013, at 156-157; Exhibits 40129, PDF 5-6 and 40130, PDF 2.

According to Health Canada, “the notice the book generated in the media helped maintain public attention on the smoking issue”: Exhibit 40167, PDF 30. (This paper is an excellent summary of the Federal Government’s efforts from 1963-1983.)

72 Exhibit 40049, PDF 3,16. See also Exhibit 20068, PDF 1. 73 Exhibit 40049, PDF 16. 74 Exhibit 40134, PDF 10. See also Exhibits 40136, 40140 and 40143. 75 The French version was complete in 1967. 76 Exhibit 40262, PDF 6.

16


final results of the Veterans’ Study, which emphasized the “excessive mortality” rates of

smokers, “particularly from heart disease, lung cancer, bronchitis and emphysema.”77

[59] In 1968, echoing Minister LaMarsh’s earlier assessment, Federal Health Minister

John Munro reported to the Prime Minister that “the danger to health is now well known

[to Canadians].”78

[60] In November 1968, the Federal Government began publishing League Tables

reporting tar, nicotine (and later carbon monoxide) yields,79 which it publicized through

press releases.80 The League Tables served as one more way to warn smokers about

the health risks of smoking and encourage them to either quit or smoke lower tar

products.81 For example, a November 1968 press release stated that “nicotine is assumed

to be the basis of the dependency that develops to cigarette smoking” and “many people

find it difficult to stop smoking.”82

[61] The Federal Government’s anti-smoking initiatives quickly shifted from education

to behaviour modification. Mr. Lalonde testified that, during his tenure (1972-1977), the

government’s objective was to persuade smokers to quit, though it could not coerce

people into doing so.83 These behaviour modification initiatives continued throughout the

Class Period, even after the Knowledge Dates established by the Judge.84

77 Exhibit 40144, PDF 2. 78 Exhibit 20068, PDF 1. See also: Testimony of Mr. Lalonde, June 17, 2013, at 131. 79 Exhibit 40316. 80 The League Tables were published from 1968 until 1974, and then again from 1979 until 1987, and

were brought to the public’s attention through press releases: Exhibits 20007.7, 40547.4, 20007.8, 40346.392, 40346.256, 40547.13, 20007.3, 20007.9, 20007.5, 20007.6, 40346.229, 40346.154, 40346.324, 40346.320, 40346.325, 40346.232, 40346.321, 40547.58 and 40346.233.

81 Exhibit 40316. See also Exhibits 40547.1 (English) and 40547.2 (French). 82 Exhibit 40316, PDF 2. 83 Testimony of Mr. Lalonde, June 17, 2013, at 139, l. 7-9. 84 For instance, in 1981, the DNHW implemented the program “Toward a Generation of Non-Smokers,”

which targeted children and youths and was intended to create a social climate supportive of non-smoking (Exhibits 40069, 40079, 40346 at PDF 106 and 107, 40346.132 and 40174). In the early 1980s, the DNHW also launched its smoking cessation program “Time to Quit,” which included a self-help cessation booklet, a three-part television series to promote the booklet, and a guide for groups organizing the campaign at the community level (Exhibits 21451-AUTH, 40166, 40166.1, 40168). In 1985, the Federal Government launched the National Strategy to Reduce Tobacco Use (“NSRTU”), a national umbrella program that promoted smoking prevention, smoking cessation, and protection from environmental tobacco smoke. In 1985, the DNHW launched the “Break Free” campaign (Exhibits 21298, 40072, 40190, 40346.135, 40346.136, 40346.137, 40346.138, 40346.139 and 40346.398). See also Exhibits 40346, PDF 107-108). In February 1994, the Federal Government announced the Tobacco Demand Reduction Strategy, which was another effort to decrease tobacco consumption in Canada (Exhibit 40191).

17


3.2.2 The Federal Government’s supervision and control of tobacco products

[62] Initially, the Technical Committee on Smoking and Health did not support the use

of health warnings on packages on the assumption that “labelling of cigarettes was

unlikely to scare off very many smokers,”85 a position that was reiterated on October 28,

1964 by Dr. Watkinson.86

[63] In 1968 and 1969, the House of Commons Health Committee, chaired by

Dr. Gaston Isabelle (the “Isabelle Commission”) held extensive hearings on tobacco, its

health effects and tobacco advertising. Among other things, the final report of the

Commission recommended that a health warning be placed on cigarette packages.87

Bill C-248 was then proposed, which provided that the following health warning be placed

on cigarette packages: “Danger to health increases with amount smoked, avoid

inhaling.”88

[64] Many of the recommendations of the Isabelle Report, including the addition of a

health warning, were soon put into place through amendments to the Appellants’

Voluntary Code.89 Thus, begin ning in 1972, Canadian cigarette packages displayed the

following warning: “WARNING: THE DEPARTMENT OF NATIONAL HEALTH AND WELFARE ADVISES

THAT DANGER TO HEALTH INCREASES WITH AMOUNT SMOKED.”90 Product warnings were

extremely rare at the time, if not unprecedented.91

[65] By the time the warning was adopted, the Federal Government had long

concluded that smoking caused lung cancer92 and other diseases, and that cigarette

smoking was habit forming and difficult to stop. It also believed the public was well aware

of these facts, as evidenced by the statements from Ministers LaMarsh and Munro

85 Expert report of Dr. Perrins (Exhibit 40346), PDF 94; Exhibit 40346.120, PDF 7. 86 Exhibit 40133, PDF 1. 87 Exhibit 729B, PDF 69. 88 Exhibit 40197, PDF 16. See also Exhibit 40150, PDF 2. 89 Testimony of Mr. Choinière, June 10, 2013, at 86-88. 90 This warning was also placed on all tobacco print advertisement from 1973 onwards: Judgment at

para. 110. 91 Expert report of Prof. Viscusi (Exhibit 40494), PDF 22-23, at para. 42. 92 Health Minister LaMarsh had already declared that smoking was a contributory cause of lung cancer

in Parliament nearly a decade previously, a position that was repeated by the government on numerous occasions, including extensively in the Isabelle Commission Report. See Exhibit 40347.11, PDF 7, 19.

18


above.93 Dr. Liston94 also testified that, at the time the warning was adopted, the Federal

Government considered that the dangers of smoking were already widely known, and that

the objective was now behaviour modification.95

[66] In 1975, the warning was modified at the request of the Federal Government96 to

read: “WARNING: HEALTH AND WELFARE CANADA ADVISES THAT DANGER TO HEALTH INCREASES

WITH AMOUNT SMOKED – AVOID INHALING.”

[67] In 1989, under the TPCA, the Federal Government increased the number of

warnings to four, taking 20% of the package’s principal display surface. Included among

the warnings, was one that said: “SMOKING IS THE MAJOR CAUSE OF LUNG CANCER.”

[68] In 1994, the warnings were increased to eight and their size was increased to

25% of the principal display surface. Among the new warnings was one that said:

“CIGARETTES ARE ADDICTIVE.”97

3.3 Public awareness of the risks of disease and dependence

3.3.1. Survey evidence concerning the risks of disease

[69] The expert evidence of Professor Duch canvassed the contemporary survey

evidence reporting on public awareness and attitudes concerning the risks of disease and

dependence associated with smoking during the Class Period.98 This uncontradicted

evidence demonstrates high levels of awareness throughout the Class Period, confirming

the conclusions of the historians (discussed below) about the pervasiveness of

information regarding the health risks in the media from the 1950s onward, the success

of the Federal Government’s education initiatives and the correctness of its assessment

concerning the public’s awareness of the risks.

93 See also: Testimony of Mr. Lalonde, June 17, 2013, at 131. 94 Dr. Liston was the Director General of the Drugs Directorate from 1974-1981, Executive Director

General of the Health Protection Branch from 1981-1984, and Assistant Deputy Minister of the Health Protection Branch from 1984-1992.

95 Testimony of Dr. Liston, December 11, 2013, at 57, l. 8-14, 21-25. In fact, throughout Dr. Liston’s tenure at Health Canada, the Department was of the view that Canadians were sufficiently aware of the health risks: Testimony of Dr. Liston, December 11, 2013, at 59.

96 Testimony of Mr. Choinière, June 10, 2013, at 87. See also the Testimony of Mr. Lalonde, June 17, 2013, at 73.

97 In 1995, following litigation between the Federal Government and the tobacco industry, the warnings were modified to attribute the message to Health Canada. See Exhibits 40005O-1995, 40005Q-1995 and 40005R-1996.

98 Expert report of Prof. Duch (Exhibit 40062.1).

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[70] The first kind of surveys focus on the public’s awareness of reports of health

risks.99 Prof. Duch’s analysis of these surveys led him to conclude that “at least since

1954, and probably earlier, a very high proportion of the Québec public has been aware

of reported links between smoking and lung cancer”100 and that there were “exceptionally

high levels of awareness” that smoking may cause lung cancer by 1963 at the latest, and

of the harmful effects of smoking by 1964.101

[71] For example, the earliest available survey dates from 1954 and shows that 88%

of people surveyed (including 82% in Québec) had heard or read recently “that cigarette

smoking may be a cause of cancer of the lung.”102 When the same question was asked

in 1963, 96% of respondents (including 88% in Québec) answered yes.103

[72] Other surveys asked more general questions about the harmful effects of

smoking. For example, as mentioned above, the 1964 survey conducted for the DNHW

shows that 90% of people surveyed (including 87% in Québec) reported having read or

heard in the past year that “cigarette smoking is harmful.”104

[73] Prof. Duch testified that such high levels of response are “very infrequent in public

opinion polling” and essentially evidence the agreement of “everybody in the

population.”105

99 Expert report of Prof. Duch (Exhibit 40062.1), PDF 9-23. 100 Expert report of Prof. Duch (Exhibit 40062.1), PDF 10. 101 Expert report of Prof. Duch (Exhibit 40062.1), PDF 23. 102 Expert report of Prof. Duch (Exhibit 40062.1), PDF 12. 103 Expert report of Prof. Duch (Exhibit 40062.1), PDF 12. The positive response levels were so high

that the question was no longer asked in subsequent surveys, since, as Professor Duch explained, pollsters “do not ask questions about the obvious.”

104 Expert report of Prof. Duch (Exhibit 40062.1), PDF 16. 105 Testimony of Prof. Duch, May 27, 2013, at 61. Indeed, the convention in polling is that if 85% or more

of respondents give the same answer, this essentially means that the entire population shares that view: Testimony of Prof. Duch, May 27, 2013, at 63. The Respondents’ own expert, Christian Bourque, confirmed that 100% of respondents never get a question “right” (Testimony of Mr. Bourque, March 12, 2013, at 179-180,182). Mr. Bourque also confirmed that he himself had previously qualified a level of 70% as “relatively rare” and constituting a “sizeable majority” (March 12, 2013, at 282-284; Exhibit 30016) and one of 69% as a “clear majority” (March 12, 2013, at 288-289; Exhibit 30017). His polling firm also qualified a 79% response rate to an awareness question as indication that the Canadian population had “accordé une oreille attentive à la problématique”: Testimony of Mr. Bourque, March 12, 2013, at 321-322; Exhibits 40047.1 (French) and 40047.2 (English).

20


[74] The second kind of surveys focus on the public’s views (or beliefs) about smoking

and health risks.106 The questions asked, known as “attitudinal questions,” are

distinguishable from awareness questions in that respondents are being asked to provide

their opinion, as opposed to what they have heard or read.107

[75] For example, a 1961 national survey shows 63% of respondents agreeing that

“smoking is injurious to health.”108 By 1967, 77% agreed with the same statement.109

Similarly, a 1972 national youth survey shows 76% of respondents agreeing that

“smoking has harmful effects on health (other than lung cancer).”110 In 1978, 86% agreed

with the same statement.111

[76] Some attitudinal survey questions focused specifically on whether respondents

believed in the causal link between smoking and lung cancer.112 As reported by

Prof. Duch, an analysis of these surveys shows “a majority in Canada saying that they

agree with a causal link between smoking and lung cancer” emerging between 1954 and

1963.113 By the late 1960s, Prof. Duch reports, “such levels of reported agreement

increased to levels varying from 75 percent to 83 percent.”114

3.3.2. Survey evidence concerning the risk of dependence

[77] The evidence also covers available surveys concerning the risks of dependence

or addiction to cigarette smoking.115 The surveys on dependence are strictly attitudinal in

nature and date back only to 1979.

[78] As reported by Prof. Duch, “[a]ll existing public opinion data suggests that very

high levels of the public were reporting that they agree that smoking is habit forming.”116

In fact, all the surveys conducted between 1979 and 1985 show respondents agreeing

106 Expert report of Prof. Duch (Exhibit 40062.1), PDF 38-68. 107 Expert report of Prof. Duch (Exhibit 40062.1), PDF 38-39. 108 Expert report of Prof. Duch (Exhibit 40062.1), PDF 42. 109 Expert report of Prof. Duch (Exhibit 40062.1), PDF 43. 110 Expert report of Prof. Duch (Exhibit 40062.1), PDF 45. 111 Expert report of Prof. Duch (Exhibit 40062.1), PDF 45. 112 Expert report of Prof. Duch (Exhibit 40062.1), PDF 50. 113 Expert report of Prof. Duch (Exhibit 40062.1), PDF 53. 114 Expert report of Prof. Duch (Exhibit 40062.1), PDF 68. 115 Expert report of Prof. Duch (Exhibit 40062.1), PDF 69-74. 116 Expert report of Prof. Duch (Exhibit 40062.1), PDF 69.

21


that smoking is “very hard to quit” or “habit forming” in proportions that vary between 83%

and 88%.117 Accordingly, although no survey evidence exists before 1979, it is apparent

that, by that time at the very latest, a very significant proportion of the public had already

accepted that smoking is habit forming.118

[79] Beginning in 1986, the terminology used in survey questions changed to refer

specifically to “addiction.”119 A 1986 survey shows 72% of adults agreeing that smoking

is “like a drug addiction.”120 In 1994, two separate surveys were conducted. Both show

97% of respondents (including 95% in Québec) indicating that they think people can

become addicted to cigarettes.121

3.3.3. Media coverage of the risks of disease and dependence

[80] The Appellants also led evidence of the widespread public dissemination of

information on the risks of disease and dependence over the Class Period through the

expert evidence of two historians. Professors David Flaherty122 and

Jacques Lacoursière123 analyzed print and broadcast media, and government

publications in Québec from 1950 to 1998. The materials reviewed, which include several

thousand articles published in mainstream media, show that the information issuing from

the Federal Government and the scientific and public health communities was widely

disseminated. The surveys analyzed by Prof. Duch confirm that this information was

indeed reaching the public.

[81] As a mere example of the ubiquitous presence of the issue in the media, at least

ninety articles on the health risks of smoking appeared in Québec newspapers in 1954

alone.124

117 Expert report of Prof. Duch (Exhibit 40062.1), PDF 70. 118 The high level of agreement demonstrated in the very first survey conducted in 1979 necessarily did

not happen overnight. As Prof. Duch noted, “awareness of a position […] will almost always precede agreement.” Expert report of Prof. Duch (Exhibit 40062.1), PDF 48; Testimony of Prof. Duch, May 27, 2013, at 68-69.

119 See section 3.2.1.2 above for a summary of the debate with respect to the term “addiction.” 120 Expert report of Prof. Duch (Exhibit 40062.1), PDF 70. 121 Expert report of Prof. Duch (Exhibit 40062.1), PDF 70-71. 122 Exhibit 20063. 123 Exhibit 30028.1. 124 Expert report of Prof. Lacoursière (Exhibit 30028.1), PDF 12.

22


[82] The media not only played an important role in disseminating the information

distributed by the government, but it consistently took the initiative in reporting on the

issue, including reporting on scientific studies as they were being published. For instance,

the conclusions of the U.K. Royal College of Physicians in 1962 and of the U.S. Surgeon

General’s Report in 1964, both of which concluded that there was a causal link between

smoking and lung cancer, received widespread media attention.125 Similarly, the LaMarsh

Conference also received widespread media attention.126 As an example only, La Presse

devoted a nine-column article to the event with the headline: “Ottawa et huit provinces

sont d’avis que la cigarette cause le cancer.”127

[83] The massive volume of the information available from a multitude of sources such

as radio and television,128 newspapers,129 schools,130 the National Film Board,131 the

government,132 non-governmental organizations133 and medical doctors,134 led

Prof. Lacoursière to conclude that: “À partir des années 1950, il est à peu près impossible

de ne pas connaître que le fait de fumer constitue un danger pour la santé.”135 Similarly,

Prof. Flaherty opined that the causal relationship between smoking and cancer was

common knowledge by the mid-60s.136

[84] As for the risk of dependence, the materials reviewed also demonstrate

numerous and consistent messages advising Canadians that smoking was difficult to

stop, and this from the beginning of the Class Period.137 Both Profs. Flaherty and

125 Testimony of Prof. Flaherty, May 21, 2013, at 77-79; Expert report of Prof. Flaherty (Exhibit 20063)

PDF 15-16. 126 Expert report of Prof. Lacoursière (Exhibit 30028.1), PDF 42; Exhibits 30029.267 and 30029.268;

Expert report of Prof. Flaherty (Exhibit 20063), PDF 15. 127 Expert report of Prof. Lacoursière (Exhibit 30028.1), PDF 42. The Montréal Gazette ran a similar

article and headline: Exhibit 1541.1963.MG0679. 128 Testimony of Prof. Lacoursière, May 13, 2013, at 54-56. See Exhibit 30028.1, PDF 8-9 for radio and

TV audiences in the time period. 129 Testimony of Prof. Lacoursière, May 13, 2013, at 56-57. See Exhibit 30028.1, PDF 7-8 for the

circulation numbers of the newspapers consulted by Prof. Lacoursière. 130 Testimony of Prof. Lacoursière, May 13, 2013, at 59. 131 Testimony of Prof. Lacoursière, May 13, 2013, at 60. 132 Testimony of Prof. Lacoursière, May 13, 2013, at 61. 133 Testimony of Prof. Lacoursière, May 13, 2013, at 62. 134 Testimony of Prof. Lacoursière, May 13, 2013, at 63. 135 Expert report of Prof. Lacoursière (Exhibit 30028.1), PDF 12-13. 136 Exhibit 20063, PDF 3. 137 A complete review of the numerous articles published on the topic is included in an appendix to

Prof. Flaherty’s report: Exhibit 20063.3.

23


Lacoursière concluded that there was widespread consensus that smoking is difficult to

quit in the 1950s.138

[85] Many articles detailed the difficulties which smokers had in giving up smoking,

often including personal stories from those who used the methods being discussed.139

The publications from the 1950s also show that many products were being marketed to

assist smokers in quitting.140

[86] Following the publication of the U.S. Surgeon General’s Report in 1988,

newspaper coverage included statements such as “la nicotine est désormais

officiellement considérée aux États-Unis comme une drogue d'accoutumance,

comparable à l’héroïne et à la cocaïne.”141 Along with the 1989 Royal Society Report,142

the Surgeon General’s Report led to a surge in publications discussing the addictive

nature of cigarettes and also brought about further discussion as to the need for warning

labels citing the addictive nature of smoking.143 This type of discussion would have been

inescapable for the average Quebecer and reinforced perceptions as to the difficulties of

giving up smoking.144

3.4 Causation

3.4.1 Conduct causation

[87] The Respondents made no attempt to prove that the Appellants’ alleged faults

caused any, let alone all, class members to start or to continue smoking (“conduct

causation”), arguing that it was impossible for them to do so. They did not adduce any

evidence from the representatives, class members, surveys or other evidence about why

138 Expert report of Prof. Flaherty (Exhibit 20063), PDF 14; Expert report of Prof. Lacoursière

(Exhibit 30028.1), PDF 13. 139 Exhibit 1541.1954.MG0168. 140 See for instance Exhibits 30029.13, 30029.14, 30029.15, 30029.16, 30029.17 and 30029.18. 141 Exhibit 30029.472. 142 Exhibit 30029.473. 143 Exhibit 1541.14.070094. 144 Exhibits 1541.23.118106 and 1541.23.118107. See also: Exhibits 1541.10.052018, 20064.188 and

1541.27.144071; Testimony of Prof. Flaherty, May 22, 2013, at 248-249.

24


people smoke, nor did they rely on section 15 of the Tobacco-Related Damages and

Health Care Costs Recovery Act145 (the “TRDA”) with respect to conduct causation.

[88] As previously mentioned, the evidence revealed extremely high levels of

awareness of the health risks of smoking throughout the Class Period. It also confirmed

that many Quebecers still take up and continue smoking today,146 notwithstanding

widespread awareness of the risks, warnings that now take up 75% of the package, public

recognition of the health risks by the Appellants and severe restrictions on product

advertising.147

[89] The Judge nonetheless presumes, relying on “mere common sense”, that all

class members’ decision to start or continue smoking was caused by the Appellants’

faults. This presumption is made irrebuttable by the fact that damages are awarded on a

collective basis.

3.4.2. Medical causation

3.4.2.1 Blais

[90] The Respondents adduced no individual evidence that smoking was the cause of

the class diseases of the class members (“medical causation”).148 Instead, they relied

on Dr. Siemiatycki’s novel method, which he invented exclusively for the Blais File and

was hitherto unknown to epidemiology, whereby medical causation is established by a

single universal “critical dose” ostensibly derived from epidemiological studies.

145 RSQ c R-2.2.0.0.1. Please note that the validity of this Act was challenged by the Appellants and

dismissed by this Court on September 28, 2015 (Imperial Tobacco Canada Ltd. v. Québec (Procureure générale), 2015 QCCA 1554). This decision is currently subject to a leave application to the Supreme Court filed by JTIM (court file number 36741).

146 See in this regard Exhibit 1537.1999-2011, PDF 3. 147 Tobacco Products Labelling Regulations (Cigarettes and Little Cigars) (SOR/2011-177). 148 The notable exception is the class representative, Jean-Yves Blais. While Mr. Blais did not testify

and the transcripts of his discovery were not filed, the Respondents’ expert, Dr. Desjardins, opined that his lung cancer was probably caused by smoking. On the other hand, Dr. Desjardins conceded during his cross-examination that Mr. Blais’ emphysema was generally considered congenital (Testimony of Dr. Desjardins, February 4, 2013 at 285, I. 12-22, 331, I. 5-11). Yet, notwithstanding this evidence, the Judge’s criteria for medical causation results in Mr. Blais’ congenital emphysema being considered as having been caused by the Appellants’ faults.

25


[91] Three experts called by the Appellants concluded that Dr. Siemiatycki’s method

was unknown to and untested by other epidemiologists or statisticians and that it

produces estimates which are wholly unreliable based on standard statistical principles.

These criticisms were not addressed by the Respondents.

[92] The Judge concluded that section 15 of the TRDA overrides the requirement to

establish causation for every class member, and ultimately selected a different critical

amount than the one proposed by Dr. Siemiatycki. He posited that 12 pack years was the

universal “plausible minimum figure for the critical dose”149 allowing for what he called

minor variables ignored by Dr. Siemiatycki.150 As a result, all class members who have

smoked a minimum of 12 pack years before November 20, 1998 and have been

diagnosed with a class disease before March 12, 2012 are entitled to compensation,

regardless of their other risk factors and any other individual characteristics, including

smoking cessation. This presumption was made irrebuttable by awarding collective

recovery.

3.4.2.2 Létourneau

[93] The Judge, acknowledging that Respondents had failed to put forth a definition

of nicotine dependence, and short of any evidence clearly establishing a test for such

dependence, proprio motu determined that a person is dependent after 4 years of

smoking 15 cigarettes a day. The Judge then determined that 95% of all daily smokers

are nicotine dependent, albeit to a different degree, despite an admission from the

Respondents’ expert, Dr. Negrete, that this figure could not be used to estimate the

percentage of daily smokers who were dependent in Québec.151

3.5 Punitive damages

[94] When the Québec Charter and the CPA were adopted, the industry was already

regulated through a Voluntary Code, the content of which had been agreed upon with the

149 Judgment at para. 758. 150 Judgment at para. 759. See Exhibit 1426.7-JTIM, which is JTIM’s Reply to Dr. Siemiatycki’s

additional calculations pursuant to a request from the Judge that the Respondents prepare new tables following the same method as for Tables modified in February 2014, but applying for each class disease specified “Critical Amounts” of 12, 16 and 20 pack-years. JTIM submitted that nothing in the additional calculations could produce statistically reliable results, to which the Respondents provided no answer.

151 See Testimony of Dr. Negrete, April 3, 2013 at 236-237.

26


Federal Government. This Code not only required the Appellants to place a health

warning on their products and advertising, but also imposed significant limits on

advertising.152 The Appellants made sure the Code was scrupulously complied with so as

to prevent any one company from obtaining an undue competitive advantage over the

others.153 Since 1989, the tobacco industry has been regulated through formal legislation,

which JTIM has always strived to respect. JTIM has never been charged with any

infraction under the CPA.

[95] The Judge did not consider this degree of compliance in assessing whether

punitive damages were justified under either the Québec Charter or the CPA.

----------

PART II – ISSUES IN DISPUTE

Issue 1: The Judge erred in law and in fact in finding that JTIM had failed to warn class

members of the risks of disease and dependence throughout the class period

Issue 2: The Judge erred in law and in fact in holding that the respondents had proven

causation for all class members

Issue 3: The Judge erred in law and in fact in finding tobacco dependence for the whole

Létourneau class

Issue 4: The Judge erred in law in awarding collective recovery

Issue 5: The Judge erred in law and in fact in finding JTIM liable under the Québec

Charter

Issue 6: The Judge erred in law and in fact in finding JTIM liable under the CPA

Issue 7: The Judge erred in law and in fact in awarding punitive damages against JTIM

----------

152 Exhibit 40005K-1975. 153 Judgment at para. 398.

27

Appellant’s Argument Arguments

PART III – ARGUMENTS

1. THE JUDGE ERRED IN LAW AND IN FACT IN FINDING THAT JTIM FAILED

TO WARN CLASS MEMBERS OF THE RISKS OF DISEASE AND

DEPENDENCE THROUGHOUT THE CLASS PERIOD

[96] Under Québec law, a manufacturer who knows (or ought to know given the state

of the art) that the use of its product entails certain inherent dangers is expected to warn

users so that they can make informed decisions. But the manufacturer does not have to

warn the warned. If the user of the product already knows of the dangers, or if the dangers

are such that a reasonable person should know them,154 the manufacturer has no duty to

warn.

[97] Indeed, as explained by the Supreme Court in Hollis, the purpose of the duty to

warn is to correct any knowledge imbalance that may exist between the manufacturer and

the user so that the latter is placed in the position of a reasonably prudent and informed

person and able to make decisions accordingly.155 Although the Court’s comments were

made in relation to the duty at common law, the same rationale lies behind the

corresponding duty at civil law.156 The duty to warn has no purpose once the danger is

known to the user.

[98] In spite of this settled law, the Judge held JTIM liable both towards class members

who were actually aware of the dangers and class members who should have been aware

given how prevalent knowledge of those dangers was among the public. This conclusion

of liability results from a series of errors of law and palpable and overriding errors of fact.

[99] Specifically, whatever the appropriate Knowledge Dates may be, the Judge erred

in law in holding JTIM liable to the class members who took up smoking less than four

years before those dates (section 1.1). The Judge also erred in law in holding JTIM liable

to all class members who took up smoking, without regard to their actual personal

awareness of the risks (section 1.2). In addition, the Judge erred both in law and in fact

154 This can be the case either because the nature of the danger makes it apparent to any reasonable

person, or because the existence of the danger has become common knowledge. 155 Hollis v. Dow Corning Corp., [1995] 4 S.C.R. 634 at 653. 156 Axa Boréal Assurances v. Tremcar inc., EYB 1999-12309 at para. 51 (QC CQ).

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in his determination of the Knowledge Dates (sections 1.3 and 1.4). Finally, the Judge

erred in fact in finding that JTIM conspired with the other Appellants (section 1.5).

1.1 The Judge erred in law in holding that JTIM could be held liable for a failure

to warn after the Knowledge Dates

1.1.1. The Judge erred in law in holding that an obligation to warn subsisted beyond the

Knowledge Dates

[100] The Judge finds that the class members “knew or should have known” of the risks

and dangers of contracting a disease and of becoming tobacco dependent by January 1,

1980 and March 1, 1996, respectively. For the reasons given in sections 1.3 and 1.4,

JTIM submits that the Judge erred in his determination of those dates. In any event, as

of those Knowledge Dates, at the very latest,157 all class members had enough

information about the risks and dangers to make an informed decision about smoking.

[101] The Judge accordingly finds that the Appellants cannot be found at fault for

providing insufficient indications regarding the risks and dangers of smoking beyond

those dates.158 As he writes with respect to the Blais File: “It follows that the Companies’

fault with respect to a possible safety defect by way of lack of sufficient indications ceased

as of that date.”159 Notwithstanding this finding, however, the Judge goes on to find the

Appellants at fault for a failure to inform class members of the risks of smoking beyond

the Knowledge Dates under the “general rules of liability.”160 In so doing, he commits an

error of law.

[102] The Judge’s reference to a “possible safety defect” in relation to the period before

1994 is obviously anachronistic, as this regime was only adopted with the CCQ. Prior to

that time (and thus for almost all of the Class Period), the Appellants’ conduct was solely

governed by art. 1053 CCLC:

1053. Every person capable of discerning right from wrong is responsible for the damage caused by his fault to another, whether by positive act, imprudence, neglect or want of skill.

157 Judgment at paras. 121, 133, 644. 158 Judgment at para. 121. The Judge comes to the same conclusion in the Létourneau File

(at para. 133). 159 Idem. 160 Judgment at para. 643.

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[103] Although the Judge acknowledges this elsewhere,161 he errs in law in his

interpretation of the manufacturer’s obligations under this fault regime, leading him to find

the Appellants liable for a failure to warn beyond the Knowledge Dates.

[104] The Judge’s confusion as to the applicable rules of liability are evidenced by his

discussion of the applicable regimes with respect to what he terms “the obligation to

inform.” He writes:

[215] Prior to 1994, the Civil Code dealt with this obligation [to inform] under article 1053, the omnibus civil fault rule. The “new” Civil Code of 1994 approaches it in two similar but distinct ways, maintaining the general civil fault rule in article 1457 and specifying the manufacturer’s duty in article 1468 and following. While the latter are new provisions of law, they are essentially codifications of the previous rules applicable in the area.

[…]

[217] The Plaintiffs allege that the Companies failed to abide by the rules of conduct that every reasonable person should follow according to the circumstances, usage or law by the mere act of urging the public to use a thing that the Companies knew to be dangerous. Subsidiarily, they argue it would still be a fault under this article by doing that without warning of the danger.162

[105] The Judge promptly rejects the Respondents’ primary argument to the effect that

the mere fact of marketing and selling a dangerous product constitutes a fault under

art. 1457 CCQ.163 He considers, however, the subsidiary argument that it is a fault to do

so “without warning of the danger.”164

[106] Having posited (correctly) that this obligation to “warn of the danger” prior to 1994

resulted from art. 1053 CCLC, the Judge holds (incorrectly) that the obligation was, for

lack of a better term, split into two distinct obligations under the CCQ: (i) an obligation to

warn of the risks and dangers inherent in a product pursuant to arts. 1468, 1469 and 1473

(safety defect) and (ii) an obligation to warn under art. 1457. He finds further that,

161 Judgment at paras. 16, 215. 162 Judgment at paras. 215, 217. 163 Judgment at paras. 221-226. 164 Judgment at para. 217.

