Tuesday, 4 September 2012

Day 52: Should CTMC records be brought to this trial?

Q: Do you know if the CTMC still exists?
A: I don't know, to be honest with you. I mean, there's nobody functioning in what was my position, to my knowledge. I assume, as a legal entity, it might still exist, but it has no Ottawa office, I don't think, any longer.
Q-Do you know what happened to the documents of the CTMC?
A- I don't.
William Neville, Former President
Canadian Tobacco Manufacturers' Council  (CTMC)
Testifying on June 6, 2012  

In hindsight it seems entirely obvious that after the former president of the CTMC told the court that he 'didn't know' what had become of the tobacco industry's government relations agency or its records, the plaintiffs would make sure that the story would be more fully told.

A further chapter in this saga - one with plot twists and riddles - was presented today through the testimony of the CTMC's one remaining employee, Ms. Diane Takacs.

Ms Takacs had came to the courtroom under rather unusual circumstances, as she is not a regular witness in this trial (at least not yet). The plaintiff lawyers had served her with a subpoena for CTMC records and the tobacco companies responded with a motion to 'quash' the subpoena. Justice Riordan agreed to the plaintiff's request to have her testimony inform his decision on the subpoena.

As if to signify the distinctions between types of testimony, the usual rule that lawyers wear black robes when witnesses are being heard did not apply.

With narrow confines on the scope of the questions and a bank of tobacco industry lawyers at the ready to to voice objections (and maybe hints to the witness), André Lespérance may have felt he was walking a fine line in his questions. If so, he never showed it. With avuncular and gentle questioning, he drew out the story of what had happened to the CTMC and its records.

Ms. Takacs replied with answers that were as calm and steady as his questions, but this seemed to require some deliberate effort on her part. Her lips were pursed and for most of her testimony she stood erect with her hands clasped behind her back, barely shifting her weight or moving her head. (In her flat shoes, black pants, a jewel toned patterned shirt and a solid tan beneath her short grey hair she would have passed unnoticed in a golf clubhouse.)

Ms. Takacs, now 57 years old, explained that she had started working for the CTMC in 1991 as a secretary to then VP of communications, Jacques LaRiviere (who testified on June 13th, 14th and 20th), but that for the past 18 years she had served as office manager or chief of administration.

This has been lonely work for many years. As she explained, in June 2001 "the three member companies, along with the president of the CTMC, agreed to disband, not shut down the operation. They pretty much let all of the staff go, including the President of the CTMC, the VP of Communications, secretaries, receptionists, the legal counsel at the time and many other consultants."

With more than 8 years on a ten-year lease at the swank World Exchange Plaza in downtown Ottawa, the office emptied out around her until tenants could be found for the extra space. By 2008, she had moved the headquarters of the CTMC to her home in Gatineau, about 8 km due north of the Parliament buildings.

These facts were easily told, but her story of what happened to the documents quickly became tangled. For reasons innocent or otherwise, many of her answers conflicted with each other, or added details that confused more than they clarified. For the first time in this trial, the court recording was played back to establish what had been said earlier.

This tangling, untangling and realigning of her narrative gave a dramatic edge to the morning.

Documents under lawyers' keeping

Ms. Takacs explained that many of the CTMC records had been removed by lawyers in 1998 and sent to the CTMC lawyers in British Columbia, where they remain to this day (now with  Kevin Boonstra.)  No list of those files had been made, although there was a file index of the system that had once been in place. She had given this index to her newly-appointed lawyer, Geneviève Gagnon.

Documents in warehouses

Is this the Iron Mountain
building that houses the CTMC records?
Comstock Road, Ottawa
There were 63 'bankers boxes' of material which had been  packaged up by Imperial Tobacco staff (she could not remember when) and which were now maintained in a commercial storage facility.

A more detailed list of these documents had been prepared (several inches thick, as Ms. Takacs explained). It too had been given to Ms. Gagnon the previous evening.

A lost history?

