An end to 2012

December 19th was the 98th day in the joint trial of the Blais/CQTS and Létourneau class action lawsuits against Canada's three large tobacco companies, and the last day of hearings for 2012.

This eye on the trial was diverted from the courtroom on this day, but fellow blogger, Pierre Croteau, reports that the last witness for the year was Mr. Wolfgang Hirtle, a process engineer who worked in Imperial Tobacco's blending operation before his retirement in 2010.

The plaintiffs reportedly tried, without obvious success, to invite Mr. Hirtle to testify that the waste tobacco that went to be remixed as "reconstituted tobacco" would have included debris from the manufacture of fine-cut in the company's Montreal plant. Instead, Mr. Hirtle said that the waste came from other manufacturing sites.

The transcript from Mr. Hirtle's testimony, when it becomes available, will add more detail to an increasingly  complex side-story in this trial -- the way Canadian tobacco companies shared the use of Imperial Tobacco's facilities to make reconstituted tobacco and how or whether waste tobacco that included additives was separated out before the 'reconstituting' process took place. A task for 2013!

Looking ahead

January looks like it will be a busy month, even if much of the activity is behind scenes.

• Justice Riordan is expected to decide on the status of 19 documents which were the subject of a two-day "2870" discussion in mid-December.
• Plaintiffs will be busy reading the CTMC documents that must be provided to them by the end of this month,  following a September 12 ruling by Justice Riordan. 
• The defendants have been asked/told to prepare a timetable or structure for their defence, and to share it with the court by January 14th.

When the trial resume on January 14th, discussion will continue on how or whether to admit documents for which witnesses are not available ("2870" documents). And there will be other disputes to resolve!

In the following weeks, the plaintiffs are scheduled to introduce their expert witnesses:  Christian Bourque (surveys on knowledge of health effects), Richard Pollay (marketing), Alain Desjardins (lung disease), André Castonguay (toxicology), Louis Guertin (larynx cancer),  Jack Siemiatycki (epidemiology), and Juan Negrete (addiction). Some additional fact witnesses are also expected to be called by the plaintiffs, but not yet scheduled. The plaintiffs are expected to have completed presenting their proof by the end of March.

An important decision on another Quebec tobacco lawsuit is pending. On December 14th, the tobacco industry tried to persuade Quebec Superior Court Justice Stéphane Sansfaçon to put the Quebec government's $60 billion lawsuit on ice until the industry's constitutional challenge to that law has been resolved.

Looking back - the numbers

It's been a busy year in Canada's first big tobacco trial. How big? Well, some numbers are bigger than others. Here's a look at some stats for the first year.

Pages of transcript	18,000 *
Number of exhibits now available through plaintiffs’ web-site	2,141
Number of objections recorded	950 *
Number of days’ testimony	98
Years of age of oldest witness (Peter Gage)	92
Average years of age of witnesses	66
Number of witnesses (including by deposition)	34
Number of issues decided by the Court of Appeal	16
Number of written rulings by Justice Riordan, excluding those related to federal government	9
Number of female witnesses	5
Number of witnesses testifying in French	4
Number of times Justice Riordan ruled against plaintiffs in written rulings	1
Number of issues decided by Appeal Court in favour of tobacco companies	1

* estimate based on the 96 transcripts available. 


Happy New Year!

Day 97: Are you more likely to die in a car accident than by smoking?

See note at the end of this post for information on accessing documents

It may have been the snowy wet weather. It may have been the Christmas shopping. For whatever reason, there was hardly anyone in the room for the last day of testimony of Philip Cadieux, a former market analyst with Imperial Tobacco.

Yesterday, plaintiff lawyer Philippe Trudel had tried in several ways to encourage Mr. Cadieux to share his knowledge of Imperial Tobacco's proprietary surveys of smoking behaviours (8M/Monthly Monitor) and smokers' attitudes (Continuous Market Assessment). With a few notable exceptions, Mr. Cadieux had maintained that he had nothing to share. I counted at least seventy occasions yesterday in which he responded to questions with "I don't know."

Today, the plaintiffs seem to have abandoned hope for any deep insights from this witness and seemed to have changed their approach. The pointed questions asked in firm tones yesterday - with arms crossed and focused staring at the witness - gave way today to a gentler style of voice and body language. Today's questions appeared as innocuous invitations for Mr. Cadieux to comment on what sounded like technical inquiries.

The witness seemed to relax a little, as did the whole courtroom atmosphere. Mr. Craig Lockwood, who is in charge of Imperial Tobacco's defense of this witness, is less prone to sharp-toned objections or disruptive interventions than his seat mate today, Ms. Glendinning.

Mr. Cadieux is the plaintiff's link to Imperial Tobacco's surveillance tools. The importance of these to the company was stressed earlier in the trial, when the company fought to have them placed "under seal" in this trial.

"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." said Nancy Roberts in mid-May. "ITCAN uses historical CMA information to forecast the likely impact of changes in the marketing place and regulatory environment." 

(Justice Riordan was not persuaded by Imperial Tobacco's arguments, and the Court of Appeal upheld his decision to make the survey information available on the trial. The results are now on the record among Exhibits 987 and the microfiche is Exhibit 988. Whether an electronic record that would allow for easier analysis is still in existence remains in the air. Mr. Cadieux was asked to see whether one was maintained by his former employer. This voluntary action "would save a subpoena then, perhaps," said Justice Riordan).

Today, as yesterday, many of results from these ongoing surveys that were shown to the witness suggested a great interest on the part of the company in the views of smokers towards their products, social pressures on smoking, products that might be less harmful and the likelihood of disease from smoking.

"We knew that some smokers were less inclined to worry about trying to quit and had fewer intentions to quit and that some had more. We were aware there was a spectrum of smokers' beliefs in quitting and views on smoking and health," Mr. Cadieux said today.

He explained that ITL divided smokers into four categories -- highly dissonant, dissonant, consonant and highly consonant. The most dissonant smokers were those who had tried to quit in the last year and intended to try again in the next year. The consonant smokers were those who had neither tried nor intended to try in the same period.

Bob Bexon, the ghost witness in this trial, parsed this information carefully. In a handwritten memo he works through some possible underlying factors -- the difference between fear and fact, or between fear of disease or of death. (Exhibit 1254).

ITL's ongoing surveys also looked at other ways to measure smokers' perceptions of the harmfulness of its products. Smokers were asked whether “filter tipped cigarettes are better for your health than are non-filter tipped cigarettes", "What is the maximum amount of tar and nicotine that you feel is safe in a cigarette?" and whether they agreed that "It is more likely that a smoker will die in a car accident than through smoking". (Exhibit 987.15).

Mr. Trudel pointed to the result that half (48%) of smokers thought that a car accident was as likely a cause of death as smoking, and asked Mr. Cadieux if this was actually the case. "I don't know," was the familiar answer.

