Friday, 23 May 2014

Day 233: Closing in on the end ... and testimony that can't be shared

As it turned out, there was only one session of the  Montreal tobacco trials held this week.

Wednesday's session, which had been imposed by Justice Riordan as part of his fish-or-cut-bait deadline to Imperial Tobacco was mysteriously cancelled late Tuesday night, the day that company's lawyers had been told to inform the judge of their decision whether or not to call class members.

(For months, planning has been held hostage to this company's threat of a prolonged parade of a sampling of 60 smokers among of the million or so Quebecers who would be members of one of the two class actions)

I only learned when I entered the courtroom on Friday, the next scheduled day of hearings, that Justice Riordan had granted the company a three day extension to make up their minds.

I am glad for the delay, as it meant I was able to observe the reaction when Suzanne Côté rose to announce that Imperial Tobacco's decision in the end was to NOT ask for any witnesses to testify -- not even those two representative witnesses (Mme. Cécilia Létourneau and the family of Jean-Yves Blais) whose medical records could be made available for this purpose.

Those who held to the prevailing theory that this was a time-consuming bluff seemed to have had their view vindicated. The plaintiffs shook their heads, laughed and exchanged knowing looks. (There was even an obvious exchange of money, as unlikely as it seems that anyone bet the company would actually allow people suffering from emphyzema or lung cancer to appear before this compassionate judge.)

Justice Riordan braced his chin on his hands and stared steadily at Suzanne Côté. I would not have wanted to be on the other side of that look, but she seemed unfazed.

It did not even deter her from making requests for further time extensions when the discussion segued into the schedule for the final stages of the trial: the written and oral arguments.

She said the companies needed at least 4 weeks more to prepare their written "notes and authorities" than the plaintiffs were taking. She offered only two reasons for the extra time - the judges' desire for hyperlinks to relevant exhibits (no one else laughed!), and the lawyers' desire to have holidays in July.

Guy Pratte was lined up to give reasons for a further few weeks' delay. He wanted the trial to not sit during the weeks when he was in Europe and later preparing for Supreme Court hearings.

Justice Riordan did not look very sympathetic to any of this, but at the end of the day offered a calendar which responded to their demands. Even then, there was a reluctance to commit!  (The schedule, when final, will be posted in a later blog).

More secrets!

More on the day, I cannot tell you. Not without breaching a court order, that is.

The president of JTI-Macdonald, Michel Poirier, testified as scheduled. The session was not held in camera, but a publication ban was put on the proceedings, and on any evidence that was presented.

This seemed odd, give that much of what was discussed has been covered by previous court rulings and that many of the documents covered by the ban were made public during the companies' bankruptcy protection proceedings.

As a result, only the lawyers in the room, together with Mr. Poirier's small entourage of (presumably) body guard and personal assistant and the small audience of regulars in the public gallery were able to watch Justice Riordan's evidently keen interest in this company's corporate practice.

Let's hope it will all come out in the wash!

Still to come

There are many elements yet to be tidied up --- JTI-Macdonald may call a few more witnesses in response to the testimony of Mr. Poirier. Imperial Tobacco has yet to file some exhibits. And the three companies have yet to declare their proof in defence closed. These events have yet to be scheduled.

The trial resumes ...  but when?

This post has been back-dated to provide consistency in indexing

Wednesday, 14 May 2014

Day 232: A newly resolute judge

It was a great day to be in Montreal -- one of the first truly warm days of the season, with the trees finally turning green and the restaurant patios fully ready for business. All over town, Montrealers were sporting the colours of their hockey team - anticipating the Habs' seventh-game victory in the Stanley Cup quarter finals later in the evening.

It was business dress, of course, in the courtroom where this week's only hearing of the Montreal tobacco trials had its usual 9:30 a.m. start. But the mood of the courtroom was as wound-up as the hockey arena would be later that night.

Only 20 hours earlier, the Court of Appeal had backed Justice Riordan's management of the trial, slapping down the attempt by Imperial Tobacco to impose further (medical-record-seeking) delays. Today, the judge would finally be able to impose a schedule for the end of the trial.

Justice Riordan began the session, grim-faced, with a few small items. Are some records exhibits? (yes). How best to manage ruling on confidentiality of financial statements? (still being worked out, I think). Can duplication be avoided in the companies' common positions on final arguments? (yes)

These throat-clearing items dispensed with, his show-down with Imperial Tobacco's counsel, Suzanne Côté, began.

For weeks he has asked, without getting an answer, whether or not the company intended to call witnesses even if they lost their appeal and were not able to use the medical records of these Quebec smokers. Today he told Suzanne Côté that the time had come to fish or cut bait! "Next Tuesday morning we will hear members of the group."

