Class Actions, Punitive Damages, and Decreasing Consumption of Tobacco Products

• Author: Sarah Kettani
• Pages: 197-234

197

CLASS ACTIONS, PUNITIVE

DAMAGES, AND DECREASING

CONSUMPTION OF TOBACCO

PRODUCTS

Sarah Kettani

Abstract: In 2015, the Superior Court of Quebec awarded over

$15 billion in damages, including $1.6 billion in punitive

damages, in a class action against three major tobacco com-

panies. This judgment is signif‌icant as it represents the f‌irst

successful cla ss action against a tobacco company in Canada.

In light of the Superior Court judgment, this essay explores

whether awards of punitive da mages against tobacco compan-

ies in class action proceedings can play a role in decreasing

demand for tobacco products. It will be argued that puni-

tive damages awards, especially in the context of large class

actions, can be a powerful complementary tool to advance

regulatory effort s to decrease tobacco consumption. Tobacco is

a unique product, in that it is an inherently dangerous prod-

uct with no safe consumption level that is lawfully sold, thus

requiring a unique regulatory response. At the domestic and

international level, the response has been an indirect ban.

Regulators have used the concepts of de-normalization and

consumer empowerment to reduce the demand for tobacco

products, with the hopes of reaching a zero-consumption

level. Similarly, awards of punitive damages can contribute

to the de-normalization of the tobacco industry by shedding

light on the misconduct of tobacco companies. P unitive dam-

ages awarded in class action proceedings can also increase

access to justice, provide f‌in ancial incentives, and restore power

inequalities between merchants and consumers, resulting

198 The Canadian Class Action Review

in consumer empowerment. In doing so, awards of punitive

damages contr ibute to curtailing demand for tobacco products

and go hand in hand with the current regulatory approach.

199

CLASS ACTIONS, PUNITIVE DAMAGES,

AND DECREASING CONSUMPTION OF

TOBACCO PRODUCTS

Sarah Kettani*

A. INTRODUCTION

In June 2015, Riordan J of the Superior Court of Quebec awarded over

$15 billion in damages against three major tobacco companies, JTI-

Macdonald, Imperi al Tobacco Canada, and Roth mans, Bensons & Hedges,

in a landmark 276-page judgment.1 The case involved two different class

actions heard together, that spanned the course of sixteen years and

totalled 253 days of hearing.2 The Blais class action was made on behalf

of 100,000 people with lung cancer, throat cancer, or emphysema.3 The

Létourneau class action was taken on behalf of nearly 1 million people

addicted to nicotine.4 The court found that in both cases, the tobacco

companies committed faults under four headings: “the general rule of

civil liabilities,” “the safety defect in cigarettes,” “an unlawful interfer-

ence with a right under the Quebec Charter (‘Charter’),” and “a pro-

hibited practice under the Consu mer Protection Act (‘CPA’).”5 As a result,

the court awarded $6.9 billion in compensatory moral damages for the

Blais class, amounting to more than $15 billion when taking interests

* Sarah Ketta ni obtained a bachelor of civi l law and bachelor of common law

from McGill Univers ity in 2015 and a master of laws in commerc ial and cor-

porate law from the Un iversity of Auckland in 2016. She will be ad mitted as a

barri ster and solicitor in New Zealan d in September 2017.

1 Létourneau c JT I-MacDonald Corp,2015 QCCS 2382 [Blais-Létourneau].

2 Myriam Br ixi, “Historic Quebe c Lawsuit Against Tobacco Companie s: the Supe-

rior Court Awards More t han $15 Billion in Damages” Lavery Lawyers (10 June

2015), online: www.lavery.ca/en/publications/our-publications/1868-historic-

quebec-lawsuit-against-tobacco-companies-the-superior-court-awards-more-

than-15-billion-in-damages.html [B rix i].

3 Blais-Létourneau, abovenote 1 at 11 (Summary of the judg ment).

4 Ibid at 10 and 12 (Summary of the judg ment).

5 Ibid at para 643.