"Would it suggest that people don’t know the magnitude of the risks?" asked Mr. Cadieux. "I don't know," said Mr. Cadieux again -- but perhaps this time the question was a rhetorical one.

The cross-examination

By 11:30 the plaintiffs had finished their questions and Craig Lockwood's cross examination began by giving Mr. Cadieux a chance to restate his surprising revelation yesterday about the distinction between "awareness" and "belief."

"You made a distinction between awareness and belief.  If you were in your capacity as a pollster, would you pose the same questions if you were measuring awareness and belief?" asked Mr. Lockwood.
"I would post two different questions." said Mr. Cadieux.

Mr. Lockwood also invited Mr. Cadieux to confirm that he had never been involved in the marketing of products, to clarify his definition of starter as "someone who had started smoking in past 12 months and had no previous brand," and to express the focus of trendline on changes, not absolute levels. The other companies had no questions for this witness.

André Lespérance then followed up with a short set of questions about awareness vs. beliefs. Mr. Cadieux confirmed that he drew a distinction between awareness and beliefs, but that sometimes the question was in a grey zone between the two.

André Lespérance: "If you asked whether or not cigarettes caused disease – is that knowledge or belief?"
Philip Cadieux: "That depends on the question?"

"What if the question is 'Do you know ...' would that be awareness or belief?"
"That is subject to interpretation – 'Do you know?' -  it's kind of a grey area

Shortly after noon, Justice Riordan said farewell to Mr. Cadieux. "These are difficult questions – the lawyers have a difficult task. Thank you for being patient with them, and spending some time here. Happy holidays."

Holidays?

Indeed, the end-of-year break seemed to be on everyone's mind. During the breaks and even during the session, there were comments about pressures from family to spend more time at home.

There are only two items left on the week's schedule, and when André Lespérance raised the possibility that by tomorrow evening it would be possible to complete them both, Justice Riordan confirmed the collective desire to "break a day early" and not sit on Thursday.

And another holiday bonus - the court adjourned at lunch today.

A new high water mark for witness payment

Over the last two weeks, witness' compensation has emerged as a talking point in this trial. The discussion today has set a very high bar for any future discussions.

Shortly before the court adjourned, Mr. Lespérance gave verbal notice of a motion he may wish to present to help him resolve a dispute over a bill for witness compensation.

For less than 2 hours on March 6th this year, BAT lawyer, John Meltzer, was questioned on his knowledge of the document retention policy and the destruction of scientific and other documents by Imperial Tobacco. (The examination took place in England).

The court learned today that Mr. Meltzer's bill for the time in preparing for this hearing was $200,000.

It took a minute or two for Justice Riordan to absorb what André Lespérance was telling him. Deux ...  cent .... milles ... dollars?!, he asked, stressing each word.

Mr. Lespérance said he didn't want to get into a fight over the bill, but was looking for a way to bring it more in line to the Canadian standard. In Quebec, he said, a witness receives under $100 and a bus ticket.

Exhibits used during the examination of Mr. Cadieux

• 987.15  1977 Segmentation of French and English Speaking Cigarette Market
• 987.21A-2m: Project Viking Wave 3 (hard data) - December 1991
• 987.35A-2m: 8M study - Cigarette Smoking and Health - Spring 1973 - Excerpts
• 1246 2m  Training Program in Marketing Research - Part 2 - June 16, 1994 
• 1247 Notes by Mr. Cadieux, for a presentation made to a group of new employees - November 1981
• 1248 2m PROJECT BRAND I.D. - July 1981
• 1249 2m Canadian Facts study regarding health consciousness - July 1964
• 1250  Canadian Smoking Habits - Fall 1985 
• 1251 Handwritten document: Quitting - 8M 1979 
• 1252 Tobacco product users report, update 1981, (2X) and tables - Marketing Research Dept. - July 1982 
• 1253  Data with respect to Smoking and Health from 1982 CMA, dated March 16, 1982
• 1254. Bob Bexon Memo: Health Concerns are a Real Issue
• 1255. Project Spur

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: https://tobacco.asp.visard.ca

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

Day 96: Canadian Facts, maybe, but not much insight

There was an end-of-term feeling when the Montreal tobacco trial resumed this Monday for its last few days before the Christmas break. Let's get this work done and over with!

Compared to the hurly-burly of last week's appearance by Jeffrey Wigand, the mood of the room seemed particularly sedate. The benches on both side of the bar were thin. In addition to the 'Insurance' lawyer who takes steady notes when witnesses from Imperial Tobacco or Rothmans, Benson and Hedges are present, the only other visitors in the public area were the plaintiffs' expert witness, Christian Bourque, and his colleague.

Mr. Philip Cadieux, who testified today, was the fourth witness to have once worked for Imperial Tobacco's marketing department. (On his LinkedIn profile, he list the company as BAT Canada which is now more accurate and less likely to lead to confusion with Imperial Tobacco UK.).

The previous marketing department witnesses to have testified live have been Tony Kalhok, Ed Ricard, and Jacques Woods. Others, like Bob Bexon, have provided posthumous contributions.

The seven years Mr. Cadieux spent within the company working as a research analyst, market forecaster and survey manager (from 1982 to 1989) are only part of his history with the company. He left Imperial to work with its market survey firm, Canadian Facts (now known as TNS Canada/TNS Global).  From his various roles in that company, rising to vice-president of client surveys, he continued to work on Imperial Tobacco Accounts.

The go-to guy for tobacco
and the diseases it causes

(TNS must be a company with a good sense of irony. In addition to the tobacco file, Mr. Cadieux also worked on the marketing of medical services to treat tobacco caused disease, like cancer, and heart disease, and helped link people with ailments to companies selling cures.)

However he has spent the three decades since joining Imperial Tobacco, it looks good on him. At 56, Mr. Cadieux is one of the younger witnesses, as Philippe Trudel remarked before beginning his questions of this witness. With his thick black hair, trim figure, good posture and unlined face, he is by far  one of the youngest looking.

Nor does Mr. Cadieux suffer from the same type of memory lapse that has beset some of the older witnesses. With this witness there is not the feeling that he is pretending not to remember things. From his testimony, it would appear that he never knew much to begin with.

Mr. Trudel: When you worked at Imperial, did you know the company position with respect to smoking and health?
Mr. Cadieux: No I didn't

Mr. Trudel: You don’t remember?
Mr. Cadieux: I don’t think I ever knew.

Nor did he ever know:  why the company collected information on which sponsored events appealed to different age groups; what use was made of information that showed fewer smokers were using "milder cigarettes as a means of addressing their concern on smoking and health"; why the company began measuring health concerns about carbon monoxide; why certain questions on health issues were included on the surveys whose results he analyzed; why the company probed smokers to find out how old they were when they tried smoking and when they became regular smokers.