Ms. Côté still would not commit to a course of action. She used the well-worn excuses to demand time. They were still reading the ruling, she protested, and had not yet consulted with their client. She would need a week before she would know whether class members would be called and, if so, she would need more than a week to prepare for the testimony.

With obvious frustration, Justice Riordan gave her until next Tuesday night to communicate her team's intentions. He gave no sympathy to her demand for preparation time.  "ITL has known for months that it was possible that they won't have access to medical records - you are not starting from zero. You knew very well that there was a possibility that the Court of Appeal would reject your request. I would be stunned if you were not already prepared."

The trial will convene next Wednesday to hear what Imperial Tobacco has decided and to plan next steps.


Other than the class members and a few loose threads, the only other items before the end of the trial  are the final arguments. Justice Riordan pushed the parties for agreement on time-frames for the preparation of their 'notes and authorities' and the time required to present final arguments.

Pre-empting the discussion from becoming too bogged down was his clear intention to put a finishing line on the exercise. "I want everything wrapped up by Christmas. Put this in your mind."

The last day for exhibits

The remainder of the day was spent processing a few hundred "2870" exhibits, and a small handful that were entered with consent. This exercise has been repeated several times over the past year and a half, and Justice Riordan's patience with the companies' vociferous arguments seems to be wearing thin.

One flash-point was when Imperial Tobacco counsel, Nancy Roberts, wanted to enter one side of an exchange of correspondence over complaints about cigarette ads. She wanted the judge to allow the response to become a full exhibit, but to refuse the same status to the complaint that initiated the review. The authors of those complaints were alive, she said, and should have been asked to come and vouch for the correspondence and be available for cross-examination.

"It is said that the law is an ass," said Justice Riordan. "But I try not to be too often." He told her the documents would be allowed on file without any qualifications to diminish their status, and gave her a week to subpoena the authors. Ms. Roberts sputtered a protest, and was clearly upset. From that point to the end of the day, her aggrieved tone made the exercise even more unpleasant to watch.

Even when Justice Riordan sided with her on a later document disputed by the plaintiffs, it was coloured with a relationship made fractious over months. Pierre Boivin reminded the judge that Ms. Roberts was demanding a concession that she had been unwilling to agree to for the plaintiffs. "I agree with you, they were unreasonable," Justice Riordan told him. "But I do not want to be unreasonable." 

Some of the titles of the documents could be seen on the overhead screens, but it is hard to know how interesting to the outsider the material filed today will be.

The trial resumes next Wednesday, with a management discussion about the schedule. On Friday, May 23rd, the head of JTI-Macdonald will testify about the companies financial situation.

This post has been backdated to provide continuity in indexing

Tuesday, 13 May 2014

The Court of Appeal speaks: No to medical records. Yes to judicial discretion.

Mid afternoon the Quebec Court of Appeal released its decision regarding Imperial Tobacco's access to the medical records of class representatives they intended to call as witnesses in the Montreal tobacco trials.

If I were Justice Riordan, I would by now have pulled out the good scotch to celebrate.

While the class-action plaintiffs got what they needed from the higher court's ruling, it was on the side of Justice Riordan's ability to manage the case as he sees fit that the court came down.

The court ruled that Imperial Tobacco may have access to the records of the two representative class members (Cécilia Létourneau and Jean-Yves Blais), but not those of any other potential class members. Justice Marie-France Bich wrote the reasons, which were also supported by Justices Jacques Dufresne and Dominique Bélanger.

(On February 28th, Imperial Tobacco asked the Court to overturn Justice Riordan's September 13 decision to quash their subpoenas for medical records).

Much of her discussion about the impart of previous decisions and the ways to ensure fair treatment of class members and other parties flew over my head, beyond my grasp of law. It was clear that she and her colleagues had not been fully persuaded by the plaintiff's argument that the issue had already been decided in earlier Court of Appeal rulings.

But when, about two-thirds the way through the 33-page ruling, she turned to the need to respect "judicial discretion," the motivation of the court was made very clear. And just in case it was missed, she added a final few paragraphs. This case has gone on for years, Justice Bich wrote, and her court has heard frequent and often unnecessary appeals of interim decisions.

In these circumstances, she said, the judge who manages the file and who is presiding over the trial deserves a particular respect.

Today's Appeal Court ruling will soon be available on the CANLII or Soquij sites. Bonne lecture!

Tomorrow, the trial resumes with a day scheduled for review of the last sets of "2870" exhibits. Perhaps now a discussion on the final stage of the trial will also move ahead.

Thursday, 8 May 2014

Day 231: 45 minutes to nowhere

The Montreal tobacco trial sat for a brief 45 minutes yesterday, May 7th.

There were two main topics discussed -- and on neither of them did Justice Riordan seem to get the answers he was seeking.