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by contrast to arts. 1468, 1469 and 1473, art. 1457 requires one to warn others of dangers

that are already known to them:

[240] So far in this section, the Court has focused on the manufacturer's obligation to inform under article 1468 and following but, under article 1457, a reasonable person in the Companies' position also has a duty to warn.

[241] In a very technical but nonetheless relevant sense, the limits and bounds of that duty are not identical to those governing the duty of a manufacturer of a dangerous product. This flows from the "knew or could have known" defence created by article1473.

[242] Under that, a manufacturer's faulty act ceases to be faulty once the consumer knows, even where the manufacturer continues the same behaviour. In our view, that is not the case under article 1457. The consumer's knowledge would not cause the fault, per se, to cease. True, that knowledge could lead to a fault on his part, but that is a different issue, one that we explore further on.165 [emphasis added]

[107] Having thus posited (without citing any authority) that art. 1457 CCQ imposes an

obligation to warn about dangers that are known or should be known to the other party,

the Judge applies this separate obligation retroactively for the period during which the

Appellants’ conduct was governed by art. 1053 CCLC. This juridical sleight of hand allows

the Judge to sidestep the jurisprudence and doctrine under art. 1053 CCLC, which

confirm that there was no obligation to warn of dangers that were either known or should

have been known by a reasonable person.166

[108] For example, in Royal Industries Inc., this Court held that the manufacturer

“n’est pas tenu de prévenir des dangers qui sont manifestes pour tous.”167 Similarly, in

Wabasso Ltd., this Court stated that the duty to warn arises when the danger is known to

165 Judgment at paras. 240-242. 166 P-G Jobin, “L’obligation d’avertissement et un cas typique de cumul”, (1979) 39:5 R. du B. 939, at

941-942. See also: L. Côté, “La responsabilité du fabricant vendeur non immédiat en droit québécois”, (1975) 35 R. du B. 3, at 16-17; Legault v. Château Paint Works Ltd., (1960) C.S. 567 at 573 (QC SC); Gauvin v. Canada Foundries and Forgings Ltd., (1964) C.S. 160 at 163-164 (QC SC).

167 Royal Industries Inc. v. Jones, AZ-79011179 at para. 9 (QC CA). See also: Gauvin v. Canada Foundries and Forgings Ltd., (1964) C.S. 160 (QC SC).

31


the manufacturer and unknown to the purchaser.168 In Fortin v. Simpsons-Sears ltée, the

Superior Court dismissed an action in damages because there was no obligation to warn

consumers of dangers that a reasonably informed and prudent person should be aware

of.169 Similarly, in Inmont Canada Ltd. v. Compagnie d’assurance Canadienne Nationale,

this Court reversed a Superior Court decision that had held a manufacturer liable for 50%

of the damages sustained in a fire because of its failure to warn of the risks of

spontaneous combustion. This Court held that, even if the fire was caused by

spontaneous combustion, the fault lay not with the manufacturer but with the user, who

was aware of the danger.170

[109] In fact, it was an application of these well-established principles under art. 1053

CCLC that led to the dismissal of the representative Plaintiff Cécilia Létourneau’s

individual action against Imperial Tobacco ltée and Allan Ramay & Cie ltée, Justice de

Pokomandy having found that the risks of smoking were already well known by the time

Ms. Létourneau began smoking in 1964.171

[110] There was thus no obligation to warn the warned under art. 1053 CCLC and the

Judge erred in law in holding that the “general rules of liability” imposed such an obligation

prior to 1994.

[111] Nor can any such obligation be found in art. 1457 CCQ for the period between

1994 and 1998, and the Judge likewise erred in law in this respect. The rules governing

the manufacturer’s obligation to inform of the dangers inherent in the use of its product

have been specifically codified at arts. 1468, 1469 and 1473 CCQ. It is well established

that the specific rule prevails over the general.172 There is no justification for circumventing

the specific mandatory regime adopted by the legislator to impose a parallel obligation

under art. 1457 CCQ, which would render the defences codified by the legislator

168 Wabasso Ltd. v. National Drying Machinery Co., AZ-79011014 at 1 (QC CA), rev’d on other grounds

[1981] 1 S.C.R. 578. 169 Fortin v. Simpsons-Sears ltée, EYB 1978-144683 at paras. 33-38 (QC SC). 170 Inmont Canada Ltd. v. Compagnie d’Assurance Canadienne Nationale, EYB 1984-142586 at

para. 21 (QC CA). See also: Côté v. The Marmon Group of Canada Inc., EYB 1989-67830 at para. 11 (SCC).

171 Létourneau v. Imperial Tobacco ltée, REJB 1998-07025 at paras. 78-101 (QC CQ). 172 Robillard v. Cour du Québec, 1998 CanLII 12886 at 14 (QC CA).

32


unavailable.173 In fact, since arts. 1468, 1469 and 1473 CCQ were implemented in part

to ease the burden of proof incumbent on the victim in comparison to the general fault

regime that prevailed under the CCLC,174 it is ironic, to say the least, that the Judge relies

on the general fault regime to extend the Appellants’ liability.

[112] Even if article 1457 CCQ could be interpreted as imposing a duty to inform on

manufacturers, despite the specific mandatory regime, there is absolutely no reason why

that obligation should then differ from that which existed under art. 1053 CCLC.175 As

noted by the Minister of Justice, both provisions refer to the same general rules of

conduct.176 There is simply no justification to extend a manufacturer’s obligation to inform

beyond the parameters previously defined by the jurisprudence under art. 1053 CCLC.

[113] The Judge therefore erred in law by finding that the Appellants had committed a

fault “under the general rules of liability” in failing to warn the class members beyond the

dates on which he found every class member either knew or should have known of the

risks of contracting a class disease or of becoming tobacco dependent.177

1.1.2 The Judge erred in law in apportioning liability between the Appellants and the

class members for the period after the Knowledge Dates

[114] Having found that the class members knew or should have known of the risks as

of the Knowledge Dates, the Judge then finds that those who were not yet dependent and

nonetheless continued to smoke beyond those dates assumed the risks.178

173 As an analogy, this Court held in Accessoires d’auto Vipa inc. v. Therrien that a manufacturer could

not rely on the general provisions of the CCQ concerning contractual obligations to circumvent the application of art. 1468 CCQ and following: Accessoires d’auto Vipa inc. v. Therrien, J.E. 2003-1653 at para. 36 (QC CA).

174 Québec, ministère de la Justice, Commentaires du ministre de la Justice, vol. 1 (Québec: Publications du Québec, 1993, at 896 (art. 1468 and 1469).

175 Indeed, the objective limit of any obligation to inform (whether under 1457, 1458 or 1468 and following CCQ) is the other party’s correlative obligation to inform itself (devoir de se renseigner): J.-L. Baudouin and P.-G. Jobin, Les obligations, 7th ed., (Cowansville: Yvon Blais, 2005) at para. 314. See also Brochu v. Québec (Société des loteries), 2009 QCCS 5678 at para. 173.

176 Québec, ministère de la Justice, Commentaires du ministre de la Justice, vol. 1 (Québec: Publications du Québec, 1993, at 886 (art. 1457).

177 In any event, as discussed in section 2.1 of this factum, once the user is aware of the relevant risks and continues to use the product, there can be no causal relationship between the manufacturer’s failure to warn and the user’s decision. See Dallaire v. Paul-Émile Martel Inc., [1989] 2 S.C.R. 419 at 426.

178 Judgment at paras. 828, 832.

33


[115] Notwithstanding this finding, however, the Judge dismisses the Appellants’

argument that this assumption of risk should preclude any liability. Relying on arts. 1477

and 1478 CCQ, he finds instead that the class members’ smoking constitutes a

contributory fault (which he describes as “essentially stupidity”179) and arbitrarily attributes

20% liability to the class members.180

[116] To justify this apportionment, which is not based on any evidence, the Judge

holds that the assumption of risk defence can only lead to full exoneration in the absence

of any fault by the defendant.181 Yet, as the Judge himself acknowledges, consumer

awareness of the risks constitutes a full defence with respect to a manufacturer’s

obligation pursuant to art. 1468, 1469 and 1473 CCQ.182 As explained above, the same

was true under art. 1053 CCLC and is perforce true under art. 1457 CCQ, should it apply

at all. The Judge therefore erred in concluding that there was a fault beyond the

Knowledge Dates, and there was therefore no liability to be apportioned after the

Knowledge Dates.183

[117] In any event, none of the faults imputed to the Appellants actually increased

smokers’ risks of contracting a disease or of becoming dependent. The Judge’s reliance

on art. 1477 CCQ to justify an apportionment of liability under such circumstances is an

error of law. Indeed, as confirmed by this Court in Centre de ski Mont-Rigaud, art. 1477

CCQ can only lead to the defendant’s liability if the fault committed increased the risks or

exposed the plaintiff to abnormal risks, as opposed to an assumed risks:

[12] En effet, « la victime pourra néanmoins engager la responsabilité de l'auteur en faisant la démonstration que celui-ci n'a pas agi de manière diligente en l'exposant à des risques anormaux ». Ainsi, « le comportement du défendeur qui irait à l'encontre des règles usuelles à une activité et qui exposerait la victime à des risques déraisonnables sera considéré comme fautif. »

179 Judgment at para. 833. 180 Judgment at paras. 833-834. 181 Judgment at paras. 825-827. 182 Judgment at para. 824. Willam E. Crawford, “Manufacturer’s Liability under the Proposed Revision

of the Civil Code of Québec” in Conférences sur le nouveau Code civil du Québec (Cowansville: Yvon Blais, 1992) at 424.

183 Inmont Canada Ltd. v. Compagnie d’Assurance Canadienne Nationale, EYB 1984-142586 at para. 21 (QC CA). Considering that all the alleged faults pertained to a failure to warn of health risks, the determination of the Knowledge Dates meant that any causation after such a date would not be possible.

34


[13] Selon les auteurs Baudouin et Deslauriers, si l’auteur d’une faute veut se dégager de sa responsabilité face à la victime qui a accepté un risque, « il faut que le dommage ait été causé par la réalisation normale du risque et non par une aggravation de celui-ci, causée par un comportement fautif de l’agent ».184 [emphasis added]

[118] In other words, a person who chooses to participate in an activity will be deemed

to have accepted the inherent risks, which were either known to them or reasonably

foreseeable.185 A right of action will exist only where the injury results, not from the normal

materialization of those risks, but (i) from an unforeseeable risk that should have been

disclosed186 or (ii) from a fault which resulted in the aggravation of the assumed risks.187

[119] In the present case, all class members who took up smoking after the Smoking

Dates and continued to do so after the Knowledge Dates did so knowing that it could lead

to dependence or a class disease and the Judge accepted that they assumed (that is,

accepted) those risks.188 The Judge made no findings of any wrongful conduct by the

Appellants that either increased those risks or created other unforeseeable risks. As such,

the Judge erred in law in apportioning liability after the Knowledge Dates.

[120] Furthermore, the Judge erred in law by holding that any person who started or

continued smoking despite being sufficiently aware of the risks committed a contributory

fault.189 This reasoning is not only wrong in law but is also contradicted by the Judge’s

own finding that the mere act of manufacturing and selling a legal product, such as

184 2735-3861 Québec inc. (Centre de ski Mont-Rigaud) v. Wood, EYB 2008-132242 at para. 12-13

(QC CA). See e.g. Brisson v. Gagnon, 2005 CanLII 38674 at para. 54 (QC SC), aff’d 2007 QCCA 617; Meunier v. Benoit, 2009 QCCS 1996 at para. 52.

185 Pierre Deschamps, « Cas d’exonération et partage de responsabilité en matière extracontractuelle » in JurisClasseur Québec: Obligations et responsabilité civile, fasc 22, loose-leaf (consulted on November 3, 2015), (Montréal: LexisNexis, 2008) ch. 22 at para. 39.

186 See Centre d’expédition et de plein air Laurentien (CEPAL) v. Légaré, REJB 1998-04626 at paras. 38-40 (QC CA).

187 2735-3861 Québec Inc. (Centre de Ski Mont-Rigaud) v. Wood, EYB 2008-132242 at paras. 9-13 (QC CA); Capers Stanford v. Mont Tremblant Lodge (1965) Inc., [1979] C.S. 953 at 957 (QC SC).

188 The same should also be true of all those class members who took up smoking prior to the Smoking Date but were actually personally aware of the risks. As discussed immediately below, however, the Judge treats all those class members as if they had been unaware of the risks, notwithstanding the fact that such a conclusion contradicts the evidence and defies logic.

189 Judgment at paras. 832-834.

35


cigarettes, is not a civil fault.190 If such is the case, it naturally follows that the act of

consuming this legal product cannot be a fault.191

[121] The class members did not commit a fault in choosing to take up smoking

notwithstanding their awareness of the risks.192 They certainly did not deserve to be

branded as “stupid” by the Judge for doing so, especially without having heard from any

of them. Having made that choice, however, they must bear the consequences.

[122] Subsidiarily, the Judge erred in fact in arbitrarily attributing 80% of liability to the

Appellants, citing no evidence whatsoever in support of this allocation. Whatever wrongful

conduct may be imputed to the Appellants after the Knowledge Dates, the decision to

smoke was ultimately the class members’ alone.

1.2 The Judge erred in law in assessing the class members’ knowledge from a

strictly collective basis

[123] The Knowledge Dates serve to identify the moment when knowledge of the risks

is sufficiently widespread to conclude that any reasonable person “should know” of them.

However, as the evidence shows, even before those dates (whatever they may be), many

individuals obviously did know and accept the risks.193

[124] The Judge addressed the issue of the class members’ knowledge solely from a

class-wide perspective, determining that the Appellants’ liability for a “possible safety

defect” ceased in one fell swoop on the Knowledge Dates. Prior to those dates, however,

he treats the situation as if every single member of the class was unaware.

190 See Judgment at paras. 650-653. This latter finding is coherent with the Supreme Court’s reasoning

in Imperial Tobacco, i.e. that it is not the role of a Court to impose legal liability for legislative policy choices that it may disagree with after the fact: R. v. Imperial Tobacco Canada Ltd., [2011] 3 S.C.R. 45 at para. 87.

191 One cannot logically say that we must defer to the Government’s policy decision to allow manufacturers to manufacture and sell cigarettes, while at the same time holding that any person who smokes has committed a civil fault. The policy decision also includes the recognition that members of the Canadian public are legally entitled to take up smoking if such is their choice.

192 This is perfectly coherent with the law, as recognized inter alia by author Deschamps (supra N 185), who recognizes that the mere acceptance of risks does not necessarily constitute a fault. See also Meunier v. Benoit, 2009 QCCS 1996 at para. 72.

193 See e.g., Expert report of Prof. Duch (Exhibit 40062.1).

36


[125] Logically, even if one were to accept that knowledge of the risks only became

sufficiently widespread by the Knowledge Dates, a large (but unknown) number of

individuals necessarily had the requisite knowledge before then.194 Yet because the

Judge treats knowledge on a purely collective level, liability is imposed on the Appellants

as if every single member of the public instantly and simultaneously acquired the requisite

knowledge on the stroke of midnight on the Knowledge Dates.

[126] As a result, the Judgment provides that a large (though unknown) number of class

members will be compensated notwithstanding the fact that they had personal knowledge

of the dangers inherent in smoking, thereby depriving JTIM of grounds of defence that it

would otherwise have had in the context of individual actions.

[127] This is an error of law. A class is an aggregate of individuals, not a distinct entity.

The class action procedure does not affect substantive law and should not result in the

Appellants being held liable towards individual class members who were actually aware

of the risks and would not have had a viable claim if they had sued individually.

1.3 The Judge erred in law and in fact in his determination of the Knowledge

Date in Blais

[128] To arrive at his Knowledge Date in the Blais File, the Judge rejects or sets aside:

(a) the uncontradicted conclusions of the historians, Profs. Lacoursière and

Flaherty, that the public knew or should have known of the risks of smoking

in the 1950s (Prof. Lacoursière)195 or by the latest the mid-1960s

(Prof. Flaherty);196 and

194 The point is obvious and it is of course implicit in the Judgment. For example, the Judge rejects

Prof. Duch’s range of dates for the Knowledge Date regarding dependence because he is dissatisfied with the notion that only “a majority of the population considered smoking to be an addiction” at that time. For the Judge, the Knowledge Date should only be established once a “vast majority” is of this opinion (Judgment at para. 124).

195 Exhibit 30028.1, PDF 12-13. 196 Exhibit 20063, PDF 3-4.

37


(b) the uncontradicted conclusion of Appellants’ polling expert,197 Prof. Duch,

that “[b]y at least 1963 there was an exceptionally high level of awareness,

88 percent, among the Québec population of reports or information that

smoking may cause lung cancer or have other harmful effects,”198 and that

“[e]ven before then, in 1954, 82 percent of the Québec population was

aware of reports that smoking may cause lung cancer.”199

[129] The Judge then relies on the evidence of a U.S. medical historian, Dr. Proctor,

“[who] does not opine as to the date of knowledge by the public in his report,”200 but who,

when asked by the Judge “as to the likely date at which the average American knew or

reasonably should have known that the smoking of cigarettes causes lung cancer, larynx

cancer, throat cancer or emphysema”201 answered that “[t]he surveys show that, by the

seventies (70s), more than half of people answered yes when asked that question. And

I view that… as most Americans.”202

[130] The Judge chooses this evidence over that of Prof. Duch, even though Dr. Proctor

was not qualified as an expert in anything to do with Canada or polling,203 because he

considers Prof. Duch’s conclusion that Quebecers were aware that “smoking ‘may cause

cancer or other harmful effects’” as unsatisfactory. According to the Judge,

“[t]he minimum acceptable level of awareness should be much higher than that, for

example, ‘is likely’ or ‘is highly likely’.”204

197 Though the Judge acknowledged that surveys were “the appropriate measure in this context” to

determine the “date of knowledge” (Judgment at para. 98). 198 Exhibit 40062.1, PDF 5. 199 Exhibit 40062.1, PDF 5. 200 Judgment at para. 97. 201 Judgment at para. 97. 202 Judgment at para. 98, Testimony of Professor Proctor, November 29, 2012, at 34-38. 203 The Respondents initially asked for Dr. Proctor to be qualified as an expert in the history of science,

the history of scientific knowledge and controversy, and the history of cigarettes and the cigarette industry, including how that related to Canada. During his voir dire, it was made clear that he was not qualified to testify about Canada, See: Testimony of Dr. Proctor, November 26, 2012, and in particular at 41-183. Accordingly, the Court qualified Dr. Proctor as an expert in the history of science, the history of scientific knowledge and controversy, the history of the cigarette and the American cigarette industry, but not in the Canadian tobacco industry. See: Testimony of Dr. Proctor, November 27, 2012, at 12. This prompted the Respondents to withdraw pages 4 to 75 of Dr. Proctor’s report and replace it with a redacted version. See: Testimony of Dr. Proctor, November 28, 2012, at 168-169.

204 Judgment at para. 103. See also paras. 102-108.

38


[131] Finally, the Judge finds that:

[106] Upon further review, and after reasonable adjustments, the Court sees a fair amount of compatibility between the opinions of Professors Proctor and Duch. […]

[108] As for the Diseases, if one adds ten or fifteen years to Dr. Duch’s 1963 figure in order to move from ‘may cause’ to ‘is highly likely’, one arrives at a date that is consistent with Dr. Proctor’s ‘the seventies’.205

[132] This analysis contains significant errors of law coupled with palpable and

overriding errors of fact. When the correct analysis is applied to the uncontradicted

evidence, it is clear that, throughout the Class Period, class members were or should

have been aware of the risks as they were reported on by the scientific community and

relayed by the Federal Government, the media and the public health authorities.

[133] More particularly, the evidence demonstrates that the class was, or should have

been, aware in the 1950s that smoking may carry risks, including the risk of contracting

lung cancer. As a consensus on medical causation was reached in the mid-1960s, the

evidence demonstrates that the class was, or should have been, aware that smoking

causes lung cancer and other fatal diseases.

1.3.1. The Judge erred in law when he considered the effects of information on class

members

[134] As Côté explains, the manufacturer “est en droit de s’attendre que le

consommateur fasse preuve également de prudence raisonnable.”206 Accordingly, a

manufacturer does not have a duty to warn of dangers that a reasonably diligent person

should know of. What is pertinent, therefore, is at what point in time a reasonably diligent

consumer should have been aware of the risks given the available information. This date,

although necessary to determine on a class-wide basis when people knew or should have

known of the risk, does not affect the fact that awareness, before such a collective

determination, is and remains an individual issue.

205 Judgment at paras. 106,108. 206 L. Côté, « La responsabilité du fabricant vendeur non immédiat en droit québécois », (1975) 35

R. du B. 3, at 18.

39


[135] A manufacturer’s obligation is to ensure that there is sufficient information about

the risks involved in the use of its product for consumers to make informed decisions.

It is not to make consumers believe that information, to advise them whether or not to use

the product, or to ensure that they understand the actual mechanism by which such risks

materialize.

[136] To require a manufacturer to prove that the information was not only available,

but actually believed or acted upon would result in an impossible standard to meet.207

Yet the Judge consistently considers the “effect” of the available information.208 For

instance, his dismissal of the historians’ evidence is based on the fact that they did not

examine the “effect of newspaper and magazine ads on people’s perceptions.”209 The

proper legal standard is whether members of the public were exposed to the relevant

information, not the effect it had on them.210 This fundamental error delays the Knowledge

Date substantially beyond what the evidence established based on the application of the

appropriate legal standard.

1.3.2 The Judge erred in law and in fact with respect to the historians’ evidence

[137] In establishing the Knowledge Date, the Judge wrongly sets aside the mass of

evidence of Profs. Flaherty and Lacoursière, who presented thousands of articles

published in mainstream Québec media from the 1950s onwards relating information

concerning the serious health risks of smoking issued by highly credible sources such as

the Federal Government and the public health community. These reports included

information to the effect that smoking caused highly feared and fatal diseases like lung

207 Such a burden would also be contrary to the general theory of the obligation to inform in Québec law

as put forward by the Supreme Court in Banque de Montréal v. Bail ltée, [1992] 2 S.C.R. 554, pursuant to which a party must be able to presume that certain general information normally available is known to his contracting partner, and pursuant to which everyone has the duty to inform himself reasonably prior to concluding a contract. No authority supports that burden.

208 Judgment at paras. 87, 93-95, 128-130. 209 Judgment at para. 93. 210 Incidentally when discussing whether the manufacturers should provide warnings given that they

were not credible providers of information the Judgment says that if the obligation to warn is linked to whether the consumer believed the warning it would be “nonsensical and impossible to enforce.” This is exactly why belief is not the standard to evaluate whether the public is sufficiently informed of the risks.

40


cancer; that smoking increased mortality risk; that it was responsible for many deaths;

and that it was difficult to quit.211

[138] The Judge dismisses this evidence in part on the basis that the historians do not

have any expertise “in psychology or human behaviour” and that their evidence only

showed the level of media attention given to the issue.212 According to the Judge: “That

is not knowledge. That is exposure.”213 The Judge errs in this respect. Evidence that the

public was repeatedly exposed to articles reporting on the risks goes directly to the

assessment of what a reasonably informed member of the public should have known.214

[139] The Judge also takes the historians to task for failing to consider the “effect of

advertising on the public.”215 The Judge’s reasoning in this respect is contradicted by his

own finding that the Appellants’ advertising did not convey any information about health

and smoking.216 It also, as mentioned above, reflects his confusion between awareness

and belief.

[140] The historians’ evidence also provides context for the survey evidence presented

by Prof. Duch showing what information the respondents were aware of when they

responded to the survey questions. Those same surveys also confirm the historians’

conclusions as to the date of awareness.

1.3.3 The Judge erred in law in relying on Prof. Proctor’s evidence

[141] In selecting January 1, 1980 as the Knowledge Date, the Judge relies heavily on

the testimony of Dr. Proctor, a U.S. medical historian who was never qualified by the

211 Expert report of Prof. Lacoursière (Exhibit 30028.1); Expert report of Prof. Flaherty (Exhibit 20063).

See among many others Exhibits 30029.34, 30029.61, 30029.82, 30029.84, 30029.87, 30029.114, 30029.127, 30029.130, 30029.143, 30029.144, 30029.145, 30029.174, 30029.210, 30029.230, 30029.234, 30029.264, 30029.267, 30029.273, 30029.275, 30029.276, 30029.277, 30029.316, 30029.318, 30029.320, 30029.323, 30029.327, 30029.342, 30029.382, 30029.397, 30029.408, 30029.418, 30029.434, 30029.449.

212 Judgment at paras. 94-95. 213 Judgment at para. 95. 214 As discussed further below, the Judge relies on the public’s exposure to the same media to presume

that every class member would have seen the Appellants’ advertisements for the purposes of the CPA claims and on the expert reports of the same historians to presume that all class members would have seen the rare and occasional statements issued by one of the Appellants.

215 Judgment at para. 87. 216 Judgment at para. 438. In addition, tobacco advertising from 1973 onwards included a health

warning.

41


Court to opine on Canada or on awareness. This is part of an ongoing pattern: the Judge

frequently discards or ignores the evidence of a qualified expert and bases his decision

on a single statement made by an unqualified expert or on his own “common sense.”

[142] The evidence from qualified experts was clear: in Québec, the public was, or

should have been, aware that smoking may carry risks, including the risk of contracting

lung cancer, from 1954, if not earlier.

[143] It was an error of law to rely on evidence from an expert who was not qualified in

the domain (surveys) or the jurisdiction (Canada/Québec) to draw a central conclusion in

the Judgment. The error is further compounded by the fact that Prof. Proctor’s testimony

that awareness occurred in the U.S in the 1970s does not even support the Knowledge

Date selected by the Judge.

1.3.4 The Judge erred in fact in holding that the public had to be aware that smoking is

likely or highly likely to cause cancer before there could be a Knowledge Date

[144] In establishing his Knowledge Date, the Judge states that, to make an informed

decision, the public needed to be aware of “the increased likelihood of contracting one of

the [Blais] diseases.”217 He also finds that survey evidence was the appropriate measure

of that awareness.218

[145] The uncontradicted evidence from Prof. Duch219 on the Canadian surveys was:

There is no doubt, based on all available public opinion data from the early 1950s to the present, that at least since 1954, and probably earlier, a very high proportion of the Québec public has been aware of the reported links between smoking and lung cancer, which is a serious health condition. Public opinion in Québec was recorded as reaching exceptionally high levels of awareness by, at the latest, 1963. This very high level of awareness is present in all age and education sub-populations in Québec (and Canada).220

217 Judgment at para. 53. 218 Judgment at paras. 95, 98. 219 Prof. Duch was the only expert whose report and testimony dealt with awareness. Mr. Bourque, the

Appellants’ polling expert, was not mandated to determine the levels of awareness, or even belief, of Quebecers as to the risks and dangers of smoking, but to measure what the Appellants (principally ITL) knew about consumers’ perceptions of those risks. Exhibit 1380, PDF 5.

220 Expert report of Prof. Duch (Exhibit 40062.1), PDF 10.

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[146] In 1964, a survey conducted on behalf of the Federal Government found that 90%

of Canadians were aware of the risks.221 This led the Federal Government to conclude

that its campaign to educate Canadians of the risks of smoking, including lung cancer,

had been successful.222 The Respondents’ polling expert, Mr. Bourque, agreed that the

types of questions asked in these surveys were the correct ones to establish what a

person knows or is aware of, rather than what they believe.223

[147] The Judge sets aside this evidence, however, and arbitrarily determines224 that

knowledge that smoking “may cause cancer or other harmful effects” is insufficient and

that the “minimum acceptable level of awareness” should be that smoking “‘is likely’ or

‘is highly likely’” to cause cancer or other harmful effects.225 The Judge therefore

concludes, wrongly, that Prof. Duch’s evidence does not prove “sufficient knowledge”

by 1963.226

[148] While the Judge’s words are open to other interpretations, his “likely or highly

likely” to cause cancer or other harmful effects requirement appears to mean that he

considers that the public needed to be aware of general causation, i.e. whether smoking

did or did not cause cancer, rather than there merely being a risk that it did so.

[149] Assuming that this standard is correct, the Judge commits a palpable and

overriding error of fact when he concludes that the entire class was not, or should not

have been, aware of general causation before January 1, 1980. The uncontradicted

evidence showed that:

221 Exhibit 40049. 222 Exhibit 40049, PDF 16. 223 Testimony of Mr. Bourque, March 12, 2013 at 101. 224 Para. 104 of the Judgment says: “the evidence points to a much later date [than 1963]”. Para. 120

of the Judgment talks of an analysis of the expert reports but no explanation of such analysis is provided.

225 Judgment at para. 103. 226 The Judge supports this conclusion by reference to the Federal Government only starting its

education campaign in 1963 (even though the Federal Government had publicly declared that smoking causes lung cancer in 1963, which was widely publicized in Québec), but does not address how, even if this were the case, this contradicts the clear survey evidence to the contrary. The Judge quotes paras. 53-57 of Prof. Duch’s report in support of this view, even though it relates to a completely different subject area: those paragraphs concern the complexity of measuring belief or attitudinal questions as compared to awareness or exposure questions in a survey to reinforce why awareness, not belief, is the appropriate standard.

43


(a) As early as 1954, 82% of Quebecers had “heard or read anything recently

that cigarette smoking may be a cause of cancer of the lung.”227 By 1963,

that proportion had increased to 88%;228

(b) After 1963, surveys no longer asked the question concerning lung cancer

since “[p]ublic opinion firms do not ask questions about the obvious”;229

(c) In 1964, 87% of Quebecers had “read or heard in the past year of […]

reports stating that cigarette smoking is harmful”230 and 49% of Quebecers

believed that “cigarette smoking is a health hazard”;231

(d) In 1972, 79% of Canadians agreed that “smoking has harmful effects on

health (other than lung cancer).”232

[150] Prof. Duch’s conclusion was that “the majority of the Canadian and Québec

population did report thinking that smoking was harmful to health from the mid-1960s

onwards.”233 Accordingly, to the extent that the class had to be aware of general

causation, the evidence shows that it was.

