SUPERIOR COURT

CANADAPROVINCE OF QUEBECDISTRICT OF MONTREAL

No.: 500-09(C.S. Montreal) 500-06-000070-983

ROTHMANS, BENSON & HEDGES INC.APPELLANT I Defendant

v.

CECILIA LETOURNEAURESPONDENT I Plaintiff

and

IMPERIAL TOBACCO CANADA LIMITEDJTI-MACDONALD CORP.

MIS-EN-CAUSE I Defendants

No.: 500-09(S.C. Montreal) 500-06-000076-980

ROTHMANS, BENSON & HEDGES INC.APPELLANT I Defendant

v.

CONSEIL QUEBECOIS SUR LE TABAC ET LA SANTERESPONDENT I Plaintiff

and

YVES BLAISRESPONDENT I Designated Member

and

IMPERIAL TOBACCO CANADA LIMITEDJTI-MACDONALD CORP.

MIS-EN-CAUSE I Defendants

INSCRIPTION IN APPEAL(Articles 26 and 495 of the Code of Civil Procedure ("CCP"))

APPELLANT ROTH MANS, BENSON & HEDGES INC. ("RBH") RESPECTFULLYSUBMITS:

1. RBH inscribes in appeal from the final judgment (the "Judgment") of the HonourableJustice Brian Riordan of the Superior Court of Quebec sitting in the judicial district ofMontreal (the "Trial Judge").

Overview of the Judgment

2. The Trial Judge rendered the Judgment on May 27,2015 following a 251-day trial oftwo class actions. The first, Letourneau, named Cecilia Letourneau as representative of aclass of persons allegedly dependent on nicotine in cigarettes. The second, Blais, namedJean-Yves Blais and the Conseil quebecois sur Ie tabac et la sante as representatives of aclass of persons with lung cancer, throat cancer or emphysema allegedly caused bysmoking.

3. The Trial Judge issued a corrected version of the Judgment on June 9,2015. The276-page Judgment, in its corrected form, is attached as Appendix 1.

4. In nearly three years of trial, no class member ever testified, and no evidence fromor about any of the million class members was ever presented. Despite seeking damagesfor smoking-related injuries, Plaintiffs presented no evidence showing that class members'smoking was caused by RBH or other Defendants' supposed faults. Nonetheless, the TrialJudge somehow found that it was Defendants' faults, not class members' own choices, thatcaused each and every class member to smoke.

5. The Trial Judge condemned RBH, solidarily with other Defendants, to pay Blaisclass members moral damages of more than $ 6.8 billion excluding interest and theadditional indemnity (para. 1209). He also condemned RBH to pay punitive damages ofmore than $ 46 million in both Blais and Letourneau (paras. 1221 and 1236).

6. In addition, the Trial Judge made a "sui generis provisional execution" order(para. 1203), requiring RBH to pay nearly $ 250 million as a "deposit" into its attorney's trustaccount within 60 days and notwithstanding appeal (paras. 1216, 1222, 1228, 1237 and1245), so that funds could be distributed immediately to Plaintiffs' lawyers, the Fonds d'aideaux recours collectifs and class members (paras. 1198-1203). That order is the subject ofa Motion to Cancel Provisional Execution filed by RBH in the Court of Appeal in conjunctionwith this Inscription.

7. The Trial Judge also re-amended both class definitions to match his assessment ofthe evidence (paras. 1208 and 1233).

8. According to the Trial Judge, the main fault of RBH and other Defendants was afailure to warn class members of the health risks of smoking under both the Civil Code ofLower Canada ("CCLC") and the Civil Code of Quebec ("CCQ"), as well as s. 228 of theConsumer Protection Act, R.S.Q. c. P-40.1 ( "CPA") once it came into force. He held thatthis fault occurred continuously from 1950 to 1998, despite evidence of widespread publicawareness over this period and even though he explicitly accepted that all class members

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knew or should have known the risk of disease by January 1, 1980 (para. 121) and the riskof dependence by March 1, 1996 (para. 130).

9. The Trial Judge found that class members who smoked once they were fullyinformed of the risks did so because of "stupidity", and bore some responsibility for theirchoice. But with no evidence about the class members, he arbitrarily set each individual'sshare of the responsibility at a fixed 20%, leaving Defendants with 80% (paras. 828-834).And, while he found that everyone was fully informed after his "knowledge dates", heassumed that no one was informed before those dates and made no provision for anyshared responsibility before those dates.

10. The Trial Judge also found a separate violation of s. 219 CPA because some ofDefendants' ads, by using "attractive, healthy-looking models and healthy-lookingenvironments", conveyed to him the general impression that smoking is not harmful tohealth (paras. 535-536). The Trial Judge found this despite the presence of explicitwarnings to the contrary on every ad he so condemned and despite his own finding thateveryone knew or should have known that smoking is harmful to health before s. 219 evencame into force.

11. To overcome the absence of any evidence on the essential question whetherDefendants' faults caused class members' smoking, the Trial Judge rejected establishedcase law requiring Plaintiffs to prove "butfor" causation (paras. 791-794); devised a new "it-stands-to-reason" test for causation in claims for "tobacco-related damages" (para. 794);found that he could presume, based on "[m]ere common sense", that his new, specialcausation test was met for each and every one of the million class members over half acentury (paras. 798-807); denied Defendants any ability to rebut the presumption based onevidence specific to an individual class member (para. 808-809); and held that causationneed in any event not be proven, on any standard, before punitive damages can beawarded (para. 654).

12. Under the CPA, he also invoked an "irrebuttable presumption of prejudice" that heacknowledged the Supreme Court of Canada has limited to cases involving contractualremedies that are not at issue here (paras. 494-507).

13. In Blais, the Trial Judge interpreted s. 15 of the Tobacco-related Damages andHealth Care Costs Recovery Act, R.S.Q. c. R-2.2.0.0.1 (the "TDHCCR Act") as eliminatingPlaintiffs' burden to prove that smoking caused each class member's disease (para. 745).He then treated epidemiological evidence showing that smoking increases the risk ofdisease in a population as sufficient to satisfy Plaintiffs' supposedly lessened burden, anddenied Defendants any ability to disprove disease causation based on a class member'sindividual characteristics and circumstances (paras. 714-718).

14. According to the Trial Judge, if a person had a disease that could be caused bysmoking, and that person smoked a certain amount, then the disease was caused bysmoking, no matter what other risk factors for the disease the person had or whether theperson quit smoking years before diagnosis. The Trial Judge took this approach eventhough he accepted the undisputed evidence that quitting smoking rapidly reduces one'selevated risk and that quitting for long enough can eliminate it (paras. 707-"708).

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15. To awardcollective recovery of moral damages in Blais, the Trial Judge multiplied a"uniform figure" for each disease by Plaintiffs' estimated count of affected class members(paras. 986, 992 and 1004). Each uniform figure was said to represent a class member's"typical" moral damages (para. 960). The Trial Judge recognized that Plaintiffs' estimatedcount of class members was under-inclusive because Plaintiffs presented no evidenceabout anyone diagnosed before 1995. The Trial Judge nonetheless awarded collectiverecovery based on Plaintiffs' estimated count while at the same time inviting uncountedclass members to make claims (paras. 843-848).

16. Having ignored the differences from class member to class member in awardingcollective recovery of moral damages in Blais, the Trial Judge relied on the same type ofdifferences to deny collective recovery of moral damages in Letourneau (paras. 950 and956).

17. The Trial Judge found punitive damages warranted under both the Quebec Charterof human rights and freedoms, RS.Q. c. C-12 (the "Charter") and the CPA (para. 1024)even though acknowledged the potential absence of further need to deter Defendants fromengaging in wrongdoing in light of extensive regulation of the tobacco industry (para. 1032).He considered it necessary to denounce Defendants' failure to warn the warned severaldecades earlier and to deter other, unspecified companies in other, unspecified industriesfrom engaging in similar wrongdoing (paras. 1033-1038).

18. The Trial Judge quantified punitive damages based on Defendants' average pre-taxearnings over five years (para. 1075), without any apparent concern for proportionality withprior punitive damages awards in Quebec or Canada.

19. Even though its constitutionality is being litigated in separate proceedings, the TrialJudge treated s. 27 of the TDHCCR Act as erasing prescription for moral damages claims.

