Sunday, 6 May 2012

Another non-decision from the Court of Appeal

Over the first two days of May, Justice Brian Riordan had issued four written rulings (three regarding expert witnesses, one establishing that the Defendants had engaged in 'procedural improprieties'). On May 3rd, the Court of Appeal issued another ruling and the number of court decisions related to this trial in only one week had climbed to five.

The tobacco companies want the Court of Appeal to review the decision of the trial judge, Justice Brian Riordan, to allow questions related to Imperial Tobacco's role in and policy on cigarette smuggling. 

In considering their request, Appeal Court Justice Allan Hilton followed the lead of his colleague Justice Nicholas Kasirer two weeks earlier, and decided to defer the the question to a panel of judges. (Justice Hilton's decision and Justice Kasirer's decision are available on the SOQUIJ website). The hearing on this latest request for appeal will  take place on September 28, 2012.

In the sense that out of court settlements were reached between the three companies and the federal and provincial revenue ministries, some legal issues regarding their involvement in supplying the illegal market for cigarettes in Canada during the 1990s could be viewed as settled. 

But these agreements were negotiated in secret, and the issue never had its "day in court." Moreover, they  were severely criticized, in part because the negotiations excluded Health Ministries or others who would represent the health consequences of the industry's role in creating a price environment that was more conducive to smoking.

Not surprisingly, the companies' lawyers are trying to protect their clients from questions on a file that they negotiated (and paid) to have kept "confidential." 

Extracts showing the remarks of Justice Riordan that are being appealed follow below

Me BRUCE JOHNSTON:  Mr. Descôteaux, you mentioned smuggling; did Imperial Tobacco engage in criminal activities in relation to smuggling?

Me DEBORAH A. GLENDINNING: I object. What has this got to do with this case? It's completely irrelevant and inflammatory.

JUSTICE RIORDAN: The objection is dismissed. We're talking about potential punitive damages in this case. I think this is relevant to punitive damages. The question can be asked.   ...

Me BRUCE JOHNSTON: Do you know if it pleaded guilty to such a charge?

Me DEBORAH A. GLENDINNING: I object again. Smuggling has nothing to do with the allegations in this case, and therefore can't and doesn't have anything to do with the conduct alleged against Imperial in this case, and therefore could have nothing to do with punitive damages.
JUSTICE RIORDAN: Dismissed for the same reason.

March 20 (Transcript available)

Me BRUCE JOHNSTON:  Would you agree with me that... as a result of Imperial Tobacco's position,  that if you circumvent  taxes in order to provide cigarettes at a lower price, you will encourage consumption?

Me GUY PRATTE: My Lord, that's a totally hypothetical question, apart from the fact that the subject where we're getting into, in our respectful submission, is irrelevant, but this is a totally hypothetical question. Objection is along that ground alone. ...

JUSTICE RIORDAN: I'll permit the question, I think that it's within the realm of the relevant... the possible relevant... possibly relevant.

Me DEBORAH A. GLENDINNING: Well, just so for the record, I'm objecting to that question, as well.


Me SIMON V. POTTER: I have to say, I spoke earlier on this question, saying that this realm of smuggling can be just enormous, and it will be. If we get into this evidence, we're going to find out that the companies were very anxious to avoid the smuggling and went to the Government many times. We can have weeks and weeks and weeks or months of discussion about the companies trying to avoid the smuggling. So where it gets us to have a theoretical question as to whether if some people manage to avoid the smuggling doesn't increase the overall pie or not, I really have to say I don't know where it gets us in terms of relevance to this trial. But the minute...
JUSTICE RIORDAN: It's only relevant with respect to smoking and health as far... my ruling is limited to smoking and health. The smuggling and its effect on smoking and health; that's where I see a possible relevance at this stage.

Me GUY PRATTE: Well, I register the same objection. I don't want to rise every time, Judge, I know you... we're trying to get this thing somewhat smoothly going, but there's no allegation, ever, that I have ever seen in the pleadings that the smuggling was a cause of ill health. And so now, we're effectively amending the pleadings, and in my respectful submission, it's a bit late in this game.

JUSTICE RIORDAN: Our theory is not - believe it or not, Your Lordship - that smuggling leads to ill health, that's not our theory, I can reassure my colleague on that. And as far as Mr. Potter says, I encourage him to make all the evidence that he feels that he has 23 to when it's his turn, and threatening a long trial has already been a part of the discourse for a long 25 time; I don't think that should have any bearing on anything. 

JUSTICE RIORDAN : Well, I'm not going to get into a commission inquiry on tobacco smuggling.

Me BRUCE JOHNSTON: I understand.

JUSTICE RIORDAN: I'm here, I'm concerned primarily with smoking and health. If you show me that it touches on smoking and health, then I'll consider that proof, at least subject to hearing other argument. For the moment, I'm not convinced it does, I'm not convinced it doesn't; it might have relevance, and it's on that basis alone that I'm allowing the question.