I think it was Mr. Cadieux's lack of insight that was the most striking impact of this witness. For a man who worked in the polling business for several decades, he seemed to have no capacity to provide any interpretation of survey research findings.

Mr. Cadieux was asked to reveal his hourly rate for working (a new practice in this trial, initiated by Imperial Tobacco over the past couple of weeks). It is hard to understand how someone who can command such a high consultation fee can be so uninformative when looking at survey results in market in which he has decades of experience.

In other respects, Mr. Cadieux gave the appearance of being an intelligent man. With only 8 hours of pre-trial preparation by Imperial Tobacco lawyers (he had not been inclined to accept the invitation to meet with the plaintiff's lawyers), he had grasped many key elements of this trial  - like the fact that the cigars and pipes were not part of the trial, and that he expected that lawyers would "refresh my memory".  At several moments in today's testimony, Justice Riordan let slip a smile as the witness said things that you might not expect someone off the street to know instinctively.

Not the end of the (Mayan) world, but not great for BAT Canada's case either.

One of the most memorable statements of the day came mid morning, when Mr. Cadieux was being asked about the "variable question block" (VQB) that was included into Imperial Tobacco's regular CMA survey. The survey questions asked smokers, for example, how dangerous they thought smoking was.

Mr. Cadieux had said that all of this information was used purely for forecasting reasons (and not for marketing or other purposes). Mr. Trudel wanted to know why smokers' knowledge was important to those forecasts, and suggested that it might be because such knowledge was a percursor to quitting.

"So the more knowledge of risks, the higher the quitting rate?" asked the lawyer.
The witness sought clarification - "The more knowledge of the risks?" Or the more people believed that smoking was risky?"

Mr. Trudel casually followed up by asking "you make a distinction between knowledge and belief?"
"Yes," said Mr. Cadieux. "There is a difference between awareness and belief. I am aware that people think that smoking is not healthy - and the belief is different."

"Can you explain that to the court?"
"Yes. I am aware that the Mayan calendar predicted the end of the world this month, but I don't believe it. I think that carries through to smoking - the difference between awareness and beliefs."

If one of the pillars of Imperial Tobacco's case is that there was broad public awareness of the harms of smoking, this distinction presented by one of its 'friendly' insiders can not be very helpful.

(Mr. Cadieux answer undermines an answer given during the cross examination of Anthony Kalhok, former VP of marketing. On April 18, ITL's lawyer, Craig Lockwood, asked a seemingly soft-ball question about whether he thought there was a  "distinction between the public awareness of an issue versus the public belief in that issue?" Mr. Kalhok replied: "No, I do not. Because, in reality, I think it's one and the same."

More marketing data on the record

From about 10:30 until the end of the day, Mr. Trudel presented Mr. Cadieux with a series of marketing documents, asking questions on sections of them and entering them as Exhibits in the trial. These documents are not yet available, but hopefully will be by tomorrow.

At the end of the day, Mr. Trudel indicated that he expected that tomorrow would be the last day on which Mr. Cadieux would be required by the plaintiffs.

The Court of Appeal on Litigation Privilege - Not yes. Not yet. 

A week ago today, the Court of Appeal had listened to arguments regarding the "Four Seasons Project"  report commissioned by the Canadian tobacco companies in the mid 1980s to help them protect themselves from litigation efforts such as the one underway in this Montreal court.

In 1988, the companies hired historian David Flaherty to measure and document awareness of health issues related to smoking and in 1989, he was again hired to use such information to help fight Canada's first ever (but ultimately unsuccessful) lawsuit against tobacco companies. David Flaherty has prepared an updated version of the paper as an expert report for this trial, but the defendant tobacco companies had tried to keep his early effort away by arguing that it was subject to solicitor client privilege.

On May 17, Justice Riordan had ruled against them, and it took 7 months for the Court of Appeal to consider the objections to that ruling. It took four working days for the Court to release a 16 page ruling which adds to the pile of recent judgements by that court against the companies.

I hesitate to interpret the pattern, but the court seems to make increasingly clear that they will not interfere mid-trial, and that complaints such as these must wait until the trial is over before they can be addressed. (The Court of Appeal ruling can be found here.)

Tomorrow, Mr. Philip (Phil) Cadieux continues his testimony. The last witness this week will be Mr. Hirtle, who is expected to testify Wednesday. The time remaining this week will bge used to enter exhibits onto the court record. (Corrected)

Delete the presses!

This blog entry has been modified in accordance with requests received from Osler, Hoskin and Harcourt, lawyers for Imperial Tobacco, on December 17, 2012. In making their requests, they cited this Supreme Court decision: Impulsora Turistica de Occidente, S.A. de C.V. v. Transat Tours Canada Inc. [2007] S.C.R. 867.”

Please ensure you read the highlighted section below.

Before noon today, the last time I was in a judge's chambers was when I got married.

Imagine my surprise, 38 years later, to find myself across the desk from Justice Jean Yves Lalonde of Quebec's Superior Court as he reviewed with Imperial Tobacco's lawyers the terms of a court ruling that would be issued against me.

And here's the kicker -- the ruling might be against you, too!

Let me begin at the beginning.

Two days earlier, on Wednesday afternoon, I had been in Justice Lalonde's outer office reviewing a box of documents related to a lawsuit between Imperial Tobacco and the Liquidators of the Kansa Insurance Company. The lawsuit involves the reimbursement of legal fees. (Court file 500-05-002760-955).

The box which mistakenly
contained an unmarked
confidential file 

In recent sessions of the the class-action trial, the defendant tobacco companies had raised the issue of remuneration of the plaintiff's witnesses. I hoped that information in this other suit might give some insight into the frame of reference for legal payments.

I had only time to rummage through one of the dozen or more boxes from this trial. From this, one document struck me as particularly interesting. I wrote a story about it in that evening's blog.

It turns out that the document I read and photographed had been placed in the box in error, and should have been kept in a sealed envelope. There was no way I or anyone else not associated with the case could have known about the error, as the document was simply marked  "supplementary affidavit".

Someone at Imperial Tobacco or their lawyers at Osler must read this blog. I was sent an e-mail informing me of the leak of confidential information yesterday evening. Problem was, the e-mail arrived late in the day (5:52 pm), by which time I had long abandoned any intention of checking e-mails.

So I was quite surprised this morning when a woman approached me in court and politely asked if I would step outside. She introduced herself as a lawyer with Osler's, and explained the situation in a friendly manner. She pointed to a 2010 ruling on the file that indicated that 'documentation on the proof of the claim' must be kept confidential She asked me nicely to remove the post.

I said I was agreeable to doing so, but wanted confirmation that the information truly was intended to be under seal, and that it came under the category of documents discussed in the judgement she showed me. (I was suspicious, and might have sounded a little untrusting. Funny how that works).