20. For punitive damages claims, the Trial Judge applied the normal rules ofprescription. Recognizing that all Letourneau claims would normally be prescribed becausethe case was commenced more than three years after a prominent addiction warning wasplaced on Defendants' cigarette packages, the Trial Judge decreed that the warning wouldnot have had "sufficient effect" until it had appeared on packages for 18 months (paras.129-130). He did this without any direct evidence in support of his 18-month incubationperiod, and indeed without anyone having questioned any witness about this issue at anytime.

21. Background regarding the process leading to authorization to institute the classactions and regarding the trial is set out beginning in para. 1122, below.

The Trial Judge's errors

22. Fundamentally, the Trial Judge refused to apply well established law to the evidenceactually adduced at trial. Instead, he offered gratuitous commentary on whetherDefendants' conduct was "moral" or "immoral" (paras. 267, 339,425,629-630 and 1037)and invented new law that he then applied to his own speculation and conjecture. In oneinstance, he explicitly stated that he was motivated by "sympath[y]" and by the "simple,

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common-sense notion that it is high time that [Defendants] started to pay for their sins"(paras. 1198 and 1200).

23. In taking this approach, the Trial Judge disregarded the most fundamental limits onhis judicial role. "[L]e juge ne fait pas fonction de leqislateur dans notre systerne quiconsacre la separation des pouvoirs": M.S. c. L.K., [1986] J.O. no 1063 (C.A.), at para. 23.Rather, "[t]he judge's role is to state the law and to render justice within the framework ofthe law": Ruffo (Re), 2005 OCCA 1197, at para. 323. The judge "is not entitled to ignorebinding precedent": Canada (Attorney General) v. Bedford, 2013 SCC 72, at para. 44. Noris he entitled "to apply only the law of which [he] approves" or to decide cases with a viewonly to what he "deems fair or pertinent": British Columbia v. Imperial Tobacco Canada Ltd.,2005 SCC 49, at para. 52. Nor, when it comes to facts, can he rely on "speculation", "mereconjecture or remote hypotheticals" in lieu of evidence: Hinse v. Canada (AttorneyGenera!), 2015 SCC 35, at para. 137. Rather, "the trial judge must scrutinize the relevantevidence with care to determine whether it is more likely than not that an alleged eventoccurred", and apply the law accordingly: F.H. v. McDougall, 2008 SCC 53, at para. 49(emphasis added).

24. The Trial Judge erred in finding that fault, causation and injury had been provenconclusively or at all; erred in awarding collective recovery of moral damages in Blais; erredin awarding punitive damages; erred in granting prescribed claims; and erred in orderingprovisional execution. He also made palpable and overriding errors in his factual findingsand treatment of the evidence, and fundamentally erred in his understanding of the classaction procedure. These errors justify granting RBH's appeal and setting aside or varyinghis Judgment as against RBH.

25. Without limiting the generality of the foregoing, RBH intends at this time to focus onthe following specific errors:

Class action procedure

(a) treating the class action procedure as allowing him to ignore legally relevantdifferences among class members-such as what they knew about the risks ofsmoking and when, their smoking history and their exposure to other risk factors fordisease-thereby altering the substantive law applicable to class members' claimsand robbing Defendants of their defences;

Fault

(b) finding Defendants violated art. 1053 CCLC and art. 1457 CCO by notwarning class members of smoking's health risks even after class members knew,should have known or could have known those risks;

(c) proceeding as though none of the class members knew of smoking's healthrisks until the date that all of them knew or should have known, even though a vastnumber obviously knew beforehand;

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(d) assessing the sufficiency of Defendants' warnings based on whether theyalarmed or dissuaded consumers rather than whether they adequately informedthem of smoking's risks;

(e) finding Defendants' ads left a general impression that smoking is not harmfulto health and therefore violated s. 219 CPA, despite explicit, government-approvedwarnings to the opposite effect in every ad and despite a finding that everyone knewor should have known when the ads ran that smoking is indeed harmful to health;

(f) finding Defendants violated s. 228 CPA by failing to mention important health-related information about cigarettes, without identifying any representation fromwhich that information was omitted and despite a finding that everyone knew orshould have known that information by the time s. 228 came into force;

Causation

(g) applying the wrong legal test for causation, rejecting the long established "butfor" standard in favour of a new "it-stands-to-reason" test of his own invention;

(h) relying not on evidence but instead on "[m]ere common sense" to create afactual presumption that all smoking by more than a million class members wascaused by Defendants' faults, contrary to the requirement under art. 2849 CCO thatpresumptions be "serious, precise and concordant";

(i) announcing his factual presumption of causation for the first time in theJudgment, thereby depriving Defendants of any ability to rebut it;

U) interpreting s. 15 of the TDHCCR Act to eliminate Plaintiffs' burden to proveboth causation for each class member and that each class member suffered asimilar prejudice;

(k) relying on admittedly "novel" epidemiological evidence that did not meetrecognized scientific standards, had never been tested and could not bescientifically validated or invalidated;

(I) treating epidemiological evidence that smoking increases the risk of adisease in a population as conclusive proof that smoking caused the disease ofevery individual member of that population;

(rn) denying Defendants any ability to contest causation on the basis of classmembers' individual circumstances, risk factors or smoking histories;

(n) assuming that, if a former smoker is diagnosed with a smoking-relateddisease, then the cause must necessarily be his or her smoking, even while

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accepting that quitting smoking for a number of years reduces or eliminates anyexcess risk of disease;

(0) applying an irrebuttable presumption of prejudice under s. 272 CPA, eventhough the Supreme Court of Canada has limited the presumption's application toclaims for contractual remedies not in issue here;

(p) determining the contributory fault of a million class members, limiting theirrelative liability to 20%, without any evidence about their reasons for starting orcontinuing to smoke ortheir knowledge of the risks, and even though art. 1478 CCOrequires an evaluation in light of all the evidence;

Injury and collective recovery of moral damages

(q) awarding collective recovery to Blais class members even though theevidence did not establish either the total number of members of the class or theproper quantification of their claims, as required by art. 1031 CCP;

(r) awarding interest and the additional indemnity on Blais moral damagescommencing from the date of service of the motion for authorization, even thoughmany class members' claims did not accrue until long after that date;

Punitive damages

(s) awarding punitive damages in Letourneau irrespective of injury andirrespective of causation;

(t) finding Defendants intentionally interfered with class members' Charter rightsby failing to warn them of smoking's health risks, despite a finding that classmembers knew or should have known those risks;

(u) finding that, by phasing in indirect-cured tobacco, in coordination with thegovernment, RBH intentionally interfered with class members' Charter rights, eventhough there was no evidence that such tobacco is less harmful;

(v) awarding punitive damages in an amount without any rational basis, to deterunnamed companies in unidentified other industries and to denounce decades-oldconduct that could not occur again;

(w) awarding punitive damages based on conduct that could not violate theCharter or the CPA, including conduct that pre-dated their coming into force andconduct not in issue in these class actions;

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Prescription

(x) finding that prescription in moral damages claims was erased by s. 27 of theTDHCCR Act despite its constitutional invalidity;

(y) overlooking all problems of prescription in the Letourneau class, reasoningthat because all class members could have sued by March 1, 1996, not one classmember could have sued only five months earlier;

Class definition

(z) adopting a class definition in Letourneau based on vague criteria having norational basis;

Provisional execution

(aa) ordering provisional execution when Plaintiffs admitted they had no evidenceof serious or irreparable injury as required by art. 547 CCP;

(bb) ordering provisional execution for and on account of costs, contrary to art.548 CCP;

Factual and evidentiary matters

(cc) rejecting evidence of Defendants' expert witnesses, because their opinionswere limited to identifying flaws in Plaintiffs' experts' opinions and they did not assistin establishing facts on which Plaintiffs bore the burden of proof;

(dd) treating as irrelevant Defendants' evidence about the government'sknowledge of the risks of smoking and its views on the need for and adequacy ofwarnings;

(ee) rejecting evidence of Defendants' expert witnesses about widespread publicawareness of the health risks of smoking because they did not consider Defendants'marketing, then finding elsewhere that Defendants' marketing did not address thatissue anyway;

(ff) accepting Defendants' evidence that the public has actually overestimatedthe risk of smoking for decades, but declaring it irrelevant and then finding thatDefendants had not rebutted the factual presumption that their supposed failure towarn of the risk of smoking had caused class members to smoke; and

(gg) relying on Defendants' statements to Parliament, in violation of Parliamentaryprivilege.

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26. These errors and their significance to the Judgment are described in detail below.Given the length, complexity and gravity of the Judgment, RBH may later seek to amend itsInscription pursuant to art. 199 and 496 CCP to add to and, if necessary, to modify this listof errors.

