Wednesday, 14 November 2012

Day 83: Federal Government Released

Late in the afternoon of a tedious session at the Montreal trials of the Quebec class action suits, a buzz went through the classroom.  Simultaneously, lawyers from all sides (and also Justice Riordan) were reading their e-mails. The word had come down from the Quebec Court of Appeal - the federal government was being released from this case.

Justice Riordan looked up from his computer and said simply "Congratulations, Mr. Regnier."

"It's been a pleasure, monsieur le juge" replied the federal lawyer, who then closed his computer, picked up his briefcase and left the room with his government colleagues following behind.

For the first time in 6 months of trial, the back bench on the plaintiffs' side was empty. The courtroom, already hollowed out during the document exercise underway, suddenly felt diminished. Including judge, bailiff, stenographer, clerk and bloggers there were only 16 people left in the room.

This decision gives everyone a year or two back of their life, as the trial will now be considerably shorter. But was there any other good news for those left in the courtroom?

The tobacco companies have lost their hoped-for fall guy. The plaintiffs, who once entered into a formal agreement with the federal government, have lost the daily presence of  Maurice Regnier, an ally and a litigator with deep experience in dealing with tobacco companies. Justice Riordan has lost face, to the extent that one of his major decisions has been overturned. I am losing hope that this case might more forcefully prompt the federal government to review the sufficiency of its actions to "protect the health of Canadians."

The 40 page judgement (en francais, naturellement), was written by Justice Gascon on behalf of Jacques Leger and Jacques Fournier. In addition to supporting the federal view, it also awarded costs (although less than they were originally asking). I will leave to others the interpretation of the reasons.

Is this the end of the road for the federal government in this case? The companies aren't shy to knock on the door of higher courts, and there might be a bit of uncertainty until the Supreme Court rejects their leave to appeal. The ruling (para 159) sets the conditions for the companies to keep the federal government in the case during an appeal to the Supreme Court. But the end of the road for the federal government is clearly in sight.

It's hard to visualize the government effectively removed from the case. The tobacco companies will have even greater motive to invoke the federal role and to make claims about the instructions they received from Health Canada and Agriculture Canada officials. They will still be able to say "I was only following orders," but now there will be no one there to say "No you were not - and here is the proof." 

Taxpayers, however, do have reason to cheer. The federal government spent $15 million last year defending itself against third party tobacco suits. I am told they are still not dismissed from the Ontario government damage recovery suit, and are expected to be drawn into the Quebec government case.

Earlier in the day

This was the third day in a row that this trial was focused on procedural and management issues. Without witnesses, there has been no requirement for court robes. While black prevails, some of the lawyers have used the occasion to express their fashion creativity and unveil a wardrobe of astonishing ties. (If the Court of Appeal ruling makes Mr. Regnier think the pink floral concoction he wore today is his 'lucky tie,' then future clients should be warned.)

The lawyers' creativity was not confined to their wardrobes. In this transition phase of the trial, new tools were being worked on to defend against the testimony of the plaintiff's expert witnesses. New arguments. New framing. New objections. It didn't feel like sabre rattling so much as sword sharpening.

It looks like this phase will be a war on footnotes, with the companies individually challenging hundreds of documents used by the experts during the preparation of their reports. How this war will be fought is not yet clear. The prolonged discussion on these issues seemed to substitute for the "motion for directions" that had been filed but was not in the end debated.

The industry sound like they intend a series of skirmishes during the testimony of each witness. Bruce Johnston cautioned that the plaintiffs would consider it an abuse of process if the defendants interrupted the flow of witness testimony with a barrage of objections. Justice Riordan proposed that it was better to hold off disputes over the value of such evidence until much later in the trial.

Justice Riordan: "Wouldn’t it be sensible to wait until the written argument? In that argument plaintiffs will refer to documents and you will have a reasonable period of time to made your arguments."

Deborah Glendinning: "Absolutely not. We need to know what proof we need to make." 

One expert report clearly in the sites of the companies is the first one, that of Robert Proctor, who is scheduled to begin testifying on November 26.

Order some more bookshelves

Yesterday, Mr. Lespérance had referred to the physical challenge of introducing evidence document-by-document through witnesses and pointed to the 30,000 documents that the companies had identified in their "403" notices. Justice Riordan pushed for clarification from the defendants on the number they anticipated they would produce. There was some hesitation before showing their hands, but the lawyers for Imperial Tobacco indicated there would be 15,000 to 19,000 (of which 11,000 were newspaper articles). JTI-Macdonald and RBH volunteered they had about 3,000 additional documents between them.

Not being "overly inclined" to sit in court while thousands of documents were individually entered into evidence, Justice Riordan began proposing alternative methods, one of which was test-run this afternoon. A set of documents that will end up being footnotes to the expert reports of Richard Pollay was discussed, given tentative exhibit numbers and offered up for objections.

Clearly some imaginative thought had been given to finding new objections to knock out these footnotes. "Irrelevant!" said Simon Potter about many types of research documents that have already been put on the trial record (such as exploratory marketing research or focus groups on young persons outside Quebec). Against the Browne and Dunn rule! said Doug Mitchell about documents that could have been linked to witnesses who have come and gone.

As a result, many of the more than 100 documents reviewed were consequently marked with an "R" for reserve when they are produced in the coming days. This has to be balanced against the happy decision to remove the "confidential" status of survey records entered yesterday. When available, these sets of documents will be added to yesterday's blog.

Today began with Mr. Lespérance announcing that the plaintiffs were now planning to introduce documents from Legacy through conventional procedures.

David Schechter testifies posthumously

Justice Riordan will be providing reasons later for his decision, announced today, to permit the evidence of David Schechter before the DOJ case as though presented in this trial.

Tomorrow two witnesses will make their final appearances at this trial -- Ms. Rita Ayoung and Mr. Pierre-Francis Leblond. Next week, Mr. John Barnett, the current CEO of Rothmans, Benson and Hedges, will testify during the first days of the week.