A memo from the judge would have done, but that is not the way things work in a building full of lawyers!

Instead I was handed (well, technically I was "served") a nice thick set of papers stapled to a "motion for the issuance of a provisional, interlocutory and permanent injunction."

Soon, I was in front of Justice Lalonde as the terms of this injunction were worked out by the principals in the wrangle between Kansa vs. Imperial Tobacco. (It was all very civilized, and Justice Lalande took pains to ensure that I understood what was taking place.)

Now, I have no problem in removing Imperial Tobacco's confidential material from the blog and anywhere else my delete button will work. I didn't need a court order to do so, but I wasn't dealing with a hand-shake crowd. I would rather be told to do something by the court than sign an undertaking with Imperial Tobacco. So I am okay with what happened.

But Justice Lalonde's ruling does not stop with me.

The operational provisions of his order also prohibit others "replicating, disseminating or publishing the Confidential Information" and "Orders any third party.... to permanently delete the Confidential Information from any computer system under his or her control and to permanently destroy any Confidential Information in in his or her possession, regardless of its format.

The complete order can be downloaded here:

So if you have a copy of the information (sorry, I can no longer tell you what it is),  then you too are under a Quebec court order to destroy any copies.

A downside to this turn of events was that I missed half of the hearing this morning on the request by the tobacco companies to put the Quebec government lawsuit on ice until the industry's constitutional challenge has been heard. I will get the low-down from my colleague, Pierre Croteau, who watched closely and give a report here later.

Day 95: Important Square Pegs

It was another quiet and thoughtful day at the Montreal tobacco trial.

The discussion continued on the plaintiff's proposal that 19 documents be "admissible as testimony" under the provisions of Article 2780 of Quebec's Code of Civil Procedure. There were only a handful of lawyers present, and even fewer observers.

Yesterday, Pierre Boivin and Philippe Trudel had made the case on behalf of the plaintiffs, and Guy Pratte had presented the objections of JTI-Macdonald. Today Suzanne Coté presented the concerns of BAT/Imperial Tobacco and Simon Potter gave the view of PMI/Rothmans Benson and Hedges.

The plaintiff's had clearly gone to some efforts to skinny down their initial request for a hundred or more documents from the Legacy site. Those discussed today could be counted on fingers and toes.

Nonetheless, the objections to these documents took the full time allotted. While a core concern of the companies is that they will not be able to cross-examine the documents, it certainly sounded like they were doing a good job of challenging their credibility or value.

As with yesterday, I am unable to helpfully summarize the legal issues debated, let alone analyze them. But after letting the arguments wash over me for two days I have a much better sense of the importance of the misfit between an historical approach to assessing events and a legal approach.

The documents in question reflect key moments, key decisions, and key thoughts in the 50 year history of tobacco industry actions that are on trial.

They show the prestigious physicist that BAT engaged to lead its scientific efforts, Charles Ellis, directing research efforts on the pharmacological properties of nicotine as early as 1962. They show senior Imperial Tobacco officials meeting in the same year with U.S. public relations agents to strategize their response to the growing concerns about lung cancer (Exhibit 547).

Should Bob Bexon's letters
become posthumous testimony?

They show a future Imperial Tobacco president, 20 years later, acknowledging in a handwritten note to his colleague that "if our product was not addictive, we would not sell a cigarette next week." (Exhibit 266).

The problem for the plaintiffs is that the authors of these documents, and the other people involved in these events are dead. Which means that they cannot be called to testify, and cannot be cross examined.

The documents are important historical evidence, but they are apparently flawed as trial evidence. They are historic square pegs and the defendant companies want to keep the holes round. It is now up to Justice Riordan to decide if the holes can be tailored to fit. It is unlikely that he make his decision known until the new year.

On Monday, this trial will resume with the appearance of a former market analyst at Imperial Tobacco, Philip Cadieux. 

Tomorrow - a different trial. We will cart our notebooks down to the 15th floor of the Palais de Justice and watch industry lawyers seek to punt any action on the Quebec government's lawsuit until their constitutional challenge has been finalized.

Day 94. Nineteen Documents.

Courtroom 17.09 at Montreal's Palais de Justice was almost empty today. There was no witness. No media. No audience. There were hardly any lawyers.

The entire day was given to discussions about the status of  19 documents that were referred to in historian Robert Proctor's (now abridged) expert report.

The list of documents under discussion was flashed on the screen, and most of them are already on the trial record as exhibits. Without a witness to testify about them, however, they have been relegated to the category of documents admitted under Justice Riordan's "May 2nd Judgement." It would seem this is not good enough.

The plaintiffs want each of these 19 documents to be given a higher standing and asked Justice Riordan to admit them as proof under the provisions of Quebec's Code of Civil Procedure:

2870. A statement made by a person who does not appear as a witness, concerning facts to which he could legally testify, is admissible as testimony on application and after notice is given to the adverse party, provided the court authorizes it.

The court shall, however, ascertain that it is impossible for the declarant to appear as a witness, or that it is unreasonable to require him to do so, and that the reliability of the statement is sufficiently guaranteed by the circumstances in which it is made.

The reliability of documents drawn up in the ordinary course of business of an enterprise, of documents entered in a register kept as required by law and of spontaneous and contemporaneous statements concerning the occurrence of facts is, in particular, presumed to be sufficiently guaranteed.

After nine months of trial-watching, I should have a better handle on these issues. But even after listening to the presentations by Pierre Boivin, Philippe Trudel and Guy Pratte on the legal theory and practice, and their thoughtful discussions with Justice Riordan, my attempt to explain the legal issues would be counter-productive.

What I could understand is that this is a reminder of the challenges in redressing wrongdoings from previous generations. Evidence delayed may become evidence denied!

Gossip from another trial --

The session adjourned early and, a little embarrassed at having so little to report on my day, I dropped by the 12th floor office of another justice of the Quebec Superior Court who is a long trial involving Imperial Tobacco and Rothmans, Benson and Hedges.

This case involves a dispute between the failed insurance company Kansa General and the two tobacco companies it insured. Documents on the Legacy site explain why the IMASCO chose this insurer, as it was the only company willing to include liability for "health hazards" and it was willing to pick up legal costs of defending against liability claims.

I was intrigued by the number of Appeal Court rulings (such as this one) on the issue of whether or not the companies would be required to disclose itemized accounts for the legal fees they were claiming from the insurance company. I wondered if the court file had any further details.

I spent a pleasant half hour sitting in airy office of the secretary to Justice Jean-Yves Lalonde. With files from other cases stacked around me, I used the remaining small space of a coffee table to rummage through a banker's box of filings.

In the time available, I did not get very far. But I did uncover .... oops! the content that followed this section has been removed as a result of a court decision obtained at the request of  Imperial Tobacco's lawyers.  More information on this turn of events to follow...