Error (a): treating the class action procedure as altering the substantive law

27. Taken as a whole, the Judgment reflects a basic misunderstanding of the classaction procedure. The Trial Judge treated Plaintiffs' choice to bring sweeping classactions-covering more than a million class members and nearly 50 years of conduct-asallowing him to ignore acknowledged, legally relevant differences from class member toclass member, going so far as to state that it did not matter that "some people might beincluded in the classes, and thus compensated, incorrectly" (para. 975). The differencesamong class members ignored by the Trial Judge include:

(a) when they subjectively learned the risks of smoking (para. 888);

(b) whether they ever saw Defendants' ads (paras. 437 and 537) orstatements (paras. 260-264);

(c) whether they ever tried to quit smoking (para. 830);

(d) their difficulty in quitting if they tried (paras. 830 and 946);

(e) whether they ultimately quit and, if so, when (para. 706);

(f) their other risk factors for disease (para. 705);

(g) when they were diagnosed with disease relative to their smoking(para. 707);

(h) their detailed smoking history (para. 705);

(i) their degree of contributory fault (para. 833); and

U) the extent of their pain and suffering (para. 960).

28. The Trial Judge ignored these obvious differences among the class members invarious ways, including by deeming (para. 888), adjusting (paras. 759 and 9~)7),estimating(paras. 785 and 960) and arbitrating (paras. 783 and 997) them out of existence; lookingonly at the typical or average case (paras. 532, 656, 659, 661, 663, 666 and 785);considering only principal causes (paras. 671, 673, 675 and 705); or awarding a "uniformfigure" suitable for most, but not all, cases (para. 984).

29. Based on his view that "the spirit and the mission of the class action" should not "bethwarted by an impossible pursuit of perfection" (para. 976), the Trial Judqe ignored theSupreme Court of Canada's holdings that (i) the class action is "only a legal procedure":Dell Computer Corp. v. Union des consommateurs, 2007 SCC 34, [2007] 2 S.C.R. 801, atparas. 106-07; (ii) its "use neither modifies nor creates substantive rights", and a class

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action "cannot serve as a basis for legal proceedings if the various claims it covers, takenindividually, would not do so": Bisaillon v. Concordia University, 2006 SCC 19, [2006] 1S.C.R. 666, at para. 17; and (iii) the substantive law must be applied "in its entirety", the"plaintiff must establish the elements of fault, injury and causal connection in respect ofeach member of the group" and "the judge must still be satisfied on a balance ofprobabilities that each element is present for each member": Bou Malhab v. DiffusionMetromedia CMR inc., 2011 SCC 9, [2011] 1 S.C.R. 214, at para. 53 (emphasis added). Healso ignored the Court of Appeal's explicit confirmation that those holdings apply fully inthese cases: Imperial Tobacco Canada Ltd. c. Letourneau, 2014 QCCA 944.

30. Instead of criticizing Defendants for insisting on the substantive law's properapplication, the Trial Judge should have excoriated Plaintiffs for biting off more than theycould imaginably chew and dismissed or at least de-authorized these cases. Though henever expressly identified his view of the class action's purpose, it is manifest that hefundamentally misconceived it: he characterized the leading Supreme Court of Canadacases cited above as "incompatible" with the class action regime (para. 689) and invitedlegislative changes to "remov[e] the tethers currently binding class actions" notwithstandingthe doubtful constitutionality of such changes (fn. 319).

Error (b): finding a failure to warned the warned

31. The Trial Judge wrongly found Defendants had a duty under the general civil faultrule in art. 1053 CCLC and art. 1457 CCQ to warn the warned. He held Defendantscommitted a fault by not warning of smoking's risks even after the dates as of which hefound class members knew, should have known or could have known those risks. He didthis even while accepting that any failure to warn claim against Defendants under themanufacturers' liability regime in art. 1468-1469 and 1473 CCQ would be foreclosed afterthose dates (paras. 240-242 and 824).

32. Under art. 1053 CCLC, a manufacturer had a duty to warn only when its productcontained a defect or a danger of which the consumer could not be aware: Air Canada v.McDonnell Douglas Corp., [1989] 1 S.C.R. 1554, at p. 1566 and Bank of Montreal v. BailLtee, [1992] 2 S.C.R. 554, at pp. 586-587. As the Trial Judge himself recognized, arts.1468-1469 and 1473 CCQ simply codified the established art. 1053 CCLC duty to warn(para. 215). While these new provisions also made it easier to prove a breach of the dutyby creating a reverse onus for certain elements, they did not alter these elements: Lebel c.2427-9457 Quebec inc., 2007 QCCS 4644, at paras. 31 and 33, quoting Pierre-GabrielJobin, La vente, 2e ed., (Cowansville: Editions Yvon Blais, 2001), at pp. 210-211. The TrialJudge's finding that there was no fault under the criteria of art. 1468 CCQ should have ledhim to conclude that there was also no fault under art. 1053 CCLC. He erred in concludingotherwise.

33. Articles 1468-1469 and 1473 CCQ create an exhaustive "regime autonome etirnperatif" for manufacturers' warnings: Ministere de la Justice, Commentaire du ministre dela Justice, Code civil du Quebec, tome 1 (Quebec: Les Publications du Quebec, 1993), atp. 897. No residual or additional duty is imposed by art. 1457 CCQ and the Trial Judgeerred by subjecting Defendants to one.

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Error (c): treating class members' knowledge as all-or-nothing

34. The Trial Judge wrongly proceeded as though a million class members knew nothingof smoking's health risks until all of them did. He found that they all knew or should haveknown the risk of disease as of January 1, 1980 (para. 121) and of the risk of dependenceas of March 1, 1996 (para. 130), but treated not one of them as knowing anything beforethose dates.

35. All million class members did not go from not knowing to knowing at one particularmidnight. The Trial Judge selected his dates based on when a "vast majority" knew therisks in question (para. 124). But a sizable number, then a majority of class members musthave known long before the vast majority. The Trial Judge could not deem a "knowledgedate" for all class members based on expediency. At a minimum, Defendants were entitledto individual hearings to present evidence of subjective knowledge in individual classmembers, as art. 1473 CCO affords a complete defence where a class member "knew orcould have known" of a risk of which a manufacturer fails to warn.

Error (d): requiring warnings to alarm or dissuade rather than to inform

36. The Trial Judge erred by assessing the sufficiency of Defendants' warnings basedon their supposed lack of alarming or dissuasive effect rather than on the information theyprovided. He asked whether the warnings given "struck fear" (para. 117), had "some bite"(para. 118), "[drove] the message home" (para. 285), and "move[d] in the direction ofraising the alarm" (para. 312). He also found that even a sufficient warning would afford nodefence until it had been "circulate[d]" for the 18 months he "arbitrate[d]" as necessary togive it "sufficient effect" (paras. 129-130). While accepting that the public generallyoverestimated the serious risks of smoking, he treated this not as eliminating any duty towarn but instead as proving the inadequacy of Defendants' warnings (para. 309), on thelogic that "they were simply repeating things that the public already knew" (para. 111).

37. There is no obligation on a manufacturer to "alarm" or "[strike] fear' in people whouse its product, nor to dissuade them from doing so, even if the product is dangerous.Rather, to avoid liability, the manufacturer must simply give consumers relevant informationabout the dangers that a reasonable person would not know. This flows from art. 1473CCO, which creates a defence if a plaintiff subjectively "knew or could have known" of asafety defect or foreseen the injury from it, and from arts. 1468-1469 CCO, which define aproduct as having a "safety defect" only if, viewed objectively, it "does not afford the safetywhich a person is normally entitled to expect".

38. Where a plaintiff knew, could have known or should have known the risks of aproduct and used it anyway, the manufacturer will not be held liable for resulting injuries,regardless of the source of the knowledge: Inmont Canada Ltd. v. Compagnie d'AssuranceCanadienne Nationale, EYB 1984-142586, [1984] J.O. no 825 (C.A.), at para. 21.

39. The Trial Judge erred by requiring Defendants to use warnings to alarm consumersor dissuade them from smoking rather than inform them of the risks and leave them free tochoose. The fact is that consumers have long overestimated the health risks of smoking bya factor of four to five, as the uncontradicted evidence showed (paras. 306 and 309).

