The judge who ordered three tobacco companies to pay more than $15 billion in damages to Quebec smokers for damaging their health created his own law in the process, a lawyer for the companies argued at the Quebec Court of Appeal.
Simon Potter was the first lawyer to make arguments Monday in what is scheduled to be an unusually long five-day hearing before the appellate court.
Potter argued that Superior Court Justice Brian Riordan’s decision in June 2015 contains “clear errors of law” and a “new standard of causation” that does not exist in Canadian law.
Riordan found Imperial Tobacco Canada, JTI-Macdonald Corp. and Rothman, Benson Hedges Inc. liable for disease and addiction suffered by more than one million Quebecers over a nearly 50-year period. Potter argued the decision did not offer evidence that the people included in the class action were unaware of the risks involved with smoking before they developed health problems.
“Cause isn’t found through common sense. Cause is found through evidence,” Potter told the five judges who are hearing the appeal. “It’s difficult to parse out what standard of causation the judge did use.
“Our clients are stuck with a liability that is based on conjecture.”
Potter also criticized the methods Riordan used to determine how many people should be eligible to receive damages.
“We’re in a situation where we have an enormous net and there are a lot of people who shouldn’t be in it,” Potter said.
Riordan’s decision involved two class-action suits. One group involved 100,000 smokers and ex-smokers who had developed lung cancer, throat cancer or emphysema. The other group represented 918,000 addicted smokers, but only those who developed disease will get a financial award.
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Mario Bujold, the director general of the Conseil québécois sur le tabac et la santé, a plaintiff in the class action, said outside court the delay caused by the appeal is preventing people who have serious health problems from having access to what the court awarded them.
“That’s the sad part of it. We’re talking about victims of the products of the tobacco companies who have been waiting 18 years for justice to be rendered, and all they can do is wait again. I’m sad for that because those are sick people who have been waiting too long.”
“The tobacco companies are saying we didn’t have evidence to prove that if the companies gave more information (on the risks involved) to the customer there would less smokers. They refuse to admit there is a fault there. But at the same time when you look at how they react to having to issue every new warning, you can really see how that has an impact. The type of warning has an impact on smokers. That’s the heart of the whole trial.”
Lawyers for the Conseil québécois sur le tabac et la santé will make their arguments later this week.
pcherry@postmedia.com