Thursday, 17 May 2012

Day 31 - Hardball

The trial of the Montreal class action suits has recessed from May 18 - 27.  It will resume on May 28th, when former ITL legal counsel, Roger Ackman, returns to the witness stand.

This blog is written from the corridor while a secret hearing takes place in courtroom 17.09. Under debate is  whether Imperial Tobacco should be able to prevent survey data on smoker behaviour over 25 years (and seven other studies) from becoming public. 

No time for the blow-by-blow on why the meeting is secret?  Skip down to the end of the post to get the score...

When the 'gloves come off' in a hockey game, you know that that the fisticuffs that follow are unlikely to affect the score. By contrast, it seems that when the 'legal robes come off' in these Quebec class action suits against Big Tobacco, the fight that follows may help determine who wins the game.

Today was set aside for one of those no-witnesses-no-robes skirmishes, with the outcome to decide whether or not eight Imperial Tobacco documents that will be entered as exhibits in the trial would be kept confidential and under seal.

Team substitutions are allowed in this sport, and two new players for Imperial Tobacco appeared on the field. Silvana Conte (from the Montreal office of Osler, Hoskin & Harcourt) came armed with legal arguments and Nancy Roberts (another unilingual anglophone from the firm's Toronto office) brought close to her body-weight in documents flagged with specific concerns. 

The front benches of the other companies had emptied out. Today's fight belonged to the Osler women. (Maybe it's the bravado, maybe it's the big hair -- do you think they grew up on "Charlie's Angels"?)

Secrets within secrets 

Imperial's team came not only to win the fight, but to make sure that it happened in secret. They wanted  Justice Brian Riordan to declare the hearing in camera. 

There was no doubting their resolve. From the back of the room, it is often hard to follow what is said by the lawyers and judge. By contrast, when Ms. Conté spoke, not only was every word clearly heard, but so was the we-don't-back-down tone in which her argument was presented.

The very purpose of the motion of the sealing order is to protect confidentiality of the marketing and business plans that are the subject of the motion. Discussing the issue in public was "not fair" to Imperial Tobacco, as their right to a fair hearing was greater in this instance than the open court principle.

André Lespérance did not agree to the idea of an in camera session.  He said that the approach of Imperial Tobacco was "draconian" and disproportionate to the nature or volume of confidential document in question.  He suggested that other options were available and that the confidentiality could be maintained without excluding the public. "You don't have to say things out loud ... you can just refer to the written text."

Justice Riordan was clearly uncomfortable with the idea of closing the doors to the public. He asked Imperial Tobacco to show where they would have to divulge the contents of the documents. Instead of replying to his question, Silvana Conté appealed to the principle of their "right to go in depth". The Judge asked again for specific areas where open hearing would impede their ability to present their case. Again, he did not get an answer.  

For the first time since this trial began, a lawyer was overtly challenging the judge.  The burden is not on us to have to show us what the argument is. ... We should not have our hands tied and run the risk of inadvertently publicizing what is in the documents. You are asking us to limit our rights. Asking this of us is unfair.  

Justice Riordan asked again - and more firmly - for a specific example of where this might cause a problem. From the side of the room, her colleague Nancy Roberts, whose job it was to provide detailed information on why the documents should remain confdiential stood. In a self-deprecating tone, she said she might forget herself and inadvertently let information slip and injure her client.

Justice Riordan looked to André Lespérance for a response to these concerns and received the suggestion that a publication ban could be put on the proceedings. "Are there media in the room?" asked the judge, but hearing that bloggers aren't journalists, that option seemed moot. He paused, and then gave his decision

I am refusing this request at this point – it will proceed in public.  If there comes a moment when it is impossible to go further, I will reconsider the position.  You have not convinced me of the necessity of  going in camera.

Sylvana Conte showed she is a "lady not for turning" and did not miss a beat in playing her next card.
Then I am asking you to suspend the hearing. We will seek leave to appeal.

Justice Riordan looked at the plaintiffs' bench and asked wryly -  Are you surprised?

Very surprised. Can you give us five minutes? The session suspended while lawyers huddled to consider their options. Refusing to go in camera meant a risk of further delays and more punctuations in the presentation of their case about marketing. But when the court reconvened after the lawyers' huddle, Mr. Lespérance also stood firm. We have not changed our position. 

