Five years on from landmark tobacco ruling, ‘nothing has changed’

TORONTO — Within a few years, Jean-Luc Duval lost two of the most important people in his life to lung cancer.

His wife, Monique, was diagnosed on her birthday and died on July 3, 2005 – the couple’s 40th wedding anniversary. Months of debilitating chemotherapy treatments could not stop the disease, which had spread and taken root in her digestive system.

Duval then reconnected with a former colleague, and as they grew closer, they decided to live together as roommates in his home in Repentigny, a suburb of Montreal. One night she started coughing violently and he took her to the emergency room. Doctors discovered he had cancer in both lungs and he died within five months.

Both women were smokers, although they quit years ago. Duval also smoked for several decades, but managed to kick the habit years before his wife.

Duval joined a long-running legal battle against three major tobacco companies, and in a historic ruling in 2019, Quebec’s highest court confirmed that he and about 100,000 other Quebecers were entitled to billions in damages for harm suffered by them or their loved ones.

But five years later, none of them have seen even a fraction of that money – and recent court filings suggest hundreds have died in the meantime.

“Not only have I not received a cent, but absolutely nothing has changed,” Duval, 80, wrote in French in a recent open letter to the Quebec government. “Cigarettes from the same manufacturers are sold throughout the province and in every corner of the country.”

“I’m not interested in money, but I want justice,” he added. “I want this industry to cease to exist.”

Several health advocacy groups have also sounded the alarm about the lack of movement and transparency in the case, warning that Canada could miss what they call a historic opportunity to reduce tobacco use and to regulate the industry.

“We’re never going to have a better opportunity than we have right now and, you know, it can’t be business as usual for the tobacco companies after (a) regulation,” said Rob Cunningham, a lawyer for the Canadian Cancer Society. the organization has been designated as a social stakeholder in the case, which means it can make observations in court.

The lawsuits involved smokers who picked up the habit between 1950 and 1998 and either became ill, were addicted, or involved their heirs, as in Duval’s case.

A Quebec Superior Court judge first ordered the payment in 2015 after finding that the three companies – Imperial Tobacco, JTI-Macdonald and Rothmans-Benson & Hedges – had chosen profits over the health of their customers.

The province’s Court of Appeal then upheld the landmark decision, prompting the companies to seek creditor protection in Ontario. That protection has also suspended legal proceedings against them, which include lawsuits filed by provincial governments to recover smoking-related health care costs.

The initial stay of proceedings lasted several months, but has since been renewed about a dozen times – most recently in March, when it was extended until September.

The purpose of the stay is to maintain the status quo as the companies negotiate a global settlement with everyone who has claims against them, including class action members and the provinces.

The discussions are confidential, and participants have largely declined to comment on the proceedings.

However, in court filings last September, one of the class action members’ attorneys said a settlement was “not currently in sight,” alluding to “recent setbacks” and suggesting mediation was “severely undermined.” by participants who have previously switched. positions.

Philippe Trudel said in his affidavit that about 700 of the class action members have died of tobacco-related diseases since the first stay was granted and “many others are becoming increasingly frail.” Some “couldn’t wait any longer” and opted for medically assisted suicide, he said.

Many simply lost faith in the process, he said in the document. “They fear that because of the seemingly endless delays, there will be few, if any, victims left alive to receive their rightful compensation from the tobacco companies,” he said.

It’s not just the delays that are problematic, but the entire creditor protection process and the secrecy it entails, said Flory Doucas, spokesperson and co-director of the Quebec Coalition for Tobacco Control.

By nature, the lawsuit focuses on the viability of the industry, removing the public health and justice elements of the case, she said. Essentially, it allows companies to continue business as usual as they restructure — and make more people dependent in the process, she said.

The coalition is among several groups calling on provinces to push for significant public health measures to reduce tobacco use as part of a deal, warning them that a focus on financial compensation will only cause further damage.

“It means you’re relying on future sales (to fund the payments),” she said. “It means governments have an interest in keeping those companies in business … and their business model is based on addiction and harmful products.”

Until recently, no provincial government had publicly indicated what it was seeking or expected to receive as part of a deal. Most contacted by The Canadian Press in recent weeks declined to comment on the matter, citing the confidential nature of the negotiations.

A spokesman for the Quebec Ministry of Health said only that the province wants compensation for expenses incurred since the implementation of its health insurance program, as well as for those expected until 2030.

Some details first emerged in May, when Manitoba Premier Wab Kinew told the NDP provincial convention that the province expects to receive an initial payment of hundreds of millions of dollars soon, possibly by the end of this year or early future.

Kinew said money from the settlement will be used, among other things, to build a new CancerCare Manitoba headquarters.

While the prime minister’s comments provided a rare and welcome glimpse into the proceedings, they also confirmed the coalition’s “worst fears” about what a deal might look like, Doucas said.

“It appears to be primarily financial and based on installments,” she said, meaning “future and current victims are using products to compensate past victims and provinces.”

It’s also troubling because Manitoba is part of a group of provinces represented by the same law firm, suggesting they could all be seeking a similar solution, she said.

That kind of deal would send a “very disturbing and scary message” about what governments are willing to tolerate from harmful industries, she said.

Last year, the Canadian Cancer Society, the Canadian Lung Association and the Heart and Stroke Foundation compiled a series of measures they believe should be in the works.

These include: placing at least 10% of the money received into a tobacco reduction fund; banning all remaining tobacco promotion; requiring companies to make additional payments if tobacco reduction targets are not met; and the public disclosure of millions of pages of internal company documents.

“These are doable, it’s just (that) the provinces need the political will to do it,” said Cunningham, of the Canadian Cancer Society. “They have tremendous leverage because the tobacco companies can’t get out of the creditor protection situation they’re in unless the provinces agree.”

U.S. state governments were able to impose measures in similar lawsuits in 1998, and Canadian provinces should be able to do much better decades later, he said.

Some of the proposed measures, such as the release of documents, would not cost companies anything, he noted.

The organization will have the opportunity to comment on a possible deal and would “strongly oppose” any deal that has inadequate tobacco reduction measures, he said.

The companies also declined to comment on the negotiations or concerns raised by smoking-reduction and health groups, and would not say whether they would seek another stay extension in the fall.

In a statement, a spokesman for JTI-Macdonald said the company acted in good faith and with due diligence throughout the process, which the court recognized.

Duval said he’s skeptical the issue will be resolved anytime soon.

In the meantime, he will continue to do what he can to combat smoking, using the persuasive skills he honed in his days as a Kodak microfilm salesman to discourage smokers he encounters in everyday life, he said he in french. in a recent interview.

He promised to continue regardless of the outcome of the negotiations.

“I’m not someone who throws in the towel easily,” he said.

“I will do my best until the day I die. With all the hardships I’ve had, with all that tobacco has done to me, my children and others… (I want) to see it through. The end.”

This report by The Canadian Press was first published on July 2, 2024.

Paola Loriggio, Canadian Press