1.3.5 The Judge erred in law and in fact with respect to the state of the art

[151] Art. 1053 CCLC establishes a fault-based regime, not strict liability. Under this

regime, it is not a fault to fail to warn of dangers that are not yet known or established by

science.234 This defence has been captured in the CCQ in art. 1473.235

[152] The Judge’s requirement that a Knowledge Date could only be established once

the public was aware of general causation puts the state of the art evidence squarely

227 Expert report of Prof. Duch (Exhibit 40062.1), PDF 12. 228 Expert report of Prof. Duch (Exhibit 40062.1), PDF 12. 229 Expert report of Prof. Duch (Exhibit 40062.1), PDF 13. 230 Expert report of Prof. Duch (Exhibit 40062.1), PDF 16. 231 Expert report of Prof. Duch (Exhibit 40062.1), PDF 43. 232 Expert report of Prof. Duch (Exhibit 40062.1), PDF 43. 233 Exhibit 40049, PDF 38. 234 London and Lancashire Guaranty and Accident Co. v. La cie F.X. Drolet, [1944] R.C.S. 82. 235 Art. 1473(2) reads: “Nor is he bound to make reparation if he proves that, according to the state of

knowledge at the time he manufactured, distributed or supplied the thing, the existence of the defect could not have been known […]”. See also Québec, ministère de la Justice, Commentaires du ministre de la Justice, vol. 1 (Québec: Publications du Québec, 1993) at 901 (art. 1473 CCQ).

44


before this Court. The Judge rejects the state of the art defence based, once again, on

his “common sense”236 to find that JTIM “knew of the risks and dangers of its products

causing one of the Diseases” from the beginning of the Class Period, i.e. 1950.237

[153] However, the uncontradicted evidence showed that the public health community

only reached a consensus on general causation in the 1960s.238

[154] The evidence of the medical historians was that both the Federal Government

and the U.S. Surgeon General only concluded that smoking caused lung cancer in 1963

and 1964, respectively.239 Dr. Siemiatycki also testified that it was only in the 1960s that

the medical community widely recognized that smoking was a likely cause of the class

diseases (and only in the 1970s with respect to throat cancer).240

[155] To establish that JTIM knew of the dangers of causation before the public health

community, the Judge treats the evidence of Profs. Flaherty and Lacoursière as an

“admission as it reflects on the Companies’ knowledge.”241 He then holds:

It is merely common sense to say that, advised by scientists and affiliated companies on the subject, the Companies’ level of knowledge of their products far outpaced that of the general public both in substance and in time. These experts’ evidence lead us to conclude that the Companies had full knowledge of the risks and dangers of smoking by the beginning of the Class Period.242 [emphasis added]

236 Judgment at paras. 70-73. 237 Judgment at para. 561. 238 Although epidemiology studies were first undertaken in the 1940s, they were not accepted as proof

of causation until the 1960s. For instance, in a 1952 study, British scientists Hill and Doll concluded that there was a statistical association between smoking and lung cancer (Exhibit 40346.25). Studies such as these were not immediately accepted as proof of causation for various reasons, including that it took time for the public health community to accept the new standards of epidemiology (Testimony of Dr. Perrins, August 19, 2013, at 157-158).

239 Exhibit 1238, PDF 94. The Judge accepts this in para. 54 of the Judgment. Para. 126 of the Judgment states that “Canadians paid much attention to the Surgeon General Reports”. It is unclear why the most significant Surgeon General report in history (in 1964) announcing that smoking caused lung cancer apparently had no effect on the awareness of the public in Québec.

240 Exhibit 1426.1, Table A, PDF 13. Prof. Perrins also provided evidence of when this consensus was established for laryngeal cancer and emphysema, but the Judge ignored this evidence as well. Exhibit 40346, PDF 14-15.


45


[156] Yet the uncontradicted evidence established that JTIM’s predecessor, MTI,

did not have any scientists or affiliated companies, and certainly could not have been

advised by them of the science before the early 1970s.243 There is no evidence of MTI

discovering or knowing of any risks before the public health community, or even before

the general public.244 MTI did not and indeed could not have had any hidden knowledge

of general causation before the Federal Government, the public health community and

the public because general causation was established, not in secret laboratory

experiments known only to MTI or the Appellants generally, but on the basis of population-

based studies that were publicly undertaken and published for all to see.

[157] In finding, absent any evidence whatsoever, that a family-owned company with

no scientists and no industry connections had acquired this knowledge some 13 or

14 years before the Federal Government and U.S. government, the Judge committed a

palpable and overriding error of fact. The Judge therefore erred in finding JTIM at fault for

a failure to convey information that it did not itself have.

[158] Moreover, the Judge held that Professor Perrins’ evidence was irrelevant,245 even

though it established: a) what the state of the art was with respect to the health risks of

smoking, and b) what the Federal Government knew about those risks and how it set

about informing Canadians, and this despite the fact that the Judge found that Health

Canada may be a “learned intermediary.”246

[159] The state of the Federal Government’s knowledge was, at the very least, relevant

to appreciate the prevailing circumstances and assessing the reasonableness of JTIM’s

243 See Testimony of Mr. Gage, September 5, 2012, PDF 26, l. 13 to 20. N 39 of the Judgment agreed

that this judgment applied less to MTI but this difference and its impact are ignored for the remainder of the Judge’s liability analysis.

244 Mr. Gage, who worked for MTI in the 1960s, testified that they did not know any more than the general public on issues of smoking and health at that time (Testimony of Mr. Gage, September 6 (PM), 2012, PDF 20-21).

245 N 44 of the Judgment, at para. 75 of the Judgment. See also the Judgment at N 42, where the Judge dismisses the importance of the Federal Government’s knowledge of the risks and dangers of smoking, and various actions and requirements over the Class Period, on the basis that the actions in warranty against the Federal Government had been dismissed. The mere fact that the actions in warranty were dismissed because of immunity flowing from the political nature of the government’s decisions says nothing about the relevance of the governing authority’s actions, positions and requirements throughout the Class Period, which is an essential part of the context in which the appropriateness of the Appellants’ conduct must be assessed.

246 Judgment at para. 256.

46


conduct at any given time. It was also relevant to assessing what constituted the state of

the art during the class period and, therefore, whether JTIM committed a fault for failing

to warn of certain risks prior to consensus. It was an error of mixed law and fact for the

Judge to set that evidence aside.

[160] As noted above, the Judge set aside Prof. Duch’s conclusions with respect to

when the class was aware of the risks because he found that they ought to have been

aware of general causation. This conclusion ignores the fact that: (a) as just

demonstrated, general causation was not established before 1963/1964, and (b) there

was clear evidence that class members were, or should have been, aware of general

causation long before January 1, 1980. This uncontradicted evidence included:

(a) The fact that the Federal Government education campaign to persuade

Canadians not to smoke from 1963 onwards proceeded on the basis that

smoking caused lung cancer.247 By 1965, the Federal Government

considered that their education campaigns had been successful in informing

Canadians of the risks of smoking;248

(b) The volumes of newspaper articles reported in the popular media as set out

at length by Profs. Flaherty and Lacoursière, which showed credible

agencies reporting in Québec that smoking caused lung cancer and other

harmful effects in the1950s and 1960s;249

(c) The evidence that every Canada-wide survey from 1963 onwards shows a

majority of people surveyed reporting awareness, and even belief, of a link

between smoking and lung cancer and other diseases;250 and

247 The preliminary results of the Veterans’ Study, published in 1960, concluded that there was a link

between smoking and lung cancer (Testimony of Mr. Choinière, June 10, 2013, at 99-113; Exhibits 40346.105 and 40346.106). In June, 1963, Minister Lamarsh stated in Parliament that smoking was a contributory cause of lung cancer (Exhibit 519-PP, PDF 2-3). In 1964, the government began distributing a Smoking and Health Reference Book which canvassed the available literature on smoking and disease, and which set out the three goals of the government’s education campaign: (1) to inform the public about the risks to health connected with cigarette smoking, (2) to encourage smokers to discontinue the habit, and (3) to dissuade non-smokers from acquiring the habit (Exhibit 40123).

248 Exhibit 40049, at PDF 16. 249 Expert report of Prof. Lacoursière (Exhibit 30028.1); Expert report of Prof. Flaherty (Exhibit 20063). 250 This is the same question put to Dr. Proctor by the Court regarding the US Surveys for which he

answered “the 1970s” which is then used in the Judgment to establish January 1, 1980 as the Knowledge Date.

47


(d) The uncontradicted evidence of Prof. Viscusi (which the Judge completely

misunderstood)251 establishing that U.S. consumers252 in the 1980s

overestimated the risk of contracting lung cancer by 400%. Prof. Viscusi

testified that this overestimation likely existed long before then.253

[161] The evidence therefore showed that all of the available data “demonstrate that

there has been sufficient information in Canada for decades for consumers to make

rational smoking decisions given the state of scientific knowledge about smoking risks.”254

Had the Judge properly considered that evidence, he could not have concluded that class

members were only aware of the risks of smoking on January 1, 1980. Rather, class

members were aware of the risks of smoking, as required by the appropriate state of the

art at the time, throughout the Class Period.

1.3.6 The Judge erred in law in failing to assess Appellants’ duties in light of the

circumstances and standards applicable at the time

[162] The conduct of any defendant must always be assessed in light of the

circumstances and standards at the time the alleged fault is said to have occurred. In this

respect, the duties imposed on manufacturers have evolved over time. As this Court noted

in Inmont Canada Ltd., rendered in 1984:

[18] The Respondents say there should have been a special warning on the cans of glaze. Today there is -- a “red label flammable sign” (evidence of Bill Gee; J.R., p.164) -- but this case must be judged by 1969 standards, and at that time manufacturers did not put specific warnings on products sold in bulk to the trade.255 [emphasis added]

251 Contrary to what the Judge indicates, his evidence was not simply a repetition of the awareness

evidence, but rather looked to determine whether more information would have made a difference to the decision making of Quebecers.

252 The Judgment accepts that Canadian and US consumers were effectively alike (Judgment at para. 100).

253 Exhibit 40494, PDF 44-46. 254 Exhibit 40494, PDF 3, at para. 5. 255 Inmont Canada Ltd. v. Compagnie d’Assurance Canadienne Nationale, EYB 1984-142586 at

para. 18 (QC CA). Indeed, the fact that fault must be established in light of the prevailing “circumstances, usage or law” dictates that the applicable standards vary over time. The Minister of Justice, in his comments under article 1457 CCQ, confirms that both 1053 CCLC and 1457 CCQ refer to the same general rule of conduct. “L’Article [1457] énonce d’abord, de façon expresse, le devoir général de respecter les règles de conduite qui, selon le cas, s’imposent à chacun en vertu des lois, usages ou circonstances, de manière à ne pas causer de préjudice à autrui. Ce devoir général, même s’il n’était pas exprimé au Code civil du Bas-Canada, expliquait et justifiait l’obligation de réparer, énoncée à l’Article 1053 C.C.B.C.” [emphasis added]

48


[163] Throughout the Class Period, the Federal Government acted as a

knowledgeable, interested and up-to-date regulator based on the state of the science.

This fact, which was not considered by the Judge, was relevant to assessing the

Appellants’ conduct over the Class Period.

[164] The Federal Government’s policy was to educate and persuade the public not to

smoke.256 It knew the public considered smoking to be dangerous.257 This is particularly

relevant in assessing the Government-approved package warnings from 1972 onwards.

[165] By the time Health Canada asked the Appellants to place this warning on

cigarette packages and advertising, it had already concluded that smoking caused cancer

and numerous other diseases, and that cigarette smoking was habit forming and difficult

to stop.258 The Federal Government chose the wording of the 1972 warning and was

satisfied that it was sufficient.259 In fact, as Prof. Viscusi pointed out, product warnings

were extremely rare in 1972, if not unprecedented.260

[166] Yet the Judge is dismissive of those warnings, stating, without any evidence, that

they would today be considered “almost laughably timid” and “remarkably naïve.”261 Some

45 years after the fact, he decides, based on no evidence, that the Federal Government

was wrong and the warnings were insufficient. In assessing the warnings in light of today’s

standards, the Judge commits precisely the kind of legal error the Court warned against

in Inmont.

256 Canada’s Smoking and Health Reference Book set out this policy in 1964 (Exhibit 40123). Testimony

of Mr. Lalonde, June 17, 2013, at 221-222; Testimony of Dr. Liston, December 11, 2013, at 58. 257 Testimony of Dr. Liston, December 11, 2013, at 57; Testimony of Mr. Lalonde, June 17, 2013, at 131;

Exhibits 40049, PDF 16 and 20068, PDF 1. 258 Minister LaMarsh declared that smoking was a contributory cause of lung cancer nearly a decade

previously (Exhibit 519-PP, PDF 2-3), a position that was repeated by the government on numerous occasions, including extensively in the Isabelle Commission Report, Exhibit 1554.4.

259 The Appellants adopted their first voluntary code in 1964 (Exhibit 40005B-1964). It did not have any labelling requirements in it, but this was in keeping with the Federal Government’s position at that time (Exhibit 40346.120, PDF 7). The first warning was introduced in 1972, and the text of the warning was that requested by the government (Exhibits 40005C-1972, 40150, PDF 1-2, 1554.10, PDF 1 and 40005D-1972, PDF 2). These warnings stayed in place until the government adopted the TPCA in 1989. Throughout the 1980s, the government asked the Appellants to extend the coverage of the 1972 warning, which it did (Exhibits 20074.1, PDF 1-2, 40164, 40165, 40205 and 21278).

260 Expert report of Prof. Viscusi (Exhibit 40494), PDF 22-23, at para. 42. 261 Judgment at paras. 110,117.

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[167] The Judge also infers from the decision to introduce starker warnings in 1989 that

the “government could not have been fully aware of the exact nature and extent of the

dangers of smoking before then, otherwise we must presume that they would have acted

sooner.”262 This is a palpable and overriding error of fact. The uncontradicted evidence is

that the Federal Government kept abreast of the research conducted by the public health

community, that it participated and sometimes led that research, and that it was of the

view long before it imposed those warnings that smoking caused lung cancer.263 In fact,

the Respondents admitted in their final submissions to the Court that “[t]he Public Health

community and Canada also knew that tobacco caused disease and strong dependency

in the early 1960s.”264 [emphasis added]

1.3.7 Conclusion

[168] The Respondents provided no evidence of the state of awareness. There was no

evidence from a single class member about their awareness, or whether any additional

information would have made a difference in their decisions. All of the qualified experts

were in agreement that Quebecers were, or should have been, aware of the health risks

by the mid-1960s at the latest.265 The Judge was the lone voice placing that knowledge

at January 1, 1980. There is simply no evidence to support that date (and certainly no

evidence that all class members were unaware prior to that date).

[169] For all of these reasons, the Judge’s Knowledge Date of January 1, 1980 must

fall. The appropriate conclusion is that class members were, or should have been, aware

from the beginning of the Class Period of the risks and dangers of smoking as those risks

were discovered and publicized.

262 Judgment at paras. 234-235. 263 Expert Report of Dr. Robert Perrins (Exhibit 40347) at PDF 10-11. 264 Respondents’ final submissions at para. 277. 265 Even the Respondents’ expert, Prof. Proctor, who was not qualified to opine on awareness in Québec

or Canada, proposed the 1970s. Prof. Duch was the only expert whose report and testimony dealt with awareness. As mentioned above, Mr. Bourque, the Appellants’ polling expert, was not mandated to determine the levels of awareness, or even belief, of Quebecers as to the risks and dangers of smoking.

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1.4 The Judge erred in law and in fact in his determination of the Knowledge

Date in Létourneau

[170] From September 1994, every eighth cigarette package sold in Canada contained

a black and white warning that took up 25% of the principal display surface and stated:

“CIGARETTES ARE ADDICTIVE / LA CIGARETTE CRÉE UNE DÉPENDANCE.”266

Notwithstanding this, the Judge finds that the public did not know that smoking cigarettes

could be difficult to stop before March 1, 1996.

[171] In so doing, the Judge adopts a date well after a scientific consensus was finally

reached on the term “addiction” and well after any of the dates offered by the various

expert witnesses.267 As discussed further below in section 7.1.1, this arbitrary 18 month

extension conveniently serves as support for the Judge’s erroneous finding that the

members’ claims for punitive damages were not prescribed.

[172] The Judge adopts this date without regard to (i) the evidence from the historians

concerning the long-standing awareness throughout the Class Period that smoking was

difficult to quit; (ii) the survey evidence that showed extremely high levels of respondents

agreeing that smoking is difficult to stop from the very first survey conducted in 1979; and

(iii) the evidence concerning the serious and longstanding scientific debate over the

proper terminology to describe the effects of smoking.

[173] In fact, the Judge sees “little significance to the specific word used”268 and

concludes that “[w]hat is important is the reality that, for the great majority of people,

smoking will be difficult to stop because of the pharmacological effect of nicotine on the

brain.”269 Having come to this conclusion, the Judge should have determined the

Knowledge Date in respect of the public’s awareness of the difficulty of quitting, which, as

the evidence shows, dates back to the 1950s. He instead focuses on the specific term

“addiction” and faults the Appellants for not having warned of that specific risk from the

beginning of the Class Period.

266 Exhibit 40003F-1994. 267 Judgment at para. 77. 268 Judgment at para. 149. 269 Judgment at para. 149.

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1.4.1 The Judge made errors of law and palpable and overriding error of fact with

respect to the Knowledge Date

[174] Both Profs. Lacoursière and Flaherty agreed that by the 1950s there was a

general consensus supported by numerous articles in mainstream media that smoking

was difficult to quit.270 Both concluded that the Québec public was aware of that risk in

the 1950s.271

[175] The first survey on the issue was conducted in 1979. Survey respondents were

asked if they agreed smoking was “very hard to stop,” not merely (as would be sufficient

to demonstrate awareness) whether they were aware of reports of that risk. Nevertheless,

84% of respondents agreed that it was.272 The level of agreement with various

formulations of the statement stayed constant throughout the years.273

[176] As of 1986, surveys began to ask about “addiction” specifically. By 1994, a

remarkable 95% of Quebecers surveyed (97% of Canadians) were of the opinion that

people can become addicted to tobacco.274

[177] The Judge rejects Prof. Duch’s testimony to the effect that, by 1986, a majority of

Quebecers considered smoking to be an “addiction,” on the basis that the Knowledge

Date can only be established once “a vast majority” is aware of the risks.275 The Judge

does not define what he means by a “vast majority.” In any event, if, as the Judge holds,

the terminological debate is unimportant, the survey evidence shows that, in 1979, well

over 80% of the respondents agreed that smoking was difficult to quit.276 And even if the

terminology does matter, the survey evidence shows 95% of Quebecers agreeing that

270 Exhibits 20063, PDF 13-14 and 30028.1, PDF 13-14. 271 Exhibit 30028.1, PDF 13, 29-30, 53; Testimony of Prof Flaherty, May 21, 2013, at 84-85;

Exhibit 20063, PDF 3-4, 14. 272 Judgment at para. 102. 273 Expert report of Prof. Duch (Exhibit 40062.1), PDF 70. 274 Exhibit 40062.1, PDF 70; Testimony of Prof. Duch, May 28, 2013, at 196-198; May 27, 2013, at 69. 275 Judgment at para. 124. 276 Even Respondents’ survey expert, Mr. Bourque, agreed that response rates of 70% constituted a

“sizeable majority.” (Testimony of Mr. Bourque, March 12, 2013, at 282-284); Exhibit 30016. He also qualified that type of response rate as “relatively rare”). His polling firm also qualified a 79% response rate to an awareness question as an indication that the Canadian population had “accordé une oreille attentive à la problématique” (Testimony of Mr. Bourque, March 12, 2013, at 321-322; Exhibits 40047.1, PDF 3 (French) and 40047.2, PDF 3 (English)).

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smoking is addictive in 1994, two years before the Knowledge Date chosen by the Judge.

By any definition, this must constitute a “vast majority.”277

[178] Once again, no evidence supports the date chosen by the Judge. Rather, the

Judge invokes the same supposed compatibility between Prof. Duch’s evidence and

Dr. Proctor’s answer regarding American’s awareness.278 For the reasons expressed

above,279 this is an error of law. Regardless, neither expert supports the date chosen by

the Judge. Indeed, even Dr. Proctor, when asked when the average American knew or

should reasonably have been expected to know that cigarettes were “addictive” (and not

merely difficult to quit) answered that it was following the U.S. Surgeon General’s report

on addiction in 1988,280 although he also agreed that “many people had recognized it was

difficult to quit, going back centuries.”281

[179] Furthermore, although the Judge finds that Canadians “paid much attention to

the Surgeon General Reports,” he decides that “the Québec public did not have sufficient

knowledge before [the 1994 addiction warning’s] appearance.”282 He reasons that "[I]f the

government, with all its resources, was not sufficiently concerned about the risk of tobacco

dependence to require a warning about it, then we must assume that the average person

was even less concerned.”283

[180] This assumption results from the Judge’s continued confusion between the

availability of information and the impact that information might have had. The pertinent

question is not the level of concern of either the Federal Government or the public. The

correct legal question is whether people were aware, or should have been aware, of the

risk of smoking being difficult to quit.

277 The Judge also ignores, once again, the law of deemed awareness, i.e. those who should have been

aware of the risk. If the survey evidence from 1979 shows 84% of respondents agreeing that it is very hard to stop smoking, the remaining minority (16%) was presumably exposed to the same information and so should have been aware of the risk.

278 Judgment at paras. 106-107. 279 See supra section 1.3.3. 280 Judgment at paras. 77, 99. Testimony of Dr. Proctor, November 29, 2012 at 47. In responding,

Dr. Proctor was referring specifically to the belief (i.e. agreement) that smoking is an addiction, not the awareness of the risk of the difficulty of quitting cigarettes (due to nicotine). Dr. Proctor said nothing on when the majority of Americans were aware of, or even agreed that, smoking could be difficult to quit.

281 Testimony of Dr. Proctor, November 27, 2012, at 230-231. 282 Judgment at para. 126. 283 Judgment at para. 127.

53


[181] Moreover, the Judge’s inference contradicts his previous finding to the effect that

the warnings about the health risks of smoking in the 1989 “dragged behind the public

knowledge.”284 Why the warning on addiction should lead to a different conclusion is

never explained.285 The Federal Government’s strategy with respect to health warnings

was focused on behaviour modification rather than education.286 Accordingly, the decision

to include a warning does not necessarily reflect a perceived lack of awareness among

the public and the Judge certainly could not presume as much in light of evidence to the

contrary.

[182] In any event, the Judge’s assumption is flatly contradicted by the evidence, which

showed that:

(a) The Federal Government knew and publicized that smoking could be

difficult to give up in the 1960s;287

(b) Nicotine was known to be a reason why smoking was difficult to quit;288

(c) There was considerable debate over whether the term “addiction” was the

scientifically appropriate word, even as late as 1989 and the early 1990s.289

Until that debate was resolved in 1989 in Canada, there could not have been

an obligation to warn about the specific risk of addiction;

(d) Before there was consensus on the term addiction, the relevant issue was

whether the public knew or should have known that smoking was difficult to

quit. The evidence is clear that Quebecers were, or should have been,

aware of that from the 1950s;290

284 Judgment at para. 118. 285 Incidentally, following the Judge’s logic, one would have to conclude that the average American still

does not know that smoking is difficult to quit since no addiction warnings appear on U.S. packages. 286 Testimony of Dr. Liston, December 11, 2013, at 57. 287 See e.g., Exhibits 40346.188, 40316, PDF 2, 40317, 40318 and 40123, PDF 33 ff. 288 Exhibits 40302 and 40340. 289 Testimony of Dr. Liston, December 11, 2013, at 67-92; Exhibit 40346, PDF 261-263; Testimony of

Dr. Perrins, August 20, 2013, at 225-226; Testimony of Dr. Negrete, April 3, 2013, at 112-116. 290 Exhibit 30028.1 PDF 13, 29-30, 53; Testimony of Prof. Flaherty, May 21, 2013, at 84-85;

Exhibit 20063, PDF 3-4, 14.

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(e) Once that scientific consensus was established, the Federal Government

chose to wait until 1994 to require a warning on cigarette packages;291

(f) In 1994, 95% of Quebecers surveyed (and 97% of Canadians) thought

people could become addicted to cigarettes;292 and

(g) Regardless, once the warning was placed on the package, class members

knew, or should have known, of the risks of smoking. In fact, they were

legally deemed to know from that moment onwards.

1.4.2 The Judge erred in law in failing to consider the introduction of the addiction

warning as the last possible date for awareness

[183] At the very latest, the Judge should have considered the introduction of the

addiction warning in 1994 as marking the moment at which a reasonably diligent and

prudent consumer could no longer claim to be unaware of the risk. Instead, the Judge

arbitrarily and without any evidence293 delays the Knowledge Date for 18 months after the

addiction warning was introduced to allow it to have "sufficient effect" on the public. Again,

he later uses this additional delay to circumvent the issue of prescription (see

section 7.1.1 below).

[184] Once again, the Judge confuses the proper legal standard of awareness with the

effect of the information on class members.294 The Judge talks of the need for the warning

to “circulate widely” to overcome the “impact” of decades of mixed messages.295 Yet there

is simply no evidence of any mixed messages, or any messages at all regarding

dependence or addiction other than the warning on the package beginning in 1994.

Nothing in the records shows the Appellants, including JTIM, or anyone else, saying that

smoking was not difficult to quit at any time.

291 Exhibit 40003F-1994. 292 Exhibit 40062.1, PDF 70. 293 The Judge claims that there is support in Exhibit 1337-2M at para. 132 of the Judgment. But

Prof. Duch explained that answers to an unprompted question, such as that asked in this survey, are not reliable since it only relates what people recall at that moment, or one answer out of many possible answers, and not everything they know. Testimony of Prof. Raymond Duch, May 28, 2013, at 144-149, 170-173; See also: Testimony of Prof. Viscusi, January 21, 2014, at 31. In addition, Exhibit 1337-2M was introduced without a proper witness and could not make proof of the truth of its content (see section 8.4.1 of this factum).


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[185] In any event, art. 2807 CCQ states that judicial notice shall be taken of the law in

force in Québec. The warning was mandated by the Tobacco Products Control Regulation

(amendment)296 adopted under the Tobacco Products Control Act, and registered on

July 21, 1993 in Part II of the Canada Gazette.297 The publication of a statutory instrument

constitutes notice not only of its existence, but of its content.298 From that point on, all

members of the public are deemed to know of the content.299 Accordingly, every member

of the class is deemed to know of the existence of the addiction warning at the very latest

by September 12, 1994, which is the date on which the regulation mandated that the

warning appear on cigarette packages. Consequently, all class members knew, or should

have known, of the risk of addiction at the very latest by September 1994 and it was an

error of law for the Judge to conclude otherwise.

1.4.3 The Judge erred in fact in finding that JTIM knew more than the public concerning

whether smoking was difficult to quit

[186] As with the class diseases, the Judge used the historians’ evidence to find that,

if the public knew that smoking was difficult to quit in the 1950s (which the Judge actually

rejects), then the Appellants must have known of the risk of addiction (as it became

accepted in the late 80s) from the beginning of the Class Period.300

[187] Although there is no evidence establishing what JTIM knew at that time, it would

of course have been exposed to the same mass of credible information in the 1950s and

1960s explaining that smoking was difficult to quit as the public was.

[188] There is no evidence of a knowledge imbalance between JTIM and the public on

this issue. The Judge simply switches between two different concepts. He refuses to

accept the public’s awareness of the difficulty to quit smoking as sufficient and requires

instead awareness of addiction. At the same time, he relies on the evidence of public

awareness of the difficulty to quit in order to establish JTIM’s knowledge of addiction.

296 Exhibit 40003E-1994. 297 Exhibit 40003A-1989. 298 Narbo Investment Corp. v. St-Léonard (Cité de), [1975] C.A. 595 at 8 (QC CA), aff’d [1978] 2 S.C.R.

864. 299 Wendover-et-Simpson (Corp. municipale de) v. Filion, [1992] R.D.I. 263 at 6 (QC CA). 300 Judgment at paras. 138, 566.

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[189] There is only a requirement to warn of the state of the science. Addiction became

the appropriate term in 1988 in the U.S. and 1989 in Canada. To the extent that the use

of this term adds any material information to the public’s knowledge (which the Judge

does not believe),301 there could be no obligation to warn of addiction before 1988 or

1989. The evidence shows that by 1986, “the majority of the population considered

smoking to be an ‘addiction.’”302 Accordingly, even when the terminology changed, there

was sufficient awareness among the class so that it cannot be considered a fault not to

have warned about that risk.

1.5 The Judge erred in fact in finding JTIM had conspired with the other

Appellants

[190] The Judge finds that the Appellants participated in a “policy of silence”303 from

1962 onwards that justified a conclusion of solidary liability, pointing to the companies’

coordination through the CTMC, and its predecessor, the Ad Hoc Committee, as evidence

of that conspiracy. In arriving at that conclusion, the Judge:

(a) ignores the evidence that the CTMC was created at the request of the

Federal Government, and that it performed the standard role of a trade

association;304

(b) neglects to recognize that the CTMC had a very limited function as regards

to dealing with the public;305 and

(c) fails to identify any agreement between MTI and the other Appellants to act

in a wrongful way.

[191] The Judge finds that MTI was a conspirator from 1962 because it was a party to

the Policy Statement.306 However, the evidence shows that this statement had a perfectly

301 Judgment at para. 149. 302 Judgment at para. 102, referring to the Expert report of Prof. Duch (Exhibit 40062.1) at PDF 5. 303 Judgment at para. 271. 304 Testimony of Mr. Neville, June 6, 2012, at 14. The predecessor to the CTMC, the Ad Hoc Committee,

was formed at the request of the government for the industry to speak with one voice at the Lamarsh Conference (Exhibit 20326, PDF 2). See also Exhibits 20328, 20329, 20330 and 20331. See also Testimony of Mr. Lalonde, June 7, 2013, at 54-55: “Alors, ceci [the CTMC] m’apparaissait bénéfique pour l’obtention… pour que nous puissions atteindre nos objectifs.”

305 See for instance Testimony of Mr. Neville, June 7, 2012, at 300. 306 Judgment, paras. 441 ff., 572.

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legitimate purpose.307 At the time of the Policy Statement, the public health community

and the Federal Government had not yet concluded that there was a causal relationship

between smoking and any disease.

[192] The Judge also concludes that the Appendix to the Policy Statement

(the “Appendix”) proves that “these companies colluded among themselves in order to

impede the public from learning of health-related information about smoking, a collusion

that continued for many decades thereafter.”308 However, although MTI signed the Policy

Statement, there is no evidence whatsoever that it ever received, was aware of, or agreed

to the content of the Appendix.309

[193] Indeed, MTI received the Policy Statement in a letter from ITL’s Edward Wood on

October 12, 1962. The Appendix was not included.310 The Policy Statement was signed

by MTI on October 15, 1962.311 On October 18, 1962, Mr. Devlin from RBH sent a letter

to Mr. Wood suggesting a meeting to agree on how to respond to smoking and health

reports. MTI was not copied on that letter and there is no evidence it ever received it.312

A meeting subsequently did take place (likely on October 29, 1962313) at which MTI was

not present.314 Although the Appendix itself is undated, all of the evidence suggests that

it was the result of that subsequent meeting and there is no evidence that MTI even knew

of its existence.315

[194] The Judge also concludes that MTI was part of the conspiracy because it had

participated in the planning for the industry response at the LaMarsh Conference in 1963.