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Error (e): finding a violation of CPA s. 219

40. The Trial Judge erroneously found Defendants' ads violated s. 219 CPA because oftheir themes of "elegance, adventure, independence, romance or sport" and use of"attractive, healthy-looking models and healthy-looking environments", all of which wouldgive the general impression that "smoking is not harmful" (paras. 535-536).

41. The Trial Judge neglected to "take account of the entire advertisement rather thanmerely of portions of its content" and to read "over the entire text once" as required byRichard v. Time Inc., 2012 SCC 8, [2012] 1 S.C.R. 265, at para. 56. Had he done so, hewould have had to account for the government-approved health warnings included in eachand every ad that he found misleading. The Trial Judge also neglected to endow the"average consumer" from whose perspective a violation of s. 219 CPA must be judged withthe knowledge of smoking's risks that, on the Trial Judge's own findings, all consumersknew or ought to have known by the time the relevant provisions of the CPA came intoforce on April 30, 1980. On a proper analysis, there was no violation of s. 219 CPA.

Error (f): finding a violation of s. 228 CPA

42. The Trial Judge erroneously found Defendants violated s. 228 CP,A\by failing tomention an important fact, namely, "critical health-related information about cigarettes" in arepresentation (para. 512). This was an error for two reasons.

43. First, a fact is important only if its disclosure would probably influence a consumer'sdecision to purchase a product: Claude Masse, Loi surla protection du consommateur(LesEditions Yvon Blais, 1999) at p. 862. Given that the Trial Judge found that everyonealready knew or should have known that smoking is a health risk by the time s. 228 cameinto force on April 30, 1980, Defendants did not withhold any important fact. Tellingconsumers what they already knew-smoking carries health risks-would not likely haveinfluenced their decision to purchase.

44. Second, s. 228 CPA does not prohibit saying nothing-i.e., an omission not tied toany specific representation. Rather, it prohibits omitting any information from arepresentation that is necessary to make the representation not misleading. The purpose ofthe CPA is to ensure "the veracity of information provided to consumers throuqh advertisingor otherwise": Richard v. Time Inc., 2012 SCC 8, [2012] 1 S.C.R. 265, at para. 41. Althoughthe CPA defines "representation" generally to include an omission, reading s. 228 toprohibit omissions in general would overshoot the CPA's purpose. Instead of restrictingadvertising, it would require advertising by manufacturers and merchants 01~all importantinformation about their products and services. Match manufacturers would have toadvertise that fire burns.

45. Since long before s. 228 CPA was brought into force, all advertisements byDefendants included an explicit, government-approved warning containing the very healthinformation the Trial Judge erroneously found Defendants failed to mention. There was noviolation of s. 228.

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Error (g): applying the wrong legal test for causation

46. The Trial Judge erroneously applied the wrong legal test for causation, rejecting thelong-established "but for" test in favour of an "it-stands-to-reason" test that he inventedspecifically for "claim[s] for tobacco-related damages" (paras. 792-794).

47. "But for" is the standard for causation: see, e.g., Clements v. Clements, 2012 SCC32, [2012] 2 S.C.R. 181, at para. 46; Parrot v. Thompson et al., [1984] 1 S.C.R. 57, atpp. 71-72; and Lara Khoury, Uncertain Causation in Medical Liability (Cowansville: LesEditions Yvon Blais Inc., 2006) at p. 27. Accordingly, Plaintiffs' burden was to prove that, inthe absence of Defendants' supposed faults, class members would not have smoked andwould not have been injured. That is critical because cigarettes are legal and informedadults are free to choose to smoke them, despite the health risks they entail.

48. The Trial Judge wrongly found that Defendants' supposed faults caused all smokingby all class members even though he himself found that "clear warnings about the toxicityof tobacco ... would not have stopped all smoking" (para. 803), some class members couldhave quit smoking with little or no difficulty (paras. 830 and 947) and class members were"stupid[]" to start or continue smoking despite their awareness of the risks (para. 833).Calling the class members who knew or should have known the risks stupid for smokingjust means that the Trial Judge disapproved of their choices. But choosing to smoke wastheir right, and their choice breaks the causal chain: see, e.g., Dallaire v. Paul-Emile MartelInc., [1989] 2 S.C.R. 419.

Error (h): presuming that Defendants' faults caused all smoking by all classmembers

49. Without evidence, and relying on "[m]ere common sense", the Trial Judgeerroneously created a factual presumption under art. 2846 CCO that Defendants' supposedfaults caused all smoking by all class members (paras. 798-807).

50. No factual presumption could be drawn on the basis of "[m]ere common sense".A presumption under art. 2849 CCO must be both "serious" and "precise". "Serious" meansthere must be a proven fact that leads clearly to the inference. "Precise" means theinference must be the only reasonable conclusion to be drawn from the proven fact:Longpre c. Theriault, [1979] C.A. 258, [1979] J.O. no 366, at para. 17 (internal citationsomitted). A factual presumption must not "be deduced from a pure hypothesis, fromspeculation, from vague suspicions or from mere conjecture": Hinse v. Canada (AttorneyGeneral), 2015 SCC 35, at para. 72, quoting J.-C. Royer and S. Lavallee, La preuve civile(4th ed. 2008), at No. 842.

51. Here, there was no proven fact leading at all, let alone clearly or exclusively, to aninference that Defendants' supposed faults caused all smoking of all cigarettes by a milliondifferent people over a period of roughly 50 years. Supposed common sense clothed in apresumption does not substitute for evidence. As the Court of Appeal said in reversing theTrial Judge in a different case, "[a] presumption offact ... does not allow for the filling of anevidentiary void": Watters c. White, 2012 QCCA 257, at para. 167. Civil liability cannot be

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based on "mere conjecture" or "speculation" by the court as to causation: Hinse v. Canada(Attorney General), 2015 SCC 35, at para. 137.

52. Put differently, while judges should take a "common sense" attitude in assessingevidence of causation, "[c]ommon sense cannot serve as the justification [for a finding ofcausation], as it may permit judges to abdicate the difficult task of adjudicating causation byclothing value judgments in the guise of rules and to seek to justify a desired conclusionwith the illusion of intellectual argument": Lara Khoury, Uncertain Causation in MedicalLiability (Cowansville: Les Editions Yvon Blais Inc., 2006) at pp. 202-03 (emphasis inoriginal). Indeed, if common sense can tell us anything relevant, it tells us that most classmembers knew the risks and would have chosen to start and continue smoking even ifstronger warnings had been given sooner.

Error (i): depriving Defendants of any notice of the causation presumption

53. Before rendering the Judgment, the Trial Judge never stated that he would presumethat Defendants' faults caused class members to smoke-a critical issue on which Plaintiffshad the burden of proof-unless Defendants disproved it. This was an error, because it leftDefendants in the dark about the case they had to meet. Defendants were deprived of thefair trial to which they were entitled under s. 23 of the Charter.

54. The law is and has always been that "le lien causal soit preuve par la preponderancedes probabilites, sans egard au type de la faute": Levesque c. Hudon, 2013 QCCA 920 atpara. 107 (emphasis added). Defendants could not be expected to know that the gapinghole in Plaintiffs' evidence on causation would be filled by the Trial Judge's supposedcommon sense, much less to anticipate the all-encompassing presumption to which thatsupposed common sense would lead him.

55. Even if the Trial Judge could presume causation under art. 2846 CCQ in theabsence of evidence, Defendants were entitled to know about that presumption during thetrial so that they could rebut it.

Error (j): interpreting s. 15 TDHCCR Act to eliminate Plaintiffs' burdens on causation

56. Stating that the objective of the TDHCCR Act is "to make the task of a class actionplaintiff easier" (para. 692), the Trial Judge erroneously interpreted s. 15 of the TDHCCRAct as eliminating Plaintiffs' burden to prove both causation for each class member(para. 745) and "that each class member suffered a similar prejudice" (para. 693).

57. Even while acknowledging s. 15, the Court of Appeal held in lmperiel TobaccoCanada Ltd. c. Letourneau, 2014 QCCA 944 that Plaintiffs were required to prove fault,causation and injury for each and every class member. The Trial Judge was wrong toignore that holding. The holding is indisputably correct: nothing in s. 15 shows any intent toeliminate or even change the substantive requirement that a plaintiff prove causation as apre-condition to liability, as the Trial Judge found. Section 15 simply specifies, as aprocedural matter, forms of evidence that may be admitted to establish causation. Plaintiffswere not relieved of their burdens on causation.

