The historic class action brought by the Quebec Council on Tobacco and Health against cigarette manufacturers JTI-Macdonald, Imperial Tobacco, and Rothmans Benson & Hedges began in March. The approximately 90,000 group members intend to demonstrate that the emphysema and lung, larynx, and throat cancers that they developed were caused by cigarettes.

This demonstration, the assessment of which depends on factual and medical evidence spanning a long period of time, requires filing a great deal of documentation, including much archival data. Often, the authors or those responsible for these documents are either difficult to trace or oftentimes deceased.

Communication of Documents

The parties adopted a process whereby they first communicated all documents in their possession between themselves. After analysing this documentation, the applicants had multiple notices served under Article 403 C.C.P,[1] which provides that a party may call upon the opposite party to admit the genuineness or correctness of the content and/or form of an exhibit. The party that seeks to apply this article must specify in its notice the scope of the admission sought. In this case, the applicants' notices solely sought admissions that the documents were not false, and did not seek to establish the genuineness or correctness of their content.

Imperial Tobacco responded to these notices with denials, effectively forcing the applicants to file evidence regarding the preparation and production of the concerned documents.

Request for Sanctions

The applicants in turn requested that the court impose sanctions on this procedural strategy. In a decision handed down on May 2, 2012, the Honourable Brian Riordan declared the notices of denial to be abusive and struck them down, with costs against Imperial Tobacco.

Abuse of Procedural Rights and the Rule of Proportionality

Since the 2009 amendments to the Code of Civil Procedure, the courts may declare a pleading improper and impose a sanction on the party found to have behaved improperly (Articles 54.1 to 54.4 C.C.P.).[2] These new provisions are often used to have an action dismissed outright or to sentence the offending party to damages for improper use of procedure.

Justice Riordan's ruling was innovative in that it imposed a sanction for the lack of cooperation and proportionality of Imperial Tobacco's procedural decisions. The judge wrote that it was unreasonable to refuse to admit to a document sent by one's own attorneys, particularly when everyone realizes that the people who could testify to these documents are for the most part deceased. In other words, even though demanding strict application of the rules of evidence is not technically illegal, it can still constitute improper use of procedure.

While the judge emphasized that his decision could not be applied to other documents in this file and that, in other words, all future objections must undergo a case-by-case decision-making process, this ruling demonstrates that a judge can use the powers granted under Articles 54.1 to 54.4 C.C.P. to put an end to abusive procedural wars.

Certainly, this ruling is a reminder that it is the spirit, not the letter, of the procedural rules that should prevail, a concept that reflects the rules of proportionality set forth in Article 4.2 C.C.P. Similarly, this decision could be referenced in the future in support of rigorous case management by judges, particularly in cases where a party is using time-gaining tactics.