This conclusion is based, in part, on his finding that a Mr. DeSouza attended “the planning

307 Exhibit 154, PDF 2. 308 Judgment at para. 449; Exhibit 154B-2M. 309 In addition, as discussed in section 8.4.1 below, the Appendix is a “2M” document, introduced without

a proper witness and could not make proof of the truth of its content. 310 See Exhibits 154, the Policy Statement, and 154A, the letter, which refers only to “a statement of

policy.” 311 Exhibit 154. 312 Exhibit 154C-2M. 313 Exhibit 154G-2M. 314 Exhibit 154M-2M. 315 The Respondents did not ask Mr. Gage, who was a key MTI employee at the time, whether he knew

of or had signed the Appendix.

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meeting for the LaMarsh Conference presentations”.316 However, Mr. DeSouza was an

employee of ITL, not of MTI, at the time.317 Also, the Judge’s finding is based on

Exhibit 688B – an exhibit referring to a meeting that took place in August 1964, whereas

the LaMarsh Conference took place in November 1963. Exhibit 550-2M, which was a

LaMarsh planning meeting does not show Mr. DeSouza or anyone from JTIM present.318

[195] Regardless, the submissions made by the Ad Hoc Committee at the LaMarsh

Conference did not, in any way, change or even affect the Federal Government’s view

that “cigarette smoking is a contributory cause of lung cancer.”319

2. THE JUDGE ERRED IN LAW AND IN FACT IN HOLDING THAT THE

RESPONDENTS HAD PROVEN CAUSATION FOR ALL CLASS MEMBERS

[196] The Judge rightly recognizes that the Respondents had the burden to prove that

the Appellants’ alleged faults caused class members to start or to continue smoking

(“conduct causation”) and that smoking caused the Blais class diseases and led to

addiction for Létourneau class members (“medical causation”).320

[197] However, the Judge’s approach is predicated on an outright rejection of the well-

established principle that all elements of liability, including causation, must be proven for

“each class member,” as articulated by the Supreme Court in Bou Malhab.321 The Judge

316 Judgment at para. 572. 317 This is evidenced by at least two studies in evidence: Exhibits 20183-AUTH, PDF 2 and 20184-

AUTH, PDF 2. 318 The attendee list for the LaMarsh Conference (Exhibit 20341) does not show Mr. DeSouza being

present at the conference. It indicates that Mr. Fortier was representing MTI. Mr. Fortier was the owner of a sales agency that distributed MTI cigarettes in Québec. He was not an employee of MTI. Testimony of P. Gage, September 5, 2012, at 22 (PDF 23).

319 Exhibit 519-PP, PDF 3. 320 Judgment at paras. 647-648, and sections VI.C. and VI.E. On conduct causation, the Judge applied

to Létourneau the same reasoning he had applied to Blais (see Judgment at para. 810-817). Accordingly, the grounds raised in section 2.2 of this factum apply equally to Blais and Létourneau. As for medical causation, section 2.1 of this factum deals exclusively with the errors in Blais. The Judge’s errors with respect to the issue of tobacco dependence in Létourneau are dealt with in section 3 of this factum.

321 This principle has long been recognized and reiterated several times by the Supreme of Canada, for instance in Québec (Public Curator) v. Syndicat national des employés de l'hôpital St-Ferdinand, [1996] 3 R.C.S. 211 at paras. 31-36, St. Lawrence Cement Inc. v. Barrette, [2008] 3 SCR 392, at para. 111 and Bisaillon v. Concordia University, [2006] 1 SCR 666 at para. 17. See also Imperial Tobacco Canada Ltd. v. Létourneau, 2014 QCCA 944 at paras. 36-37, 41. The Judge erroneously concluded, when dealing with medical causation, that section 15 of the TRDA overrides this principle (Judgment at 693), an error more fully discussed in the section dealing with medical causation.

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fills substantial evidentiary gaps with untenable presumptions, the effect of which is to

conceal attributes of individuals which, if accounted for, would have exposed untold

numbers of cases as “non-causal."

[198] Rather than determining causation by looking at actual class members, or

similarly situated subpopulations of class members, the Judge determines conduct

causation by reference to a fictional “rational” smoker, and medical causation by

reference to an equally fictional average smoker. The net result is that the Appellants are

held liable towards class members whose smoking was not caused by their fault or, as

the Judge himself admits,322 whose class diseases were not caused by smoking, in

violation of the well-established principles governing class actions and liability in

general.323

2.1 Conduct causation

2.1.1 The Judge’s reasons

[199] The Judge recognizes that Respondents had to prove that each class member’s

decision to start or continue smoking was caused by a fault of the Appellants, correctly

describing this requirement as a “critical issue.”324

[200] His reasoning on conduct causation is found at paragraphs 791 to 809 of the

Judgment.325 He confirms that the Respondents did not even try to prove the cause of

each member’ smoking because that would have been “impossible in practical terms.”326

The Judge did not specify whether the same reasoning also applied to conduct causation. The question is academic, considering that the Respondents did not attempt to adduce any evidence through section 15 of the TRDA with respect to conduct causation and never even invoked it in this regard. The potential impact of section 15 of the TRDA is therefore not relevant when assessing the whole issue of conduct causation.

322 Judgment at para. 975. 323 St. Lawrence Cement Inc. v. Barrette, [2008] 3 SCR 392 at para. 115; Bank of Montréal v. Marcotte,

2014 SCC 55 at para. 104. See also Québec (Public Curator) v. Syndicat national des employés de l’hôpital St-Ferdinand, [1996] 3 S.C.R. 211 at paras. 31-36 and Bisaillon v. Concordia University, [2006] 1 SCR 666 at para. 17: “It [class action] cannot serve as a basis for legal proceedings if the various claims it covers, taken individually, would not do so”.

324 Judgment at para. 703. 325 The Judge applies this same reasoning to conduct causation in Létourneau (Judgment at paras. 810

and 813). The Judge discusses the same presumption elsewhere in his Judgment at paras. 263-264, 514-516, but as indicated under footnote 146, his “understanding of the rules relating to presumption” is presented in section VI.E (Judgment at paras. 791-809).


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Undeterred by the absence of evidence, the Judge ostensibly resorts to proof by

presumption and concludes, once again and without ever relying on a single proven fact,

that “mere common sense dictates that clear warnings about the toxicity of tobacco would

have had some effect on any rational person,” even while acknowledging that, “even in

the presence of such warnings today, people start and continue to smoke.”327

[201] As a result, the Judge creates a presumption that every single class member,

over a period spanning five decades, took up and continued to smoke because of a lack

of warning of the health risks of smoking. His reasoning, it would appear, is that no rational

person would willingly decide to smoke if aware of the risks – a moral judgment that is

flatly contradicted by the evidence.

[202] The Judge does not explain how this presumption can be said to emerge from

the evidence when the latter showed that, throughout the Class Period, a very significant

proportion of the Québec population was aware of the risks. Nor does he attempt to

reconcile this presumption with the fact that, as he himself notes, many people continue

to take up smoking today, notwithstanding the presence of explicit graphic health

warnings occupying 75% of the package’s display surface. Nor does he reconcile it with

his own finding that class members who started to smoke after the Smoking Dates and

continued after the Knowledge Dates had “assumed the risks,”328 which is to say that they

chose to smoke in full cognizance of the risks.

[203] Having set up the presumption, the Judge goes on to say that Appellants have

failed to rebut it and awards damages on a collective basis. The Judge’s “common sense”

thus ends up leading to an irrebuttable finding that every single class member between

1950 and 1998 took up or continued smoking because of Appellants’ faults.

2.1.2 The Judge erred in law by applying the wrong standard for causation

[204] The Judge first errs by attributing to the Appellants a position on causation that

was never actually advocated by JTIM329 and by adopting a standard of causation hitherto

unknown to the law, the so-called "it-stands-to-reason" causation test proposed by the

Respondents.330

327 Judgment at para. 803 [emphasis added]. 328 Judgment at paras. 828, 832. 329 Judgment at para. 791. 330 Judgment at para. 792.

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[205] The Judge wrongly suggests that Appellants took the unreasonable position that

Respondents had to prove that each and every class member’s decision to smoke was

caused by the “sole fault of the Companies.”331 JTIM pleaded no such thing. It merely

asked that the Court adhere to the basic conditions of civil liability, i.e. that the

Respondents be required to prove a causal fault with respect to each class member

before any liability could ensue.332 In practical terms, this required the Respondents to

prove, on a balance of probabilities, that all the class members would not have taken up

or continued smoking in the absence of a fault by the Appellants.

[206] This standard of causation proposed by JTIM has always been the accepted

standard. As explained by this Court in Chouinard v. Landry, when the alleged fault is

informational in nature, causation will be established by proving that the plaintiff would

have made a different choice if the information had been disclosed:

Maintenant, à supposer même que l’on reconnaisse l’existence d’une violation de l’obligation de renseignement, soit par le défaut de mentionner des traitements alternatifs, soit par celui de révéler le risque d’infection, on doit alors rechercher si cette violation avait un caractère causal.

En l’espèce, l’on ne saurait dire que le vice d’information aurait été la cause juridique du dommage. L’on doit se demander si, oui ou non, en présence d’une telle information, le client aurait consenti à l’intervention. Ce n’est que dans la mesure où l’on peut tirer de la preuve et de l’ensemble des circonstances une telle conclusion que le dommage deviendrait véritablement

331 Judgment at para. 791. The Judge misapprehended the Appellants’ position on causation. See, in

particular, paragraphs 791 to 793 of the Judgment. At paragraph 791 he writes that Appellants took the position that Respondents had to prove that each members’ decision to smoke resulted solely from the Appellants’ failure to provide information. It was not Appellants’ position that Respondents were obliged to prove that the lack of information was the only cause of smoking, but rather that it was a necessary cause, and for each class member. In other words, Respondents had to prove that the lack of information had in fact (alone or in combination with other factors) made a difference in the decision to smoke, or not. Having erred in his understanding of the test, the Judge proceeds to conflate the test for causation with the burden of proof. At paragraph 793, he opines that, if it were necessary to prove that a lack of information was “the cause,” then “it comes down to determining whether it is probable that the class members would not have smoked if they had been properly warned.” Conversely, he writes, if the lack of information needs merely be “a cause” it is sufficient to show that smoking is a “logical, direct and immediate consequence of the faults.” In so reasoning, the judge conflates the test for causation (“logical, direct and immediate consequence”) with the burden of proof (“whether it is probable”).

331 Judgment at para. 804. 332 J-L. Baudouin, P. Deslauriers and B. Moore, La responsabilité civile, vol. 1, 8th ed. (Cowansville,

Yvon Blais, 2014) at paras. 1-683-1-687.

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causal. Je ne suis cependant pas sûr, en analysant toujours le concept de responsabilité par rapport à l’appréciation du comportement du médecin, que dans notre système de droit civil cette chaîne causale s’apprécie par rapport à un patient en quelque sorte abstrait, comme dans le test de common law. Le droit civil exige plutôt l’appréciation du comportement du médecin, bon praticien, du bon père de famille médecin, par rapport au patient placé devant lui. En l’espèce, il faut examiner plutôt si le patient lui-même aurait consenti à l’intervention en retenant cependant le risque que la version de celui-ci ne soit colorée par les malheurs qui lui sont arrivés.333 [emphasis added]

[207] The Supreme Court confirmed the application of this standard in a case involving

a manufacturer’s duty to warn in Hollis.334 In that case, sufficient evidence was adduced

at trial, including Ms. Hollis’ testimony, to prove on the balance of probabilities that she

would not have agreed to a breast implant surgery if she had been properly warned of the

risk of rupture.335

[208] After noting that proving a negative is “never an easy task,” the Judge rejects the

standard proposed by JTIM, holding: “the Court does not believe that it is necessary to

go that far in a claim for tobacco-related damages.”336 He then lowers the standard of

333 Chouinard v. Landry, [1987] R.J.Q. 1954 (QC CA) at 1970-1971. See also: Allaire v. Girard &

Associés (Girard et Cie comptables agréés), 2005 QCCA 713; Langlois v. Fournier, AZ-01021037 (QC SC); Stevens v. Ackman, [1989] R.R.A. 109 (QC SC); Johnson v. Harris, [1990] R.R.A 832 (QC SC); Masson v. De Koos, [1990] R.R.A. 818 (QC SC); Pelletier c. Roberge, J.E. 91-1514 (QC CA); Chabot v. Roy, REJB 1997-02353 (QC CA); Lefebvre v. Madore, J.E. 96-126 (QC CA); J-L. Baudouin, P. Deslauriers and B. Moore, La responsabilité civile, vols. 1 and 2, 8th ed., (Cowansville: Yvon Blais, 2014) at paras. 1-686, 2-70, 2-269, 2-383; Alicia Soldevila, “La responsabilité pour le fait ou la faute d’autrui et pour le fait des biens”, in Collection de droit 2014-2015, École du Barreau du Québec, Responsabilité, vol. 4 (Montréal: Barreau du Québec, 2014) 43 EYB2014CDD89, p. 49-50. Also, article 1607 CCQ further confirms that causation is an essential and integral element of the determination of any liability, regardless of the origin of the source of the obligation: “The creditor is entitled to damages for bodily, moral or material injury which is an immediate and direct consequence of the debtor’s default” [emphasis added].

334 In Hollis, the majority of the Supreme Court opted for a subjective test (at para. 45) whereas the minority was in favour of an objective test (at para. 67). In any event, in both instances, the testimony of the plaintiff is necessary to substantiate the allegation that more information would have made a difference. The main difference between the two tests is that with respect to the objective test, the ex post-facto testimony of the plaintiff is assessed by testing the plaintiff’s assertion “by reference to objective evidence as to what a reasonable person would have done” (at para. 67), whereas the subjective test mainly relies on the testimony of the plaintiff, which version can be tested in cross-examination.

335 Hollis v. Dow Corning Corp., [1995] 4 S.C.R. 634 at paras. 44, 45, 47, 65, 66, 67. 336 Judgment at para. 794.

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causation required to a mere presumption (based not on evidence but on his “common

sense”) that clear warnings would have had “some effect on any rational person.”337

[209] This is an error of law. Civil suits for “tobacco-related damages” are governed by

the same rules of liability as any other damage claims. The mere possibility that an alleged

failure to warn could have had “some effect” on a rational person is insufficient for the

fault to be causal upon actual class members.338 The failure to warn must be shown to

have been the actual “causa causans” of every class member’s decision to start or

continue smoking, whether rational or not.

[210] The issue is thus not whether a warning might have had “some effect” on a given

class member but rather whether it would have modified his or her decision.339 Even the

Judge concedes that, in light of the evidence, such a conclusion cannot be drawn for

every class member:

[…] Mere common sense dictates that clear warnings about the toxicity of tobacco would have had some effect on any rational person. Of course, that would not have stopped all smoking, as evidenced by the fact that, even in the presence of such warnings today, people start and continue to smoke.340 [emphasis added]

[211] The Judge also acknowledges that there are a variety of reasons as to why

people decide to start and continue smoking, such as peer pressure, parental example,

the desire to rebel or other environmental or social forces.341 Any of these factors is as

likely to have caused a class member to start or continue smoking.

[212] The Judge wrongly assumes that these many possible causes of smoking

operated on each class member in contributory or complementary ways, such that

inadequate warnings is presumed to have always been “one of the factors,” without any

evidence supporting this proposition. At no point does the Judge consider the possibility

337 Judgment at para. 803. 338 J-L. Baudouin, P. Deslauriers and B. Moore, La responsabilité civile, vol. 1, 8th ed. (Cowansville:

Yvon Blais, 2014) at paras. 1-683-1-687. See also Chabot v. Roy, REJB 1997-02353 at para. 20 (QC CA).

339 Chouinard v. Landry, [1987] R.J.Q. 1954, at 1970-1971 (QC CA). 340 Judgment at para. 803. 341 Judgment at para. 806.

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that the many possible causes of smoking may have operated independently – that is to

say that the cause of a given individual’s decision to start smoking may have had

everything to do with peer pressure, for instance, and nothing to do with allegedly

inadequate warnings.342

[213] The evidence shows that people do not start to smoke because of the acts of

tobacco companies.343 There was no evidence that Appellants’ alleged faults had any

effect on any, let alone all, of the class members’ decision to smoke.

2.1.3 The Judge erred in law by relying on “common sense” to create a presumption of

causation that is contradicted by the evidence

[214] Rather than attempting to make any evidence of conduct causation for all class

members, the Respondents tried to circumvent the obstacle by putting forward a number

of novel legal theories which, they argued, relieved them of proving causation as an

element of liability.344 There was accordingly no evidence that any class member, or any

identifiable number of class members, smoked or continued smoking as a result of a fault

by the Appellants.

[215] The Judge rejects the various theories put forward by the Respondents and

correctly acknowledges that “proof of causation is a particularly critical element in these

cases.”345 Yet, instead of dismissing the class actions in light of the complete lack of

evidence tendered by the Respondents, the Judge relieves them from their burden to

establish causation with respect to each class member on the basis that such proof was

“impossible in practical terms.”346

342 For example, the Judge noted that: “Where the proof shows that other causes existed, it might be

necessary to apportion or reduce liability accordingly but that does not automatically exonerate the Companies. We consider that possibility in a later section of the present judgment.” (Judgment, at para. 795). Nowhere does the Judge consider that some causes may not be operating at all, or operate only in some cases.

343 Expert Report of Prof. Heckman (Exhibit 21320.1), PDF 7, para. 16; Expert report of Prof. Soberman (Exhibit 40560), PDF 2, 16-19; Testimony of Prof. Pollay, January 24, 2013, at 65-74.

344 They argued first that the mere fact of manufacturing and marketing cigarettes was a fault (Plaintiffs’ Notes and Authorities, section B.3.b., at paras. 22-50). They also pleaded a novel variation of the risk-utility doctrine (Plaintiffs’ Notes and Authorities, at para. 30) and argued that the Appellants’ conduct should result in a fin de non-recevoir preventing them from pleading the absence of causation resulting from the widespread awareness of the health risks associated with smoking (Plaintiffs’ Notes and Authorities, section B.4.c.1., at paras. 99-120). Although these baseless arguments were appropriately dismissed by the Judge, the mere fact that they were advanced betrays Respondents’ awareness that their legal syllogism was fundamentally flawed.


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[216] This alleged impossibility, however, was entirely self-created. The Respondents

could have attempted to support their assertion by evidentiary means other than having

all class members testify.347 The Respondents were the masters of their own case and

must bear the consequences of their decision not to make any evidence in this respect.348

In truth, the alleged impossibility does not result from practical difficulties, but rather from

the plain fact that the impact of the alleged faults would differ between individuals, thus

negating any presumption of universal class effect.

[217] The result is that the Judge both modifies substantive law and turns a blind eye

to the evidence before him to allow for collective recovery, as if the mere authorization of

the class actions could justify tailoring the law and the facts to satisfy the Respondents’

ambitions.349 Specifically, to arrive at the desired result, the Judge misapplies the law

under arts. 2846 and 2849 CCQ to derive from “mere common sense”350 a presumption

that the Appellants’ failure to warn caused each class member to smoke, notwithstanding:

(a) the absence of any supporting evidence from Respondents;

(b) uncontested evidence led by the Appellants, which clearly contradicted the

presumption;

(c) the Judge’s own finding that, in any event, “clear warnings about the toxicity

of tobacco... would not have stopped all smoking...”;351 and

(d) the fact that, more than thirty-five years after the Knowledge Date in the

Blais File and almost twenty years after the Knowledge Date in the

Létourneau File, and long after any possible fault of the Appellants, large

numbers of individuals continue to take up smoking.

347 The Respondents could have tried to make proof of conduct causation by statistical sampling or

sociological studies, whether under section 15 of the TRDA, or otherwise. In addition, if the class representatives had been put forward, they might have confirmed that this was the case for them, which surely would be stronger evidence than a presumption based, not on evidence, but on the Judge’s own “common sense.” Conversely, if the representatives or some class members had denied any causal link between the Appellants’ conduct and their decision to smoke, it would have made it impossible for the Court to conclude or presume as it did that all class members smoked because of the Appellants’ fault.

348 By making causation a common question, that is precisely what the representative must be presumed to be able to assist in doing.

349 See for instance Infineon Technologies AG v. Option consommateurs, 2013 SCC 59 at paras. 59, 61, 65, 67-68. The fact that the Judge was clearly looking for a way to make these cases work at a collective level is illustrated, inter alia, by his reasons in the judgment on Appellants’ Motion to Dismiss: Conseil québécois sur le tabac et la santé v. JTI-Macdonald, 2013 QCCS 1924 at paras. 19, 23.


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[218] As noted by the Judge, art. 2846 CCQ provides that a presumption is an

“inference drawn… from a known fact to an unknown fact.”352 A presumption is thus

nothing more than a factual inference drawn from circumstantial evidence (i.e., from

underlying facts that have been proven on a balance of probabilities).

[219] The Judge identifies the “known facts” from which his inference of causation is

drawn as the Appellants’ faults.353 In other words, rather than relying on circumstantial

evidence pointing to a causal relationship (which evidence is entirely absent from the

record), the Judge infers causation from the faults themselves, which is to say that

causation as an element of civil liability is done away with entirely. This conflation of fault

and causation is a clear error of law.354 Any alleged lack of clarity in warnings says nothing

about whether that lack of clarity caused every single class member to take up or continue

smoking.

[220] Given the absence of evidence tendered by the Respondents, the Judge, once

again, invokes his “common sense” to presume causation. Such reliance on common

sense as a substitute for a lack of evidence is not permitted. It is an error of law to

establish a presumption that is not drawn from legally proven facts.355 As this Court once

noted in reference to a decision by Justice Riordan, “a presumption of fact […] does not

allow for the filling of an evidentiary void.”356

352 Judgment at para. 800. The fact that the Judge identifies advertising as part and parcel of the

compound of faults is puzzling given his finding that advertising a legal product is not a fault: Judgment at paras. 384, 433-434.

353 Judgment at para. 800. 354 J-L. Baudouin, P. Deslauriers and B. Moore, La responsabilité civile, vol. 1, 8th ed., (Cowansville:

Yvon Blais, 2014) at para. 1-665. See also St-Jean v. Mercier, [2002] 1 S.C.R. 491 at para. 116. 355 See Barrette v. L’Union canadienne, 2013 QCCA 1687 at paras. 58-59. In any event, notwithstanding

what norm is applied, the errors committed by the Judge on this issue are so clearly palpable and overriding as to warrant this Court’s intervention. Indeed, a presumption cannot be said to be reasonably supported by the evidence when it is not drawn from proven facts and is in fact specifically contradicted by the evidence: See Layne Christensen Company c. Forage LBM inc., J.E. 2009-1517 at paras. 32-36 (QC CA).

356 Waters v. White, 2012 QCCA 257 at para. 167. In that decision, the Court of Appeal concluded that Justice Riordan had erred in deciding that the respondents would have terminated the pregnancy based on the probabilities alone of the chance they would have a sick child. According to the Court of Appeal, this was based on pure speculation since “there are many intelligent people who decide to complete pregnancies mindful of the chance they will have a sick child” (at para. 170). JTIM submits that there are also intelligent and highly educated people who decide to start and continue smoking despite full knowledge of the risks.

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[221] In any event, the Judge’s “common sense” proposition defies logic and is actually

contradicted by the evidence before him. Specifically, his presumption is entirely

irreconcilable with the voluminous evidence showing that, since the beginning of the

Class Period, significant numbers of Quebecers were actually aware of the risks and

chose to smoke regardless.357

[222] In fact, the Judge himself contradicts his own presumption when he

acknowledges that sufficient warnings “would not have stopped all smoking.”358 This is

incontestable proof that people smoke for a variety of reasons that have nothing to do

with any of the Appellants’ alleged faults, especially insufficient warnings.359

[223] Indeed, even if we were to accept the Knowledge Dates chosen by the Judge,

any individual who, having taken up smoking after the Smoking Dates, chose to continue

smoking after the Knowledge Dates did so freely and in full cognizance of the risks (as

the Judge himself concedes)360 and, thus, independently of any alleged fault by the

Appellants.

[224] The Judge attempts to circumvent this inconvenient truth by attributing this

decision to smoke notwithstanding knowledge of the risks to the class members’

“stupidity” and apportioning liability accordingly,361 while at the same time allowing these

same class members to benefit from his universal presumption of causation, which is

premised on the notion that no rational person would ever choose to smoke if aware of

the risk. With respect, the Judge’s approach is inconsistent and is a further demonstration

357 While there can be a debate as to whether individuals who were unaware of the risks would have

nevertheless chosen to smoke if they had been aware, there most certainly cannot be any such debate with respect to smokers who were actually aware.

358 Judgement at para. 803. 359 The Judge recognizes that there are many factors at play other than the Appellants’ alleged fault to

explain why class members start and continue smoking, at para. 806 of the Judgment. The Judge, however, blends together all these separate causes and erroneously assumes that they all might have played a role in every class member’s decision to start smoking, in another illustration of judicial speculation. In addition, the Judge’s presumption is contradicted by the fact that tobacco product advertising was banned between 1989 and 1995, and then again in April, 1997 past the Class Period, and by the testimony of expert Dr. Heckman, a Nobel prize winner whose testimony is completely ignored in the Judgment without any justification. Dr. Heckman confirmed that the impact of advertising is limited and that it cannot explain smoking behaviour. Expert Report of Prof. Heckman (Exhibit 21320.1), PDF 7, para. 16. See also Expert report of Prof. Soberman (Exhibit 40560), PDF 2, 16-19; Testimony of Prof. Pollay, January 24, 2013, at 65-74.

360 Judgment at paras. 828, 832. 361 Judgment at para. 833.

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that his presumption of causation does not hold water. You cannot, on the one hand,

presume that every single class member smoked because they were not given all the

facts by Appellants, while at the same time apportioning liability on the basis that some

of those same class members were aware of and assumed the risks and really should

have known better.362

[225] In the end, the Judge’s reliance on so-called common sense amounts to pure

speculation.363 Despite all the evidence pointing to the opposite conclusion, the Judge

presumes that “the Companies' faults were indeed one of the factors that caused all the

[…] Members to smoke.”364 In this regard, the Judge misunderstands the requirement of

“precision,” when he states that the test does not require all other possibilities to be

excluded.365 This simply means that the presumption must satisfy the balance of

probabilities as opposed to a higher standard of proof. It does not mean, however, as the

Judge suggests,366 that causation is established even when other factors can just as

easily explain the result.

[226] As recently reiterated by the Supreme Court in Hinse, a presumption of causation

cannot be drawn if the proven facts do not reasonably rule out other possible causes of

the damage:

An unknown fact will not be proven if the known facts cause another fact that is inconsistent with the fact the plaintiff wants to prove to be more or less likely, or if they do not reasonably rule out another possible cause of the damage he or she suffered.367

362 Moreover, even if we were to accept the Judge’s value judgment about smokers being “stupid,”

it goes without saying that such “stupid” smokers also existed prior to the Knowledge Dates and that their decision to start smoking was also unrelated to any alleged lack of knowledge of the health risks associated with smoking. The Judge compounds this error by requiring that awareness reach the “vast majority” of the population before sufficient knowledge could be established with respect to the class. Again, such reasoning necessarily entails that, long before 1980, a great number of class members had sufficient awareness of the risks to make an informed decision, such that no conduct causation can be established for all.

363 J.-C. Royer, La preuve civile, 4th ed., (Cowansville: Yvon Blais, 2008) at para. 842. 364 Judgment at para. 807. 365 Judgment at para. 805. 366 Judgment at para. 804. 367 Hinse v. Canada (Attorney General), 2015 CSC 35 at para. 72. See also J.-C. Royer, La preuve

civile, 4th ed. (Cowansville: Yvon Blais, 2008) at para. 842; St-Jean v. Mercier, [2002] 1 SCR 491 at para. 115.

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[227] Given the overwhelming evidence that a vast but unknown number of class

members smoked for a variety of reasons unrelated to a lack of awareness about the

risks, it cannot seriously be asserted that there is an “induction puissante” that the

Appellants’ alleged omissions or misinformation caused all class members to smoke.368

The reasons behind each class member’s decision to smoke are much more varied and

complex than the Judgment implies.

[228] The Judge ultimately created what amounts to a legal presumption of causation,

similar to that under s. 17 TRDA, wherein the legislator exceptionally enacted a specific

presumption of conduct causation to facilitate the Québec Government’s recourse against

the tobacco manufacturers for the recovery of health care costs. The Judge does not have

any jurisdiction to act as a legislator and to create new rules and, in so doing, he

committed an additional error of law.

[229] Class actions require that proof be made from which judges may make inferences

with respect to the class as a whole. It was the Respondents’ burden to present

representative evidence that could be extrapolated to the class.369 By eschewing this

requirement and drawing inferences from “mere common sense,” the Judge stretches the

law beyond the limits of the class action procedure, contradicting its very essence and logic.

2.1.4 The Judge further erred in law by rendering his presumption irrebuttable

[230] That the Judge disposed of the whole issue of causation at a collective level also

violates the principles recognized by this Court in Biondi.370 In that case, the trial judge

had established, on the basis of conclusive and concordant evidence, a presumption of

causation to the effect that the class members had slipped as a result of the municipal

workers’ failure to de-ice the sidewalks during a week of striking.371 One of the issues on

appeal was whether the presumption of causation thus created by the trial judge could be

rebutted at the individual claims stage.

368 Longpré v. Thériault, [1979] C.A. 258. 369 P.-C. Lafond, Le recours collectif, le rôle du juge et sa conception de la justice : impact et évolution,

(Cowansville: Yvon Blais, 2006) at p. 227; P. Deschamps, “La preuve en matière de recours collectif”, in Service de la formation permanente du Barreau du Québec, Développements récents sur les recours collectifs (1999), vol. 115, (Cowansville: Yvon Blais,1999) at p. 182; J.-C. Royer, La preuve civile, 4e éd. (Cowansville, Yvon Blais, 2008) at p. 743.

370 Montréal (Ville de) v. Biondi, 2013 QCCA 404. 371 Biondi v. Syndicat des cols bleus regroupés de Montréal (SCFP-301), 2010 QCCS 4073 at

paras. 143, 156-157, 160-161.

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[231] In confirming the decision of the trial judge on this point, the majority insisted that

the defendant would indeed be given the opportunity to rebut the presumption of

causation in the context of individual claims. It added further that, if the trial judge had

actually intended her presumption to be irrebuttable as some of her language seemed to

imply, this would have constituted a reversible error.372 In dissent, Justice Fournier would

have reversed the decision on the basis that the trial judge had effectively created an

irrebuttable presumption of causation.373

[232] By contrast to the Biondi case, there is absolutely no doubt that the Judge’s

presumption in the present instance is in fact made irrebuttable as a result of the collective

recovery award.

[233] If the Court of Appeal was of the view that it would have been an error for the first

instance judge in Biondi to establish an irrebuttable presumption of causation with respect

to individuals slipping on identified sidewalks during a single week, “la juge ne disposant

pas de tous les faits lui permettant de créer une telle présomption”,374 how could reducing

five decades of individual circumstances into a fictional rational smoker, solely based on

the Judge’s “common sense” not lead to the same conclusion?

