Friday, 22 January 2016

Judicial Comity and a Tight Deadline

With similar litigation efforts against the tobacco companies underway by 10 provinces, the defendant companies find themselves with multiple opportunities to attempt ways to avoid (or defer) their day of reckoning. There is nothing to stop them raising the same issue in differing courts and playing off one decision against the other -- all the while eating up court time and resources.

Master Donald Short
Ontario Superior Court Case Management Master, Donald E. Short, expressed frustration with this set up in a ruling he issued last week.

Seemingly reluctant to agree with his colleagues in other provinces and grant any of the industry's request for more details from the provinces before they had to file their defence, he nonetheless nodded along with their decision to cut them a tiny slice.

But he would not play along with this being a reason for further delay. "The action is in its eighth year. Not one defence has been filed," he complained.

Ten provinces. Ten lawsuits. Zero consolidation

With the legislation that enables these special suits "having virtually the same operative content," Master Short suggests that the work of each court system to process the actions could be better coordinated and made repeated references to the complexities of the decisions that the courts were being asked to make.

[8] In these circumstances one would have hoped that there could have been an agreement amongst the parties to consolidate the various provinces’ claims in some manner, so that the enormous costs for both sides associated with any one action, would not be multiplied unnecessarily. 

[9] Perhaps there is still a possibility for interprovincial cooperation on some basis. One would hope that all the parties could see the wisdom in choosing a single test case. 

[10] Given the legal expertise at the various counsel tables in these actions, I cannot fathom why a concerted effort to determine on a rational basis what liability there is, if any, would not ultimately accrue to the benefit of all. 

Thousands of requests. Four rulings. Judicial Comity.

Master Short also made clear that it was no easy task to process the multiple requests that were made by the defendant companies and the responses provided by the province's representatives. the companies were demanding particulars on 3 of every 4 paragraphs in the provinces  "Fresh as Amended" claim (which itself was the result of an earlier and successful pre-trial motion by the companies).

He referred to over 200 pages of charts and appendices he had to review, and to the 13,000 requests submitted to Alberta.

His decision, he said was guided by the "pragmatic" need to ensure that the case can get to trial. It was this "practicality" and "judicial comity" which led him to align his decision with those of Justice Strekaf in Albera and Justice Goodridge in Newfoundland. (The Alberta decision can be read here. The Newfoundland decision can be found here.)
"Moving forward," he wrote "It is now time for the defendants to deliver their pleadings. They have had 6 years to circulate and consider drafts. I am therefore ordering that all defenses, cross-claims and counterclaims be served and delivered by March 31, 2016."

His last words were directed, I think, for the provincial governments. He urged the parties to "strive to meet the goals" of the general principle that guides the rules of procedure for Ontario Courts. "To to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits."

Monday, 4 January 2016

Will they? Won't they? They did.

Some of the loose-threads hanging towards the end of 2015 are being somewhat tied down, now that a couple of court-deadlines have passed. 

In one case, JTI-Macdonald is still trying to stare down the Quebec Legislature's right to set new rules for lawsuits against it. In another, Imperial Tobacco appears to have blinked, and has posted the security deposit required of it, despite earlier threats to try to have the payment suspended.

JTI asks Supreme Court to review Tobacco-related Damages and Health-care Costs Recovery Act. 
Tobacco companies had until November 28 to ask for a review of the Quebec Court of Appeal's decision to uphold the constitutionality of the law which facilitates the Quebec government's lawsuit against them. 

From the paper work posted on the Supreme Court's web-site, it would appear that only one of the companies - JTI-Macdonald - thought it was worth knocking on that court's door, or is at least carrying the can for an effort to have the legislation struck down. Two courts have have already rejected the suggestion that the law is unfair to the defendant companies. Perhaps they hope that the third time's a charm.

(The Supreme Court is not obliged to hear the appeal.)
Money is deposited at the Quebec Court of Appeal.

The sixty day period for Imperial Tobacco or Rothmans, Benson and Hedges to seek leave to appeal the order that they post security payments would, by my calculation, have ended last week. On October 27th, Justice Mark Schrager of the Quebec Court of Appeal laid out a payment schedule for security deposits for the two companies to be posted while their appeal of their penalties in the Quebec class actions works its way through the system. The first of the payments by the two  companies was due on the last "juridical day" of December. 

When the ruling was issued, Imperial Tobacco told investors that it would be "review its options to apply for leave to appeal this decision" and to ask that the order be suspended. 

Perhaps the paperwork has been filed, but is not yet posted on the Supreme Court web-site - but in any event, I have learned that the company deposited the amount required ($108+ million) before last week's deadline.