Canada’s big tobacco firms say Quebec lawsuit oversteps Parliament

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Canada's big tobacco companies are accusing the plaintiffs in a landmark class-action lawsuit of attempting to use the courts to do what Parliament doesn't dare: ban the sale of cigarettes.

In closing arguments to be heard this week as a Quebec court case spanning 16 years nears an end, plaintiffs in the $17.8-billion lawsuit will argue the damage caused by tobacco vastly outweighs the utility of cigarettes. "The mischievous, useless product [is] designed to trap users in a toxic and often deadly addiction" and companies should be held at fault and pay for the consequences, the plaintiffs say in written arguments.

The big three tobacco companies counter that cigarettes have at least one use – to give smokers pleasure – and Quebec Superior Court cannot be asked to effectively ban a product Canadian lawmakers have chosen to regulate instead.

The class-action lawsuit pitting tobacco companies against a million Quebec plaintiffs, including addicts who cannot quit and smokers who have suffered illness, is the first litigation of its kind in Canada to approach judgment.

Every province is at some stage of passing laws to open the door to litigation against tobacco companies or preparing lawsuits to recover health-care costs. The Quebec case is years ahead of any other in the court process. The plaintiffs in the Quebec case want Justice Brian Riordan to find manufacturers are at fault for their dangerous product and to award damages so prohibitive they would ruin the business. The companies say if they were forced out of the tobacco business, illegal alternative sources would simply fill the void.

Bruce Johnston, one of the lead lawyers for the plaintiffs, avoided using the word "ban," but conceded the consequences of a full courtroom victory would probably end the legal sale of cigarettes.

"If tobacco companies paid for the consequences of putting their product on the market, if they sold cigarettes for $50 a pack, they could compensate people who get addicted," Mr. Johnston said in an interview.

"It's not a ban we seek, but undoubtedly our success would have consequences. Bad products get litigated out of the market. That's one of the purposes civil litigation serves for society."

The tobacco companies, however, were in concert declaring the plaintiffs want the courts to ban cigarettes when legislatures have refused.

"Now, after more than two-and-a-half years of trial, tens of thousands of exhibits, millions of pages of productions, 76 witnesses and 31 expert reports, the plaintiffs have finally described what they are complaining about," lawyers for Imperial Tobacco prepared in a written response to the plaintiffs.

"Their entire case is based on the concept that somehow the product should be banned and should not have been put on the market at all, at any point. Indeed, their stated intention is to put the industry out of business."

The other tobacco companies being sued, Rothmans, Benson & Hedges and JTI-Macdonald, offered similar interpretations of the stakes of the lawsuit in their legal filings. Rothmans pointed out the courts have "repeatedly confirmed federal and provincial policy that selling cigarettes, despite their known dangers, should be lawful."

"Both the federal and Quebec governments, like governments throughout the world, chose quite deliberately to let adult consumers make their own choices about smoking," Rothmans says in its legal response.

JTI-Macdonald says Quebec's Superior Court has no jurisdiction to rescind government decisions "to regulate, rather than ban, the sale of cigarettes."

A judgment in the lawsuit is expected some time next year.