[234] In fact, the Judge had held at the interlocutory stage that the examination of class

members on issues such as their awareness of the risks, their knowledge of public

statements made by the Appellants (and whether those statements had any impact on

their behaviour), and the reasons they took up smoking would not be relevant to the

questions to be decided at the collective stage, considering, inter alia, that no reliable

pattern could possibly emerge from that evidence:

[9] Cependant, ce ne sont pas les moyens de défense à toutes les réclamations possibles qui peuvent faire l'objet de l'interrogatoire d'un membre avant le jugement final. Seuls ceux ayant trait aux questions communes sont éligibles. Les moyens pertinents aux aspects individuels ne peuvent être explorés qu'après le jugement final, soit dans le cadre des réclamations individuelles.

372 Montréal (Ville de) v. Biondi, 2013 QCCA 404 at paras. 123, 136-137. 373 Montréal (Ville de) v. Biondi, 2013 QCCA 404 at paras. 52-65. 374 Montréal (Ville de) v. Biondi, 2013 QCCA 404 at para. 136.

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[…]

[11] Rappelons que les groupes visés dans ces dossiers sont énormes. Même le plus petit, celui incluant Blais, compte plus de 50 000 personnes. Quant au dossier Létourneau, il frôle les deux millions. Face à ces proportions, qu'est-ce que 50 ou 100 – ou même 500 interrogatoires pourraient nous enseigner sur les questions communes? Il est inévitable que certains témoignages renforceraient les défenses et d'autres le contraire. Un tel renseignement ne serait d'aucune utilité.

[…]

[13] D’autre part, les questions communes ici se limitent de façon très claire aux actes, comportements et états d’esprit des défenderesses par opposition aux gestes et au niveau de connaissance des membres du groupe. Pourtant les sujets que désirent aborder les défenderesses dans les interrogatoires ne concernent que ce dernier aspect.375 [emphasis added]

[235] Yet, in his Judgment, the Judge makes a final determination presuming conduct

causation on a collective basis and effectively precludes the Appellants from ever

challenging that presumption at the individual level. Given that the Judge considered the

evidence of class members irrelevant at the common stage, it is not clear how the

Appellants could have rebutted the “common sense” presumption other than by showing,

as they did, that people smoked notwithstanding widespread public awareness of the

risks over the Class Period.

[236] The evidence showing overwhelming awareness of health risks should have

precluded the Judge from making any factual presumption of conduct causation, and led

to the dismissal of Respondents’ claim for collective recovery. At the very least, the

Appellants should have been entitled to rebut this presumption at the individual stage,

thus precluding collective recovery. The class action mechanism is not meant to deprive

defendants of any available grounds of defence, exoneration or apportionment of liability

that could be raised in any individual actions.376 The Judge contravened that rule by

375 Conseil québécois sur le tabac et la santé v. JTI-MacDonald Corp., 2009 QCCS 830 at paras. 9-13,

leave to appeal to QCCA refused, 2009 QCCA 796. See also Conseil québécois sur le tabac et la santé v. JTI-MacDonald Corp., 2011 QCCS 4090 at paras. 23-26.

376 See Masson v. Thompson, REJB 1997-00195 at par. 155 (QC SC); appeal granted in part, REJB 2000-20972 (QC CA); Comité d’environnement de La Baie inc. v. Société d’électrolyse et de chimie Alcan ltée, EYB 1990-6350 at para. 26 (QC CA); Hotte v. Servier Canada inc., REJB 2002-29909 at paras. 59-60 (QC SC); Tremblay v. Lavoie, 2014 QCCS 3185.

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creating a presumption of causation on a collective level and by ordering collective

recovery.

2.1.5 The Judge’s errors of law and of fact with respect to the CPA

[237] The same errors also invalidate the Judge’s analysis under the CPA, when

addressing the third and fourth criterion established in Time, i.e. as to whether consumers

seeing that representation resulted in the formation, amendment or performance of a

consumer contract377 and whether a sufficient nexus existed between the alleged

misrepresentation and the contract entered into.

[238] Indeed, the Judge imports his flawed conduct causation reasoning to fill another

evidentiary gap, when presuming that “the absence of full information about the risks and

dangers of smoking was sufficiently important to consumers that it resulted in their

purchasing cigarettes.”378 The Judge reaches this conclusion notwithstanding the fact that

a large number of class members began smoking prior to the enactment of the relevant

provision of the CPA and many more after product advertising was banned in 1989, and

notwithstanding his own finding that the vast majority of class members knew of the risks

of smoking by January 1, 1980, i.e. before the entry into force of the relevant provisions

of the CPA.

2.2 Medical causation

2.2.1 Section 15 does not permit the use of unreliable statistics379

[239] Whatever the proper construction of Section 15 of the TRDA, it does not and

cannot permit a Court to make use of manifestly unreliable statistical analyses.

377 Judgment at para. 514. The Judge also implicitly relied on his own “common sense” when disposing

of the fourth criterion (a sufficient nexus existed between the content of the representation and the goods or services covered by the contract), as he concluded at para. 516 that “The Companies’ omission to pass on such critical, life-changing information about the dangers of smoking was incontestably capable of influencing consumers’ behaviour with respect to the decision to purchase cigarettes”, notwithstanding his prior determination that the class members were sufficiently aware of the health risks of smoking as of January 1, 1980.

378 Judgment at paras. 514-515. 379 JTIM concurs in and adopts the argument made by Rothmans Benson & Hedges in its factum that

Section 15 does not relieve plaintiffs of the obligation of proving specific causation. JTIM also concurs in and adopts the argument made by Imperial Tobacco in its factum that Section 15 speaks only to the types of evidence that can be tendered as proof of causation, and not to the burden itself.

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Section 15 cannot be interpreted to mean that any statistical analyses, however unreliable

by the basic standards of statistical science, can be relied upon in law.380

[240] The overarching error of the Judge in this case, as regards medical causation,

was exactly that. He accepted as true a theory that there existed a single “critical amount”

of smoking at which a Court could determine, on a balance of probabilities and without

any individual assessment, that any person’s class disease was caused by smoking.

He accepted that this single “critical amount” could be statistically derived and its reliability

established principally, as explained below, through a standard statistical tool called a

random effects meta-analysis.

[241] However, the uncontroverted evidence in this case established that random

effects meta-analysis in fact demonstrated that, at least based on the studies selected by

Dr. Siemiatycki for meta-analysis, there was no statistically reliable single “critical amount”

that could determine on a balance of probabilities that any person’s class disease was

caused by smoking. As set out below at paragraphs [257] to [261], the Judge erred in law

in entirely discarding that evidence.

2.2.2 Dr. Siemiatycki’s “critical amount” theory and method

[242] Dr. Siemiatycki was the sole proponent of the notion that there existed a “critical

amount” of smoking. That notion was entirely novel.381 It was unknown, even in the

literature, and utterly untested.382 Dr. Siemiatycki invented it for the purposes of this case.

He had no prior experience with his “critical amount” method, and none with the technique

of random effects meta-analysis on which it ultimately relied.383

380 The Judge's construction of Section 15 of the TRDA does not accord with the evidence before him.

He decided that the phrase “epidemological studies” in Section 15 necessarily overruled the “each member” requirement in Bou Malhab (Judgment at para. 693). He could only have reached that conclusion if he believed that “epidemiological studies” meant studies of whole populations, which were incapable of supporting an application of the each member rule. However, Dr. Marais gave uncontradicted evidence (Testimony of Dr. Marais, March 12, 2014, at 323-327), which the Judge accepted (Judgment at paras. 739-740), that samples of Quebecers could be obtained that would differentiate between different subclasses of smokers. Evidence of that type would be (i) “epidemiological studies” within the meaning of Section 15, and (ii) consonant with the rule in Bou Malhab. As a result, as a matter of uncontradicted evidence, the phrase “epidemiological studies” in Section 15 does not exclude the application of the Bou Malhab rule, and could not have been intended to override Bou Malhab. The Judge erred in law in so deciding.

381 Testimony of Dr. Siemiatycki, February 18, 2013, at 48-50. 382 Testimony of Dr. Siemiatycki, February 18, 2013, at 51. 383 Testimony of Dr. Siemiatycki, February 18, 2013, at 46-47.

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[243] According to Dr. Siemiatycki’s theory, if a class member could demonstrate that

he or she had smoked the “critical amount”, he doubled the risk of disease he would

otherwise have.384 On that basis, the balance of probabilities standard was presumed to

be satisfied and the class member’s disease was attributed in law to his smoking.385

[244] Dr. Siemiatycki thereby converted a legal question - namely whether in any

particular case the balance of probabilities that causation had been proved was satisfied

based on all the relevant evidence - into a purely statistical one. Critically, however, this

equation depended on Dr. Siemiatycki demonstrating that a statistically reliable critical

amount could be identified by the use of a meta-analysis.

[245] Dr. Siemiatycki’s “critical amount” was expressed in “pack years”. Pack years is

simply a measure of total cigarette consumption over a smoker’s lifetime.386 In order to

derive his “critical amount” Dr. Siemiatycki used random effects meta-analysis.387

Random effects meta-analysis is a statistical procedure used to combine selected

epidemiological studies from various populations.388

[246] Dr. Siemiatycki's estimate of the number of disease cases attributable to smoking

depended on two distinct methodological steps: (1) determining "critical amounts" for

each class disease and, (2) once a "critical amount" was determined for each class

384 The thesis that a doubling of relative risk can be taken as proof of a balance of probabilities is itself

controversial, and rejected by many courts, not least because there is a world of difference between statistical probability and proof on a balance of probability in law. As Lady Hale commented in Sienkiewicz v. Greif (UK) Limited, [2011] UKSC 10, “The fact that there are twice as many blue as yellow taxis about on the roads may double the risk that, if I am run over by a taxi, it will be by a blue rather than a yellow one. It may make it easier to predict that, if I am run over by a taxi, it will be by a blue rather than a yellow one. But when I am actually run over it does not prove that it was a blue taxi rather than a yellow taxi which was responsible.” (see para. 171). As well the “doubling” test is insensitive to other risks and presumes that the underlying epidemiological studies are correct. As Lord Phillips commented in Sienkiewicz, even where the rule is applied “…the court must be astute to see that the epidemiological evidence provides a really sound basis for determining the statistical probability of the cause or causes of the disease.” (see paras. 83-91) [emphasis added].

385 Expert report of Dr. Marais (Exhibit 40549), PDF 11-12. 386 More specifically, it is the average number of packs smoked per day, multiplied by the total number

of years of smoking. Expert report of Dr. Siemiatycki (Exhibit 1426.1), PDF 8. Thus, a 10 pack year history can mean someone has smoked two packs a day for five years, or one pack a day for 10 years, or a half pack a day for 20 years. See Testimony of Dr. Siemiatycki, February 20, 2013, at 59-61.

387 Expert report of Dr. Siemiatycki (Exhibit 1426.1), PDF 38-39.Testimony of Dr. Siemiatycki, February 18, 2013, at 52-53.

388 Expert report of Dr. Marais (Exhibit 40549), PDF 81.

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disease, deriving an estimate of the number of persons with a class disease who

consumed that "critical amount," or more. This second step in the calculation was based

on records maintained by the Province of Québec.389

[247] Dr. Siemiatycki concluded that the “critical amount” for: (1) lung cancer was

4 pack years among males and 3 pack years among females; (2) for larynx cancer 5 pack

years for both sexes; (3) for throat cancer, 4 pack years for both sexes; and (4) for

COPD/emphysema, 5 pack years for both sexes.390 Dr. Siemiatycki did not conduct any

study or provide any report or opinion to the effect that the appropriate critical amounts

for all class diseases was 12 pack years, as the Judge ultimately found (see infra

section 2.2.6).

2.2.3 The “critical amount,” the balance of probabilities, and the necessity that “critical

amount” be statistically reliable

[248] As noted, Dr. Siemiatycki’s “critical amount” method converted a legal question

into a statistical one. The Judge accepted that there was such a thing as a “critical

amount” that could be calculated, and that smoking that amount created a “rebuttable”

presumption of causation.391 The Judge thus found that a single statistic was prima facie

proof of causation on the legal balance of probabilities, in each and every individual

case.392 He did not, however, as we shall see, accept that the specific critical amounts

put forth by Dr. Siemiatycki were statistically reliable.

[249] Where a Judge accepts a single statistic as proof - even prima facie proof - that

the balance of probabilities has been satisfied in every case, regardless of any individual

factors (such as other risks, how long a person’s smoked, whether they quit, etc.), he or

she must ensure that the statistic, and the science behind it, is sound, particularly when

this concept and the method behind it is entirely novel and untested.

[250] The reason for this is self-evident. Where a statistic is taken as proxy for the

balance of probabilities having been satisfied, uncertainty about and in the statistic itself

389 Exhibit 1426.2 (Siemiatycki Report 2009), PDF 8, 43-45. 390 Expert report of Dr. Siemiatycki (Exhibit 1426.1), PDF 13. 391 Judgment at paras. 714 -718. 392 Judgment at para. 759.

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is by definition uncertainty about whether the balance of probabilities legal test has been

met. If there is uncertainty about the statistic, one cannot know when the balance of

probabilities is achieved. In that circumstance, the test of whether one event is more

probably than not the cause of another becomes a test of whether one event is “probably

probably” the cause of another, a fallacy and danger identified in the UK House of Lords

in Sienkiewicz v. Grief. 393

[251] A “probably probably caused” standard of proof is no more consistent with

art. 2804 CCQ than it is with the accepted burden of proof in any other jurisdiction.394 The

uncontradicted evidence in this case established that there was no single “critical amount”

that could reliably establish medical causation for more than 100,000 Blais class

members, even on a presumptive basis, without knowing anything more about any of

them.

[252] Having before him a novel “scientific” method, the Judge was obliged to subject

that evidence to special scrutiny, as required in R. v. Mohan,395 R. v. L.J.,396 and

R. v. Trochym,397 and ask the four questions posed in Daubert v. Merrell Dow

Pharmaceuticals, Inc.398 Could Dr. Siemiatycki’s critical amount theory be tested? Had it

been subject to peer review and publication? What was the known or potential rate of

error and what standards applied to the assessment of error? Had the technique ever

been generally accepted?

[253] The answer to all four questions is a clear “NO.” Dr. Siemiatycki’s method was

unknown to and untested by other epidemiologists or statisticians (or courts).399

393 Sienkiewicz v. Greif (UK) Limited, [2011] UKSC 10 at para. 158. “Of course, it is possible to conceive

of a legal system which chose, as a matter of policy, to make defendants liable for all the damage which a court was satisfied, on the balance of probability, they had probably caused. But only the legislature could alter English or Scots law so as to introduce a general rule to that effect, which would change the very nature of the system and completely alter its balance, in favour of claimants and against defendants and their insurers”.

394 Art. 2804 sates “Evidence is sufficient if it renders the existence of a fact more probable than its non-existence, unless the law requires more convincing proof.”

395 [1994] 2 S.C.R 9 at p. 21. 396 2000 SCC 51 at paras. 33-35. 397 [2007] 1 S.C.R. 239. See also Daubert v. Merrell Dow Pharmaceuticals, 43 F.3d 1311 (9th Cir.,

1995). 398 509 U.S. 579 (1993). 399 Expert report of Dr. Marais (Exhibit 40549), PDF 15.

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It had never been subject to peer review and was not a method of analysis that had been

validated by any scientific community.400 It was premised on a statistical technique with

which Dr. Siemiatycki had no prior experience.401 Moreover, Dr. Siemiatycki’s own

estimates of the “range of error” in his estimates of the total number of disease cases402

had not been calculated by any method known to statistical science.403 They were purely

subjective,404 unverifiable,405 and unfalsifiable.406 They were, “guesstimates” prepared by

an individual who had never before calculated a “critical amount.”407

[254] The Judge addressed little of this evidence. He came no closer to it than referring

to the Appellants’ experts’ “constant criticism” that Dr. Siemiatycki's model and

methodology did “not conform to scientific or academic standards and sound scientific

practice.”408 This criticism, he said, failed to recognize that the Court had only to decide

the case on a balance of probabilities.409 The Judge failed to understand that the evidence

that he compendiously rejected as “purely theoretical or academic”410 went to the

threshold issue of whether Dr. Siemiatycki’s “critical amount” could in fact stand as a

reliable proxy for the balance of probabilities.

[255] Rather than address the Mohan / Daubert criteria the Judge devised his own test

for the reliability of novel science, with reference to the rule in Snell v. Farrell.411 The

Judge failed to recognize that a rule governing the use of inconclusive scientific evidence

(articulated in Snell) is very different from a rule governing whether novel scientific

evidence is admissible (articulated in Mohan / Daubert). In failing to make that distinction,

the Judge contorted the rule in Snell into a new rule of admissibility.412

400 Expert report of Dr. Marais (Exhibit 40549), PDF 15. 401 Testimony of Dr. Siemiatycki, February 18, 2013, at 45-47. 402 Based on his critical amounts, as per the second step of his method. See paragraph [246] of this

factum. 403 Expert report of Dr. Marais (Exhibit 40549), PDF 120. 404 Expert report of Dr. Marais (Exhibit 40549), PDF 120. 405 Expert report of Dr. Marais (Exhibit 40549), PDF 121. 406 Expert report of Dr. Marais (Exhibit 40549), PDF 121-122. 407 Expert report of Dr. Marais (Exhibit 40549), PDF 121-122. 408 Judgment at para. 723. 409 Judgment at paras. 723-726. 410 Judgment at para. 722. 411 [1990] 2 SCC 311. Judgment at para. 727-728. 412 Judgment at para. 728.

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[256] Ultimately, Dr. Siemiatycki’s “critical amount” method and results were admitted

and relied upon, not because they satisfied the relevant test in law, let alone any basic

reliability standard of established statistical science, but because Dr. Siemiatycki “swore

in court that [his] results are probable”.413 That cannot satisfy any legal standard for the

admissibility of novel science. Dr. Siemiatycki’s “critical amount,” in and of itself, was the

opposite of evidence-based science - it was a “trust me” opinion, offered up in

circumstances where none of the legal or scientific criteria of reliability were established,

and in circumstances, which we next discuss, in which there was affirmative and

uncontradicted evidence that there existed no “critical amount” that could stand as a

reliable proxy for the balance of probability.

2.2.4 Uncontradicted evidence that no critical amount could be estimated on the data

was totally discarded by the Judge

[257] Dr. Siemiatycki’s calculation of his single “critical amount” for each disease

involved a long series of steps and assumptions, crucially culminating in a random effects

meta-analysis. As already noted, a random effects meta-analysis is a statistical procedure

used to combine selected epidemiological studies from various populations.414

Dr. Siemiatycki believed that meta-analyses produced the “best” estimates because they

synthesize multiple studies and so are not dependent on anecdotal evidence or a single

study.415

[258] A random effects meta-analysis must account not only for sampling error in the

studies but also for heterogeneity - the range of variation - in the populations studied.

Accounting for heterogeneity is critically important.416

413 Judgment at para. 729. 414 Expert report of Dr. Marais (Exhibit 40549), PDF 81. 415 Expert report of Dr. Siemiatycki (Exhibit 1426.1), PDF 33. 416 Expert report of Dr. Marais (Exhibit 40549), PDF 87-99; Testimony of Dr. Marais, March 11, 2014,

at 59-60, 68, 80-81, 84-85. A confidence interval constructed around an estimate captures sampling error, but not the range of variation in the data. Dr. Marais explained this at trial using an estimate of the average height of Canadians (168.82 cm). The 95% confidence interval around that estimate produces an interval of 168.18 cm to 169.48 cm. One can be certain the true average height of Canadians is somewhere between those two values, 95 times out of 100. That confidence interval does not however describe the range of variation (or “heterogeneity”) in the height of Canadians. The range of variation in height among Canadians is obviously greater than the confidence interval around the estimate. As Dr. Marais explained, one would not order uniforms for the Army based on the confidence interval. Testimony of Dr. Marais, March 10, 2014, at 197-199; March 11, 2014, at 6-14, 61-69.

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[259] Yet, Dr. Siemiatycki admitted that he had never done a random effects meta-

analysis, and that the meta-analysis on which he relied had been done by a student.417

He admitted that he did not himself test for heterogeneity and that he did not know and

that he never saw a measure of heterogeneity.418 He admitted that when the relevant

heterogeneity tests were done, his data showed very substantial heterogeneity.419

[260] Dr. Marais was qualified as an expert in applied statistics, including biomedical

and epidemiological data and method.420 He repeated Dr. Siemiatycki’s calculations,

using the same computer program, but also using the heterogeneity tests that

Dr. Siemiatycki had not used.421 Dr. Marais determined that there was no statistically

reliable basis for the critical amounts that Dr. Siemiatycki had reported, or indeed any

“critical amount on a statistically reliable basis whether it be 5 or 15 or 25” pack years, or

any other amount.422 That evidence was uncontradicted - Respondents’ counsel did not

cross-examine on it, and Dr. Siemiatycki was not recalled to address it.

[261] In the result, what the uncontradicted epidemiological evidence in this trial proved

was that Dr. Siemiatycki’s meta-analysis did not produce a statistically reliable single

critical amount that could serve as a proxy to prove medical causation on a balance of

probabilities. Dr. Marais’ evidence, being uncontradicted, was determinative.423

Astonishingly, none of the evidence in respect of the meta-analysis error was reviewed

or addressed by the Judge. The Judge simply rejected it as “insistence on a scientific

level of proof” in circumstances where he had merely to decide the case on a balance of

417 Testimony of Dr. Siemiatycki, February 18, 2013, at 46-47; Testimony of Dr. Siemiatycki, March 19,

2013, at 65. 418 Testimony of Dr. Siemiatycki, February 20, 2013, at 189-190. 419 Dr. Siemiatycki admitted that heterogeneity in his meta-analysis of lung cancer cases was

‘substantial’ and ‘significant’ (Testimony of Dr. Siemiatycki, March 19, 2013, at 23, 39-42; both in reference to Exhibit 40042.1, PDF 5); of pharyngeal cancer was ‘very significant’ (Testimony of Dr. Siemiatycki, March 19, 2013, at 67-68) in laryngeal cancer was ‘real’, ‘significant’ and ‘very significant’ (Testimony of Dr. Siemiatycki, March 19, 2013, at 60-71).

420 Testimony of Dr. Marais, March 10, 2014, at 31, 49. 421 Expert report of Dr. Marais (Exhibit 40549), PDF 94-97 and Testimony of Dr. Marais, March 11, 2014,

at 75, 81-85, 91-92. 422 Testimony of Dr. Marais, March 10, 2014, at 71-72; March 11, 2014, at 91-94. Dr. Marais findings

were in respect of the data analyzed by Dr. Siemiatycki. See Expert report of Dr. Marais (Exhibit 40549), PDF 102-103, 123. Dr. Marais testified that it was possible that there were many critical amounts, corresponding to different forms of smoking behaviour, such as periods of cessation, which could be determined in proper epidemiological studies that differentiated between those forms of smoking behaviour. See n 380; Testimony of Dr. Marais, March 12, 2014 at 323.

423 The Judge did not disbelieve Dr. Marais’ evidence.

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probabilities.424 He failed to understand that the “critical amount” was the balance of

probabilities, and that if there was no statistically reliable “critical amount,” there was no

balance of probabilities that could be met.

2.2.5 The Judge’s request for “some additional calculations”

[262] After the evidentiary phase of the trial had closed but before releasing his reasons

the Judge asked for “quelques calculs épidémiologiques additionnels en ce qui concerne

les tableaux A, D1 et D3 du Dr. Siemiatycki … mais en appliquant pour chaque maladie

trois « Critical Amount » différents, soit 12, 16 et 20 pack years.”425

[263] The additional calculations were duly provided by Dr. Siemiatycki and filed.426

They were simple arithmetic calculations of the effect of changing the number of pack

years on the total number of disease cases. The “additional calculations” did not, in any

way, address the inherent unreliability of Dr. Siemiatycki’s “critical amount.” Nor did they

in any way address the uncontradicted evidence of Dr. Marais that there was “no critical

amount on a statistically reliable basis whether it be 5 or 15 or 25” pack years.”427

[264] In responding to the additional calculations,428 JTIM cautioned the Judge that

nothing in them rendered the statistical analysis or any “critical amount” any more reliable

and that:

(a) regardless whether one selected a “critical amount” of 12, 16, 20 or even

50 pack years, Dr. Marais had demonstrated that none came with the level

of statistical reliability necessary to allow the court to conclude that the

disease risk at that dose was doubled; and

(b) the selection of any hypothetical amount as the “critical amount” was

arbitrary, not merely because Dr. Marais had established that none could

be validly inferred from Dr. Siemiatycki’s meta-analysis, but because there

was no evidentiary basis upon which to select any one hypothetical “critical

amount” over any other.429

424 Judgment at paras. 723, 724, 734. 425 Letter of Justice Riordan dated February 23, 2015. 426 Exhibit 1426.7. 427 Testimony of Dr. Marais, March 10, 2014, at 71-72. 428 Exhibit 1426.7-JTIM (JTIM’s Reply to Dr. Siemiatycki’s Additional Calculations). 429 Indeed, no alternative “critical amount” had been calculated by Dr. Siemiatycki pursuant to a new

random effects meta-analysis to ensure its reliability, or by anyone else.

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[265] From this it followed that the estimates of numbers of disease cases presumed

to be caused by smoking the Judge’s “critical amount” of 12 pack years were no more

reliable than those flowing from Dr. Siemiatycki’s own “critical amounts.” The

Respondents did not reply to those submissions, nor did the Judge respond to them.

[266] Moreover, even assuming the reliability of the “critical amount” postulated by the

Judge, and applying only Dr. Siemiatycki’s self-professed but unverifiable and untestable

“range of error” in his disease totals, the additional calculations showed that the number

of “causal” cases: 430

(a) of lung cancer among men was somewhere between 41,483 and 65,543;

(b) of lung cancer among women was somewhere between 20,369 and 38,124;

and

(c) of emphysema among women was somewhere between 8,782 and 32,673.

[267] On the evidence, the Judge’s selection of any number of pack years as a “critical

amount” was in fact merely guessing a number that Dr. Marais’ conventional statistical

analysis of the evidence established did not exist. Further, even accepting that there was

a single “critical amount,” as the figures in the previous paragraph set out, that “selection”

resulted in the Judge overestimating or underestimating the number of “proven” cases by

as much as 58% for men with lung cancer, 86% for women with lung cancer, and 272%

for women with emphysema.431

2.2.6 The Judge erred in law and in fact in imposing his own “critical amount”

[268] The Judge’s belief in the notion that there existed a single “critical amount” is

illustrated by the alacrity with which he fell upon what he called “finally…helpful” evidence

by Dr. Mundt. This was Dr. Mundt’s testimony that there was “little or no risk of lung cancer

below 10 to 15 pack years.”432

430 Exhibit 1426.7, Table D3.1 and Exhibit 1426.7-JTIM (JTIM's Reply to Dr. Siemiatycki's Additional

Calculations, at page 4). 431 Exhibit 1426.7-JTIM (JTIM's Reply to Dr. Siemiatycki's Additional Calculations), at page 4. 432 Judgment at para. 756.

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[269] The Judge erroneously believed that Dr. Mundt’s testimony was evidence that

12 pack years was the “plausible minimum figure for the critical dose”433 that would allow

for what he called “minor” variables ignored by Dr. Siemiatycki.434 Dr. Mundt’s report, on

behalf of RBH, did not purport to calculate a critical amount. Dr. Mundt was saying nothing

more than that risk begins to be detectable at 10 to 15 pack years. He was not saying –

nor could he reasonably be saying – that risks doubled at 10 to 15 pack years amount,

such as to constitute Dr. Siemiatycki’s “critical amount.” Dr. Mundt never conducted any

study, let alone any type of meta-analysis, to determine any critical amount. Nothing in

Dr. Mundt’s evidence went to establish what the “critical amount” was or was not.435

[270] The Judge failed to appreciate that a statement that there was “little or no risk of

lung cancer below 10 to 15 pack years” is not evidence that the risk of smokers over non-

smokers doubled at 10 to 15 pack-years, and was therefore not evidence that 10 to

15 pack years was a “critical amount.”436 Thus Dr. Mundt’s evidence was not, as the

Judge would have it, a “plausible minimum figure for the critical dose.” It was never

proposed as such.437 Certainly, neither Dr. Mundt, nor anyone else, including the Judge,

ever conducted a random effects meta-analysis to validate 12 pack years as a more

reliable “critical amount.” Nor is there any reason or evidentiary basis upon which to

believe that, even if it was, it addressed the “minor” variables ignored by Dr. Siemiatycki.

[271] The plain fact is that in “setting” his universally applicable critical amount at

12 pack years, the Judge was guessing. There was no evidentiary basis for a “critical

amount” of 12 pack years. The uncontradicted evidence of Dr. Marais was there was no

single “critical amount”, at any number of pack years. Even without Dr. Marais’ evidence

433 Judgment at para. 758. The Judge’s reasons do not reveal how he transformed Dr. Mundt’s range of

10 to 15 pack years to the Judge’s “critical amount” of 12 pack years. This is another aspect of the Court’s guessing the critical amount.

434 Judgment at para. 759. 435 Expert report of Dr. Mundt, (Exhibit 30217). 436 As Dr. Siemiatycki's report revealed, in order to determine the "critical dose”, one had to set up a

complex chain of assumptions and calculations, and conduct a meta-analysis, to determine the point at which risk doubled. No one – whether it be Dr. Siemiatycki or the trial Judge – did that in respect of 12 pack years. Twelve pack years cannot be the "critical amount" because it is not a result of the application of the method which Dr. Siemiatycki developed, and the Court approved, for the determination of what the “critical amount” was. It is not a “critical amount.” It is a guess, and it is no better than any other guess.

437 If such a statement or opinion could suffice then one wonders why it took Dr. Siemiatycki a 100-page report to produce his own estimates.

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that no reliable single “critical amount” existed, there was no basis to select 12 pack years

as a critical dose because there was no evidence to support that number. Dr. Mundt’s

statement did not support it. Dr. Siemiatycki’s calculations did not support it. Nothing did.

2.2.7 The Judge erred in law and in fact in accepting that there was a “critical amount”

of smoking at all

[272] That there should not be any single “critical amount” that could reliably apply to

all smokers, regardless of their smoking profiles, is not surprising. All of the experts

agreed that a person’s smoking history has multiple dimensions, including age initiated,

smoking intensity, duration, etc., and that each of these dimensions affect an individual’s

risk.438

[273] For example, Dr. Siemiatycki admitted that research showed smoking at a lower

intensity for a longer duration is more deleterious than smoking at a higher intensity for a

shorter duration,439 and that long term cessation could reduce an individual’s risk for

smoking disease to a risk that was less than that associated with his “critical amount.440

[274] All of the experts at trial also recognized that there were other risks for each of

the class diseases, including genetic factors.441 Indeed, Dr. Desjardins admitted during

his cross-examination by the Appellants that the type of COPD from which Mr. Blais

suffered was generally due to congenital factors rather than smoking – a fact not

addressed by the Judge.442

438 See, for example, Expert report of Dr. Marais (Exhibit 40549), PDF 38-46 and Expert report of

Dr. Siemiatycki (Exhibit 1426.1), PDF 20. 439 Testimony of Dr. Siemiatycki, February 21, 2013, at 36, l. 6 to 37, l.19. 440 Testimony of Dr. Siemiatycki, February 19, 2013. By way of example, on cross-examination

Dr. Siemiatycki admitted that an individual who smoked two packs a day for five years would have a 10 pack year history - well in excess of his "critical amount." If however that individual stopped smoking for 20 years his or her relative risk would in fact fall to less than two - that is, less than double the risk of non-smokers and thus less than of Dr. Siemiatycki threshold for proof on a balance of probabilities. See Testimony of Dr. Siemiatycki, February 20, 2013, at 75-76. Dr. Siemiatycki's method ignores the impact of cessation. It compensates those who, as a result of cessation, had a smoking risk that is in fact less than that associated with his "critical amount."

