Monday, 17 September 2012

Day 56: The librarian

See note on accessing documents at the end of this post. 

The Montreal trial of the class action suits against Canada's three large tobacco companies resumed today (September 17th) after a week's scheduled pause. The plaintiffs' lists of witnesses from Imperial Tobacco has been almost completely checked off, and starting tomorrow the trial moves to hear witnesses from JTI-Macdonald.

The last witness scheduled from ITL was the former science librarian, Ms. Rita Ayoung. Her testimony was expected to tie up a few loose ends that had been left hanging after the short appearance at the trial of Ms. Ayoung's former boss, Ms. Carol Bizarro.

One particular fact that needed to be nailed down was the identity of the person whose initials "RA" appeared frequently in the inventory lists of scientific documents that had been removed from Imperial Tobacco's library or had been destroyed. Early in the afternoon, Ms. Ayoung confirmed that the person in question was Roger Ackman, ITL's the corporate counsel and the man at the centre of the document-retention saga. The other theory that had been offered in the trial, that the initials were those of Rita Ayoung, was put to rest.

Ms. Ayoung was much more reluctant to offer other insights or knowledge about why Mr. Ackman was interested in scientific documents, why certain documents were sent to him, or what the documents might have been about.

She resisted the idea that the Library had been involved in the destruction of documents. We didn't destroy documents she said even though terms like "all destroyed" appeared on the lists. The library staff bundled them up and called the Mail Room to take them away -- where the documents marked "sent" in her records went, she did not know.

According to Ms. Ayoung's testimony, the document retention policy was a literal and welcome housekeeping measure. She took every opportunity to stress how the library was bursting at the seams.

André Lespérance. The Janus Annual Reports - what were they?
[The Janus studies were early BAT research on carcinogenicity.]

Rita Ayoung. I think they were before my time. All I remember is that they were on the bottom shelf and we needed the space. Annual reports are useless after 10 years - the retention policy allowed us to make space.

André Lespérance:  When was the policy implemented?

Rita Ayoung: I can't remember. We were happy like hell when it came!  We were ecstatic!

For more than two hours, André Lespérance took the court through the lists of documents removed from the library ( 319 A B C D E F G H I J K), matching up records in one document against references in another. It was a painstaking exercise, and must have been even more so in preparation.

My colleague, Pierre, compared it to an archeological dig, with the careful arranging of fragments to form a skeletal version of events. Ms. Ayoung confirmed that the fragments aligned the way that Mr. Lespérance suggested, but volunteered little additional information. She would put no flesh on those bones.

Before the destruction policy, 75% of
research reports borrowed from ITL's
Library were over 5 years old. 
Despite Ms. Ayoung's statements that the "old" documents that were removed were not much valued, Mr. Lespérance introduced two calculations she had made that showed that these older research works were very much in demand (Exhibit 556), and that they made up the bulk of the library's collection (Exhibit 556A).

At the end of the day, in a characteristically pointed clean-up round of questions, Bruce Johnston offered more contrasts between her memory today of events and the documentary records of her work at the company. These included Dr. Patrick Dunn's dissatisfaction in 1994 of the process to get documents faxed from BAT's library (Exhibit 102) and Rita Ayoung's own involvement in that process (Exhibit 559).

At 4:30, the normal time of adjournment for today's session had arrived, but Bruce Johnston had not yet finished his questions. Justice Riordan thanked Ms. Ayoung and expressed his regret that she would be asked to return later in the trial.

Ouch!  Tobacco companies get a one-two punch in rulings from Justice Riordan and the Court of Appeal.

Decided: CTMC records can be reviewed by plaintiffs...

On September 4th, the tobacco companies tried to prevent the plaintiffs from receiving archival records of the CTMC by pleading their motion to quash a subpoena. During last week's break, Justice Riordan issued a ruling that rejected each of their arguments, and gave told the companies to begin quickly the work of making this material available to the plaintiffs.

In his 8 page ruling (available in French only), Justice Riordan agrees with the industry position that the plaintiffs slipped in not picking up the meaning behind JTI-Macdonald's one-time reference to documents "in the possession of third parties such as the CTMC. However, he did not agree with their view that the plaintiffs had missed the boat. It is not in the interests of justice, he ruled, for this mistake to be left uncorrected.

"41. Lets be real. We are dealing with files where the financial stakes are more than $20 billion. It is essential that the Court receives all relevant and available proof, both for and against the case. The Court cannot allow a procedural oversight by lawyers to become a roadblock to the receipt of all the information needed to render justice." (unofficial translation).

Decided: the industry can't get its hands on detailed survey data from Statistics Canada 

The other recent ruling comes from the Court of Appeal.

It refers to a decision last year (June 7, 2011) of Justice Riordan which had given the tobacco companies some satisfaction in their desire for Statistics Canada microdata from two longitudinal health surveys. The government had refused the information during the normal exchange of material, citing concerns for confidentiality of survey respondents. Despite these privacy issues, Justice Riordan obliged the federal government to make some of the data available.

In this appeal, heard last January, the industry wanted the Appeal Court to overturn the parts of the decision that did not give them full access to the data. The federal government, in its cross appeal, wanted the Appeal Court to overturn the parts of the decision that required them to provide information.

The government won. In the ruling issued today, Court of Appeal Justices Francois Pelletier, Allan Hilton and Richard Wagner decided unanimously to strike down the June 2011 decision. In short, the industry walks out of the appeal process with less than they went in with. The federal government gets what it asked for all along- the right to maintaining control over Statistics Canada survey data.

This is a rare instance where the Appeal Court has not upheld Justice Riordan's views. At one point this afternoon, Justice Riordan interjected during some confusion over arithmetic and stated a simple arithmatic calculation. "Maybe the Court of Appeal will be kind to me on that one," he said with a smile.

Tomorrow the trial will hear from a second industry CEO, Mr. Michel Poirier, who is head of JTI-Macdonald.

To access trial documents linked to this site:

The documents are on the web-site maintained by the Plaintiff's lawyers. To access them, it is necessary to gain entry to the web-site. Fortunately, this is easy to do.

Step 1: Click on:

Step 2: Click on the blue bar on the splash-page "Acces direct a l'information/direct access to information" You will then be taken to the document data base.

Step 3: Return to this blog - and click on any links