Tomorrow discussion on the eligibility of documents for admission under 2870 will be continued. When the court returns next Monday, Philip Cadieux will testify. He once worked as a market data analyst with Imperial Tobacco.

Day 93: Trying to subpoena dirt

Those coming to the Palais de Justice this morning to watch Jeffrey Wigand's second day of testimony at the trial of the Montreal class action suits might have been disappointed that the witness never got much of an opportunity to share any more stories about his life as a scientist working in a BAT-owned company in the early 1990s.

On the other hand, the rock-em sock-em legal fight that took up the day's proceedings was plenty entertaining. It was a lively court-room match as the lawyers representing Quebec smokers tried to protect their witness from harassment (and get a damaging document on the record) and the lawyers representing Imperial Tobacco tried to convince the judge to impose sanctions on their opponents for improper procedures (and prevent further damaging testimony).

If nothing else, today was instructive about the style of play that Imperial Tobacco is moving towards, and how far it will go to make life miserable for witnesses that testify against it.

A truncated examination

Bruce Johnston's examination of Jeffrey Wigand had been suspended yesterday evening due to objections of Imperial Tobacco to the introduction of a 1989 memo to Brown and Williamson CEO from its counsel, J. Kendrick Wells about which Mr. Johnston wished to base some questions to his witness.

The memo outlines the lawyer's concerns about the impact of scientific documents in current and future litigation. This candid explanation strengthens the link between the decision of BAT to put lawyers in charge of scientific documents and events at a trial that took place 23 years ago in a courtroom only two floors below Justice Riordan's bench. In this trial, this would be a "hot document" in a series of exhibits on document destruction.

 The Canadian case is in an especially disadvantageous posture for document production. The government is likely to go directly to the heart of the Canadian and BATCo research documents most difficult to explain.

Despite the stamp of "attorney client privilege," this document has been admitted into other tobacco trials  and is available on the Legacy website. (It was given a privilege status by a Washington Court). Whether  Dr. Wigand will ever be questioned on this document is not yet clear, as the issue became sidelined in today's tussle over the material which Imperial Tobacco would be allowed to demand to base its cross-examination of Dr. Wigand.

The Finger Man and the Subpoena

Alexandre Fallon

The photo of Alexandre Fallon makes him look like a perfectly fine young man, and his bio on the web-site of his employer, Osler, is one that would make many mothers proud.

But the actons of this attractive fellow yesterday evening were the first thing discussed this morning. Apparently it was his job to prepare a subpoena to serve on Jeffrey Wigand and to identify the witness to the court official who was waiting outside the courtroom to serve it on Dr. Wigand. The subpoena orders  Dr. Wigand to produce a number of documents and appear on Thursday morning. Special permission had been obtained to shorten the usual time required on such a summons.

Justice Riordan seemed somewhat surprised by this turn of events, especially the decision of Imperial Tobacco's lawyers to have the subpoena fast tracked through the Quebec judicial system without his involvement. (Any irritation he felt about being circumvented was masked in his polite comment - "I was available. I could have helped you with that if was necessary.")

This was the third approach used by Imperial to serve the subpoena. Attempts to serve the first to Dr. Wigand at his rural Michigan home between November 27-30 had failed. A copy had been left pasted to his front door. The second attempt, an application to a Michigan court, had included the misrepresentation of Justice Riordan's views that was discussed yesterday.

Each version sought to force Mr. Wigand to produce the same set of information: his income tax records, consulting contracts with lawyers, records of payment from Ron Motley's law firm, documents related to Jeffrey Wigand's charity, Smoke-free Kids, FBI records regarding threats he received, records related to his employment at Biosonics, diaries and expense claims and performance evaluations at Brown and Williamson.

"Sanctions for Improper Use of Procedure" 

From the cheap seats, it seemed that Imperial Tobacco had a lot of moxy to do such an obvious end-run around Justice Riordan in both Michigan and Quebec courts. But from Imperial Tobacco's perspective, it would seem that any procedural improprieties were at the hands of the plaintiffs, who had failed to cooperate in getting Dr. Wigand to do their bidding.

Deborah Glendinnign and Suzanne Coté climbed onto a high horse as they prepared to make their case. It was Dr. Wigand's wrongdoing that justified extraordinary measures. "We had reason to believe he was avoiding us having serve him with the subpoena," said Ms. Glendinning yesterday.

From this lofty equine perch they also viewed harshly the actions of the plaintiffs, and had prepared a lengthy motion and arguments to seek a "declaration of improper use of procedure by plaintiffs and for sanctions."

Before launching into arguments for and against this suggestion, each side prepared the ground by asking Dr. Wigand about the subpoena and about the material that was requested in it.

Bruce Johnston's questions (technically the last set of questions to the witness pending a decision on the Wells memo), invited Dr. Wigand to outline his activities since leaving Brown and Williamson. Mr. Wigand gave a long list of accomplishments that might have surprised even his admirers in the audience. He has studied, taught, established a charitable foundation, assisted the efforts of the World Health Organization and worked with health ministries in Canada, Holland, Ireland, Finland, Norway, Malta, and Italy. "I feel like a blowhard," he said as he concluded one of the more impressive lists of accomplishment presented to this trial.

Mr. Johnston then invited him to explain why it was that he had not received the subpoena in Michigan.
"I was not in Michigan. I was at the Mayo Clinic in Rochester, New York getting treatment," explained Dr. Wigand. "I returned on 30th, and found a note taped to my front door. I was not in Michigan that whole week."  Bruce Johnston circulated the travel documents that substantiated the claim.

Bruce Johnston then asked about the categories of documents that were identified in the subpoenas. Dr. Wigand explained for each type of information that he either did not keep those records (no diaries, contracts, expense claims), or that the information was a matter of public record (as in the case of the documentation for his charity, Smoke-Free Kids), or that it didn't exist.

This is the first time Deborah Glendinning has questioned a witness whose interests she did not share, and from a purely human (i.e. not legal or strategic) perspective, she did not seem to get a firm footing. She did not improve her own credibility by climbing down from her high horse to acknowledge that receiving medical treatment was an unfortunate but excellent reason to not be available to receive a subpoena. Her hostile disbelief was out of step with the mood of the room.

Even her benign attempt to have the witness put on the record that the Quebec and Michigan subpoenas that had been prepared were virtually identical went wrong. When she tried to help Dr. Wigand answer the question by point out the differing dates that appeared in small print, her approach was taken as threatening and she was reprimanded.

Ms. Glendinning clearly did not believe that Dr. Wigand kept no financial records beyond the five years required under US law. She seemed to find it incredible that he no longer had any paperwork associated with a sizeable loan he received from Ron Motley and which was subsequently forgiven. Nor did she appear to believe the financial arrangement he outlined - that his charity received donations in consideration of his assistance to various legal efforts, and that he drew a salary from this charity. (This is a standard practice in the not-for-profit sector, but has perhaps not yet found its way onto Bay Street).

