SUPERIOR COURT (Class Action Division) CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTREAL N° : 500-06-000076-980 500-06-000070-983 DATE : June 9, 2015 ________________________________________________________________ PRESIDING: THE HONORABLE BRIAN RIORDAN, J.S.C. ________________________________________________________________ No 500-06-000070-983 CÉCILIA LÉTOURNEAU Plaintiff v. JTI-MACDONALD CORP. (" JTM ") and IMPERIAL TOBACCO CANADA LIMITED. (" ITL ") and ROTHMANS, BENSON & HEDGES INC. (" RBH ") Defendants (collectively: the " Companies ") AND NO 500-06-000076-980 CONSEIL QUÉBÉCOIS SUR LE TABAC ET LA SANTÉ and JEAN-YVES BLAIS Plaintiffs v. JTI-MACDONALD CORP. and IMPERIAL TOBACCO CANADA LIMITED. and ROTHMANS, BENSON & HEDGES INC. Defendants JUDGMENT CORRECTING CLERICAL ERRORS JR1353 IN PARAGRAPHS 1114 and 1209 through 1213 500-06-000076-980 PAGE: 2 500-06-000070-983 INDEX SECTION PAGE RÉSUMÉ DU JUGEMENT // SUMMARY OF JUDGMENT 8 I. THE ACTIONS 11 A. The Parties and the Common Questions 11 B. The alleged bases of liability 15 C. The Companies' view of the key issues 18 II. IMPERIAL TOBACCO CANADA LTD. 19 A. Did ITL manufacture and sell a product that was dangerous and harmful to the health of consumers? 19 B. Did ITL know, or was it presumed to know, of the risks and dangers associated with the use of its products? 22 B.1 The Blais File 22 B.1.a As of what date did ITL know? 22 B.1.b As of what date did the public know? 28 B.1.b.1 The Experts' opinions: the Diseases and Dependence 28 B.1.b.2 The effect of the Warnings: the Diseases and Dependence 34 B.2 The Létourneau File 38 B.2.a As of what date did ITL know? 38 B.2.b As of what date did the public know? 39 C. Did ITL knowingly put on the market a product that creates dependence and did it choose not to use the parts of the tobacco containing a level of nicotine sufficiently low that it would have had the effect of terminating the dependence of a large part of the smoking population? 40 C.1 Is tobacco a product that creates dependence of the sort to generate legal liability for the manufacturer? 41 C.2 Did ITL knowingly market a dependence-creating product? 48 C.3 Did ITL choose tobacco that contained higher levels of nicotine in order to keep its customers dependent? 49 D. Did ITL trivialize or deny or employ a systematic policy of non- divulgation of such risks and dangers? 51 500-06-000076-980 PAGE: 3 500-06-000070-983 D.1 Credibility Issues 52 D.2 The obligation to inform 53 D.3 No duty to convince 57 D.4 What ITL said publicly about the risks and dangers 59 D.5 What ITL did not say about the risks and dangers 67 D.6 What ITL knew about what the public knew 75 D.7 Compensation 80 D.8 The Role of Lawyers 84 E. Did ITL employ marketing strategies conveying false information about the characteristics of the items sold? 89 E.1 The Voluntary Codes 92 E.2 Light and Mild Descriptors 94 E.3 Did ITL market to under-age smokers? 95 E.4 Did ITL market to non-smokers? 98 E.5 Did the Class Members see the ads? 99 E.6 Conclusions with respect to Common Question E 100 F. Did ITL conspire to maintain a common front in order to impede users of its products from learning of the inherent dangers of such use? 100 F.1 The 1962 Policy Statement 100 F.2 The Role of the CTMC 103 G. Did ITL intentionally interfere with the right to life, personal security and inviolability of the class members? 108 G.1 Liability for damages under the Quebec Charter 109 G.2 Liability for damages under the Consumer Protection Act 110 G.2.a The Irrebuttable Presumption of Prejudice 112 G.2.b The alleged contravention under section 228 CPA 115 G.2.c The alleged contravention under section 219 CPA 116 G.2.d The alleged contravention under section 220(a) CPA 119 III. JTI MACDONALD CORP. 120 A. Did JTM manufacture and sell a product that was dangerous and harmful to the health of consumers? 120 B. Did JTM know, or was it presumed to know, of the risks and dangers associated with the use of its products? 122 B.1 The Blais File 122 B.1.a As of what date did JTM know? 122 B.1.b As of what date did the public know? 124 B.1.b.1 The Experts' opinions: the Diseases and 500-06-000076-980 PAGE: 4 500-06-000070-983 Dependence 124 B.1.b.2 The effect of the Warnings: the Diseases and Dependence 124 B.2 The Létourneau File 124 B.2.a As of what date did JTM know? 124 B.2.b As of what date did the public know? 124 C. Did JTM knowingly put on the market a product that creates dependence and did it choose not to use the parts of the tobacco containing a level of nicotine sufficiently low that it would have had the effect of terminating the dependence of a large part of the smoking population? 