441 Expert report of Dr. Siemiatycki (Exhibit 1426.1), PDF 27-30; Expert report of Dr. Marais (Exhibit 40549), PDF 43-44; Expert Report of Dr. Mundt (Exhibit 30217), PDF 20-22, 23.

442 Testimony of Dr. Desjardins, February 4, 2013, at 285, l. 12-15, 331, l. 5-11. Notwithstanding this evidence, the Judge’s criteria for medical causation results in Mr. Blais’ congenital emphysema being considered as having been caused by the Appellants’ faults.

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[275] As for the effect of cessation, the Judge concluded that the failure of the critical

amount method to take it into account was inconsequential, because quitters would not

suffer from the class diseases.443 This conclusion is obviously wrong – It assumes that

there are no other causes of class diseases, when the uncontradicted evidence is that

even people who have never smoked can and do suffer from class diseases.444

[276] The Judge’s view that other risks were irrelevant is wrong even if, contrary to the

evidence, one accepts that there was a single “critical amount” of smoking. At the Judge’s

self-selected “critical amount” of 12 pack years, Dr. Siemiatycki’s method disclosed that

over 20% of cases of lung cancer among class members were caused by factors other

than smoking. The corresponding percentages for the other three class diseases are

close to 30%.445 Thus the “critical amount” method always results in the compensation of

individuals whose disease was not caused by smoking.

[277] The Judge alluded to the overcompensation effect only once. He wrote that

epidemiological analysis, “being based on the study of a population,” inevitably includes

a “certain number” of cases that would not qualify were individual analyses to be done.446

On Dr. Marais’ evidence, there was no number of certain cases. Even if there were, there

was a huge range of uncertainty, as we set out in paragraph [276].

[278] As the Judge did not and could not quantify the “certain number” of cases that

were incorrectly included in the class, he could not assess whether his chosen method

yielded a “sufficiently accurate” estimate, pursuant to Article 1031 C.P.C. The Judge’s

decision to embrace the single “critical amount” theory, and the consequent

443 Judgment at paras. 707-711. 444 Expert report of Dr. Siemiatycki (Exhibit 1426.1), PDF 37-31; Expert report of Dr. Marais

(Exhibit 40549), PDF 38-40. 445 The Judge’s self-selected “critical amount” was 12 pack years, regardless of the disease. Accepting

that to be so, Dr. Siemiatycki’s logic and calculations can be used to estimate the proportions of disease cases among smokers who had smoked that “critical amount” but whose disease was not caused by smoking. The smoking history categories in Dr. Siemiatycki’s tables that correspond most closely to the 12 pack year “critical amount” selected by the Judge are 10-14 pack years for cancer of the lung or larynx and 5-9 cigarettes per day for cancer of the pharynx or emphysema (because 12 pack years accumulated over 33 years of smoking implies a rate of smoking of approximately 7 cigarettes per day). Dr. Siemiatycki’s tables A4, A8, A12, and A16 in Exhibit 1426.1 show that the proportions of disease cases with smoking histories in these ranges – which correspond to the Judge’s self-selected “critical amount” of 12 pack years – whose disease was caused by factors other than smoking were 22%, 29%, 27%, and 29%. All, however, were compensated by the Judge, and as a direct result of his adoption of Dr. Siemiatycki’s assumptions.


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compensation of untold numbers of persons whose disease was not caused by the

Appellants, was an error premised on his failure to apply the Mohan / Daubert criteria.

It was an error of law.

2.2.8 The Judge erred in law in refusing to consider evidence rebutting his presumption

of causation, and in making his presumption irrebuttable

[279] The Judge made a presumption of causation – medical causation was taken as

proven in every case in which the critical amount was consumed.447 The Judge presented

his presumption of causation as rebuttable.448 In the ordinary course a presumption of

causation is rebuttable in the context of individual assessments or trials.449 In the case at

bar the Judge declined to order individual assessments or trials.450 That begged the

question of exactly how his presumption could be rebutted. The answer to that question

does not emerge from the Judge’s reasons.

[280] The Judge’s reasons do however make it clear that the only “rebuttal” evidence

he cared to hear from the Appellants’ experts was what the “critical amount” was, and not

whether a “critical amount” existed.451

[281] The Judge’s refusal to consider uncontradicted evidence that no single “critical

amount” existed took particular form in his rejection of the evidence of Dr. Marais.

Dr. Marais provided a detailed and thorough response to Dr. Siemiatycki’s “critical

447 Judgment at para. 718. 448 Judgment at para. 718. 449 See Andersen v. St. Jude 2012 ONSC 3660 [Anderson], a case upon which the Judge relied heavily

in making his presumption of medical causation (Judgment at para. 717). Andersen was a medical implant case in which Justice Lax held that if plaintiffs could establish that a relative risk of two or more was associated with an implantable device, there would be a presumption of causation (Andersen at para. 556). Andersen proceeded on the basis that if a rebuttable presumption of causation was made, there would then follow individual trials in which that presumption could be rebutted (Andersen at para. 5). See also Montréal (Ville de) v. Biondi, 2013 QCCA 404, where this Court determined that the collective judgment had to be interpreted as allowing defendants to disprove causation in individual trials.

450 Judgment at paras. 688-689. 451 The Judge considered that the role of the Appellants’ experts was to “do the calculations that logically

are required so as to correct the figures advanced by Dr. Siemiatycki.” (Judgment at para. 968). He rejected any evidence which sought to establish that there existed no critical amount, or that it was incalculable. He castigated the defence experts for “avoiding dealing with the base issue of the amount of smoking required to cause a disease” (Judgment at para. 719). As he did for “obstinately refusing to make any of their own [evidence] on the key issues facing the court, e.g. how much smoking is required before one can conclude that the smokers diseases is caused by his smoking?” (Judgment at para. 719). He opined that they completely ignored the effect of Section 15 of the TRDA and blindered their opinions to individual cases (Judgment at para. 737).

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amount” theory. The Judge did not disbelieve Dr. Marais’ evidence - in fact, he referred

to Dr. Marais as a “highly competent individual.”452

[282] The Judge did not question the truth of Dr. Marais’ evidence that the “critical

amount” theory reflected the risks of a hypothetical “average” smoker rather than the

widely varying smoking profiles of actual class members. Rather, he rejected it because

he wrongly decided that s. 15 of the TDRA relieved him of the need to consider causation

in relation to each member of the class.453 As set out earlier, s. 15 does not entitle the

court to discard as irrelevant evidence of other individual risk factors, or to rely on

demonstrably unreliable statistics.454

[283] Equally, the Judge did not doubt the truth of Dr. Marais’ evidence that

Dr. Siemiatycki’s “critical amount” failed to account for individual smoking behavior, such

as cessation. Rather, as we set out above in paragraph [275], he rejected it on the

fallacious basis that quitters could never contract a class disease as a result of exposure

to another risk.455

[284] Similarly, the Judge did not question the truth of Dr. Marais’ evidence that the

“critical amount” theory failed to recognize that any individual class disease may be

caused by risks other than smoking. Rather, he considered that evidence irrelevant

because he wrongly decided that other risks all “pale in comparison.” For the reasons we

set out at paragraph [276], that is demonstrably untrue.

[285] In the same vein, the Judge did not disbelieve Dr. Marais’ evidence that

Dr. Siemiatycki’s “critical amount” was premised on variables that could not be defined

with sufficient precision to support a “critical amount” with measurable degrees of error.456

Rather, the Judge wrongly disregarded that and other scientific evidence on the basis that

he thought it “theoretical” and “academic”, and that it spoke to a degree of precision which

452 Judgment at para. 722. 453 Judgment at paras. 733(c), 735. See N 380. 454 See paragraph [240] and N 380 of this factum. 455 Judgment at paras. 733(b), 735. 456 Judgment at paras. 733(a), 733(e).

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he wrongly thought exceeded his requirement to decide the case on a balance of

probabilities.457

[286] The only occasion on which the Judge commented negatively on the credibility of

Dr. Marais was in relation to Dr. Marais’ “obstinately refusing” to tell the Judge “how much

smoking is required before one can conclude that a smoker's Disease is caused by his

smoking” – i.e. to set his own universal “critical amount.”458 Given that Dr. Marais’

evidence was that there was no single, universally applicable “critical amount”

determinable on the data provided, the Judge had no legitimate basis to blame Dr. Marais

for his failure to guess at one.459

[287] The Judge’s refusal to heed the evidence that established that Dr. Siemiatycki’s

method did not reveal a statistically reliable single critical amount made his presumption

of causation irrebuttable. His refusal to consider that evidence was an error in law. This

was not a “forced error.” At most, if there was a single critical amount, it could only have

set up a rebuttable presumption. But Appellants were never provided with the opportunity

to rebut that presumption.

2.2.9 Conclusion with respect to medical causation

[288] Whatever else s. 15 of the TRDA may mean, it cannot mean that courts are

entitled to rely upon manifestly unreliable methods and statistics. It does not entitle courts

to ignore the test for the admission of and reliance upon novel scientific theory. Nor does

it entitle courts to disregard vast swaths of evidence which go directly to the reliability of

those methods and statistics. As important, s. 15 does not entitle a Judge to disregard

the uncontradicted evidence before him and impose a statistic, for which there is

absolutely no evidence, as a proxy for proof on a balance of probabilities. That amounts

to nothing more than guessing. That is exactly what the Judge did here, in substituting

his 12 pack year “critical amount” for the 4 and 5 pack year critical amounts found by

Dr. Siemiatycki. Whatever s. 15 allows, it does not allow guessing.

457 Judgment at paras. 724 (“…sound practice in scientific research rightly imposes strict rules for

carrying out experiments and arriving at verifiable conclusions. The same standards do not, however, reflect the rules governing a court in a civil matter…”) and 734.

458 Judgment at para. 719. 459 Judgment at paras. 719-722.

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3. THE JUDGE ERRED IN LAW AND IN FACT IN FINDING TOBACCO

DEPENDENCE FOR THE WHOLE LÉTOURNEAU CLASS

3.1 The Judge erred in fact in defining tobacco dependence as four years of

daily smoking

[289] The Judge decided that “medical causation of tobacco dependence” will be

established for every class member who (i) started to smoke before September 30, 1994;

(ii) has continued to smoke cigarettes principally manufactured by the Appellants;

(iii) smoked on average at least 15 cigarettes per day between September 1 and 30, 1998;

and (iv) was still smoking that amount per day by February 21, 2005 or their death if

earlier. However, it is evident that the Judge accepts that class members would still satisfy

the requirements if they had “periods of quitting” in that time.460 This makes the definition

vague, and the need for individual assessment even more acute.

[290] In effect, according to the Judge’s definition, a person will be considered

dependent if they smoked at any rate for four years from September 1994 to September

1998, and at a rate of 15 cigarettes a day from September 1 to September 30, 1998 and

then again on February 21, 2005. It is apparent that they need not have been smoking

for the interim period at all, let alone at a rate of 15 cigarettes per day, although the

reference to “still smoking” an “average” of 15 cigarettes per day by February 21, 2005

does suggest some longer term qualifier that is never defined.

[291] Instead of being guided by the evidence, the Judge, once again, substitutes his

“common sense” to define dependence as being simply four years of daily smoking,

thereby committing a palpable and overriding error.

[292] The Judge recognizes that there is no definition of tobacco dependence.461 In the

fault section, he finds that dependence is essentially finding smoking difficult to quit due

to the impact of nicotine.462 The Judge interprets Dr. Negrete’s description of “a loss of

freedom of action” as “really coming down to” meaning that implementing the decision to

460 Judgment at para. 789. 461 Judgment at para. 770. 462 Judgment at para. 149.

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quit is harder463 than it otherwise would be if tobacco and nicotine were not dependence

producing.464

[293] Yet the Judge recognizes that it is essential to have a “workable definition of

addiction” to enable individuals to “self-diagnose” their tobacco dependence.465

[294] In coming up with his own definition of what is essentially an individual

behavioural or medical diagnosis, the Judge simply decides for himself that, after four

years of daily smoking, a person is dependent,466 claiming, wrongly, that Dr. Negrete’s

evidence supports this. However, Dr. Negrete did not refer to this four-year qualifying

period of daily smoking, or any other specific period, in either of his reports. Rather, he

referred vaguely to the need to have smoked a sufficient quantity for a sufficient period of

time.467

[295] This four-year “theory” was put to Dr. Negrete at trial based on one reference in

a single article written by a family doctor who did not testify, and who was citing work by

a different academic (who was also not examined).468 The theory, as Dr. Negrete agreed,

referred to when the first symptoms of dependence begin to manifest themselves – which

is not enough, as all experts agreed, to constitute dependence or a disorder under any

medical classification.469

[296] The Judge ignores other authorities that Dr. Negrete said were well respected

and authoritative in the field that concluded that dependence takes a considerably longer

period to set in, and varies between individuals over a continuum of many years. In fact,

all the experts (including Dr. Negrete) agreed that a diagnosis of dependence under the

463 Judgment at para. 174. 464 At para 176, the Judge recognizes that Dr. Negrete, the only source the Judge relied on in this area,

agreed that other forces contributed to the difficulty of quitting such as social, sensory or genetic factors. Yet the Judge does not give this a moment’s consideration in assessing how this might affect the ability to order collective recovery for a liability stemming from a difficulty to quit, particularly one caused by nicotine.

465 Judgment at para. 771. 466 Judgment at para. 773. 467 Expert Report of Dr. Negrete (Exhibit 1470.1), PDF 6. 468 Testimony of Dr. Negrete March 21, 2013 at 149-151; Exhibit 1471. 469 Testimony of Dr. Negrete March 21, 2013 at 87, 146-149, 151,154. In fact, Dr. Negrete testified that

you could not conclude that someone was addicted to nicotine by simply referring to the fact that the person had smoked for 3 to 4 years. Testimony of Dr. Negrete, April 3, 2013, pp. 255-256.

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Diagnostic and Statistical Manual of Mental Disorders (the “DSM”) would require an

individual assessment, and a finding of clinically significant impairment or distress.

[297] The Judge then addresses the daily smoking component of his home-made

definition. Dr. Negrete did not accept that one cigarette per day was sufficient to qualify

as a daily smoker and did not provide a specific number of cigarettes per day that was

acceptable,470 leaving a void in the evidence.

[298] To fill this void, the Judge, at his own instigation, considers the self-reported

average smoked per day for smokers in Québec, as reported by Statistics Canada (16.5)

for a single year (2005).471 The Judge asks himself whether such information, provided

for a different purpose and with no reference to dependence, can be used as a basis for

what constitutes the threshold for dependence in 1998. He answers his own question in

the affirmative.472

[299] This is flawed and inappropriate. The average number of cigarettes smoked per

day by Quebecers in 2005 does not have any relevance to what constitutes a threshold

for dependence. Nor was that view supported by any expert. Nor does this data say that

the average level is reached within 4 years of smoking.

[300] It follows that, in an area where expert evidence was clearly required, the Judge

committed a palpable and overriding error of fact by substituting his own definition of

dependence without the expertise or evidence to do so.

3.2 The Judge erred in fact in finding that 95% of daily smokers are tobacco

dependent

[301] The Judge also finds as a fact, that 95% of all daily smokers are nicotine

dependent, albeit to a different degree. This proposition was undermined during the

cross-examination of Dr. Negrete who accepted that this 95% figure, which was reported

470 Judgment at para. 780. 471 Judgment at para. 781. 472 Judgment at para. 782.

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in a single article,473 could not be used to estimate the percentage of daily smokers who

were dependent in Québec because:474

(a) the sample used to obtain this figure in the US was based mainly on patients

of drug dependency treatment programmes for hard drugs, with a heavy

weighting to people with severe dependency problems who, as Dr. Negrete

admitted, would have a higher incidence of nicotine dependence compared

to the general population in Québec;475

(b) the 95% figure applied only to “High Consumption Smokers” (undefined), as

opposed to smokers in general;476

(c) the 95% figure referred to the total of smokers (in the sample) who had ever

been dependent, not who were dependent at the time as Dr. Negrete

admitted;477 and

(d) Dr. Negrete agreed that numerous other studies, including those used in his

report, showed the per year dependence figures for daily smokers in the US

to be 11%, not 95%.478

[302] Despite Dr. Negrete’s admission that 95% was not the correct figure for Québec,

which the Judge does not address, the Judge uses this figure to convert the Statistics

Canada 2005 survey conducted for a different purpose into the means by which to define

dependence.479 He combines the 95% figure of daily smokers with the average daily

smoking figures for Québec in 2005 and concludes that it is therefore “probable” that the

“average smoker” is dependent.480

473 Judgment at para. 784 (c); Exhibit 1470.1, PDF 20; Exhibit 1470.5. 474 Testimony of Dr. Negrete, April 3, 2013, at 236-237. 475 Testimony of Dr. Negrete, March 21, 2013, at 105-106. 476 Testimony of Dr. Negrete, March 21, 2013, at 26-27. 477 Testimony of Dr. Negrete, March 21, 2013, at 23-24. The very fact that people move in and out of

dependence should show that it is more than just the product of number of years smoking and the number of cigarettes smoked per day.

478 Testimony of Dr. Negrete, March 21, 2013, at 68, 94-95, 100-109, 116; Exhibit 1470.6; Exhibit 30021; Exhibit 30022; Exhibit 30024, PDF 3.


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[303] The judge goes further, adding that it is “likely” that dependence sets in before

the average figure. Although he recognizes that there is “an absence of direct proof on

the point,” he is undeterred by that fact and goes on to approximate what that figure

should be,481 by arbitrarily reducing the Statistics Canada 2005 average by 1 cigarette

per day. There was simply no evidence or basis for this finding.482

[304] In short, faced with the clear problem of not having a definition of dependence for

the case, nor any evidence presented by the Respondents sufficient to determine it, the

Judge, rather than concluding, as he should have, that the Respondents had failed to

satisfy their burden of proof, uses his own “common sense” to produce an unsupported

definition, of what is clearly a highly technical question.

[305] With respect, it is not permissible to substitute common sense for an admitted

and explicit lack of proof, particularly where expert evidence was admitted because the

Court did not have the requisite expertise.

3.3 The Judge erred in law by including individuals who are not tobacco

dependent in the Létourneau class

[306] By adopting a new definition of tobacco dependence and by concluding that 95%

of daily smokers are tobacco dependent, the Judge completely disregards the need for

any individual assessment, acknowledging “that there might be some individuals in the

Class who are not tobacco dependent in light of this new definition.”483 The Judge

considers “that to be de minimis in a case such as this where, in light of the number of

class members, a threshold of perfection is impossible to cross.”484 Yet the Judge does

not attempt to quantify or estimate the number of individuals who would be thusly

erroneously included in the class and has no evidence that would allow him to do so. In

such circumstances, it is impossible to conclude that this overinclusion is de minimis and

the Judge erred in doing so.

481 Judgment at para. 785. 482 Judgment at para. 786. 483 Judgment at para. 815. 484 Judgment at para. 815.

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4. THE JUDGE ERRED IN LAW IN AWARDING COLLECTIVE RECOVERY

[307] Art. 1031 CCP provides that the Court can order collective recovery if the

evidence enables it to establish the total amount of the claims “with sufficient accuracy.”485

To arrive at this total amount, the evidence must allow the Court to assess, with sufficient

accuracy, both the total number of class members who are entitled to recovery and the

amount of damages owed to each. Although the notion of “sufficient accuracy” introduces

a certain degree of discretion in the exercise, the class action procedure generally and

the collective recovery process specifically must not result in an increase of the

defendant’s liability.486

[308] Of necessity, then, collective recovery cannot be ordered unless all three

elements of liability have been proven with respect to all class members. In fact, as

reiterated by the Supreme Court in Bou Malhab, the class action plaintiff “must establish

the elements of fault, injury and causal connection in respect of each member of the

group.”487 The corollary is that collective recovery cannot be ordered for a class that

includes individuals who suffered no injury, or whose injury has not been proven to have

been caused by the defendant’s wrongful conduct.

[309] In order to succeed in a claim for collective recovery against JTIM, Respondents

had to demonstrate that: (i) smoking was the cause of disease or addiction in each

member of the class, (ii) smoking was caused by a fault of JTIM, (iii) the smoking caused

by JTIM’s fault was the smoking that caused the disease or addiction, and (iv) the

determination of the number of members of the class for whom fault, causation, and injury

is proven is sufficiently accurate, as is the assessment of their individual damages.

485 In particular, whatever flexibility may be allowed by the “sufficient accuracy” standard, it must require

that if Respondents seek to rely on a statistical estimate of entitled class members (that is, those who have demonstrated all three elements required to establish liability under Bou Malhab), that estimate must be bounded by statistically measurable margins of uncertainty. Whatever art. 1031 CCP and s. 15 of the TRDA might allow, it cannot be that wholly unreliable estimates according to standard statistical science satisfy the requirement of “sufficient accuracy.” Otherwise, that requirement is entirely meaningless. Novel theories – such as those put forth by Dr. Siemiatycki and Dr. Negrete (as modified and supplemented by the Judge) to estimate the number of Blais and Létourneau class members whose disease or dependence was caused by their smoking - which do not provide any statistically valid margins of error cannot possibly satisfy the criterion of sufficient accuracy. This is all the more so since neither Dr. Siemiatycki’s nor Dr. Negrete’s proposed tests take any account whatsoever of conduct causation.

486 St. Lawrence Cement Inc. v. Barrette, [2008] 3 S.C.R. 392 at paras. 115-116; Bank of Montréal v. Marcotte, 2014 SCC 55 at para. 104.

487 Bou Malhab v. Diffusion Métromédia CMR Inc., [2011] 1 S.C.R. 214 at para. 53.

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[310] The errors of the Judge with respect in particular to the issues of causation as set

out in sections 2.1, 2.2 and 3 of this factum preclude collective recovery in these cases.

In particular, to arrive at collective recovery, the Judge erred in law and in fact on the

following issues, among others:

(a) He erred in law in holding that the Appellants were liable towards class

members who took up smoking after the Smoking Dates and continued to

smoke after the Knowledge Dates in full cognizance of the risks;

(b) He erred in law in holding that the Appellants were liable towards all class

members who took up smoking prior to the Smoking Dates, even though an

unknown number of class members were aware of the risks;

(c) He erred in law and in fact in creating a presumption that the Appellants’

alleged faults “were one of the factors that caused” each and every class

member to smoke, notwithstanding the evidence that many people choose

to smoke even though they are fully aware of the risks;

(d) He erred in law in holding that, as a result of s. 15 TRDA, the “previous

jurisprudence calling for proof that each member suffered a similar prejudice

is overridden”;488

(e) He erred in law and in fact in finding that medical causation could be

established for each class member in the Blais File by a single “critical dose”

without any regard for any other risk factor, and notwithstanding the

uncontradicted evidence that Dr. Siemiatycki’s analysis failed to produce

any “critical dose” that met the standards of statistical reliability;

(f) He erred in law in failing to inquire whether, on the evidence before him, his

determination of the number of class members whose class disease was

caused by smoking was “sufficiently accurate” within the meaning of

art. 1031 CCP;

488 In fact, the application of this basic principle to the cases was unequivocally confirmed by this Court:

Imperial Tobacco Canada Ltd. v. Létourneau, 2014 QCCA 944, at paras. 41, 48.

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(g) He erred in law and in fact in creating, against all evidence and without

basis, his own definition of addiction, which he found could be applied

universally to all Létourneau class members so as to establish the total

amount of the claims; and

(h) He erred in law in holding the Appellants liable under the Québec Charter

and the CPA towards class members who took up smoking prior to the

coming into force of these statutes.

[311] As a result of the above errors, the collective recovery award unjustifiably

increases JTIM’s overall liability. It does so, inter alia, by compensating class members

who have no valid claims, by depriving the Appellants of individual grounds of exoneration

(such as individual knowledge of the risks and absence of any causation) and by failing

to take into account competing risk factors and the quitting factor. The Judge’s approach

ultimately results in sweeping aside all individual elements, at the expense of JTIM’s right

to defend itself.

[312] The sufficient accuracy standard in art. 1031 CCP does not alter or diminish

Respondents’ burden to prove fault, causation and injury for each class member, nor does

it permit a class to include those individuals whose disease or addiction has not been

proven to have been caused by JTIM. It remains for Respondents to prove each element

of liability for each member of the class. If the court is not satisfied that these elements

have been proven for each member of the class, as individuals, Respondents’ claim for

collective recovery must be dismissed.

5. THE JUDGE ERRED IN LAW AND IN FACT IN FINDING JTIM LIABLE UNDER

THE QUÉBEC CHARTER

5.1 The Judge erred in law in holding JTIM liable in the absence of a civil fault

[313] It is not disputed that the notion of “unlawful interference” found in s. 49 of the

Québec Charter coincides with the notion of a civil fault under the CCLC and CCQ.489

489 Québec (Public Curator) v. Syndicat national des employés de l’hôpital St-Ferdinand, [1996] 3 S.C.R.

211 at para. 116; Bou Malhab v. Diffusion Métromédia CMR inc., [2011] 1 S.C.R. 214 at para. 23.

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Accordingly, the Judge’s finding that the Appellants’ conduct contravened the Québec

Charter rests solely on his findings of fault under the civil regime.490

[314] For the reasons set out in section 1, JTIM submits that the Judge erred in holding

that JTIM had committed a fault under either the CCLC or the CCQ at any time during the

Class Period and, subsidiarily, at any time after the coming into force of the Québec

Charter on June 28, 1976.

5.2 The Judge erred in law and in fact in finding that the class members’ injury

was caused by JTIM’s conduct

[315] It is also not disputed that liability under the Québec Charter is subject to proof of

a causal relationship between the wrongful conduct and the alleged interference with a

protected right.491 In the present case, the alleged interference results from the

development of a class disease in the Blais File and of nicotine dependence in the

Létourneau File, both of which must themselves be causally related to the class members’

smoking. In other words, if the Appellants’ wrongful conduct did not cause the class

members to take up smoking and if smoking did not cause the class disease suffered by

the Blais class members or result in addiction for the Létourneau class members, then

the conduct did not in fact infringe the rights of the class members.

[316] Accordingly, the Respondents were required to establish that the Appellants’

wrongful conduct not only caused the class members to smoke but, additionally, that the

members’ smoking caused them to develop a class disease (for the Blais File) or become

addicted to cigarettes (for the Létourneau File). For the reasons explained in sections 2

and 3, JTIM submits that the Judge erred in law and in fact in finding that the Respondents

had satisfied their burden with respect to both aspects of causation.

[317] This failure to prove causation is dispositive of the claims both for compensatory

and punitive damages under the Québec Charter. Indeed, although punitive damages

can, in certain circumstances, be awarded in the absence of compensatory damages,

490 Judgment at paras. 482-484. 491 Québec (Public Curator) v. Syndicat national des employés de l’hôpital St-Ferdinand, [1996] 3 S.C.R.

211 at para. 116.

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it remains that they may only be awarded if it is shown that the defendant’s conduct

actually interfered with a protected right.

5.3 The Judge erred in law in holding JTIM liable to class members who took

up smoking prior to the enactment of the Québec Charter

[318] The Québec Charter came into force on June 28, 1976 and does not have

retroactive effect.492 Accordingly, class members do not have any Charter claims against

JTIM for alleged faults that precede the entry into force of the statute. Although the Judge

ostensibly recognizes the non-retroactive effect of the Québec Charter,493 he errs in his

application of the principle, resulting in a gross overstatement of the part of class covered

by the Québec Charter and, as a result, of JTIM’s liability under this statute.

[319] As explained above, the “unlawful interference” with protected rights alleged in

the cases are connected to the development of a class disease and nicotine dependence,

respectively. Although a class member’s claim may not arise until he has developed the

disease or become dependent, the root cause of that disease or dependence, according

to the Respondents’ case, is the member’s decision to start smoking.

[320] As such, the wrongful conduct under the Québec Charter, if any, must be the

conduct that caused the class member to take up smoking in the first place. Since that

wrongful conduct must have occurred on or after June 28, 1976 in order to be considered

an infringement of the Charter right, it follows that those class members who took up

smoking prior to that date do not have any claims under the Québec Charter.494

[321] At the very least, the Judge should have excluded those class members from his

assessment of damages (punitive and compensatory) under the Québec Charter. His

failure to do so is an error of law.495

492 P.-A. Côté, Interprétation des lois, 4th ed. (Montréal: Thémis, 2009) at 108, 141, 154, 156. 493 Judgment at para. 1024. 494 Subsidiarily, given the Judge’s finding that addiction takes four years to develop, those class

members who began smoking after the coming into force of the Québec Charter in June 1976 were not yet addicted to cigarettes at the Knowledge Date for the class diseases, established on January 1, 1980 by the Judge, and could therefore have quit smoking.

495 Moreover, since there is no evidence in the record that would allow the Court to assess how many class members are so affected, collective recovery is not permissible.

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5.4 The Judge erred in law in holding JTIM liable to class members who took

up smoking or continued to smoke while aware of the risks

[322] As found by the Judge, those class members who started to smoke after the

Smoking Date and continued to smoke after the Knowledge Date “assumed the risk” of

their conduct496 because they took the decision to smoke in full cognizance of the fact

that it could lead to disease or dependence.

[323] Having thus assumed the inherent risks involved in smoking, those class

members cannot claim to have been victims of an “unlawful” interference once those risks

materialized. Indeed, even if smoking could be said to interfere with certain protected

rights or freedoms, such interference cannot be said to be unlawful and causal of

damages for the myriads of class members who took up smoking of their own free will,

being aware of the risks their conduct entailed.

[324] Again, class members who took up smoking prior to the coming into force of the

Québec Charter have no claim under the statute. In addition, since the Smoking Date in

the Blais File precedes the coming into force of the Québec Charter,497 it follows that all

remaining class members “assumed the risk” of their conduct and therefore likewise have

no claim.

[325] The same is true of the class members in the Létourneau File who took up

smoking after the Smoking Date. Moreover, the fact remains that, well before Knowledge

Dates, an unknown (but clearly significant, given the survey data) number of class

members were in fact fully aware of and assumed the inherent risks and likewise cannot

claim that the materialization of those risks constitute an “unlawful” infringement of their

rights.498

496 Judgment at paras. 828, 832. 497 Judgment at para. 820. 498 Once again, there is no evidence in the record that would allow the Court to assess the number of

class members so affected, thereby making collective recovery impermissible.