Her questions were often phrased as accusations, and the responses she received were equally hostile. "You aren’t going to tell this court that you didn’t receive any payments from Ron Motley enterprises!" "I'm not going to quibble with you," "You must have financial records!" 

Her attempt to make Dr. Wigand look like a liar missed their mark. She asked him to admit that he had flown in Ron Motley's jet in order to be deposed for the Mississippi trial some decades ago. The witness repeatedly denied it, and she continued to push the point. When he eventually volunteered that he had flown in a plane owned by Richard Scruggs, the audience broke into quiet laughter.

That is not to say that Ms. Glendinning did not make progress in laying the groundwork for a motion to subpoena records. She established that Dr. Wigand had technical control of his bank account, and could recover financial records from his bank as he could from the secretariat of his charity. She put on record his account of the advice he received from André Lespérance that he need not respond to the subpoena left on his door, as it had no legal authority.

Ms. Glendinning also was able to strike some of Dr. Wigand's testimony from the record. He had referred to  receiving a recent threat and referring it to someone in the US Congress. When he refused to provide details on this, Justice Riordan ordered this part of his testimony removed.

But Imperial Tobacco wanted all of Dr. Wigand's testimony struck down. 

After the last question to the witness, Suzanne Coté began to present her proposal that the actions of the plaintiffs were so improper that Justice Riordan should strike the testimony of Dr. Wigand as a sanction against this bad behaviour.

(Keeners take note: she based her appeal on sections 54.1, 54.3, 302 and 311 of the Quebec Code of Civil Procedure. She did not mention the irony that one of the reasons that this section was added to the code was to "strike a fairer balance between the financial strength" of clients like hers and ordinary citizens.)

Ms. Coté also appealed to Justice Riordan's May 2nd judgement, which is cited almost daily in this trial. "What inspired you in that decision is that everybody should cooperate," she said. What goes around should come around, she suggested. "If we had done the same thing, we might find ourselves in jail." 

Before allowing the plaintiffs to reply to the motion, Justice Riordan wanted further explanation of why Imperial Tobacco needed such specific information. "Have you kept all your expense reports?" he asked Ms. Coté in a doubtful tone. "I have them since 1981!" she said proudly. (Is there anyone else who finds this scary?)

She said they needed the documents listed in the subpoena to properly make their case. "We need to know how much is going to the organization. He is getting compensation for all the work he does against tobacco companies. I think it is relevant to his credibility."

During Imperial Tobacco's questions to the witness and their accusations against his team's behaviour, André Lespérance had maintained a look of patient composure. In responding to the motion, his tone suggested that it was not really a proposal that should be taken seriously. "They are creating a tempest in a teapot," he suggested. His brief reply stressed that Mr. Wigand's appearance at the trial had been determined for more than a year, and that there had been plenty of time to follow the normal procedures.

The ruling

Justice Riordan broke court early for lunch, and over the break he drafted a ruling he read from his computer screen when the court resumed at 2:30. In it he agreed that Dr. Wigand would be asked to return at a later date with some of the documents the industry sought, but he made it clear that the plaintiffs were not the ones at fault.

"Imperial Tobacco's request for some financial background is not unreasonable. What is unreasonable is to wait until the last day of his testimony to serve a subpoena requesting that financial background and more. It has been clear for months - many months - that he would be called. There is no excuse not to take the normal steps to serve a subpoena in the normal ways. That said, both the plaintiffs appear to feel he is a key witness. A proper cross examination is in order." ...    

"The impropriety alleged against plaintiffs is not founded. The situation of which [Imperial Tobacco] complains could have been avoided." 

Justice Riordan redrafted the subpoena to define the requirements of Dr. Wigand, cutting sections of the subpoena where he accepted Dr. Wigand's testimony as proof that the material was not relevant or available. He also ordered that Imperial Tobacco defray any costs incurred by Dr. Wigand in complying with the ruling or his return to Montreal.

Dr. Wigand has until February 15 to provide the information.

At what level does being paid reduce your credibility? Or enhance it?

The fees received by Dr. Wigand and Dr. Proctor have both been a primary focus of the defendant lawyers attempts to discredit these witnesses. This is a new element in this trial, and a puzzling one.

The plaintiffs' lawyers have rarely asked questions about the reimbursement of witnesses. On one attempt to do so in October, JTI-Macdonald's lawyer, Francois Grondin had objected to Mary Trudelle being asked whether she had a written agreement for the compensation she would receive in preparation for her testimony. "Irrelevant," said Mr. Grondin."And privilege, at some point. ... this is going too far." After his objection, that line of questioning of Ms. Trudelle was dropped.

Yesterday, André Lespérance expressed concerns of the plaintiffs that they felt there was a "too far" point on such questions. "There's a basic rule of evidence that you ask the question, but you don't attack credibility on a collateral issue. Right? So this is a purely collateral issue. It's abusive. But if this is the rule of the game, we'll apply it in the future, with pleasure."

In a war of optics on over-payment of witnesses, it is hard to see how the tobacco companies could come out ahead.

Planning ahead

"Don't forget, I want to know on December 12th. about what the companies intend to do with their defence." Those were Justice Riordan's last words on November 29th for a week's recess. Today Deborah Glendinning told him "We have no plan to present tomorrow."

This did not go over well. "I gave you 2 weeks to prepare this and I specifically asked for this to be available tomorrow," was the stern reminder. Ms. Glendinning offered an explanation of the reasons, but with no tone of apology and no commitment to progress. Justice Riordan had been given little reason to back down from his request, and it began to look like a stand-off.

Simon Potter came to the rescue. He offered a sincere-sounding explanation. "There is also frustration among the lawyers" he said with "differing" and "ingrained" views. "We all know we have to come up with it.... We are trying."  

The companies now have until January 14th to present the structure for their defence.

Tomorrow there will be no witnesses. The acceptability of "2870" documents will be discussed. 

Day 92: Jeffrey Wigand - The Insider

See note on accessing documents at the end of this post

When the Montreal class action trial resumed after a scheduled one-week break, it was in the aftermath of the season's first winter weather. Snow and rain had made the streets messy and ugly, and the cold damp was a reason to stay indoors. But for Imperial Tobacco's lawyers, the climate inside the courtroom was even worse.

The former tobacco industry employee who testified today is unlike any of the 29 previous industry insiders who have appeared at this trial. Jeffrey Wigand is a former employee with an ax to grind, a compelling story to tell, and a media community supportive to its telling.

