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

AuthorSarah Kettani
Pages197-234
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.

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