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6. THE JUDGE ERRED IN LAW AND IN FACT IN FINDING JTIM LIABLE UNDER

THE CPA

[326] The Judge found JTIM liable to the class members in both files for contraventions

to sections 219 and 228 CPA. We will address each finding separately, beginning with

s. 219 CPA.

6.1 Advertising (section 219 CPA)

6.1.1 The Judge erred in law and in fact in finding that JTIM’s advertisements

constituted false or misleading representations pursuant to s. 219 CPA

[327] The Judge’s finding of a s. 219 CPA contravention relates solely to JTIM’s use of

what is commonly known as lifestyle advertising. Specifically, the Judge notes that a

number of print ads filed in the record “contain a theme and sub-message of elegance,

adventure, independence, romance or sport [and] and use attractive, healthy-looking

models and healthy-looking environments.”499 He finds that such advertising is misleading

in that it gives the “general impression” that “smoking is not harmful to health.”500

[328] The Judge comes to this conclusion notwithstanding his findings, earlier in the

Judgment, that the Appellants’ marketing strategies and advertisements did not convey

false information about their products501 and that “portraying smoking in a positive light”

does not constitute a fault since “advertising a legal product within the regulatory limits

imposed by government is not a fault, even if it is directed at adult non-smokers.”502

[329] The Judge’s finding of a violation of s. 219 CPA is not only difficult to reconcile

with his statement that portraying smoking in a positive light is acceptable, but results

from a misapplication of the legal test set out at s. 218 CPA to determine whether a

representation constitutes a prohibited business practice.503

499 Judgment at para. 535. 500 Judgment at para. 536. 501 Judgment at paras. 379 ff. 502 Judgment at para. 384. In particular, it bears noting that all advertising was regulated by the Voluntary

Codes, which were agreed upon “with the participation and approval of the Canadian Government” (Judgment at para. 394).

503 Consumer Protection Act, RSQ c P-40.1, s. 218: “To determine whether or not a representation constitutes a prohibited practice, the general impression it gives and, as the case may be, the literal meaning of the terms used must be taken into account.”

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[330] First, s. 218 CPA requires the court to assess the general impression conveyed

by the representation from the perspective of the average consumer, a legal fiction

personified by an imaginary individual who is relatively unsophisticated.504 More often

than not, the Court will have little guidance as to the attributes of this average consumer

and will be forced to rely on assumptions and hypotheses. This is not the case here,

however, as the Appellants adduced ample evidence as to the general awareness of the

risks of disease and dependence throughout the Class Period. This evidence is relevant

to assess what the “average consumer” might have concluded from looking at the ads,

particularly in light of the fact that the CPA claims are limited to the time period after the

coming into force of s. 219 on April 30, 1980.505

[331] Accordingly, the Judge errs when he concludes that his ruling on the Knowledge

Dates “is not relevant to the CPA-based claims” since “[u]nder the CPA, the consumer’s

knowledge of faulty representations does not exculpate the merchant.”506 Indeed, the

Judge found that “the public knew or should have known of the risks and dangers of

contracting a Disease from smoking as of January 1, 1980,”507 which is to say before the

relevant sections of the CPA came into force. Even if the Knowledge Date chosen by the

Judge is maintained, his finding leads to the inexorable conclusion that, by January 1,

1980 at the latest, the average consumer (who, surely, must at least be presumed to know

what every member of the public should know) knew that smoking causes cancer and

other fatal diseases.508

[332] This should have been the proper starting point for the analysis required by s. 218

CPA. The general impression given by the ads should have been assessed from the

perspective of a person who is aware that smoking causes cancer and other fatal

diseases. However “unsophisticated” the average consumer may be, he cannot be

assumed to be ignorant of what everyone else knows or should know. Otherwise, he

would not be “average,” but exceptionally ignorant.

504 Richard v. Time inc., [2012] 1 S.C.R. 265 at paras. 61 ff. 505 Fortier v. Meubles Léon ltée, EYB 2014-232573 at paras. 98-99 (QC CA). 506 Judgment at para. 525. 507 Judgment at para. 121. 508 As for the risk of dependence, in a 1979 survey, 84% of respondents agreed that smoking “is very

hard to stop” and 85% of respondents in a 1982 survey thought tobacco “habit forming” (Expert report of Prof. Duch (Exhibit 40062.1), PDF 70). In any event, the Judge’s finding is that the ads conveyed that smoking was not harmful to health, not that it was not habit forming. Whatever the appropriate Knowledge Date for dependence, the public was already aware of the risks of class diseases and, thus, that smoking is “harmful to health.”

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[333] Second, the analysis performed under s. 218 CPA “must take account of the

entire advertisement rather than merely of portions of its content.”509 Here, the Judge fails

entirely to consider the fact that the ads in question display the government-approved

warning concerning the “dangers to health” posed by smoking.510 Thus, not only do the

ads contain no claims or statements denying the harmful effects of smoking, they contain

explicit messages to the opposite effect. The Judge accordingly should have considered

the presence of the health warnings in his assessment of the general impression

conveyed by the ads.

[334] These two errors in law completely skew the Judge’s analysis and explain the

rather surprising result at which he arrives. Once the analysis required by s. 218 CPA is

conducted properly, it is evident that the average consumer, who is already aware that

smoking causes cancer and other fatal diseases, would not, by the mere fact of seeing

the image of an elegantly-dressed couple about to kiss,511 of a truck driver,512 or even of

a windsurfer,513 each accompanied by the government-approved health warning,

conclude that smoking is not in fact harmful to health. In fact, there was clear evidence

that this would not have occurred given by Prof. Soberman.514

6.1.2 The Judge erred in law and in fact in finding that all class members satisfied the

requirements for a remedy under s. 272 CPA

[335] Even if the Judge had been correct in holding that tobacco advertising was false

and misleading, he erred in finding that all the class members throughout the Class Period

were entitled to a remedy.

[336] As confirmed by the Supreme Court, a claim for damages pursuant to s. 272 CPA

is “subject to the general rules of Québec civil law.”515 The consumer’s burden of proof is

509 Richard v. Time inc., [2012] 1 S.C.R. 265 at para. 56. 510 The only exceptions being Exhibits 1240B and 1240C. However, contrary to the Judge’s

characterization, these exhibits do not constitute advertisements for tobacco products but advertisements for sports competitions sponsored by Export ‘A’.

511 Exhibit 1381.9. 512 Exhibit 40436. 513 Exhibit 573C. 514 Expert Report of Prof. Soberman (Exhibit 40560), at pp. 2, 4, 36-42. 515 Richard v. Time inc., [2012] 1 S.C.R. 265 at para. 126.

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eased, however, by the presumption of prejudice, which, if it is established, means that

the consumer will have established the element of fault without having to prove that the

merchant intended to mislead.516 To establish this presumption, the consumer must prove

four elements:

1) the existence of a representation constituting a prohibited practice;

2) that the consumer saw the representation in question;

3) that the consumer’s seeing that representation resulted in the formation of

the contract; and

4) that a sufficient nexus existed between the content of the representation

and the goods covered by the contract, i.e., that the representation was one

capable of influencing a consumer’s decision to smoke.517

[337] The Judge erred both in law and in fact in finding that the Respondents had

proven the conditions with respect to each class member, for the reasons that follow.

[338] As for the requirement that all the class members saw the infringing

representation, the Judge finds:

The Companies admit that all Members would have seen newspaper and magazine articles warning of the dangers of smoking. Since the ads appeared, inter alia, in the same media, it is reasonable to conclude that all Members would have seen them, as well.518

[339] With respect, it is difficult to understand how the Judge can on the one hand

disregard the evidence presented by Profs. Lacoursière and Flaherty regarding the class

members’ exposure to information concerning the dangers of smoking, while on the other

hand presume that all class members have seen the Appellants’ advertising in the same

publications. In addition, although it is certainly probable that class members (at least

those who smoked in the period during which advertising was legal) saw some tobacco

516 Richard v. Time inc., [2012] 1 S.C.R. 265 at para. 128. 517 Richard v. Time inc., [2012] 1 S.C.R. 265 at paras. 124, 141. 518 Judgment at para. 537.

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advertising, JTIM submits that the analysis required by Time cannot be performed in such

a general and superficial manner, entirely divorced from the specific facts. What

advertising was seen by whom? Did it lead that class member to buy the product

advertised or not?

[340] As for the requirement that the consumer’s seeing the representation resulted in

the formation of the contract, the Judge finds:

[538] We come to the third condition: that seeing the representation resulted in the Members' purchasing of cigarettes. In their proof, the Companies consistently emphasized that the purpose of their advertising was to win market share away from their competitors. To that end, they spent millions of dollars annually on marketing tools and advertising. Moreover, the Court saw the result of such marketing efforts, particularly through the success of ITL at the expense of MTI in the 1970s and 80s.

[539] This is sufficient proof to establish the probability that the Companies' ads induced consumers to buy their respective products. The third condition is met.519

[341] As a matter of pure logic, a representation cannot be said to have induced pre-

existing behaviour. As such, those class members who had already taken up smoking by

the time the CPA came into force on April 30, 1980 do not satisfy the criterion. The same

is also true of those class members who took up smoking after advertising was banned

in 1989.520

[342] As for the requirement that the representation was one capable of influencing a

consumer’s decision to smoke (the “sufficient nexus” requirement), the Judge simply

relies on the same “evidence and reasoning” as for the previous requirement.521 The

Judge erred in law in finding that the Respondents had established the application of this

fourth requirement.

[343] The mechanics of the sufficient nexus are illustrated in this Court’s judgment in

Dion v. Compagnie de services de financement automobile Primus:

519 Judgment at paras. 538-539. 520 Since there is no evidence in the record that would allow the Court to assess how many class

members are so affected, collective recovery is not permissible. 521 Judgment at para. 540.

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[85] The judge in first instance correctly applied the aforementioned to the instant case when she held that the last criterion had not been satisfied given the stipulation that the Consumers would have purchased or leased a vehicle had the charge in question been itemized or broken down. There was, accordingly, no nexus between the prohibited practice and the Consumers’ behaviour. The Consumers’ decision to pay the amount of the charge or to “perform the contract” was not influenced by the prohibited practice. Thus, there was no presumption of prejudice. There was no evidence and indeed the stipulation indicated that the Consumer would have paid the amount in any event […].522 [emphasis added]

[344] The above reasoning applies to the present case. Just as the evidence in Dion

showed that the consumers would have purchased or leased their vehicle regardless of

the prohibited practice, the evidence in this instance shows: (i) that people take up

smoking notwithstanding their awareness of the health hazards and the risk of

dependence and (ii) that people continue to take up smoking more than twenty years after

tobacco advertising was banned.

[345] This failure to satisfy the sufficient nexus requirement constitutes a bar to any

remedy pursuant to s. 272 CPA, including punitive damages.523

6.2 The failure to mention an important fact (section 228 CPA)

6.2.1 The Judge erred in law in applying s. 228 CPA outside of any specific

representation

[346] As appears from the Judgment, the Judge does not conduct a separate analysis

of the Appellants’ conduct to determine whether they have contravened s. 228 CPA. His

findings in that regard are based entirely on his earlier analysis of the Appellants’ conduct

522 2015 QCCA 333 at para. 85 [Dion]. 523 In stating this, we recognize that this Court in Dion awarded punitive damages notwithstanding its

finding that the sufficient nexus requirement had not been satisfied. With all due respect, this outcome does not comply with the principles established by the Supreme Court in Time, which require that the four criteria be satisfied not only for the purposes of the contractual remedies provided by s. 272 CPA, but also to obtain compensatory and punitive damages. Indeed the decision in Time makes it very clear that the plaintiff in that case, who did not seek a contractual remedy, but only moral and punitive damages, had to satisfy the four criteria to establish the merchant’s liability and his right to the remedies sought (Richard v. Time inc., [2012] 1 S.C.R. 265 at para. 141).

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throughout the Class Period.524 Notably, in contrast with his findings on s. 219 CPA, the

Judge’s findings concerning a s. 228 CPA contravention are not based on any specific,

positive statements or representations, but rather on the Appellants’ alleged silence over

the years.

[347] It is a fundamental error of law to conclude that there has been a contravention

of s. 228 CPA in a vacuum, outside of any specific representation. Indeed, s. 228 CPA

sanctions a fault of omission within a representation, namely: the failure to mention an

important fact in a specific representation to a consumer. By referring to s. 216 CPA,

which states that a representation includes an omission, the Judge comes to the rather

absurd result of sanctioning omissions within omissions,525 which leads him to eschew

entirely any real analysis of the requirements developed by Time, including the

requirement that the representation at issue be seen by the consumer (since, as he puts

it, “no one can see something that is not there”).526 This fundamental error entirely vitiates

the “analysis” of the Judge and must lead to the reversal of his findings.

6.2.2 The Judge erred in law in failing to examine what constitutes an “important fact”

for the purposes of s. 228 CPA

[348] In addition, the Judge commits an error of law by failing to examine what

constitutes an “important fact” for the purposes of s. 228 CPA. Indeed, as recently

reiterated by this Court in Amar v. Société des loteries du Québec, an “important fact” is

one that, if it had been disclosed to the consumer in due time, could have influenced his

decision to contract.527 In other words, a failure to disclose a fact will not constitute a

contravention of s. 228 CPA if the disclosure would not have changed anything in any

event.

[349] This of course means that immaterial facts need not be disclosed, even if they

are unknown to consumers. But it also means that material facts need not be disclosed if

they are already common knowledge, as the average consumer can be deemed to be

524 Judgment at para. 512, referring the reader to the Court’s analysis at sections II.D.5 and 6. 525 Judgment at para. 512. 526 Judgment at para. 513. 527 Amar v. Société des loteries du Québec, 2015 QCCA 889 at para. 49, citing with approval author

C. Masse.

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aware of such facts. Indeed, the purpose of s. 228 CPA is to ensure that consumers’

decisions to contract are made in cognizance of all material facts. The disclosure of known

facts is not necessary to that purpose.

[350] In this respect, once again, the Judge’s finding that the public knew of the risks

and dangers of contracting a disease from smoking as of January 1, 1980, before

s. 228 CPA even came into effect, should be determinative of the claims in the Blais File.

The Judgment does not identify what other “important facts” pursuant to s. 228 CPA

should have been disclosed beyond that date.

6.2.3 The Judge erred in law and in fact in finding that all class members satisfied the

requirements for a remedy under s. 272 CPA

[351] Even if the Judge were correct in finding that the Appellants had violated

s. 228 CPA and that the class members were all “subjected to the omission,”528 it remains

that, for the reasons discussed above, the Judge erred in finding that the third requirement

of Time (that the representation resulted in the formation of the contract) was satisfied

with respect to those class members who took up smoking prior to the coming into force

of the CPA on April 30, 1980.529 Again for the reasons discussed above, the Judge erred

in finding that the fourth requirement of Time (sufficient nexus) was satisfied in light of the

evidence that people continue to take up smoking notwithstanding their awareness of the

health hazards and the risk of dependence.

7. THE JUDGE ERRED IN LAW AND IN FACT IN AWARDING PUNITIVE

DAMAGES AGAINST JTIM530

[352] The claims for punitive damages are grounded on alleged violations of the

Québec Charter and the CPA. The general grounds of appeal in relation to liability under

these statutes are detailed in sections 5 and 6, respectively. This section focuses on the

grounds relating to the award of punitive damages in particular.

528 Judgment at para. 513. 529 Since there is no evidence in the record that would allow the Court to assess how many class

members are so affected, collective recovery is not permissible. 530 JTIM reserves its right to elaborate further in its factum in response to the cross-appeal on the whole

issue of punitive damages.

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7.1 The Judge erred in law and in fact in his application of prescription to

punitive damages

[353] It is not contested that the special rules of the TRDA do not apply to the claims

for punitive damages under either statute,531 such that the three-year prescription period

applies without exception from the filing of the Motions for authorization in each file. As a

result, the prescription limit for punitive damages in the Létourneau File is September 30,

1995. As for the Blais File, the prescription limit for the members of the original class is

November 20, 1995.532

7.1.1 The Judge erred in law and in fact in finding that the causes of actions of the

Létourneau class members did not arise until Knowledge Date

[354] The Judge holds that the causes of action of the Létourneau class members did

not arise until the Knowledge Date, since “knowledge is an essential factor in instituting a

claim.”533 Since he chose a Knowledge Date after September 30, 1995, the Judge

reasons that “none of the Létourneau claims are prescribed.”534 To arrive at this

conclusion, the Judge committed reviewable errors of law and palpable and overriding

errors of fact.

[355] As discussed above, in September 1994, the Federal Government adopted a

health warning that read: “CIGARETTES ARE ADDICTIVE”.535 This warning occupied 25% of

the principal display surface and would have been seen by the smoker every time he/she

took the package in hand to smoke a cigarette.536

531 See Judgment at para. 889. Cinar Corporation v. Robinson, [2013] 3 S.C.R. 1168 at paras. 123-124. 532 Judgment at para. 901. In addition, for the reasons submitted in section 8.1 below, the prescribed

claims of the new members that were added to the class definition as a result of amendments made in July 2003 were not revived by those amendments. Accordingly, those class members whose claims arose under either the Québec Charter or the CPA between February 21, 2005 and April 4, 2010 should have been excluded from the equation in the assessment of punitive damages in the Blais File.

533 Judgment at para. 888. 534 Judgment at para. 888. 535 Judgment at para. 110. 536 Moreover, the information disclosed in the warning was hardly new, as the evidence shows that the

risks of addiction were already widely known.

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[356] Notwithstanding the existence of this warning, the Judge arbitrarily, and without

any evidence, delayed the Knowledge Date by an additional 18 months for the warnings

to “circulate widely enough to have sufficient force.”537 Whatever the Court may decide

with respect to the Judge’s findings in this respect with regards to the Knowledge Date

and its impact on liability, it is clear that this additional delay of 18 months should not

impact the issue of prescription.

[357] Indeed, in referring to the Knowledge Date as the date on which the causes of

action arose, the Judge commits an error of law.538 Claims for punitive damages come

into existence on the date of the infringement at issue. In terms of the CPA claims, which

are based on prohibited business practices, the individual claims of class members arose

at the formation of the initial contractual relationship, i.e., at smoking initiation.539 In terms

of the Québec Charter claims, the individual claims arose at the moment the class

member became dependent to smoking, which the Judge finds normally takes place four

years after smoking initiation.

[358] Thus, contrary to what the Judge concludes, the claims of the class members did

not all suddenly arise on the Knowledge Date. Rather, each individual member’s claim

would have arisen at the moment they began smoking (for CPA claims) or became

dependent (for Québec Charter claims). It is that moment, which is different for each class

member, that constitutes the starting point for the calculation of prescription.

537 Judgment at paras. 129-130. Incidentally, after having castigated the expert historians for purporting

to provide evidence of awareness despite having no expertise in psychology or human behaviour (Judgment at para. 94), the Judge established this 18 month delay (which purportedly allows him to conclude that the Létourneau claims are not prescribed) for the warnings to “have sufficient effect” (Judgment at para. 130) without any evidence or assistance from experts.

538 On the distinction between suspension of the existence of the cause of action itself and suspension of the prescription period, see A v. B, 2006 QCCS 5496 at para. 7. See also Québec (Procureure générale) v. Bélanger, 2012 QCCS 845 at paras. 20 ff.

539 Consumer Protection Act, SRQ c P-40.1, s. 273, replaced in 2006, c 56, s. 7; Bank of Montréal v. Marcotte, [2014] 2 S.C.R. 725, at para. 55. Since the class definition in the Létourneau File restricts membership to individuals who, among other requirements, started smoking before September 30, 1994, this means that the CPA claims of every single class member arose prior to September 30, 1995.

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[359] Once that starting point is established, the individual class members whose

claims would otherwise be prescribed (because they arose before September 30, 1995)

have the burden of proving that prescription did not run against them because it was

“impossible in fact” for them to act sooner as prescribed by art. 2904 CCQ.540

The burden of proof in this respect rests with the class members.541

[360] The impossibility in fact to act can result from the plaintiff’s ignorance of the facts

giving rise to their claim,542 so long, however, as it was not reasonably possible for them

to obtain such knowledge before.543 The Respondents led no evidence whatsoever to

show that it was “impossible in fact” for any class member (let alone for all class

members544) to act once a warning of the dangers of addiction was placed on cigarette

packages.545 In fact, the Judge recognizes elsewhere in his Judgment that no such

evidence was made, stating: “In these files, there is nothing in the proof to indicate that

the Companies’ ‘disinformation’ had any effect whatsoever on the Plaintiffs’ decision not

to sue earlier.”546

[361] In any event, as discussed above,547 as the addiction warning was mandated by

statutory instrument, all class members were legally presumed by application of art. 2807

CCQ to have known of its existence by September 12, 1994. In this regard, even if one

were to accept the date of knowledge as the starting point for the calculation of

prescription, all the claims would be prescribed.

540 See Marcotte v. Fédération des caisses Desjardins, [2014] 2 S.C.R. 805 at paras. 29- 32. 541 Geneviève Cotnam, “Incidents de la prescription: renonciation, interruption et suspension” in

JurisClasseur Québec: Preuve et prescription, fasc. 20, loose-leaf (consulted on November 19, 2015), (Montréal: LexisNexis, 2008) ch. 20 at para. 47.

542 See, e.g., Banque de Montréal c. Bail ltée, [1992] 2 S.C.R. 554 at 603. 543 Oznaga v. Société d’exploitation des loteries, [1981] 2 S.C.R. 113 at 126. 544 Indeed, the “impossibility to act” under 2904 CCQ not only requires evidence, it is a highly individual

issue: Tremblay v. Lavoie, 2014 QCCS 3185 at para. 307. 545 See Marcotte v. Fédération des caisses Desjardins, [2014] 2 S.C.R. 805 at para. 31: “For example,

Gascon J. noted that Mr. Marcotte had knowledge of the conversion charges long before April 17, 2000. Even if he did not have personal knowledge of the conversion charges at that time, it was not impossible for him to have obtained knowledge of these charges through the disclosure on the back of his monthly credit card statements, which he had received for over 15 years prior to April 17, 2000. As a result, art. 2904 of the CCQ had long ceased to suspend prescription. Mr. Marcotte’s personal right of action was therefore prescribed by the time the BMO and Desjardins Actions were filed. Similarly, the claims of all other consumer cardholders who received their first monthly credit card statement prior to April 17, 2000 are entirely prescribed...”.

546 Judgment at para. 877. 547 See paragraph [185] of this factum.

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[362] Subsidiarily, regardless of the appropriate Knowledge Date, it is indisputable that

large segments of the population (and thus class members) were aware of the risk of

dependence before that date and, indeed, well before September 30, 1995. This obvious

point is in fact recognized by the Judge, who delays his Knowledge Date until awareness

had supposedly reached a “vast majority” of the population,548 thus admitting that a large

number of smokers were informed prior to that point. In the absence of any evidence from

the Respondents, the Judge could not disregard this fact and act as if all class members

were in an impossibility to act before then.

7.1.2 The Judge erred in law in the application of prescription to the Blais class

members

[363] For the reasons discussed in section 6 above, there could not have been any

violation of the CPA after the Knowledge Date of January 1, 1980 at the very latest. Since

the CPA claims arise at smoking initiation, all CPA claims in the Blais File were thus long

prescribed at the time of filing.

[364] As for claims under the Québec Charter, only those class members who (i) were

personally unaware of the risks of smoking, (ii) became “dependent” (accepting for this

purpose the Judge’s definition) before the Knowledge Date of January 1, 1980 and

(iii) developed a class disease on or after November 20, 1995 may have a non-prescribed

claim for punitive damages at the time of filing. As the evidence does not permit the Court

to assess the number of class members who satisfy these criteria, collective recovery is

not permissible.

7.2 The Judge erred in fact in finding that JTIM had intentionally interfered with

the Québec Charter rights of the class members

[365] To succeed in their claim for punitive damages under the Québec Charter, the

Respondents had to prove that JTIM intended to violate rights of the class members as


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per s. 49, para. 2.549 The Judge erred in finding that the Respondents had met their

burden of proof in this respect.550

[366] As noted by Justice Lachance in Regroupement des citoyens du quartier

St-Georges inc. v. Alcoa Canada ltée551, a distinction must be made between being aware

of the health risks associated with a given conduct (or product), and having the intent to

cause harm to others:

[83] Il y a une différence entre connaître un risque pour la santé et vouloir causer une maladie à une personne. Il ne faut pas oublier non plus qu'Alcoa a procédé volontairement à des travaux de décontamination en collaboration avec le gouvernement du Québec, ce qui semble démontrer bonne foi.552 [emphasis added]

[367] In assessing the intentionality of JTIM’s alleged infringements, it is again

important to remember that the analysis must be limited to JTIM’s conduct after June 28,

1976.

[368] There is no evidence whatsoever that JTIM intended to harm the class members

and infringe their rights. Indeed, the evidence shows unequivocally that the tobacco

industry was heavily regulated and that JTIM complied with the regulatory standards set

by the Federal Government. JTIM was therefore entirely justified in assuming, as the

Federal Government believed, that sufficient safeguards, including the health warnings

on cigarette packages, were in place to ensure that people made informed decisions

about smoking and (for reasons that are their own and must be respected) accepted the

inherent risks involved. This is true a fortiori with respect to the years following the coming

into force of the TPCA in 1989.553

549 Québec (Public Curator) v. Syndicat national des employés de l’hôpital St-Ferdinand, [1996] 3 S.C.R.

211 at paras. 114-116. 550 Judgment at paras. 485-486. 551 Regroupement des citoyens du quartier St-Georges inc. v. Alcoa Canada ltée, 2007 QCCS 2691. 552 Regroupement des citoyens du quartier St-Georges inc. v. Alcoa Canada ltée, 2007 QCCS 2691 at

paras. 79-83. See also Fédération des médecins spécialistes du Québec v. Conseil pour la protection des malades, 2014 QCCA 459 at paras. 128, 137-138.

553 Tobacco Products Control Act, S.C. 1988, c. 20. See Exhibit 4003A-1989, PDF 15 (art. 20).

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7.3 The Judge erred in law and in fact in finding that JTIM’s conduct was

deserving of punitive damages under the CPA

[369] Although proof of bad faith or intention to cause harm is not always required to

award punitive damages under the CPA, the Supreme Court has explicitly rejected the

suggestion that a mere infringement of the statute is in itself sufficient to justify such an

extraordinary remedy.554 According to the Court, punitive damages are to be limited to

violations that are “intentional, malicious or vexatious” or conduct that displays

“ignorance, carelessness or serious negligence” with respect to consumers’ rights and to

the obligations owed under the CPA.555

[370] The Judge fails entirely to examine whether the conduct allegedly giving rise to

the CPA claims meets this standard and simply assumes that the CPA infringements

warrant punitive damages.556 This is an error of law, which requires this Court to examine

the facts de novo.

[371] As discussed at length in section 6.1, the only violations of the CPA that are

specifically analyzed by the Judge relate to so-called lifestyle advertising. Even if,

notwithstanding the public’s awareness of the risks of smoking and the presence of

government-approved health warnings, such advertisements (showing images of couples

kissing or canoes on a lake) could somehow be interpreted as misrepresentations within

the meaning of the CPA, they cannot possibly rise to the level of “serious negligence”

concerning obligations owed under the CPA, particularly in light of the Judge’s finding that

“portraying smoking in a positive light” and “advertising a legal product within the

regulatory limits imposed by government is not a fault.”557 How can doing something that

is “not a fault” constitute serious negligence?

[372] As for the alleged violation of s. 228 CPA, again, it is important to remember that

the analysis must be limited to JTIM’s conduct after April 30, 1980. In this respect, JTIM

was entirely justified in its position that the regulatory requirements in place, with which it

complied at all material times, and the high levels of awareness among the population

were sufficient.

554 Richard v. Time inc., [2012] 1 S.C.R. 265 at para. 167. 555 Richard v. Time inc., [2012] 1 S.C.R. 265 at para. 180. 556 Judgment at paras. 517, 541, 1024. 557 Judgment at para. 384.

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7.4 The Judge erred in law and in fact in relying on the “Integration

Transactions” to award and assess punitive damages

[373] The Judge erred in law by ignoring the transactions entered into by JTIM in the

context of Japan Tobacco Inc.’s (“JT”) purchase of RJRTCo’s international assets (the

“Integration Transactions”) for the purposes of assessing JTIM’s capacity to pay

punitive damages pursuant to art. 1621 CCQ.558 He further compounded this initial error

by actually increasing JTIM’s liability for punitive damages to further sanction what he

found to be JTIM’s bad faith in entering into these Integration Transactions.559

[374] The Integration Transactions, which were motivated by tax efficiency, create

legally valid and enforceable financial obligations toward third parties. The Respondents,

despite being aware of the transactions since at least 2004, never challenged the validity

or the enforceability of the 16-year-old Integration Transactions and this issue was not

before the Judge. The obligations created by the Integration Transactions are binding on

JTIM and opposable to the Respondents and the class members. JTIM’s true patrimonial

situation, taking into account its obligations under the Integration Transactions, should

have been recognized in the assessment of JTIM’s capacity to pay punitive damages.560

[375] The CCQ explicitly provides a legal regime for third parties to challenge the

opposability of juridical acts.561 Article 1621 CCQ, which only provides the criteria to

assess punitive damages, does not allow the Court to circumvent these rules and

disregard the legality and binding effect of juridical acts.

[376] In fact, the Respondents sought a safeguard order to prevent JTIM from meeting

its obligations under the Integration Transactions. The Judge decided not to hear that

Motion himself and the matter was transferred to Justice Robert Mongeon, who denied

the order sought.562

558 Judgment at paras. 1092 to 1112. 559 Judgment at para. 1103. 560 Conseil québécois sur le tabac et la santé v. JTI-MacDonald Corp., 2013 QCCS 6085 at para. 97

[Mongeon Judgment], leave to appeal denied 2014 QCCA 520 (CanLII). 561 Articles 1631 to 1636 CCQ. 562 Mongeon Judgment. Not only was the whole issue referred to Justice Mongeon, the latter rendered

judgment on the basis of an evidentiary record that also included expert evidence confirming that the Integration Transactions were part of tax planning purposes.

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[377] Before Justice Mongeon, the Respondents attempted to justify their right to a

safeguard order by arguing that JTIM’s capacity to pay punitive damages in the class

actions would otherwise be impacted negatively. This was unequivocally rejected by the

Court: “The trial judge will not be able to ignore, in his decision to award punitive damages

that JTIM will still be indebted towards JTI-TM for the total amount of the reserve in

question.”563

[378] The Respondents were denied leave to appeal that decision by Justice Savard

of this Court,564 who rejected inter alia the Respondents’ contention that Justice Mongeon

had exceeded his role in ruling that the obligations created by the Integration Transactions

could not be ignored in the assessment of punitive damages.565

[379] The Judge erred in law by effectively accepting the Respondents’ collateral attack

on Justice Mongeon’s decision and ignoring the legally binding effect of the Integration

Transactions in his assessment of JTIM’s capacity to pay punitive damages. The Judge

also erred in law by dismissing JTIM’s objection to evidence pertaining to the Integration

Transactions, based on the abovementioned legal arguments.