The weather was no obstacle for the many who came to watch Mr. Wigand's appearance at the trial. Once again, there were cameras in the hallway and journalists in the court room. Many of Mr. Wigand's fans in the public health community filled the seats behind the bar that divides the plaintiff’s lawyers from the public. The legal importance of the day was signaled by the increased number of senior lawyers present on both sides.

The only empty rows of seats were those which until recently had been occupied by lawyers representing the federal government. During last week's break computer equipment, books and personal effects had been removed. All traces of the government's years’ of effort on this case have left the room.

"The man who knew too much" and is willing to tell all

Mike Wallace's
60 minutes interview
with Jeffrey Wigand

Jeffrey Wigand became a household name following his 1995 exposé of tobacco industry scientific deceit on CBS's 60 minutes. The backstory to this reveal became a feature story in Vanity Fair (The man who knew too much), and eventually inspired a movie (The Insider).

Almost two decades have elapsed since Dr. Wigand was fired from Brown and Williamson after his four-year stint of employment (1988 - 1993). In that time he has not only spoken publicly about what he witnessed, but has assisted public plaintiffs against tobacco companies in lawsuits. His first testimony against the industry was in 1996 in support of the Mississippi government's claim for health care costs and he was also a witness in the U.S. Department of Justice RICO suit.

Jeffrey Wigand, 2011

Time has been no kinder to Dr. Wigand than to the rest of us. Now almost seventy years old, he suffers from back problems and walks with a cane. He elected to sit down to testify. His hair has progressed from grey to white. His New York mumble is even harder to follow.

But his memory of events remains sharp. His story, in the context of this trial, is farm fresh. This court case is stuck in a time warp (only events that happened before 1998 are properly relevant to the case), and Dr. Wigand is a man from that era. Outside the Palais de Justice his story might seem faded with time, but today it had a "hot off the press" feel.

This court has looked at hundreds of documents about management decisions about science that date from the 1980s and 1990s. Dr. Wigand's testimony gave life to those documents and reinforced some of the key themes of this trial. Listening to him, it seemed clear that Imperial Tobacco allowed BAT to sacrifice its scientists and its research duty of care in order to appease fears about litigation.

BAT scientists meet in Vancouver in September 1989

Dr. Wigand told the Montreal court how he and other senior scientists from BAT companies had participated in a BAT group research meeting in Vancouver in September 1989.  (Exhibit 336A). Also attending the meeting were Imperial Tobacco's senior scientist, Dr. Patrick Dunn and his colleague Stewart Massey.

The agenda of this annual meeting of the Research Policy Group (Exhibit 336) shows the topics of interest to the scientists at the time, including Dr. Wigand's own focus on ways to test the harmfulness of cigarette smoke or to measure additives in conformity with standards used in other consumer products.

Dr. Wigand explained today why it was that there was no discussion of  research on whether smoking caused cancer. There was no need for such research, he explained, as it was widely accepted by all BAT scientists that causality was established. It would be  "redundant [to research] something that was accepted."

Lawyering the minutes

Three sets of minutes for that meeting were found among the documents provided by Imperial Tobacco to the plaintiffs in this trial. The first was a 15 page version written on the last day of the meeting, September 22 (Exhibit 262). (This exhibit is noteworthy in that it adds another new layer to a story that has been well told for over a decade). The second version of the minutes was slightly shorter at 12 pages, and was sent a week after the meeting to participants for their review (Exhibit 262A). The third version, sent out about 10 weeks later, is only 3 pages long. (Exhibit 262B).

Each successive version has significant deletions -- the word 'addiction' appears only in the first version, and the last version has removed references to several parts of the meeting, including the decision to have a meeting on Dr. Wigand's topic of interest, biological methodology.

Missing also from the later versions of the minutes is a record of the decision to "phase out" research on "mechanisms of disease" that had followed a review of a discussion paper on research strategies on 'Smoking and Health' (Exhibit 262C).

Under Bruce Johnston's questions, Dr. Wigand spoke of his experience moving from the second version of the minutes to the third (he said that he had only ever seen the first version of the minutes in preparing fort his trial). After reviewing the minutes and commenting on them, he had forwarded them up the line to his own boss, Tommy Sandefur, before returning them to Alan Heard at BAT's UK research facility.

After his boss received the file, Jeffrey Wigand was hauled onto the carpet and given a dressing down for his participation at the meeting. "I was accused of putting into a document material that was against what the company's public policy was. My participation was wrong. Bringing up biotesting and addiction was wrong." The task of finalizing the minutes was transferred to the company's lawyer, J. Kendrick Wells. It was this man's much-abridged version that would be distributed across BAT companies (including Imperial Tobacco) later that year.

Lawyering the scientists

Dr. Wigand described how this event triggered a revamping of the research process at the company. "Things escalated - involving the highest levels of management in BAT industries. We were ordered to go to New York to a meeting." At the meeting, the scientists learned "how a lawyer would be in every facet of scientific communication, every facet of document generation." 

The new policy went beyond the document destruction policy that this trial has heard so much about. It also sought to change the way scientists reported their findings, and to set up a system for lawyers to audit and review scientific documents.

"It was really censorship," said Dr. Wigand. He explained how a lawyer "would review what documents you were allowed to have, decide what was the wording in the documents and change or audit or edit or vet the words that were in the documents. ... He could even prevent documents from coming to me."

Dr. Wigand was not the only scientist in the BAT group who was disturbed at this turn of events. He said that he had frequently spoken with his Canadian colleague, Pat Dunn, whose upset at the control by lawyers has been eloquently, if posthumously, presented at this trial. (Exhibit 102A)  Pat Dunn thought that "it was an invasion of his scientific integrity," he reported

When he spoke of the Canadian lawyers who participated in this process, the microphone, which had challenged him all day, was close to his mouth and his words boomed throughout the room. "Roger Ackman and Simon Potter had dirty hands. They had role in editing, vetting and ultimate destruction of documents." 

(At the end of the day, Simon Potter rose to defend his honour against this "media worthy" witness. "It is not correct to say that I ever edited a scientific report," he said. Justice Riordan quickly adjourned the day, and observers left the courtroom laughing at Mr. Potter's failure to mention whether or not he destroyed documents in order to prevent them from being discovered in litigation, as so much evidence in this trial suggests.)

Standing in for the late Patrick Dunn

It was not only in reporting the views expressed to him by Pat Dunn that Dr. Wigand seemed to be the stand-in for a witness whose only has testified at this trial through his document legacy.

Court rules require that documents be authenticated by people who authored or received them. Because Pat Dunn and Jeffrey Wigand were often on the same circulation list, Bruce Johnston was able to benefit from Dr. Wigand's presence to enter many documents onto the record that further expose the shift in BAT/Imperial Tobacco scientific policy in the late 1980s. Concurrent with the lawyering of science, the company refocused its research efforts on more marketable cigarettes and required new financing agreements with each of its group members. (See Exhibits 1241, 1242, 1243, 1243A, 1243B, 1243C, 1244, 1245).