How can I rule in secret?

The first was the proposal made by both sides last week that the issue of confidentiality of business records be resolved at the end of the trial.

The financial status of the companies is relevant to any punitive damages that might be assigned against them, and so the companies were required to file current financial statements. They were made part of the trial record last month, and put under seal to allow the companies to make a case that the should remain confidential.

Although the debate on the request of the companies for these records to remain sealed, the issue has yet to be discussed

The plaintiffs asked that it be postponed to the end of the trial. My inference is that they want no risk of further delays while another interim (interlocutory) ruling is sent to the Court of Appeal. If Justice Riordan ruled that these documents should be public, the companies would almost certainly do what they could to prevent that outcome.

Today, Justice Riordan shared  his "uncertainties" about the suggested approach of a delay on this question. "If the confidentiality issue is still open at the time that I [make a ruling],  it will be necessary for me to decide the question and execute it right away by divulging the things I consider appropriate."  

He asked whether the companies would renounce their right to appeal his decision on confidentiality if this approach was taken. The answer "no" did not seem to surprise him. He responded without enthusiasm to the various options put to him of how he might manage the issue - saying that under these suggested approaches he would be asked to skate a fine line!

She made herself clear.

If there was a big ticket item in this morning's discussion, it was the postponed discussion about Justice Riodran's suggestion to have a small sample of class members testify before the issue of medical records has been resolved. (The Court of Appeal has yet to decide how it will treat Imperial Tobacco's request to overturn Justice Riordan's ruling against their having access to these individual medical files).

Imperial Tobacco is the only company wanting to hear from these witnesses, and Ms. Côté, it would appear, is the only one of its many lawyers on this case who can speak to this part of their defence. Justice Riordan has had to wait until Ms. Côté could be present to suggest this way of accelerating business.

Ms. Côté came prepared with many justifications to her resounding "NO" to his suggestion. In her trade-mark staccato and with her right-hand index finger steadily wagging, she reminded the judge of her right to run her defence the way she desired. ("C'est mon droit!") and of her earlier cooperation in getting a preliminary ruling last year. She talked of the need to have these records in the selection of their witnesses, and also in the choice of questions to witnesses and the sequencing of both.

She said she was confident that the Court of Appeal would agree with her. She even cited one of the comments from the higher bench during the February hearing as being supportive of her position that these personal records were important to her ability to challenge the recollection and behaviour of smokers.

Alternative approaches -- like interviewing a sampling of class members through out-of-court depositions were briefly discussed, but there seemed to be no agreement on these either.

Justice Riordan did not belabor the point. If he was disappointed or felt backed into a corner of an increasing delay, he showed it only in a back-handed way. He complimented the ability of Ms. Côté's seat-mate to follow the discussion. "Your French is getting pretty good, Maitre Lockwood. By the time the trial finishes in 2020, you will be fully bilingual!"

Three May Days

Until the issue of class members is resolved, there are now only 2 days of trial remaining - and only 1 witness.

Next Wednesday, the last of the "2870" documents will be considered. On the following Friday, the head of JTI-Macdonald, Mr. Michel Poirier, will testify.

Another trial. Another management discussion!?

With more time on my hands than I expected, I went to enjoy a late breakfast at the cafeteria on the 5th floor of the Palais de Justice. My concentration on the morning's crossword was broken by the arrival of familiar voices at the long table beside me.

A dozen men and a couple of women -- among them Sylvana Conté, Allan Coleman, Francois Grondin -- were settling down to exchange views on the instructions they had just received from "Sanfaçon." I gathered they meant Justice Stéphane Sanfaçon, who is presiding over the Quebec government cost-recovery law-suit against their clients.

Neither good at nor comfortable with eavesdropping, I moved to a distant table.  Had I stayed, perhaps we would all know more about what is going on in that mysterious venue!

Monday, 5 May 2014

The show didn't go on!

Some further cuts were made to the few remaining scheduled days of hearings at the Montreal tobacco trials - and the hearings for today and tomorrow were cancelled.

The American risk specialist, Paul Slovic, will now not testify as part of the plaintiffs "counter-proof."

Mr. Slovic had been asked to rebut the views of the defendants witness on warnings, Kip Viscusi. His brief expert opinion had been reduced when Justice Riordan granted the request by the defendants for the removal of some sections

I am told that the other witness scheduled for this Thursday -- Ms. Mary Trudelle -- will also not be appearing. (I do not know if she has been permanently dropped from the list). Ms. Trudelle was a public relations official with JTI-Macdonald, and testified at the request of the plaintiffs in October, 2012

There are a few procedural issues identified last week that have not been resolved -- more on those later this week!

The trial will sit -- I think! -- on Wednesday.