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A class action lawsuit that has claimed its infamy for being the longest and most important class action in Canadian history, the notorious Big Tobacco case, is expected to set a historic precedent for similar class action lawsuits worldwide.
Long-time Montreal-based class actions lawyer, Gordon Kugler, gives Top Class Actions readers the scoop about this historic consumer justice case in this tell-all Big Tobacco exclusive.
Kugler: The Lawyer Who Took on Big Tobacco
Canada’s three largest tobacco companies — Imperial Tobacco Canada, JTI-Macdonald Corp. and Rothmans, Benson & Hedges Inc. (RBH) — were the target of a Quebec class action lawsuit, brought by Kugler Kandestin and two other law firms.
The consumer protection class action was initiated in 1998 on behalf of some 100,000 Quebec Big Tobacco victims who were diagnosed with lung cancer, throat cancer, or emphysema due to smoking.
In 2019, the Court of Appeal of Quebec upheld a 2015 lower court decision awarding around C$14 billion to smokers.
The judgment involves class action lawsuits that were consolidated against the Canadian subsidiaries of British American Tobacco, Philip Morris International and Japan Tobacco International.
The big charge in the case: Big Tobacco knew since the 1950s that cigarettes were causing cancer and other illnesses, and failed to warn consumers adequately.
Despite the landslide victory for consumers, Big Tobacco recently sought creditor protection, placing the class action lawsuit on hold. According to 2019 court documents, this move is allegedly a stalling strategy that Imperial Tobacco Canada has been planning since 2015.
Kugler Kandestin, a key player in the case, has been in practice for almost a century, specializing in class actions, among other specialities. Gordon Kugler, a senior partner at the firm, specializes in medical malpractice, class actions, professional and product liability, and more. He has been practicing law for over 50 years, and received several distinctions, including being rated as an attorney of the highest standing by Martindale-Hubbell.
Big Tobacco Class Action Lawsuit Breaks Records
Kugler reminisces the very beginning of the case, when Bruce Johnston and Philippe Trudel onboarded the firm over 20 years ago.
“We took the case because we felt that the tobacco industry is hurting consumers,” the accomplished lawyer explains. “Their denials that cigarettes cause cancer were hollow.”
The Big Tobacco class action lawsuit is infamously the longest class action in Canadian history. Kugler explains the ordeal with poignant civilian humour: “It may not be fair, but I’ll say it anyway. The tobacco industry has been determined to put many obstacles and barriers in the way.”
According to Kugler, since the class action’s nascent stages, Big Tobacco brought endless legal challenges to slow the process. For example, he recalls, “there were 50 separate motions to the Quebec Court of Appeal challenging interim decisions made to the lower court. They have tried and have been successful in using tactics which have in effect delayed this [case].”
Kugler Kandestin, in collaboration with two other law firms, initially filed the Big Tobacco class action in 1998. Years later, Justice Brian Riordan of the Superior Court of Québec concluded that the Canadian tobacco industry lied, concealed the truth, minimized and systematically trivialized tobacco-related health risks for over 50 years, famously known as the “program of disinformation.”
Big Tobacco’s ‘Program of Disinformation’
In the words of Superior Court Justice Riordan, the program of disinformation can be summed up as follows: “Strong evidence existed […] to support a causal link between cigarettes and disease and it was irresponsible for the Canadian tobacco industry to attempt to disguise that Sword of Damocles.”
There is another side to the sinister program of disinformation, and that is Big Tobacco’s “concealed knowledge” concerning the addictiveness of cigarettes. The Court cited a 1976 interior report prepared by Imperial Tobacco Canada’s then Manager of Public Relations, Michel Descôteaux, who very candidly raised the issue of the addictiveness of smoking.
“A word about addiction. For some reason, tobacco adversaries have not, as yet, paid too much attention to the addictiveness of smoking. This could become a very serious issue if someone attacked us on this front. We all know how difficult it is to quit smoking and I think we could be very vulnerable to such criticism.”
The Superior Court concluded that the addictiveness of smoking was known to the tobacco industry since the 1950s.
