Canada: Improper Use Of Procedure In The Class Action Against Cigarette Manufacturers: Sanctions For Disproportionate Use Of The Rules Of Evidence

Last Updated: May 22 2012
Article by Catherine Simonet

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.


1. Article 403 of the Code of Civil Procedure reads:

"403. After the filing of the defence, a party may, by notice in writing, call upon the opposite party to admit the genuineness or correctness of an exhibit. A copy of the exhibit must be attached to the notice, except where the exhibit has already been communicated or in the case of real evidence; in the case of real evidence, the exhibit shall be put at the disposal of the opposite party.

The genuineness or correctness of the exhibit is deemed admitted unless, within 10 days or such time as the judge may fix, the party called upon to admit its genuineness or correctness serves on the other party a sworn statement denying that the exhibit is genuine or correct, or specifying the reasons why he cannot so admit. However, if the ends of justice so require, the court may, before judgment is rendered, relieve the party of his default.

The unjustified refusal to admit the genuineness or correctness of an exhibit may result in a condemnation to the costs resulting therefrom."

2.  Articles 54.1 to 54.4 of the Code of Civil Procedure read:

"A court may, at any time, on request or even on its own initiative after having heard the parties on the point, declare an action or other pleading improper and impose a sanction on the party concerned.

The procedural impropriety may consist in a claim or pleading that is clearly unfounded, frivolous or dilatory or in conduct that is vexatious or quarrelsome. It may also consist in bad faith, in a use of procedure that is excessive or unreasonable or causes prejudice to another person, or in an attempt to defeat the ends of justice, in particular if it restricts freedom of expression in public debate.

54.2. If a party summarily establishes that an action or pleading may be an improper use of procedure, the onus is on the initiator of the action or pleading to show that it is not excessive or unreasonable and is justified in law.

A motion to have an action in the first instance dismissed on the grounds of its improper nature is presented as a preliminary exception.

54.3. If the court notes an improper use of procedure, it may dismiss the action or other pleading, strike out a submission or require that it be amended, terminate or refuse to allow an examination, or annul a writ of summons served on a witness.

In such a case or where there appears to have been an improper use of procedure, the court may, if it considers it appropriate,

(1) subject the furtherance of the action or the pleading to certain conditions;

(2) require undertakings from the party concerned with regard to the orderly conduct of the proceeding;

(3) suspend the proceeding for the period it determines;

(4) recommend to the chief judge or chief justice that special case management be ordered; or

(5) order the initiator of the action or pleading to pay to the other party, under pain of dismissal of the action or pleading, a provision for the costs of the proceeding, if justified by the circumstances and if the court notes that without such assistance the party's financial situation would prevent it from effectively arguing its case.

54.4. On ruling on whether an action or pleading is improper, the court may order a provision for costs to be reimbursed, condemn a party to pay, in addition to costs, damages in reparation for the prejudice suffered by another party, including the fees and extrajudicial costs incurred by that party, and, if justified by the circumstances, award punitive damages.

If the amount of the damages is not admitted or may not be established easily at the time the action or pleading is declared improper, the court may summarily rule on the amount within the time and under the conditions determined by the court."

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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