The next move was Justice Riordan's. He too stood his ground. I find myself in a very difficult position. The case has been going on for 14 years ... to go into a Court of Appeal on a point such as the one we have before us which is merely introductory to an issue that will undoubtedly go to the Court of Appeal however it is decided doesn’t seem to be in the interests of the administration of justice.

As I said, the lawyers from ITL have not shown in any real way why it is necessary to have an in camera hearing in this case on this issue. The fact that they might stumble and make a mistake is not sufficient reason to set aside such an important rule as open hearings.  I also said that if in the course of the hearing that I would be willing to reconsider – I need to know in a concrete way if it is a problem or not. 

My ruling was that for the moment I was ordering an open hearing and would reconsider should the need arise.  We will proceed immediately and we will get through at least the initial part.  Maitre Roberts will begin and if she can show me that it is necessary that the meeting be closed I will go  there.

Ms. Conté stll held ground. She said she had called for authorities to support her request for a suspension, but before she could ask for time for those authorities to arrive, Justice Riordan cut her off. You have already admitted that your part is not in camera. So go on. Ms. Conté stared back at him, not moving to get her notes to present the argument he was waiting to hear. I have decided that your portion won't be in camera. PLEASE COMMENCE!

The ITL team conferred briefly, she picked up her notes and began to present her case. 

The main precedent for these issues is, by inference from the discussions in the court today, the ruling of the Supreme Court of Canada on the request for confidentiality of AECL documents related to its subsidized sale of CANDU reactors to China. In that decision, as Ms. Conté presented it, the familiar principles of necessity and proportionality were applied. 

The contested ITL documents met the necessity test of that ruling, she said, not only because the risk of disclosure was real, but also because there was a public interest in keeping the documents confidential.  She appealed to the principles of commercial interest and the spirit of the Competition Act in promoting and encouraging competition. 

(She did not refer to other federal statutes, such as the Tobacco Act, that might have suggested a public interest lay in understanding how smokers respond to changes in regulations. Disappointingly, the federal government, which might be expected to support the public interest, had no objection to Imperial's studies remaining confidential and did not argue that the discussion about them be held in open court. Hopefully Justice Riordan will consider the public interest more broadly when he reviews these documents).

When she turned to the issue of proportionality, Justice Riordan pushed her repeatedly to show how they were looking for a minimum application of confidentiality. "You are not asking for a minimum intrustion you are asking for maximum protection....  what more could you ask for than what you are already asking for?  For the first time, Ms. Conte looked stumped.  Ummmmm.. that’s a good question.

Although she had finished the legal arguments, Ms. Conté would not cede the floor to her colleague, Nancy Roberts, who was expected to provide details of how these issues should be applied to the documents in question. Ms. Conté interrupted and argued with the judge in a way that has not yet been seen in this trial.

Perhaps watching her colleague and feeling the rising tension prompted Nancy Roberts to try to lighten the tone. Finally getting the floor, she apologized in advance for any "Ontarianisms" she might introduce. She joked about her age and the weight of the material she had brought. She laughed about her failing memory. She thanked the Judge for permission to be in his courtroom. When he asked a question, she thanked him for the interruption. Even the larding on of these pleasantries did not reduce the tension in the room.

Ms. Roberts task was to provide reasons why each of the 8 documents should be kept confidential' The first one she addressed was the 30,000 pages of data collected under the monthly surveys (Continuous Market Assessment or CMA). This survey was a key to ITL's competitive success, she said.

As far as I am aware none of ITCan's competitors conduct or commission research that contains as much or as detailed information as is in the CMA.  ...ITCAN uses historical CMA information to forecast the likely impact of changes in the marketing place and regulatory environment.

If it occurred to her that keeping confidential information on the impact of health legislation on smokers' behaviour was more suggestive of her client being in competition with health ministries than with other tobacco companies, she didn't let on.

Having finished with this document, Ms. Roberts received a whispered message from Ms. Conté. Oh dear! just as she feared, she had inadvertently let confidential information slip... This was the cue for Ms. Conté to ask again for an in camera hearing. (André Lespérance pointed out rightly that nothing had been said that was not already on the public record.)  

But Justice Riordan provided reasons of his own for changing the rules of this round. For me to appreciate what it is confidential or not I would like to be able to ask specific questions,  i.e. why a certain line is confidential. I find myself impeded... I am having trouble doing  my job because I cannot ask specific questions

At noon, the session went in camera.  The only two people required to leave the room were we bloggers.


Looking for the score?  Me too.  At 4:30 the court adjourned -- Justice Riordan's decision won't be known until he decides to make it, um, public.