Kugler notes that the program of disinformation has evolved over the years. “Initially, the industry claimed there is no evidence that smoking cigarettes causes cancer. They claimed they were carrying out research and that they would notify the Canadian public of the research when it would be available.” This refers to an earlier stage of the disinformation campaign, according to the lawyer who took on Big Tobacco.
“But we know that as early as the 1960s the industry knew that there was a causal relationship between smoking and cancer. They concealed it and they disinformed the public and the governments here and in the U.S. that smoking does not cause any danger.”
Finally, the disinformation game turns: “Around 2012 the tobacco industry reversed course and published on its website that smoking does cause cancer. At our trial,” remembers Kugler, “one of the presidents of the tobacco companies was asked whether the information that is now present on the website was known in the 1960s and the answer was yes. They have gone full-circle from denial to admitting.”
Historic Class Action Lawsuit is a ‘Huge Consumer Victory’
Kugler is proud of his role in this historic class action lawsuit. “We are representing about 100,000 victims who sustained lung cancer and other serious cancers,” he says.
Another “historic” aspect of the case: This is not only the longest class action in Canadian history, but it is also the largest award in Canada’s judicial history, weighing in at roughly $14 billion.
“The decisions by our lower courts in Quebec have many pages and reasons designed to show that big companies who cause harm to people deliberately put profits ahead of consumers. It’s a huge consumer victory.”
According to the seasoned class actions lawyer, this judgement signals to big corporations that they can’t “get away with harming the public in the interest of profits.”
In fact, this aspect of the Big Tobacco class action lawsuit speaks to the very objective of class actions. It’s what class actions are all about, explains Kugler. “No individual who is seeking compensation for this damage can afford to sue huge corporations like the tobacco industry. But through a class action it is possible.”
And what about the hassle of joining a class action? Is it worth it? Most definitely, exclaims Kugler, highlighting that there is no “hassle” involved in joining a class action lawsuit.
“In Quebec, nobody has to join a class action. At the end of the day, a notice will be published to say that anyone who fits a certain criteria […] need only fill out a form.”
Incidentally, had the CCAA proceedings not taken place, he adds, referring to Big Tobacco’s bankruptcy proceedings which are stalling the Quebec class action judgement, “and if the judgement in Quebec was finalized and settled, each Class Member would be entitled to $300K, which is not an insignificant amount.”
According to Kugler, the firms involved in suing Big Tobacco felt that this class action lawsuit was not only about compensating victims. It also acts “as a deterrence,” and “to send a strong message to governments, big corporations and consumers that conduct as reprehensible as what the tobacco industry did is not only unacceptable but won’t be tolerated and will be heavily sanctioned before the courts. And that’s what we’re most proud of– that’s what we accomplished!”
The ‘David and Goliath’ of Class Actions
In Gordon Kugler’s modest phrasing, he is “satisfied” with the direction the Big Tobacco class action lawsuit has taken. “I think that in the beginning, they never felt that a small law firm in Montreal would be able to bring them to their knees, and we did it!”
The seasoned lawyer believes that the firms who brought the decades-long class action have done a great service to consumers and victims of Big Tobacco.
“As lawyers, the trial process and appeal process was extremely interesting,” he remarks. “The trial judge really let them have it, and at appeal, they agreed with the trial judge.”
For example, Justice Riordan, in reference to the issue of smoking’s addictive nature, which Big Tobacco attempted to evade, wrote that the tobacco industry “used semantics as a way of side-stepping the real issue of identifying the harm that smoking causes to people who are dependent on tobacco.”
The Judge found that the defendants had an obligation “to inform their customers” about the harms of smoking they were aware of. “The failure to do so in those circumstances would constitute a civil fault.”
“Our case serves as a precedent world-wide,” Kugler comments, “because the big problem was proving the case. But now we have a Canadian judgement that is extremely well-done […]. We have already been contacted by lawyers from all over the place asking for our assistance, which we are more than happy to provide.”
Have you suffered injuries due to smoking? Would you like to join the Big Tobacco class action lawsuit? Tell us your story in the comments below!
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34 thoughts onBig Tobacco Taken on by Montreal Class Actions Firm in Historic Case
Is this action still ongoing and does it include Ontario and\or Newfoundland and Labrador.
Thank you.