Ms. Takacs had worked with the CTMC since 1991, but had no apparent knowledge of the organization before that time and was not aware of any previous form of inter-company collaboration - even when prompted. Yet she had prepared the corporate filings and sent them to Industry Canada for over a decade, and on each one had typed '1963' in the box that requires the corporate birthdate. When asked to explain this earlier date, she suggested it might have been a typing mistake. André Lespérance did not ask her why she made the same typing mistake every year.

The limited role of an adminstrator

In trying to remind Ms. Takacs of the long history of the CTMC, Mr. Lespérance showed her a court filing that the CTMC had made in response to the New Brunswick lawsuit. This sole employee of the CTMC said she had never read it.

"In ever provincial law suit the CTMC is named in the lawsuits so the CTMC gets a copy. I don’t read them, I file them. I don’t have anything to do with it, because the lawyers take care of it." 

Her reliance on the CTMC member companies was further revealed in an answer to a question from Mr. Lespérance about her knowledge of information detailed on the subpoena.

I briefly read this document and that’s when I contacted my member company lawyers to ask them for help. This was the first time I had ever been subpoenad since working for the companies. I sent them a copy of my subpoena along with a copy of what I was supposed to bring and they told me they would look into it and get me a CTMC counsel and I shouldn’t worry about anything.

What is the CTMC today?

Mr. Bruce Johnston asked the last few questions for the plaintiffs, and one of these cut to the existential core of the CTMC: why does it exist today?

To my knowledge it is because it is an entity and it has to continue going and because of all the lawsuits that it is named in they can't shut down the operation, so it just continues with me being the chief administrative officer.

Hidden management?

The last question to the witness was put by Justice Riordan. "You said you contacted the three in-house lawyers. The question was raised whether these lawyers had control over the documents and you said you didn't know. Do you know who had control?"

When things smell this fishy, who wouldn't go fishing?

After the end of Ms. Takacs' testimony, arguments for and against the motion to prevent the CTMC records from being brought to this trial were presented.

The three tobacco companies tried to convince Justice Riordan that the request for these documents was "too late" in the game, and that the plaintiffs were attempting to perform "discovery on a third party witness late in the trial." Simon Potter, perhaps nostalgic for the recent summer, spoke frequently of fishing.

Guy Pratte, who represents JTI and who is usually very economic with his interventions, spoke at length. He tried to persuade the judge that the moment had passed when these documents could fairly be requested. He referred to an  earlier exchange of documents with the federal government in which JTI had said it did not intend to provide CTMC material "not in their possession." (The distinction between 'in possession' and 'under control' may become important).

Mr. Pratte stressed that the fact that the plaintiffs (and government lawyers) had not complained many months ago when they had the opportunity did not give them the right to come back to many months later. To say nothing of the unfair workload of processing those records!

Ms. Gagnon, for the CTMC, cautioned that it would take a long time to review the material for privilege or other grounds to not provide it to the plaintiffs. After being asked to take a preliminary look at the lists placed in her care, she confirmed that there was much in them that would be the subject of claims of privilege.

In responding to these arguments, Mr. Lespérance replaced his friendly-uncle manner for that of a firebrand. He detailed some of the challenges they had faced in trying to narrow the document list down without any indication of pertinence from the companies' representatives. He pointed to the problems of interpreting "possession" in a time when owners move their documents or store them with others.

Mr. Regnier, on behalf of the federal government, reminded Justice Riordan that the federal government is at a different stage of proceedings, and that discovery continues in the action in warranty claims against it. Should those claims not be dismissed, he reserved the right of the federal government to pursue production of the CTMC records at a later time.

A never ending discovery

Simon Potter, who has a long history in representing tobacco companies, has a colourful if bombastic style. While dismissing the subpoena as a "never ending discovery," he put his finger perhaps on the drama and the importance of this request. After more than a decade of litigation, years of document discovery and months of trial - there is still more to discover about the operations of these companies.

Justice Riordan closed discussion on this motion around 3 o'clock. In the time left before the court rose early to respect electoral laws, the agenda turned to plaintiff's concerns about production of financial records. The early recess may also have helped those lawyers flying to the west coast.

For the next three days, the trial will hear testimony from Peter Gage in Victoria by teleconference in the afternoon. In the mornings, document and exhibit issues will be discussed.