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Error (k): using unreliable expert evidence on causation

58. On the issue of causation, the Trial Judge wrongly admitted and relied on the expertevidence of Dr. Jack Siemiatycki. Dr. Siemiatycki did not apply standard epidemiologicaltechniques and instead used what even he termed a "'novel' approach" (para. 698) that didnot meet recognized scientific standards, had "never really been tested by others" and thuscould not be "either validate[d] or invalidated by any scientific community" (para. 729).

59. Dr. Siemiatycki's evidence could not be used because "Canadian courts require a'reliable foundation' for novel science to be admissible as evidence at trial": R. v. Trochym,2007 SCC 6, [2007] 1 S.C.R. 239, at para. 36, citing R. v. J. -L.J., [2000] 2 S.C.R. 600.Four factors are relevant to a "reliable foundation": (1) whether the technique can be andhas been tested; (2) whether the technique has been subjected to peer review andpublication; (3) the known or potential rate of error; and (4) whether the theory of techniqueused has been generally accepted. The Trial Judge made no reference to any of thesefactors, but his own findings, cited above, show that Dr. Siemiatycki's "novel" approachfailed on (1), (2) and (4). Dr. Siemiatycki admitted in his Expert Report that it failed on (3)as well (Siemiatycki Expert Report, June 17, 2009 (Exhibit 1426.1), at p. 49, attached asAppendix 2 (excerpt)).

Error (I): treating increased risk in a population as conclusively provinq individualcausation

60. The Trial Judge wrongly treated epidemiological evidence showing that a particularamount of smoking doubles the risk of disease in a population as though it established thatsmoking more likely than not caused the disease in all individuals who smoked thatamount. He did this even though the epidemiological evidence here does not account forindividual risk factors and smoking histories (para. 705), or the latency period betweensmoking and any smoking-caused disease. He treated his resulting presumption orinference of disease causation as disputable at only the population level (paras. 714-718).

61. Epidemiological evidence can be used to establish general causation-i.e.,exposure to a particular substance can cause a particular disease. But it is inherentlyincapable of establishing more, and civil liability depends on more being established. Civilliability rests on proof of specific or individual causation-i.e., exposure to a particularsubstance did, in fact, cause the plaintiff's disease. See Baghbanbashi et al. v. Hassle FreeClinic et al., 2014 ONSC 5934, at paras. 7-9. Canadian law is therefore clear thatepidemiological evidence will, at most, create a presumption in favour or against individualcausation, but that individual causation must in either event be determined onindividualized evidence. This is so even if class members' claims must be tried individually.See Andersen v. St. Jude Medical, Inc., 2012 ONSC 3660, at paras. 395 and 556-562.

62. Put differently, probability of causation greater than 50% established byepidemiology does not equate to proof of causation on a balance of probabilities for anygiven individual, and the Trial Judge erred in concluding otherwise.

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Error (m): denying Defendants any ability to contest causation in individual cases

63. The Trial Judge treated causation as proven conclusively for all class memberssince Defendants supposedly failed to disprove causation for all class members (paras.718 and 808-809). This was an error because Defendants were entitled to contestcausation, and to rebut any presumption in that regard, at the stage of individual claims.

64. In a class action, even where defendants create a risk of harm sufficient to support apresumption of causation on a class-wide basis, defendants are entitled to rebut thatpresumption on an individual-by-individual basis with regard to the particular circumstancesof each class member's case: Montreal (Ville de) c. Biondi, 2013 QCCA 404. Indeed,epidemiological evidence showing general causation in the population is not even capableof being rebutted except with "probative evidence other than the epidemiologicalevidence"-i.e., evidence that is specific to a given individual: Andersen v. St. JudeMedical, Inc., 2012 ONSC 3660, at paras. 539-541.

65. By requiring Defendants to disprove causation at a class level, the Trial Judgeignored Biondi-binding authority on presumptions of causation in class actions, on whichRBH relied extensively in both its written and oral argument, but to which the Trial Judgedid not even refer- and deprived Defendants of defences based on the knowledge,circumstances, risk factors and smoking histories of individual class members. He erred bydoing so.

Error (n): assuming all smoking-related disease must be caused by smoking

66. The Trial Judge found it undeniable and important that quitting smoking reduces therisk of contracting diseases at issue in Blais (paras. 707-708). He also acknowledged thatPlaintiffs' evidence on causation and on the number of Blais class members "ignores thequitting factor" (para. 709). The Trial Judge nonetheless concluded that the Blais classdefinition, which requires a smoker or former smoker to have been diagnosed with one ofthe diseases in question, adequately takes quitting into account since "[f]ormer smokerswhose quitting has allowed their bodies to heal won't be counted" in the class "becausethey will never have been diagnosed" with a disease (para. 711).

67. The Trial Judge's conclusion is illogical. Smoking is not the only cause of thediseases at issue in Blais. A smoker can contract a Blais disease caused by somethingcompletely apart from smoking. Indeed, where a former smoker has not smoked for manyyears, it is highly unlikely that smoking caused his or her disease, yet he or she would stillbe included in the Blais class. Plaintiffs' evidence was not probative or reliable because itignored the significance of quitting, and the Trial Judge erred in relying on it.

Error (0): applying an irrebuttable presumption of prejudice under s. 272 CPA

68. The Trial Judge acknowledged that the Supreme Court of Canada had, in Richard v.Time Inc., 2012 SCC 8, [2012] 1 S.C.R. 265, limited the irrebuttable presumption ofprejudice under s. 272 CPA to contractual remedies not sought here. Nonetheless, heerroneously rejected that limitation and held that the presumption was applicable. Heconsidered that the Supreme Court's limitation would violate the "spirit of the Act" and that

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the existence of such a limitation was beyond what the Supreme Court had needed todecide (paras. 499-501).

69. The Trial Judge was wrong to ignore the Supreme Court's statements that theirrebuttable presumption of prejudice applies only where contractual remedies are sought.There is no strict demarcation between the ratio decidendi and obiter dicta in the SupremeCourt's decisions. Beyond the ratio decidendi, the Supreme Court often provides "a widercircle of analysis which is obviously intended for guidance and which should be acceptedas authoritative". "[O]isregarding the majority view of [the Supreme Court] on a point of law,even if it was not strictly necessary for the disposition of the case in which it wasexpressed, may just precipitate a successful appeal" (R. v. Henry, 2005 sec 76, [2005] 3S.C.R. 609, at paras. 52-59), as it does here. Where lower courts disagree with a decisionof the Supreme Court, the proper course is to "write reasons as to why [the decision is]problematic, ... rather than purporting to overrule it": Canada v. Craig, 2012 SCC 43, [2012]2 S.C.R. 489, at para. 21.

70. In any event, even in contractual claims, four pre-conditions must be proven beforethe presumption is triggered: Time Inc., at para. 124. The four pre-conditions are (1) RBHviolated an obligation imposed by Title II of the CPA; (2) each class member saw RBH'sCPA violation; (3) subsequently, each class member purchased RBH's cigarettes; and(4) seeing RBH's violation would or could lead to the decision to purchase RBH'scigarettes. None of those pre-conditions was proven here. In particular, qiven Plaintiffs'choice to lead no evidence about what class members saw, or about when and whatcigarettes they smoked, there was no evidence on which the Trial Judge could find that allthe pre-conditions were proven.

71. Furthermore, even if the presumption applied in claims for moral damages and hadbeen triggered, it would be a presumption of prejudice merely in the class members'purchases: Time Inc., at paras. 123-124 and 141. It would not be a presumption that theysuffered personal injury as a consequence of their purchases.

Error (p): determining contributory fault on a class-wide basis

72. The Trial Judge erroneously determined the contributory fault of more than a millionclass members, finding that any Blais class member who started smoking after January 1,1976, and any Letourneau class member who started smoking after March 1, 1992, did sobecause of their "stupidity" and therefore deserved a 20% attribution of liability based oncontributory fault (para. 833). He refused to consider any other contributory fault or sharingof liability (para. 835). He did this with no evidence about the motives or knowledge ofeven a single class member, and against the backdrop of his own statements that someclass members may have smoked because of "social forces" (para. 806) and could havequit "fairly easily" but may not even have tried (para. 830).

73. Article 1478 CCO requires the relative liability of each party to be evaluated in lightof all the evidence, as the Trial Judge himself acknowledged (para. 833). The Trial Judgehad no evidence about the class members' faults by which to evaluate their relative liability.He substituted speculation for proof in an apparent attempt to bypass the necessaryindividual inquiries. In doing so, he erred.

