5 years after the historic tobacco decision, “nothing has changed”
In the space of 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, her 40th wedding anniversary. Months of debilitating chemotherapy treatments failed to stop the disease, which had slowly spread and taken root in her digestive system.
Duval then reconnected with a former co-worker and, as they grew closer, they decided to live together as companions in his house in Repentigny, a suburb of Montreal. One night, she started coughing violently and he took her to the emergency room. Doctors discovered she had cancer in both lungs and she died five months later.
Both women smoked, although they had quit years ago. Duval, too, had smoked for decades, but he had managed to quit years before his wife.
Duval engaged in a lengthy legal battle against three major tobacco companies, and in a landmark 2019 ruling, Quebec’s top court confirmed that he and about 100,000 other Quebecers were entitled to billions of dollars in compensation for the harm they or their loved ones suffered.
But five years later, none of them have received even a fraction of that money – and recent court documents suggest hundreds of people have died in the meantime.
Jean-Luc Duval holds a photo of his late wife, Monique, in his home on Friday, June 14, 2024, in Repentigny, Que.
THE CANADIAN PRESS/Ryan Remiorz
“Not only have we not received a cent, but absolutely nothing has changed,” Duval, 80, wrote in a recent open letter to the Quebec government. “Cigarettes from these same manufacturers are sold everywhere in 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 stop existing.”
Several health advocacy groups have also sounded the alarm about the lack of progress and transparency in the case, warning that Canada could miss what they call a historic opportunity to reduce tobacco use and regulate the industry.
“We’re never going to have a better opportunity than we have right now, and, you know, tobacco companies can’t just go on business as usual after a deal,” he said.
Rob Cunningham, lawyer for the Canadian Cancer Society. The organization has been designated as a social stakeholder in the case, meaning it can make submissions to the court.
The lawsuits involved smokers who started smoking between 1950 and 1998 and became ill or 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.
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The provincial Court of Appeal later upheld the landmark decision, prompting the companies to seek protection from their creditors in Ontario. That protection also stayed legal proceedings against them, which include lawsuits by provincial governments seeking to recover smoking-related health care costs.
The initial suspension of the proceedings lasted a few months, but it has since been renewed a dozen times – most recently in March, when it was extended until September.
The purpose of the stay is to maintain the status quo while the companies negotiate a global settlement with all those who have claims against them, including class 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 members’ lawyers said a settlement was “not currently in sight,” citing “recent setbacks” and suggesting the mediation had been “seriously compromised” by participants changing their previous positions.
In his affidavit, Philippe Trudel indicated that approximately 700 members of the class action have died from tobacco-related illnesses since the first stay was granted and that “many others are increasingly fragile.” Some “could not wait any longer” and opted for medically assisted suicide, he added.
Many have simply lost faith in the process, he said in the document. “They fear that because of the seemingly endless delays, few, if any, victims will be left alive to receive the compensation to which tobacco companies are entitled,” he added.
It’s not just the delays that are problematic, but the entire process of protecting creditors and the secrecy it entails, said Flory Doucas, spokesperson and co-director of the Quebec Coalition for Tobacco Control.
By its nature, the process is focused on the viability of the industry, putting aside public health and justice aspects, she said. It essentially allows businesses to continue operating as usual while they restructure — and make more people dependent in the process, she said.
The coalition is among several groups calling on provinces to emphasize significant public health measures to reduce tobacco use as part of a settlement, warning that focusing on financial compensation would only cause more harm in the long run.
“That means you’re relying on future sales (to fund the payments),” she said. “That means governments have an interest in keeping these 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 in a settlement. Most stakeholders contacted by The Canadian Press in recent weeks declined to comment, citing the confidential nature of the negotiations.
A spokesperson for Quebec’s health ministry said only that the province wants compensation for expenses incurred since its health insurance program was put in place, as well as those planned until 2030.
Some details first emerged in May, when Manitoba Premier Wab Kinew told the provincial NDP convention that the province expected to receive an initial payment of several hundred million dollars soon, possibly by the end of this year or early next year.
Kinew said the settlement money would be used, among other things, to build a new CancerCare Manitoba headquarters.
While the prime minister’s comments offered a rare and welcome glimpse into the proceedings, they also confirmed the coalition’s “worst fears” about what a settlement might look like, Doucas said.
“It appears to be primarily a financial issue and it is based on installment payments,” she said, meaning “future and current victims are using proceeds to compensate past victims and the provinces.”
It’s also concerning because Manitoba is part of a group of provinces represented by the same law firm, suggesting they could all seek a similar resolution, she said.
Such a deal would send a “very worrying and frightening 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 included in the agreement.
These include putting at least 10% of the money received into a fund to reduce tobacco use; banning all tobacco promotion; requiring companies to make additional payments if tobacco reduction targets are not met; and publicly disclosing millions of pages of internal company documents.
“These goals are achievable, but the provinces must have the political will to do so,” said Cunningham of the Canadian Cancer Society. “They have considerable negotiating power because tobacco companies cannot get out of the creditor protection situation they are in without provincial agreement.”
U.S. state governments were able to impose measures as part of similar lawsuit settlements in 1998, and Canadian provinces should be able to do much better decades later, he said.
Some of the proposed measures, such as publishing documents, would cost businesses nothing, he noted.
The organisation will have an opportunity to comment on any possible settlement and would “strongly” oppose any deal that includes inadequate measures to reduce smoking, he said.
The companies also declined to comment on the negotiations or concerns raised by anti-smoking and health groups, and would not say whether they would seek another extension of the suspension in the fall.
In a statement, a JTI-Macdonald spokesperson said the company acted in good faith and with due diligence throughout the process, which the court recognized.
Duval said he was skeptical the problem would be resolved in the near future.
In the meantime, he will continue to do what he can to fight smoking, using the persuasion skills he honed as a Kodak microfilm salesman to dissuade smokers he encounters in his daily life, he said 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 everything I can until I die. With all the difficulties I have been through, with everything that tobacco has done to me, to my children and to others… (I want) to go all the way.”