[380] Furthermore, the Judge also made overriding and palpable errors of fact when

dismissing JTIM’s objection and completely ignoring the evidence filed under reserve of

this objection.566 He further erred by relying exclusively on the testimony of a witness,

Mr. Poirier, who made it clear that he had no involvement in, or contemporaneous

knowledge of, the Integration Transactions.567

[381] The Judge ignored, without any justification whatsoever, the uncontradicted

evidence establishing their legitimacy, namely:

(a) The affidavit evidence of Ms. Mary Carol Holbert, a tax specialist who was

in charge of the conception and implementation of the Integration

Transactions on behalf of JT, whom Respondents chose not to cross-

examine. Her testimony, based on first-hand knowledge of the

563 Mongeon Judgment at para. 84. 564 Conseil québécois sur le tabac et la santé v. JTI-MacDonald Corp., 2014 QCCA 520 (CanLII). 565 Ibid. at paras. 2 and 20. 566 Incidentally, the Judge never referred to the sections of JTIM’s Argument Plan pertaining to the

Integration Transactions and JTIM’s capacity to pay punitive damages. 567 Testimony of Mr. Poirier, May 23, 2014, pp. 211-214 (confidential). Mr. Poirier was, as he testified,

had absolutely no involvement in said transactions and no personal knowledge of same.

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circumstances, proves that the structure was used for tax planning purposes

and refutes the unsupported proposition that the transactions were in any

way related to the class actions. In fact she testified to the effect that she

was completely unaware that class actions had been filed against JTIM

when she was working to put the Integration Transactions in place;568

(b) The 2004 report of a Court-appointed monitor in the context of the CCAA

proceedings of JTIM, which confirms that the tax structure used in the

transactions is consistent with typical corporate tax optimization strategies

common in business, and demonstrates that the transactions were within

the public’s knowledge and that the Plaintiffs have known of their existence

since that date.569

[382] Specifically, the evidence showed that, in March, 1999, JT agreed to purchase

the worldwide assets of R.J. Reynolds operating outside the United States. The sale

closed on May 11, 1999.570 Ms. Holbert571 clearly explains in her affidavit that the

Integration Transactions were motivated by tax efficiency.572

[383] It is common in this type of international transaction that the party acquiring would

structure the transaction in such a fashion that the entity acquired would assume a debt

for the acquisition, to help finance the latter, for tax-planning purposes, as recognized by

the Court-appointed monitor in the CCAA proceedings.573

[384] Since 1999, JTIM has been allowed to deduct, legitimately and pursuant to

s. 20(1)(c) of the Income Tax Act (“ITA”),574 the loan interest from its income such that

JTIM has benefited from tax savings which initially stood in the $40 million range per year

and today continues to exceed $30 million per year.575 The Integration Transactions are

568 Exhibits 1751.1 and 1751.1-CONF. 569 Exhibit 1748.3. 570 Exhibits 1751.1 and 1751.1-CONF, para. 2. 571 Ms. Holbert was then a lawyer and tax specialist in the tax department at the headquarters of R. J.

Reynolds International in Geneva and she was personally involved in that transaction. See Exhibits 1751.1 and 1751.1- CONF, paras. 1, 3.

572 Exhibits 1751.1 and 1751.1-CONF, para. 42. 573 Exhibit 1748.3, para. 27. 574 (R.S.C., 1985, c. 1 (5th Supp.)). 575 Exhibits 1748.1 and 1748.1-CONF, paras. 52 and 53; see also Exhibit 1748.1.5- CONF.

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legitimate and, indeed, are accepted as a matter of policy through section 20(1)(c) ITA

because it facilitates and encourages investments and commercial acquisitions in a

private enterprise economy.

[385] Respondents also alleged that JTI-TM was created solely for the purpose of

holding the trademarks for creditor-proofing purposes. This is incorrect. The creation of

JTI-TM was also tax-driven, to reduce its annual capital tax liability, as the evidence filed

before Justice Mongeon demonstrated. The Court-appointed Monitor noted that in

complex corporate structures, intangible assets are often transferred and licensed which

results in lower taxes payable.576

[386] The accounting effect of the amalgamation of JTIM and RJRMI would have

reassessed the value of the trademarks held by RJRMI at fair market value, instead of

book value, upon amalgamation, which would then have caused a material increase in

the capital tax to be paid.577

[387] To deal with this situation, Ms. Holbert explains in her affidavit that RJRTI decided

that it would be best to transfer the trademarks into a new subsidiary of RJRMI to be

incorporated in Québec, where the corporate tax rate was lower.578 The transfer of the

trademarks to a trademark holding company (now JTI-TM) generated capital and tax

savings of $5 million on a yearly basis.579

[388] This transfer had the additional, but collateral, business purpose and benefit of

protecting JT’s investment in the Canadian company by placing the trademark’s assets

in a “bankruptcy remote” vehicle such that JT, through JT Canada LLC, would have a first

claim to the trademarks in the event JTIM became insolvent. As Ms. Holbert explains:

[…] it made complete business sense to secure the trademarks, considering the size of JT’s investment in Canada, against the possibility, though remote, of bankruptcy.

576 Exhibit 1748.3, para. 20. 577 Exhibits 1751.1 and 1751.1-CONF, paras. 18 and 19. Additionally, the so-called facts referred to by

Respondents (as appear in Schedule J of the Judgment) to argue that the transactions were not mandatory are all explained and refuted in the affidavits of Rob McMaster (Exhibit 1748.1) and Mary Carol Holbert (Exhibit 1751.1).

578 Exhibits 1751.1 and 1751.1-CONF, paras. 20 and 21. 579 Exhibits 1751.1 and 1751.1-CONF, para. 39.

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[…] In fact, I was not myself aware of the existence of litigation against RJR-Macdonald at the time, including the Plaintiffs’ motion for authorization to institute class actions in which I understand JTI-M is currently involved. This was irrelevant to the instructions I had and to my work as a tax specialist resulting from the said instructions.580

[389] In sum, the Judge erred in law in disregarding the legal effects of transactions

that have never been judicially challenged by the Respondents and, what is more, basing

his award of punitive damages on issues that are unrelated to the alleged statutory

violations giving rise to the punitive damage claims.581 In addition, the Judge committed

palpable and overriding errors of fact by putting into question the motivation and purpose

of these transactions on the basis of a statement made by a witness who had no

involvement or contemporaneous knowledge of the issue, while failing to address, as if it

did not exist, clear evidence to the contrary, including unimpeached evidence directly on

point from a knowledgeable witness.

8. OTHER GROUNDS OF APPEAL

8.1 The Judge erred in law in allowing prescribed claims to be revived by the

2013 amendments to the class definition in the Blais File

[390] On July 3, 2013, in the middle of the trial, the Judge modified the class definitions

and extended the closure date in the Blais File from 2005 to 2012, thereby significantly

increasing the size of the class.582

[391] The amendment should not have been granted as the addition of class members

during the trial is prohibited by art. 1013 CCP.583 Subsidiarily, the amendment does not

have the effect of reviving the claims of class members who contracted a disease more

than three years before the amendment.

[392] Indeed, it is well established that an amendment cannot revive prescribed

rights.584 For example, in Pearl v. Les Investissements Contempra ltée, the Superior

580 Exhibits 1751.1 and 1751.1-CONF, paras. 42 and 44. 581 Cinar Corporation v. Robinson, [2013] 3 S.C.R. 1168 at para. 135. 582 Conseil québécois sur le tabac et la santé v. JTI-MacDonald Corp., 2013 QCCS 4904 at para. 36. 583 Riendeau c. Brault & Martineau inc., 2007 QCCS 4603 at para. 92. 584 Fiducie M.C.M. no. 2 v. Marché central métropolitain inc., REJB 2000-20270 at paras. 23 and 24

(QC SC). See also: Groupe LNR Investments Ltd. v. Sim, EYB 2013-223052 at paras. 11-23 (QC CQ); Willmor Discount Corporation v. City of Vaudreuil, [1994] 2 S.C.R. 210, at 227.

118


Court held on the merits that a previously authorized amendment to extend the class

period had not had the effect of reviving the claims of the new class members whose

claims had become prescribed by the time of the amendment.585

[393] These principles apply in the present instance. Individuals who were diagnosed

with a class disease between September 30, 2005, and March, 12, 2012 were only added

to the class as a result of the Judgment rendered on July 3, 2013 and the subsequent

publication of a new notice. As they were not part of the initial class,586 these individuals

did not benefit from the suspension of prescription per art. 2908 CCQ, nor from the

interruption of prescription per art. 2897 CCQ. Moreover, their claims are not affected by

s. 27 TRDA, as this provision had ceased to apply at the time of the amendment.587

[394] Accordingly, those individuals whose diseases were diagnosed more than three

years before the Respondents’ service of their amendments on April 4, 2013 were

prescribed and the Judge erred in law in failing to dismiss their claims. According to the

tables used by the Judge to calculate the total number of class members in the Blais

File,588 a significant number of class members were thus erroneously added to the class

as a result of this illegal extension of the class period.

8.2 The Judge erred in law in awarding legal interest from the date of service

of the Motion for Authorization in Blais

[395] The Judge erred in law in awarding legal interest and the additional indemnity in

the Blais file commencing from the date of service of the Motion for Authorization.

585 Pearl v. Les Investissements Contempra ltée, EYB 1995-78288 at paras. 45-50 (QC SC). 586 The fact that these individuals were not part of the initial class is confirmed by the fact that new

notices had to be published following the amendment. The Respondents themselves admitted, at paragraph 165 of the Blais Motion to Institute Proceedings, that the class covered by the authorization judgment was limited to the date “du dépôt de l’action”, i.e. on September 30, 2005. “165. Ainsi, en retenant une moyenne annuelle de 5 000 nouveaux cas de personnes victimes d’un cancer du poumon, 80 nouveaux cas de personnes victimes d’un cancer de la gorge, 125 nouveaux cas de personnes victimes d’un cancer du larynx et 1800 nouveaux cas de personnes victimes d’emphysème, pour la période couverte par le présent recours, telle que définie par l’Honorable juge Jasmin dans le jugement d’autorisation, soit pour une période de sept (7) ans, depuis le 23 novembre 1998, et ce, jusqu’à la date du dépôt de l’action, le nombre total de membres du groupe par maladie s’élève à: […].”[emphasis added]

587 S.27 TRDA applied for a period of three years following the coming into force of the TRDA in 2009. 588 Exhibit 1426.7.

119


[396] On July 3, 2013, the Judge modified the class definitions and also set a new date

of closure for the two class actions. In the Blais File specifically, the Judge set the date of

closure of the class to include any individual who was diagnosed with one of the class

diseases before March 12, 2012. New notices to class members were published after the

class definition was expanded to include these additional members.

[397] Assuming all other conditions of liability are met, the individual right of action of

the class members in the Blais File arose as of the date on which they were diagnosed.

It is an error of law to condemn JTIM to pay interest and the additional indemnity

commencing on November 20, 1998 for damages owed to those class members whose

right of action arose thereafter.589

8.3 The Judge erred in law in concluding that RJRMI succeeded to the rights

and obligations of MTI

[398] The Judge erred in law in holding JTIM liable for MTI’s conduct prior to the 1978

corporate restructuring, notwithstanding the fact that RJRMI was not the successor of MTI

and never assumed its obligations after its dissolution.590

[399] The Judge erred in law in interpreting the General Conveyancing Agreement591

as creating rights in favour of third parties. Clause 10 of the Agreement clearly states that

no such right or remedy is conferred to third parties:

[…] This Agreement shall enure to the benefit of and be binding upon the parties named herein and their respective successors and assigns and shall be governed by the laws of Québec; nothing in this Agreement, express or implied, is intended to confer upon any other person any rights or remedies under or by reason of this Agreement.592

[400] The Judge also erroneously concluded that the assumption of “all” liabilities and

obligations “now owing” in 1978, as found in the General Conveyancing Agreement, could

include any future Canadian lawsuits against MTI, including the present proceedings,

which were instituted in 2005 and rely on the abolition of prescription pursuant to

589 France Animation, s.a. v. Robinson, 2011 QCCA 1361 at para. 228. 590 Judgment at paras.1105-1111. 591 Exhibit 40596. 592 Exhibit 40596.

120


s. 27 TRDA enacted in 2009. The coming into force of Bill 43593 purporting to revive certain

long prescribed claims against tobacco companies 31 years after MTI’s dissolution could

not have been reasonably foreseen by the parties back in 1978.

[401] Finally the Judge inappropriately and unlawfully interpreted the parties’ intention

in the face of a clear and unambiguous Agreement.

8.4 Interlocutory Judgments

8.4.1 The May 2, 2012 judgment (403 CCP)

[402] On May 2, 2012, the Judge rendered an interlocutory judgment with respect to

the admissibility of documents from the Appellants’ files but for whom there was no

appropriate witness.594 As a result, numerous documents in the record contain the suffix

“2M”, and are subject to limitations as to their use set out in that judgment.

[403] The Judge erred in law in allowing the filing of these documents simply because

they could be found in Appellants’ records, with the only necessity being the sending of a

notice pursuant to art. 403 CCP. This evidence was introduced in complete disregard of

the principles found in arts. 2843 and 2870 CCQ, in that they were either produced without

a witness, or through a witness who could not legally speak to the contents of the

documents, contrary to the hearsay rule.595

[404] The Judge’s error had a material impact on the outcome of the case. For example,

the judge relied on Exhibit 154B-2M (the Appendix) to arrive at the conclusion that “the

companies colluded among themselves in order to impede the public from learning of

health-related information about smoking,”596 notwithstanding the fact that the only

witness competent to testify about its content was never asked any questions about it.597

593 Chapter R-2.2.0.0.1. 594 Conseil québécois sur le tabac et la santé v. JTI-MacDonald Corp., 2012 QCCS 1870. 595 An example of this can be found at para. 131 of the Judgment, where the judge cites a poll that was

filed in this way to contradict the findings of Mr. Duch. 596 Judgment at paras. 447-449. 597 As noted above, Mr. Gage, who worked at MTI at the time, was not asked any questions about this

document.

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8.4.2 Documents introduced into the record pursuant to art. 2870 CCQ

[405] On January 10, 2013,598 January 28, 2013,599 and May 27, 2014600 respectively,

the Judge rendered three separate written judgments dismissing a number of objections

raised by the Appellants concerning the admissibility of different categories of documents

pursuant to art. 2870 CCQ. The ratio of those judgments also served as precedent to

admit entire categories of documents into the record on numerous occasions, without any

witnesses, again in violation of the hearsay rule.

[406] The Judge erred in law in his interpretation of the scope and parameters of

art. 2870 CCQ and misapplied the requirements thereunder. More specifically, the Judge

erred in: (a) his application of the notions of authenticity and reliability; (b) authorizing the

production of documents containing hearsay and opinions; (c) reversing the normal

burden of proof by imposing on JTIM the burden of demonstrating that the exception in

art. 2870 CCQ should not apply; (d) authorizing the production of documents in which the

specific author was not or could not be identified; and (e) applying the rules of

proportionality in a way that impacted the rules of substantive law.

[407] As a result, a significant number of documents were erroneously admitted into

the evidentiary record.

8.4.3 Parliamentary privilege

[408] The Respondents filed a number of statements made by representatives of the

Appellants before Parliamentary and Senate Committees. All of these exhibits contain the

suffix “PP.” These statements are protected by Parliamentary privilege, which provides

immunity to their authors (and/or the parties they represent) against the use of those

statements to support findings of liability or any unfavourable conclusion in the context of

judicial or quasi-judicial proceedings.601

598 Conseil québécois sur le tabac et la santé v. JTI-MacDonald Corp., 2013 QCCS 20. 599 Conseil québécois sur le tabac et la santé v. JTI-MacDonald Corp., 2013 QCCS 226. 600 Conseil québécois sur le tabac et la santé v. JTI-MacDonald Corp., 2014 QCCS 2307. 601 Canada (House of Commons) v. Vaid, [2005] 1 SCR 667.

122


[409] The scope of the privilege extends beyond the statements themselves and

applies to any documentation filed or prepared in the course of the proceedings. It also

applies to any public reporting of these statements or documents. The objections raised

by the Appellants on the basis of Parliamentary privilege were taken under reserve.

[410] In his Judgment, the Judge erroneously decided that all of the Appellants were

found to have waived Parliamentary Privilege with respect to statements made before the

Isabelle Commission simply because ITL published part of those statements in its internal

newsletter, and he relied on these comments to partially support his findings of liability.602

8.4.4 Exhibit 1702 (privileged)

[411] At paragraphs 1126 and following, the Judge maintained an interlocutory ruling

that he had previously made regarding a document which was clearly privileged, but

which had been made public as a result of a Court order in the United States. JTIM

submits that this ruling is an error of law. A document that is subject to privilege should

not lose that status because of an order of a foreign court made in a different context,

especially when the evidence confirms that the beneficiary of the privilege never waived

its protection.

[412] The Judge confused the public accessibility of documents with their admissibility

and erred in law by allowing into evidence a document clearly protected either by litigation

privilege or solicitor-client privilege, on the sole basis that it had become public as a result

of a foreign court order.603

----------

602 Judgment at paras. 248-250. At N 494 of the Judgment, the Judge states that since he does not refer

to any PP documents in his Judgment, the issue is moot. While this is technically true, it is not entirely accurate given his citation of the leaflet.

603 Foster Wheeler Power Co. v. Société intermunicipale de gestion et d’élimination des déchets (SIGED) inc., [2004 1 S.C.R. 456 at paras. 27 and 34; Droit de la famille – 782, EYB 1990-57016 (QC CA) at para. 18.

123

Appellant’s Argument Conclusions

PART IV – CONCLUSIONS

[413] The Appellant JTI-Macdonald Corp. prays this Honourable Court to:

REVERSE the judgment dated May 27, 2015 and rectified on June 9, 2015,

rendered by the Honourable Brian Riordan of the Superior Court of

Québec, in the class action files bearing nos. 500-06-000076-980

and 500-06-000070-983;

DISMISS Respondents’ class actions against the Appellant JTI-Macdonald

Corp.;

THE WHOLE with costs.

Montréal, December 11, 2015

Borden Ladner Gervais LLP (Me Guy Pratte) Counsel for Appellant JTI-Macdonald Corp.

124

Appellant’s Argument Authorities

PART V – AUTHORITIES

Jurisprudence Paragraph(s)

Conseil québécois sur le tabac et la santé v. JTI-MacDonald Corp., EYB 2005-85974 (QC SC) ......................................... 12

Létourneau v. JTI-MacDonald Corp., 2015 QCCS 2382 ......................................... 13

Conseil québécois sur le tabac et la santé v. JTI-MacDonald Corp., 2009 QCCS 830, leave to appeal to QCCA refused, 2009 QCCA 796 .................................. 14,234

Conseil québécois sur le tabac et la santé v. JTI-MacDonald Corp., 2010 QCCS 4759 ......................................... 14

Conseil québécois sur le tabac et la santé v. JTI-MacDonald Corp., 2013 QCCS 1924 .................................. 14,217

Conseil québécois sur le tabac et la santé v. JTI-MacDonald Corp., 2013 QCCS 4863 ......................................... 14

R. v. Imperial Tobacco Canada Ltd., [2011] 3 S.C.R. 45 .................................. 36,120

Imperial Tobacco Canada Ltd. v. Québec (Procureure générale), 2015 QCCA 1554 ......................................... 87

Hollis v. Dow Corning Corp., [1995] 4 S.C.R. 634 .................................. 97,207

Axa Boréal Assurances v. Tremcar inc., EYB 1999-12309 ......................................... 97

Legault v. Château Paint Works Ltd., (1960) C.S. 567 at 573 (QC SC) ....................................... 107

Gauvin v. Canada Foundries and Forgings Ltd., (1964) C.S. 160 (QC SC) ................................ 107,108

Royal Industries Inc. v. Jones, AZ-79011179 ....................................... 108

Wabasso Ltd. v. National Drying Machinery Co., AZ-79011014 at 1 (QC CA), rev’d on other grounds [1981] 1 S.C.R. 578 ....................................... 108

Fortin v. Simpsons-Sears ltée, EYB 1978-144683 ....................................... 108

Inmont Canada Ltd. v. Compagnie d’Assurance Canadienne Nationale, EYB 1984-142586 .................. 108,116,162,166

125


Jurisprudence (cont’d) Paragraph(s)

Côté v. The Marmon Group of Canada Inc., EYB 1989-67830 ....................................... 108

Létourneau v. Imperial Tobacco ltée, REJB 1998-07025 ....................................... 109

Robillard v. Cour du Québec, 1998 CanLII 12886 (QC CA) ....................................... 111

Accessoires d’auto Vipa inc.v. Therrien, J.E. 2003-1653 ....................................... 111

Brochu v. Québec (Société des loteries), 2009 QCCS 5678 ....................................... 112

Dallaire v. Paul-Émile Martel Inc., [1989] 2 S.C.R. 419 .......................................... 113

2735-3861 Québec inc. (Centre de ski Mont-Rigaud) v. Wood, EYB 2008-132242 (QC CA) ................................ 117,118

Brisson v. Gagnon, 2005 CanLII 38674 (QC SC), aff’d 2007 QCCA 617 ....................................... 117

Meunier v. Benoit, 2009 QCCS 1996 ................................ 117,121

Centre d’expédition et de plein air Laurentien (CEPAL) v. Légaré, REJB 1998-04626 (QC CA) ....................................... 118

Capers Stanford v. Mont Tremblant Lodge (1965) Inc., [1979] C.S. 953 (QC SC) ....................................... 118

Banque de Montréal v. Bail ltée, [1992] 2 S.C.R. 554 ................................ 136,360

London and Lancashire Guaranty and Accident Co. v. La cie F.X. Drolet, [1944] R.C.S. 82 ....................................... 151

Narbo Investment Corp. v. St-Léonard (Cité de), [1975] C.A. 595 at 8 (QC CA), aff’d [1978] 2 S.C.R. 864 ....................................... 185

Wendover-et-Simpson (Corp. municipale de) v. Filion, [1992] R.D.I. 263 at 6 (QC CA) ....................................... 185

Bou Malhab v. Diffusion Métromédia CMR Inc., [2011] 1 S.C.R. 214 ........... 197,239,307,308,313

126



Québec (Public Curator) v. Syndicat national des employés de l'hôpital St-Ferdinand, [1996] 3 R.C.S. 211 ........... 197,198,313,315,365

St. Lawrence Cement Inc. v. Barrette, [2008] 3 SCR 392 ......................... 197,198,307

Bisaillon v. Concordia University, [2006] 1 SCR 666 ................................ 197,198

Imperial Tobacco Canada Ltd. v. Létourneau, 2014 QCCA 944 ................................ 197,310

Bank of Montréal v. Marcotte, [2014] 2 RCS 725, 2014 SCC 55 ......................... 198,307,357

Chouinard v. Landry, [1987] R.J.Q. 1954 (QC CA) ................................ 206,210

Allaire v. Girard & Associés (Girard et Cie comptables agréés), 2005 QCCA 713 ....................................... 206

Langlois v. Fournier, AZ-01021037 (QC SC) ....................................... 206

Stevens v. Ackman, [1989] R.R.A. 109 (QC SC) ....................................... 206

Johnson v. Harris, [1990] R.R.A 832 (QC SC) ....................................... 206

Masson v. De Koos, [1990] R.R.A. 818 (QC SC) ....................................... 206

Pelletier c. Roberge, J.E. 91-1514 (QC CA) ....................................... 206

Chabot v. Roy, REJB 1997-02353 (QC CA) ................................ 206,209

Lefebvre v. Madore, J.E. 96-126 (QC CA) ....................................... 206

Infineon Technologies AG v. Option consommateurs, 2013 SCC 59 ....................................... 217

St-Jean v. Mercier, [2002] 1 R.C.S. 491 ................................ 219,226

Barrette v. L’Union canadienne, 2013 QCCA 1687 ....................................... 220

Layne Christensen Company c. Forage LBM inc., J.E. 2009-1517 ....................................... 220

Waters v. White, 2012 QCCA 257 ....................................... 220

Hinse v. Canada (Attorney General), 2015 CSC 35 ....................................... 226

Longpré v. Thériault, [1979] C.A. 258 ....................................... 227

127



Montréal (Ville de) v. Biondi, 2013 QCCA 404 ........... 230,231,232,233,279

Biondi v. Syndicat des cols bleus regroupés de Montréal (SCFP-301), 2010 QCCS 4073 ................................ 230,232

Conseil québécois sur le tabac et la santé v. JTI-MacDonald Corp., 2011 QCCS 4090 ....................................... 234

Masson v. Thompson, REJB 1997-00195 (QC SC), appeal granted in part, REJB 2000-20972 (QC CA) ....................................... 236

Comité d’environnement de La Baie inc. v. Société d’électrolyse et de chimie Alcan ltée, EYB 1990-6350 ....................................... 236

Hotte v. Servier Canada inc., REJB 2002-29909 (QC SC) ....................................... 236

Tremblay v. Lavoie, 2014 QCCS 3185 ................................ 236,360

Richard v. Time Inc., [2012] 1 S.C.R. 265 ........... 237.330,333,336,339 .................. 345,347,351,369

Sienkiewicz v. Greif (UK) Limited, [2011] UKSC 10 ................................ 243,250

R. v. Mohan, [1994] 2 S.C.R 9 ......................... 252,255,278

R. v. L.J, 2000 SCC 51 ....................................... 252

R. v. Trochym, [2007] 1 S.C.R. 239 ....................................... 252

Daubert v. Merrell Dow Pharmaceuticals, 43 F.3d 1311 (9th Cir., 1995), 509 U.S. 579 (1993) ......................... 252,255,278

Snell v. Farrell, [1990] 2 SCC 311 ....................................... 255

Andersen v. St. Jude, 2012 ONSC 3660 ....................................... 279

Fortier v. Meubles Léon ltée, EYB 2014-232573 ....................................... 330

Dion v. Compagnie de services de financement automobile Primus, 2015 QCCA 333 ......................... 343,344,345

Amar v. Société des loteries du Québec, 2015 QCCA 889 ....................................... 348

Cinar Corporation v. Robinson, [2013] 3 S.C.R. 1168 ................................ 353,389

A v. B, 2006 QCCS 5496 ....................................... 357

128



Québec (Procureure générale) v. Bélanger, 2012 QCCS 845 ....................................... 357

Marcotte v. Fédération des caisses Desjardins, [2014] 2 S.C.R. 805 ................................ 359,360

Oznaga v. Société d’exploitation des loteries, [1981] 2 S.C.R. 113 ....................................... 360

Regroupement des citoyens du quartier St-Georges inc. v. Alcoa Canada ltée, 2007 QCCS 2691 ....................................... 366

Fédération des médecins spécialistes du Québec v. Conseil pour la protection des malades, 2014 QCCA 459 ....................................... 366

Conseil québécois sur le tabac et la santé v. JTI-MacDonald Corp., 2013 QCCS 6085, leave to appeal denied 2014 QCCA 520 (CanLII) ........... 374,376,377,378,379


Riendeau c. Brault & Martineau inc., 2007 QCCS 4603 .......................................... 391

Fiducie M.C.M. no. 2 v. Marché central métropolitain inc., REJB 2000-20270 (QC SC) ....................................... 392

Groupe LNR Investments Ltd. v. Sim, EYB 2013-223052 (QC CQ) ....................................... 392

Willmor Discount Corporation v. City of Vaudreuil, [1994] 2 S.C.R. 210 ....................................... 392

Pearl v. Les Investissements Contempra ltée, EYB 1995-78288 ....................................... 392

France Animation, s.a. v. Robinson, 2011 QCCA 1361 ......................................... 397




129




Canada (House of Commons) v. Vaid, [2005] 1 SCR 667 ....................................... 408

Foster Wheeler Power Co. v. Société intermunicipale de gestion et d’élimination des déchets (SIGED) inc., [2004 1 S.C.R. 456 ....................................... 412

Droit de la famille – 782, EYB 1990-57016 (QC CA) ....................................... 412

Doctrine

Jobin, Pierre-Gabriel, “L’obligation d’avertissement et un cas typique de cumul”, (1979) 39:5 R. du B. 939 ....................................... 107

Côté, Lise, “La responsabilité du fabricant vendeur non immédiat en droit québécois”, (1975) 35 R. du B. 3 ................................ 107,134

Québec, ministère de la Justice, Commentaires du ministre de la Justice, vol. 1 (Québec: Publications du Québec, 1993 ......................... 111,112,151

Baudouin, Jean-Louis and Pierre-Gabriel Jobin, Les obligations, 7th ed. (Cowansville: Yvon Blais, 2005) ....................................... 112

Crawford, Willam E., “Manufacturer’s Liability under the Proposed Revision of the Civil Code of Québec” in Conférences sur le nouveau Code civil du Québec (Cowansville: Yvon Blais, 1992 ....................................... 116

Deschamps, Pierre, “Cas d’exonération et partage de responsabilité en matière extracontractuelle” in JurisClasseur Québec: Obligations et responsabilité civile, fasc. 22, loose-leaf (consulted on November 3, 2015), (Montréal: LexisNexis, 2008 ....................................... 118

Baudouin, Jean-Louis, Patrice Deslauriers and Benoît Moore, La responsabilité civile, vol. 1 and 2, 8th ed. (Cowansville: Yvon Blais, 2014) .................. 205,206,209,219

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Doctrine (cont’d) Paragraph(s)

Soldevila, Alicia, “La responsabilité pour le fait ou la faute d’autrui et pour le fait des biens”, in Collection de droit 2014-2015, École du Barreau du Québec, Responsabilité, vol. 4 (Montréal: Barreau du Québec, 2014) 43 EYB2014CDD89 ....................................... 206

Royer, Jean-Claude, La preuve civile, 4th ed. (Cowansville: Yvon Blais, 2008) ......................... 225,226,229

Lafond, Pierre-Claude, Le recours collectif, le rôle du juge et sa conception de la justice: impact et évolution, (Cowansville: Yvon Blais, 2006) ....................................... 229

Deschamps, Pierre, “La preuve en matière de recours collectif”, in Service de la formation permanente du Barreau du Québec, Développements récents sur les recours collectifs (1999), vol. 115, (Cowansville: Yvon Blais,1999) 177 ....................................... 229

Côté, Pierre-André, Interprétation des lois, 4th ed. (Montréal: Thémis, 2009) ....................................... 318

Cotnam, Geneviève, “Incidents de la prescription: renonciation, interruption et suspension” in JurisClasseur Québec: Preuve et prescription, fasc.20, loose-leaf (consulted on November 19, 2015), (Montréal: LexisNexis, 2008) ....................................... 359

______________

131 Counsel’s Certificate

COUNSEL’S CERTIFICATE We undersigned, Borden Ladner Gervais LLP, do hereby certify that the above Factum of

the Appellant JTI Macdonald Corp. does comply with the requirements of the Rules of the

Court of Appeal of Québec in Civil Matters.

Montréal, December 11, 2015

Borden Ladner Gervais LLP (Me Guy Pratte) Counsel for Appellant JTI-Macdonald Corp.

500-09-025386-152 COURT OF APPEAL OF QUÉBEC · 500-09-025386-152 COURT OF APPEAL OF QUÉBEC...

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