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Error (q): awarding collective recovery without knowing the total amount of claims

74. To award collective recovery of moral damages in Blais, the Trial Judge multiplied a"uniform figure" for each disease by Plaintiffs' estimated count of affected class members(paras. 986, 992 and 1004). Each uniform figure was estimated by the Trial Judge to be aclass member's "typical" moral damages (para. 960). But the Trial Judge also stated thatPlaintiffs' estimated count of affected class members was under-inclusive: only peoplediagnosed in or after 1995 were counted, even though the Trial Judge held that anyonediagnosed after 1949 could be a class member (paras. 843-845). The Trial Judgenonetheless refused to amend the class definition or to prevent uncounted class membersfrom coming forward with claims (paras. 846-847). He said Defendants could be made topay additional amounts if they turned out to be needed as a result of such uncalculatedclaims being made (para. 848).

75. The Trial Judge erred by ordering collective recovery of moral damages in thesecircumstances. Article 1031 CCP allows collective recovery to be ordered only if "theevidence produced enables the establishment with sufficient accuracy of the total amountof the claims of the members" (emphasis added). Yet Plaintiffs only even attempted toprove a partial amount: they did not lead any evidence about the number of pre-1995claims. Article 1031 CCP did not permit the Trial Judge to order collective recovery.

Error (r): awarding interest and the additional indemnity commencing in 1998

76. The Blais class includes people diagnosed with a disease as late as March 11,2012(para. 1208). Yet, for the Blais moral damages, the Trial Judge awarded interest and theadditional indemnity from November 1, 1998, when the motion for authorization was served(paras. 1 and 1209).This was an error. Blais class members' rights of action and associatedentitlement to moral damages could not arise before they were diagnosed. The Trial Judgewas wrong to award interest and the additional indemnity from an earlier date.

Error (s): awarding punitive damages irrespective of causation or injury

77. The Trial Judge wrongly stated that proof of causation is irrelevant to punitivedamages (para. 654). He awarded punitive damages in Letourneau despite finding itdifficult to discern whether class members had suffered moral damages and, if so, in whatdegree (para. 945).

78. First, punitive damages, even where available as an autonomous remedy, stillrequire "evidence of all the constituent elements (fault, prejudice, causal connection) ofliability ... in accordance with general legal principles": de Montigny v. Brossard(Succession), 2010 SCC 51, [2010] 3 S.C.R. 64, at para. 40. The Trial Judge was thereforewrong to treat causation as irrelevant and wrong to ignore uncertainty as to class members'injuries.

79. Second, punitive damages cannot be awarded where a plaintiff's injuries cannot beascertained, as the extent of harm resulting from the defendant's fault is an essentialconsideration in determining its gravity and therefore the appropriate award of punitivedamages: art. 1621 CCQ. Indeed, the "gravity of the fault is undoubtedly the most important

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factor" in the assessment of punitive damages: Richard v. Time Inc., 2012 sec 8, [2012] 1S.C.R. 265, at para. 200.

80. Applying de Montigny and art. 1621 CCO, no punitive damages could be awarded inLetourneau.

Error (t): finding intentional and unlawful interference with class members' Charterrights

81. The Trial Judge erred in finding that Defendants intentionally and unlawfullyinterfered with class members' Charter rights, thereby permitting an award of punitivedamages (paras. 485-486).

82. An unlawful interference with Charter rights can be punished by punitive damagesunder s. 49 only if the interference, and not merely the defendant's unlawful action, isintentional: Federation des medecins epecieustes du Quebec c. Conseil pour la protectiondes malades, 2014 OCCA 459, at para. 128. Recklessness does not suffice: Quebec(Public Curator) v. Syndicat national des employes de t'nooitet St-Ferdinand, [1996] 3S.C.R. 211, at para. 121. For example, in Blais, Plaintiffs were required to prove thatDefendants intended to inflict cancer and other diseases on class members through theirunlawful conduct.

83. Here, there could be no intentional or even foreseeable unlawful interference withclass members' rights to life, security and integrity. First, Defendants' knowledge thatsmoking carries health risks did not mean that Defendants intended to harm classmembers' health. Second, on the Trial Judge's own findings, most or all cIIass membersknew the health risks of which Defendants supposedly failed to warn them from the timethe Charter came into force on June 28, 1976. No harm to the class members as a result ofany failure to warn was intentional or even foreseeable and the Trial Judge erred inconcluding otherwise.

Error (u): finding RBH intended to harm its customers by using direct-cured tobacco

84. The Trial Judge found that RBH failed to switch immediately from direct-cured toindirect-cured tobacco once it discovered that the latter featured reduced carcinogenicnitrosamines, or TSNAs. He held that RBH thought it "more important to use up itsinventories than to protect the health of its customers" and that this was relevant to theintentionality of its Charter violations and therefore to the awarding of punitive damages(paras. 638-642).

85. The Trial Judge erred. There was no evidence that indirect-cured, reduced-TSNAtobacco is less dangerous for smokers than other tobacco. Rather, the evidence was thatthere was "no way to know" whether its use made for a less hazardous cigarette(para. 640). Moreover, the Canadian government was fully aware of and acquiescentregarding the manner and pace of RBH's switching (Testimony of Robert Robitaille,Transcript December 19,2013, at 80-92, attached as Appendix 3, en Hasse). There wasno basis to conclude that RBH intentionally harmed the health of its customers by notswitching more quickly.

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Error (v): awarding punitive damages without a rational basis

86. Though the Trial Judge acknowledged the potential absence offurther need to deterDefendants from engaging in wrongdoing in light of extensive regulation of the tobaccoindustry (para. 1032), he considered it necessary to denounce Defendants' failure to warnthe warned several decades earlier and to deter other, unspecified companies in other,unspecified industries from engaging in similar but unidentified wronqdoinq (paras. 1033-1037). Based on Defendants' average annual pre-tax earnings for all of Canada(para. 1075), he would have awarded more than $1.3 billion in punitive damages againstDefendants but for the massive compensatory damages award in Blais.

87. The Trial Judge erred. The purpose of punitive damages "must always be to preventthe repetition of wrongful conduct" (Richardv. Time Inc., 2012 SCC 8, [2012] 1 S.C.R. 265,at para. 155), an award of punitive damages must never exceed "what is sufficient to fulfiltheir preventive purpose" (art. 1621 CCO), and the quantification of punitive damages mustbe rational (Whiten v. Pilot Insurance Co., 2002 SCC 18, [2002] 1 S.C.R. 595). Yet the TrialJudge had no evidence of, and made no specific reference to, what he was purportedlypreventing. He did not consider that punitive damages awards of even a "moderate"amount "inevitably carry a stigma in the broader community" and therefore denunciate andgenerally deter: Whiten, at para. 94. And he did not provide any rational basis forexceeding, by a factor of several hundred, the largest punitive damages awards everrendered in Canada.

88. A trial court's punitive damages award must be set aside where it exceeds rationallimits or there is a wholly erroneous assessment of the quantum: Time Inc., at para. 190.That is the case here. The Trial Judge's punitive damages award must be reversed.

Error (w): awarding punitive damages for conduct that did not violate the Charter orCPA

89. The Trial Judge erroneously awarded punitive damages to denounce conduct thatthe Charter and CPA did not prohibit and even conduct not in issue. While acknowledgingthat the Charter and the CPA applied only from 1976 and 1980, respectively (para. 1024),the Trial Judge considered, and sought to denounce, conduct both pre-dating their in-forcedates and post-dating Plaintiffs' allegations (paras. 1037, 1077-1078 and 1090). He alsorelied on Defendants' mere sale of cigarettes in awarding punitive damages (paras. 1037and 1118), despite the fact that cigarettes are a legal, licensed, heavily regulated productand despite having recognized elsewhere that Defendants could not be liable for their meresale (paras. 221-226).

90. The Trial Judge was wrong to give retroactive effect to the Charter and the CPA."The general rule is that statutes are not be construed as having retrospective operationunless such a construction is expressly or by necessary implication required by thelanguage of the Act": Gustavson Drilling (1964) Ltd. v. Minister of National Revenue, [1977]1 S.C.R. 271, at p. 279. Neither the Charter nor the CPA contains language evensuggesting that they prohibit conduct that pre-dates their coming into force and noexception to the general rule against retrospective operation applies.

