With no witnesses scheduled for the last day of the trial before the two month summer pause, business suits replaced the formal court gowns normally worn by the lawyers and judge. But unlike the last day of school, when it is customary to let the pupils leave early, the lawyers and judge put in an extra-long day, arguing a number procedural motions until almost 6pm.
Most of the day's issues concerned the federal government. Normally the Attorney General has three or four lawyers sitting quietly at the back of the courtroom, but on this day they showed up with almost a dozen, taking over much of the lawyers' seating area normally used by the plaintiffs. (The plaintiffs left most of their team in the office for the day, creating the room for the extra federal government people).
But the most interesting and important issue of the day was the one argued first, which had relatively little to do with the federal government. For some time the plaintiffs have been asking the defendants to turn over their financial statements for the last five years. The tobacco companies have refused, so today it went before the judge.
The reason the companies' recent financial statements are important is because the plaintiffs are asking for punitive damages if they win. Punitive damages are extra damages awarded by the court that go beyond just compensating the victims. They are only awarded by the courts in exceptional circumstances, when the defendants' conduct is so reprehensible that they justify an exceptional penalty. The purpose of punitive damages is to punish the worst of the worst and, hopefully, deter others from acting the same way.
Since punitive damages are meant to be a punishment, the court needs to know the tobacco companies' financial status in order to be able to tell what amount of punitive damages will make them say "ouch"! (A $1 million fine might be devastating for one company but not even make a richer company break a sweat). It is up to the plaintiffs asking for punitive damages to put facts about the defendants' financial status in front of the court, so that the court can decide an appropriate amount if it decides that punitive damages are justified in this case.
So, true to form, the defendants are refusing to hand over their financial information until the judge makes them.
The industry lawyers argued that handing their financial information over to the plaintiffs now is premature because punitive damages are supposed to be awarded based on the defendant's financial status at the time of the final judgment, not the time of the trial. Recognizing that the plaintiffs have to submit all their evidence, including evidence on punitive damages, during the evidentiary phase of the trial, the industry would like to wait until almost the very end of the trial before handing over the information. They also argued that their last five years' information is too much; they only want to hand of three years of information when they do eventually have to hand it over. Lastly, they asked the judge, if he does make them to hand over the information, to require that the plaintiff lawyers keep the information from their clients.
The plaintiffs have already promised to keep the financial statements confidential when they get them, and the judge could easily and justifiably order that they be held confidentially. But by making the extraordinary request that the plaintiff lawyers keep this information from their clients, the tobacco industry is essentially asking the court to rule that le Conseil québécois sur le tabac et la santé (the Quebec Council on Tobacco and Health) and representative Cecilia Letourneau and Jean-Yves Blais cannot be trusted to follow court orders. As far as this blogger is aware, the Quebec Counsel, Mme Letourneau and Mr Blais do not have a record of prior unlawful behaviour to justify this extraordinary exception to the foundational principle of our legal system that lawyers must be completely transparent with their clients.
On the other hand, the three defendants, Imperial Tobacco Canada Ltd. (the Canadian subsidiary of British American Tobacco), Rothman, Benson & Hedges Inc. (the Canadian subsidiary of Philip Morris International) and JTI-Macdonald Corp. (the Canadian subsidiary of Japan Tobacco International), have all recently been convicted of smuggling their own products to avoid taxes. Who is the biggest risk to disobey a court order here?
For his part, plaintiff lawyer Philippe Trudel pointed out to the judge that the plaintiffs need the defendants' financial statements as early as possible to give their experts enough time to go over the information and develop a position on what amount of punitive damages is justified. Making them wait until the end of the evidentiary phase of the trial may leave them insufficient time to analyze the financial statements. There is no harm to the defendants to hand over the information right away, as long as the plaintiffs keep the information confidential, but there could be harm to the plaintiffs from getting the information late. Thus, Mr Trudel argued, the fair thing to do would be for the judge to order that it be handed over right away. Mr Trudel also pointed out that the plaintiffs have to finish entering their evidence before the defendants enter their evidence, so it does not make sense to wait until until just before the end of the defendants' evidence for the defendants to hand over their financial statements (as the defendants are proposing), because the time for the plaintiffs to enter evidence will be over.
Justice Riordan will give his decision on this issue at a future time.
And so ended the interesting part of the day. The remainder was taken up with legal arguments between the federal government and Imperial Tobacco over document disclosure, admissions, depositions of Health Canada and Agriculture Canada witnesses, and schedules and timelines for filing legal arguments.
The trial will resume in late August with the last few plaintiff witnesses agains Imperial Tobacco, after which the plaintiffs will move on to evidence against the other defendants. Thank you for following this very important trial and have a great summer (or winter if you are in the Southern Hemisphere).
By Michael DeRosenroll for Cynthia Callard