124 D. Did JTM trivialize or deny or employ a systematic policy of non- divulgation of such risks and dangers? 125 D.1 The obligation to inform 125 D.2 No duty to convince 125 D.3 What JTM said publicly about the risks and dangers 125 D.4 What JTM did not say about the risks and dangers 126 D.5 Compensation 127 E. Did JTM employ marketing strategies conveying false information about the characteristics of the items sold? 127 F. Did JTM conspire to maintain a common front in order to impede users of its products from learning of the inherent dangers of such use? 128 G. Did JTM intentionally interfere with the right to life, personal security and inviolability of the class members? 128 IV. ROTHMANS BENSON & HEDGES INC. 128 A. Did RBH manufacture and sell a product that was dangerous and harmful to the health of consumers? 128 B. Did RBH know, or was it presumed to know, of the risks and dangers associated with the use of its products? 131 B.1 The Blais File 131 B.1.a As of what date did RBH know? 131 B.1.b As of what date did the public know? 135 B.1.b.1 The Experts' opinions: the Diseases and Dependence 135 B.1.b.2 The effect of the Warnings: the Diseases and Dependence 135 B.2 The Létourneau File 135 500-06-000076-980 PAGE: 5 500-06-000070-983 B.2.a As of what date did RBH know? 135 B.2.b As of what date did the public know? 135 C. Did RBH knowingly put on the market a product that creates dependence and did it choose not to use the parts of the tobacco containing a level of nicotine sufficiently low that it would have had the effect of terminating the dependence of a large part of the smoking population? 135 D. Did RBH trivialize or deny or employ a systematic policy of non- divulgation of such risks and dangers? 136 D.1 The obligation to inform 136 D.2 No duty to convince 136 D.3 What RBH said publicly about the risks and dangers 136 D.4 What RBH did not say about the risks and dangers 137 D.5 Compensation 137 E. Did RBH employ marketing strategies conveying false information about the characteristics of the items sold? 137 F. Did RBH conspire to maintain a common front in order to impede users of its products from learning of the inherent dangers of such use? 137 G. Did RBH intentionally interfere with the right to life, personal security and inviolability of the class members? 138 V. SUMMARY OF FINDINGS OF FAULT. 139 VI. CAUSATION 139 A. Were the moral damages in the Blais File caused by the Diseases? 141 B. Were the moral damages in the Létourneau File Caused by Dependence? 142 C. Were the Diseases caused by smoking 142 C.1 The evidence of Drs. Desjardins and Guertin 143 C.2 Section 15 of the TRDA 144 C.3 Evidence for each member of the Class 145 C.4 The evidence of Dr. Siemiatycki 147 C.5 The use of relative risk 150 C.6 The Companies' experts 151 D. Was the tobacco dependence caused by smoking 159 E. Was the Blais Members' smoking caused by a fault of the Companies? 163 F. Was the Létourneau Members' smoking caused by a fault of the Companies? 167 G. The possibility of shared liability 168 500-06-000076-980 PAGE: 6 500-06-000070-983 VII. PRESCRIPTION 171 A. Article 2908 C.C.Q. and the definition of the Blais Class 173 B. Fin de non recevoir 176 C. Continuing and uninterrupted faults 177 D. The Létourneau File 179 E. The Blais File under the TRDA 179 E.1 Moral/Compensatory damages with the TRDA 179 E.2 Punitive damages with the TRDA – and without it 180 F. If the TRDA does not apply 181 G. Summary of the effects of prescription on shared liability 181 VIII. MORAL DAMAGES - QUANTUM 182 A. The Létourneau File 186 B. The Blais File 189 B.1 Lung Cancer 190 B.1.a The Size of the Sub-Classes 191 B.1.b The Amount of Damages for the subclass 192 B.2 Cancer of the larynx, the oropharynx or the hypopharynx 194 B.2.a The Size of the Sub-Classes 194 B.2.b The Amount of Damages for the subclass 194 B.3 Emphysema 196 B.3.a The Size of the Sub-Classes 197 B.3.b The Amount of Damages for the subclass 197 B.4 Apportionment among the Companies 198 IX.