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91. The Trial Judge also erred by considering conduct not within the scope of Plaintiffs'claims and conduct not prohibited by the Charter and the CPA. Under s. 49 of the Charter,punitive damages can be awarded only for an intentional and "unlawful interference withany right or freedom recognized by this Charter" (emphasis added). Under s. 272 CPA,punitive damages can be awarded only for failing to fulfill "an obligation imposed on him bythis Act (emphasis added). The Trial Judge could not award punitive damages for conductthat violated neither enactment, or was not in issue, just because he disapproved of it.

Error (x): finding prescription erased by s. 27 TDHCCR Act

92. The Trial Judge erroneously treated s. 27 of the TDHCCR Act as erasingprescription in claims for moral damages (para. 837) despite Defendants' ongoingchallenge to its constitutional validity. Defendants maintain that both the TDHCCR Actgenerally and s. 27 specifically are invalid as they violate s. 23 of the Charter, whichguarantees that any hearing for the determination of Defendants' rights will be full, equaland fair. The Trial Judge was wrong to pre-empt the final determination of that challenge byapplying s. 27.

Error (y): overlooking all problems of prescription in Letourneau

93. The Trial Judge reasoned that since all Letourneau class members knew or ought tohave known of the risk of dependence by March 1, 1996, not one of the 900,000-plusmembers could have sued a moment earlier, so that no class member's claim wasprescribed (paras. 887-890). This was an error.

94. The Letourneau motion for authorization to institute a class action was served onSeptember 30, 1998. If Letourneau class members could have sued prior to September30, 1995-i.e., three years before the Letourneau case was commenced-their claims forpunitive damages were prescribed (art. 2925 CCO), absent a showing that it was"impossible in fact for them to act" such that prescription was suspended (art. 2904 CCO).

95. Even accepting the Trial Judge's view that he could not assume that all classmembers knew the risk of dependence until about 18 months after September 12, 1994,when a rotating addiction warning was placed on Defendants' cigarette packages(para. 130), it does not follow logically that they were not aware of the very dependence-derived injuries for which they sued until that moment. They did not need to see thewarning, nor need to know about the dependence label now attaching to their allegedinjuries, to experience those injuries and have their claims accrue.

96. It also defies credulity that none of 900,000-plus class members, all of whomsmoked daily, knew the risk 12 months after the on-package warning took: effect, eventhough the Trial Judge found that all of them did after 18 months. The Trial Judgeaccepted that the majority of the population knew the risk of dependence by no later than1986 (para. 124). Plaintiffs' own expert, Dr. Robert Proctor, testified that the Americanpublic's knowledge of dependence was "extremely common" after 1988 (para. 99) and theTrial Judge accepted that there is a "high degree of similarity" between Canada and theU.S. as regards awareness (para. 100).

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97. In any event, there was in the first place no evidence by which to find that dailysmokers would have taken more than a year to notice an addiction warning newly placedon their cigarette packages, despite Plaintiffs and the Trial Judge having had theopportunity to question several expert witnesses on that subject.

98. On the evidence and the Trial Judge's own findings, the Letourneau claims areprescribed. The Trial Judge erred in concluding to the contrary.

Error (z): adopting a Letourneau class definition based on vague, irrational criteria

99. The Trial Judge erroneously re-defined the Letourneau class using vaque criteria fordependence for which there was no support in the evidence. The criteria include havingsmoked "principally" Defendants' cigarettes and having smoked "on a daily basis anaverage of at least 15 cigarettes manufactured" by Defendants for at least four years(paras. 771-789).

100. A proper class definition must "be based on objective criteria" with a "rational basis",and must not be "circuitous or vague": George v. Quebec, 2006 QCCA 1204, at para. 40.Asking whether someone smoked "principally" Defendants' cigarettes is vague. There isalso no rational basis for finding dependence because someone smoked 15 cigarettes perday for four years. Plaintiffs' own expert, Dr. Juan Carlos Negrete, testified that although aperson would need to smoke for a number of years to become dependent, there is no setnumber of years after which someone is automatically dependent (Testimony of Dr. JuanCarlos Negrete, Transcript April 3, 2013, at 255, attached as Appendix 3, en liasse). Healso testified that it generally takes 10 to 16 years of regular smoking before a personmeets the clinical definition of dependent (Testimony of Dr. Juan Carlos Negrete, TranscriptMarch 21,2013, at 97-98, attached as Appendix 3, en liasse). More fundamentally, theevidence was clear and uncontradicted that assessing dependence requires a trainedclinician to conduct an individual examination (Testimony of Dr. Juan Carlos Negrete,Transcript March 21, 2013, at 130-131, Appendix 3, en liasse).

Error (aa): ordering provisional execution without the required evidentiary basis

101. As explained in RBH's Motion to Cancel Provisional Execution, the Trial Judgeordered provisional execution under art. 547 CCP without the required evidentiary basis.Article 547 gives the court discretion to award provisional execution where there isexceptional urgency or serious or irreparable injury will otherwise result from an appeal.But an award can be justified only by specific, clear and concrete facts; vague, general orhypothetical allegations will not suffice: Banque Nationale du Canada v. Bedard, 2007QCCA 1796, at para. 6.

102. Plaintiffs simply alleged that class members would face hardship if they had to waitfor appeals to run their course before execution. They offered no evidence of this. Insteadof holding Plaintiffs to their evidentiary burden, the Trial Judge wrongly awarded provisionalexecution.

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Error (bb): ordering provisional execution on account of costs

103. The Trial Judge justified provisional execution in part to give financial relief toPlaintiffs' lawyers (para. 1200) and ordered costs to be paid out of the amounts madeprovisionally executable (paras. 1226 and 1242). Yet art. 548 CCP specifically prohibitsprovisional execution for costs. This is another error in the Trial Judge's decision to awardprovisional execution.

Error (cc): miscasting the role of Defendants' expert witnesses

104. The Trial Judge wrongly criticized Defendants' expert witnesses anelmade adversefindings about their credibility because their opinions were limited to identifying flaws inPlaintiffs' experts' opinions (paras. 167 and 719-722) and they did not "presentl] a wayaround those obstacles" to a judgment in favour of Plaintiffs (para. 969).

105. The duty of an expert witness to a Quebec court is similar to his or her duty to allCanadian courts. Three concepts underlie the duty: impartiality, independence andabsence of bias. See White Burgess Langille Inman v. Abbott and Haliburton Co., 2015SCC 23, at paras. 26-32. Contrary to the Trial Judge's view, the duty does not require adefence expert to have considered matters that he or she was not asked by Defendants toconsider because those matters fell to Plaintiffs to prove. The Trial Judge had no basis forcriticizing Defendants' expert witnesses and his rejection of their evidence wasunwa rranted .

Error (dd): rejecting evidence on government's and public health authorities'knowledge

106. The Trial Judge held that Defendants' evidence about the government's and publichealth authorities' knowledge of the risks of smoking, including their views on the necessityfor and adequacy of warnings, was irrelevant (fns. 42 and 44). Yet he proceeded to drawconclusions about whatthey knew and when they knew it (see, e.g., paras. 105, 127,235,237,274 and 578) and criticized Defendants for keeping them in the dark (see, e.g., paras.235-239 and 578). Had he considered Defendants' evidence instead of ignoring it, hewould have reached different conclusions.

Error (ee): rejecting Defendants' awareness evidence

107. The Trial Judge criticized and rejected the evidence of two historians called byDefendants, David Flaherty and Jacques Lacoursiere, showing widespread publicawareness of the health risks of smoking. He did so because they failed to consider howDefendants' marketing impacted such awareness (para. 86).

108. Yet the Trial Judge found elsewhere that Defendants' ads and other marketing didnot convey any false information about smoking and health questions (para. 438). If it didnot convey false information, it could not detract from the public awareness that thehistorians described, and the Trial Judge was wrong to criticize and reject their evidence onthat basis. Had the Trial Judge considered their evidence, it would have led him toconclude that awareness of risk was widespread from the 1950s onward.

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Error (ft): rejecting Defendants' evidence of public overestimation of smoking'shealth risks

109. Defendants led evidence, through Kip Viscusi, that the public generallyoverestimates the risks of smoking. The Trial Judge said that Viscusi's evidence wasuncontradicted and that he would accept it, but that its relevance was unclear (paras. 306and 309). At the same time, the Trial Judge found that Defendants had not rebutted hisfactual presumption that their failure to warn of the risks of smoking was the cause of allsmoking by all class members (para. 808).

110. The Trial Judge erred in treating Viscusi's evidence as irrelevant to the presumptionof causation. The fact that class members overestimated the risks of smoking meant thatno warning or further information about the true risks would have had any bearing on theirdecision to smoke. The Trial Judge could not discard Viscusi's evidence and then condemnDefendants for having failed to rebut his presumption.

Error (gg): violating Parliamentary privilege

111. The Trial Judge relied on statements made to the Isabelle Committee in finding thatDefendants committed a fault (paras. 248-250). These statements were protected by thefreedom of speech element of Parliamentary privilege: Canada (House of Commons) v.Vaid, 2005 SCC 30, [2005] 1 S.C.R. 667, at paras. 10 and 21, and Ontario v. Rotbmens etaI, 2014 ONSC 3382, at paras. 7-21. This is so whether or not the statements wererepeated in the media: Joseph Maingot, Le privilege parlementaire au Canada (Ottawa:Chambre des communes, 1997), at p. 52. By relying on these statements, the Trial Judgeviolated Parliamentary privilege.

Background: authorization to institute class actions and trial

112. In 1998, Plaintiffs filed motions to institute class actions against RBH and the otherDefendants, alleging that Defendants committed various faults in their design, manufactureand marketing of cigarettes that caused personal injury.

113. The Honourable Justice Pierre Jasmin granted the motions for authorization onFebruary 21, 2005 (the "Authorization Judgment"). The Authorization Judgment is attachedas Appendix 4.

114. Plaintiff Letourneau was authorized to bring a class action for the following class:

All persons residing in Quebec who, at the time of the serviceof the motion, were addicted to the nicotine contained incigarettes manufactured by the Respondents and whoremained addicted as well as the legal heirs of persons whowere included in the group at the time of the service of themotion but later died without quitting smoking.

115. Plaintiff Blais was authorized to bring a class action for a different class:

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All persons residing in Quebec who, at the time of the serviceof the motion suffered from lung cancer, larynx cancer, throatcancer or emphysema, or who, since the service of the motion,developed lung cancer, larynx cancer or throat cancer or havesuffered from emphysema after having directly inhaledcigarette smoke, having smoked a minimum of 15 cigarettesper twenty four (24) hour period for a prolonged anduninterrupted period of at least five (5) years as well as thelegal heirs of all persons who satisfy the above mentionedcriteria but who died since the service of the motion.

116. Justice Jasmin stated the following common questions:

1. Did Defendants manufacture, market, or sell a dangerousproduct that is harmful to consumers' health?

2. Did Defendants know and were they presumed to haveknown about the risks and dangers associated with use oftheir products?

3. Did Defendants implement a systematic policy of notdisclosing such risks and dangers?

4. Did Defendants trivialize or deny such risks and dangers?

5. Did Defendants establish marketing strategies conveyingmisinformation about the attributes of the product sold?

6. Did Defendants knowingly sell a product that createsdependence and did they deliberately not use parts of thetobacco plant that have such low rates of nicotine that theywould have put an end to the dependence of a largepercentage of smokers?

7. Did Defendants conspire to maintain a common front toprevent users of their products from being informed aboutthe inherent dangers of using their products?

8. Did Defendants intentionally jeopardize the right to life,security, and wellbeing of the members of the group?

117. Given art. 1010 CCP, Defendants could not appeal the Authorization Judgment.

118. Once trial began on March 12, 2012, Plaintiffs spent nearly 14 months presentingtheir case, but called no evidence from, derived from or even about the class members.

119. Plaintiffs closed their case on April 23, 2013.

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120. RBH then brought a motion under art. 54.1 CCP for an order dismissing the classactions as improper given that Plaintiffs had not even attempted to prove class members'claims, especially on the issue of causation. On May 9, 2013, the Trial Judge dismissedRBH's motion. His judgment in that regard is attached as Appendix 5.

121. Defendants began presenting their case on May 13, 2013.

122. On July 3, 2013, in the middle of the defence case, the Trial Judge amended theclass definitions at Plaintiffs' request. The Letourneau class was re-defined as follows:

The group is composed of all persons residing in Quebec who,as of September 30, 1998, were addicted to nicotine incigarettes manufactured by the Defendants and who in additionmeet the following three criteria:

1) They started smoking before September 30, 1994 bysmoking cigarettes manufactured by the Defendants;

2) They smoked cigarettes manufactured by theDefendants on a daily basis as of September 30, 1998, and

3) They still smoked cigarettes manufactured by theDefendants as of February 21, 2005, or until their death if itoccurred before that date.

The group also includes the heirs of members who meet thecriteria described above.

123. The Blais class was re-defined in this way:

The group is composed of all persons residing in Quebec who meetthe following criteria:

1) Having smoked before November 20, 1998, at least 5 packyears of cigarettes manufactured by the Defendants (theequivalent of a minimum of 36,500 cigarettes, that is to say anycombination of the number of cigarettes smoked per daymultiplied by the number of days of consumption as long as thetotal is equal to or greater than 36,500 cigarettes).

For example, 5 pack years equals:

20 cigarettes a day for 5 years (20 X 365 X 5 = 36,500)or

25 cigarettes a day for 4 years (25 X 365 X 4 = 36,500)or

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10 cigarettes a day for 10 years (10 X 365 X 10 =36,500) or

5 cigarettes a day for 20 years (5 X 365 X 20 = 36,500)or

50 cigarettes a day for 2 years (50 X 365 X 2 = 36,500)

2) Having developed before March 12,2012:

a) lung cancer, or

b) cancer (squamous cell carcinoma) of the throat, namelythe larynx, oropharynx or hypopharynx, or

c) emphysema.

The group also includes the heirs of persons deceased afterNovember 20, 1998 who meet the criteria described above.

124. Defendants closed their case on June 5, 2014. Plaintiffs called no evidence inrebuttal.

125. Plaintiffs and Defendants submitted written notes and authorities exceeding 2,000pages in length.

126. Closing arguments were heard over several weeks between September andDecember 2014, with the trial concluding on December 11,2014.

127. On February 23, 2015, in mid-deliberation, the Trial Judge asked by letter thatPlaintiffs provide him with additional calculations from one of their expert witnesses,Dr. Siemiatycki. These calculations were subsequently provided and Defendants weregiven an opportunity to respond.

128. When the Judgment was rendered on May 27,2015, the Trial Judge once more re-defined the Letourneau class as follows:

All persons residing in Quebec who, as of September 30, 1998,were addicted to the nicotine contained in the cigarettes madeby the defendants and who otherwise satisfy the followingcriteria:

1) They started to smoke before September 30, 1994 andsince that date have smoked principally cigarettesmanufactured by the defendants;

2) Between September 1 and September 30, 1998, theysmoked on a daily basis an average of at least 15cigarettes manufactured by the defendants; and

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3) On February 21, 2005, or until their death if it occurredbefore that date, they were still smoking on a daily basis anaverage of at least 15 cigarettes manufactured by thedefendants.

The group also includes the heirs of the members who satisfythe criteria described herein.

129. And he again re-defined the Blais class as follows:

All persons residing in Quebec who satisfy the followingcriteria:

1) To have smoked, before November 20, 1998, a minimum of12 pack/years of cigarettes manufactured by thedefendants (that is, the equivalent of a minimum of 87,600cigarettes, namely any combination of the number ofcigarettes smoked in a day multiplied by the number ofdays of consumption insofar as the total is equal to orgreater than 87,600 cigarettes).

For example, 12 pack/years equals:

20 cigarettes a day for 12 years (20 X 365 X 12 = 87,600)or

30 cigarettes a day for 8 years (30 X 365 X 8 = 87,600) or

10 cigarettes a day for 24 years (10 X 365 X 24 = 87,600);

2) To have been diagnosed before March 12,2012 with:

a) Lung cancer or

b) Cancer (squamous cell carcinoma) of the throat, that isto say of the larynx, the oropharynx or the hypopharynx or

c) Emphysema.

The group also includes the heirs of the persons deceasedafter November 20, 1998 who satisfied the criteria mentionedherein.

130. On May 31,2015, before the Judgment became public, RBH requested that the TrialJudge clarify the Conclusions. The Trial Judge denied RBH's request.

131. On June 9, 2015, the Trial Judge issued a revised version of the Judgment at therequest of Plaintiffs. The revisions related to the date from which interest and the additionalindemnity were to run and included changes to the Conclusions.

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RBH WILL THEREFORE ASK THIS COURT TO:

ALLOW its appeal;

SET ASIDE the Judgment as against RBH;

THE WHOLE with costs, in appeal and in first instance.

Montreal, June 26, 2015

Attorneys for Rothmans, Benson 8t Hedges Inc.

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