(A colleague has provided a good review of the evolution of Imperial Tobacco Canada's research efforts in this period.)

Deborah Glendinning's bad day

A sign of the threat that Imperial Tobacco sees in the testimony of Dr. Wigand, perhaps, is the last-minute last-ditch efforts that the company put into tripping up his appearance at this trial.

On Thursday last, before the court adjourned for a week, Justice Riordan learned of an attempt by Imperial Tobacco to serve a subpoena on Dr. Wigand for certain documents. (The nature of the documents has not been disclosed but today's discussion suggests that some of them relate to his financial situation). Not finding Mr. Wigand at home, the company had asked the plaintiff lawyers in Montreal to forward the subpoena to their American witness. Justice Riordan had refused to be drawn into issuing any instructions related to an area beyond his jurisdiction.

Imperial Tobacco tried another approach. Last week it made an application for a U.S. court to require these documents to be produced and did so without getting Justice Riordan's buy-in on the approach. What's more, they had suggested that Justice Riordan would be supportive of the request (Their motion to the US court says that “the presiding judge acknowledging relevance of requested discovery to ITL’s cross examination of Mr. Wigand”).

As a third step, the company had filed a motion to argue that the plaintiffs were guilty of "improper use of procedure", and to have Jeffrey Wigand's testimony delayed until the subpoena was issued.

Ah, dear.

As André Lespérance put it, they seem to have shot themselves in the foot. Not a very good idea to misrepresent the judge's opinion before a foreign court ("I strongly suggest you advise whomever needs to be advised that the statement is inaccurate," Justice Riordan sternly instructed Ms. Glendinning after his implied support was brought to his attention.) Even worse idea to do so on an issue where you will want him to cut you some slack.

This was not the only set-back Imperial Tobacco faced today. Several times Ms. Glendinning objected in vain to the introduction of documents that she felt were attorney-client privileged. (She has previously maintained that Imperial Tobacco has nothing to do with Brown and Williamson and that the American company is no longer in existence. Today this former position didn't seem to preclude her suggesting that it was her responsibility to defend its attorney privilege or being able to check into the views of this non-existent company during the lunch break). As he had previously done, Justice Riordan maintained that once a document was posted on a company's web-site and open for the world to read, attorney-client privilege was not a reason to prevent it from becoming part of this trial record.

Nor was Ms. Glendinning able to persuade the judge that Mr. Wigand's experience at Brown and Williamson was irrelevant to a case involving a wholly different subsidiary of British American Tobacco.

Court of Appeal update

This morning the Court of Appeal heard the industry's appeal of Justice Riordan's May 17th ruling on the admissibilty of David Flaherty's Four Season report. It was reported today that a ruling is expected this coming Friday.

The Appeal Court has still not posted a decision on industry's appeal of Clémont Gascon's ruling that the Quebec government need not provide the industry with the documents it was seeking to supports its constitutional challenge to the law which enables the provincial law suit.

Tomorrow may be Mr. Wigand's last day on the stand. The plaintiffs have indicated they have only a few more questions for the witness. The cross examination by Imperial Tobacco may be influenced by the outcome of their attempt to subpoena his files.

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: https://tobacco.asp.visard.ca

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

PQ #1: The Court of Appeal looks at the industry's right to know.

This week is a break week during the trial of the Quebec class action suits against the subsidiaries of the three of the world's large tobacco multinationals (the trial resumes on Monday, December 10th).

But that does not mean that there was no court action on tobacco files in Montreal this week. To the contrary!

Into this intermission stepped a case that has been a little hidden from view in recent years -- the challenge by tobacco companies to Quebec's 2009 law which set the rules for the province to file a lawsuit to recover the costs of treating tobacco-caused disease.

Background

The Quebec cost recovery law is much like the law passed by British Columbia in 2000. It establishes a way for the province to quantify the costs paid by the state to treat tobacco-caused disease, to sue the companies to recover those costs and to apportion the responsibility to tobacco companies based on market share. The BC law was upheld by the Supreme Court of Canada in 2005, and judged consistent with Canada's constitution.

Despite this ruling from Canada's highest court, tobacco companies sought to have Quebec's similar law ruled unconstitutional. As crazy as this seems, the Quebec government was unable to persuade Justice Paul Chaput to dismiss the case before it was tried (and was similarly unable to persuade the Appeal Court to reconsider Justice Chaput's ruling). One reason for the seemingly redundant legal case is the fact that Quebec has its own constitution, which differs slightly from the Constitution of Canada.

The companies have exploited these differences in their arguments and are claiming, among other things, that the Quebec law changes the rules of procedure and proof in ways that deprives them of a fair trial and that it is an improper interference by the legislature in the judicial process. Other provinces have been able to benefit from British Columbia's precedent, but Quebec find itself having to re-fight the issue.

The constitutional challenge has been ongoing for more than three years, with few outward signs of resolution or even progress towards trial. (It has not, however, prevented the government from preparing and launching a compelling claim against the companies).  One delay seems to have been the insistence by the industry on receiving a wide scope of documents during the discovery phase of the trial of its constitutional challenge.

It was in February this year that Justice Clément Gascon of Quebec's Superior Court firmly smashed down the request of the industry for such material. He called the industry's request for a wide scope of background material to the development of legislation a fishing expedition ('recherche à l'aveuglette'), and sided firmly with the government in its decision to not provide the industry with the documents in question.

(Justice Gascon was promoted to the Court of Appeal only a few weeks after making the ruling under review this morning and was able to put some of his tobacco experience to good use. He was part of the three-judge panel that last month liberated the federal government from the class action suits).

Today's hearing

Ten months later, the companies and the provincial government found themselves today in the Court of Appeal rehashing the issues that Justice Gascon had tried to settle. Justice Gascon (Appeal Court judge) was not assigned to review the decision of Justice Gascon (Superior Court judge). Instead the issue was presented to three other justices of Quebec's Court of Appeal  -  Justices Yves-Marie Morissette, Nicholas Kasirer and Jacques Dufresne.

These three men know more than a little about tobacco law and tobacco companies. Justice Morissette formerly served as an expert witness for the federal government during its defense of the federal Tobacco Act against a previous constitutional challenge. Jacques Dufresne once headed up the litigation group for the lawfirm that represented Imperial Tobacco. Nicholas Kasirer has participated in a few decisions bounced up from the class action suits, including November's  'big' decision to release the federal government from the class action suits.

The lawyers on the industry side are familiar faces from the class action suits that are normally the subject of this blog. The presence of Eric Préfontaine (for Imperial Tobacco), Francois Grondin (for JTI-Macdonald) and Kristian Brabander (for Rothmans, Benson and Hedges) in the Blais/Letourneau cases is usually overshadowed by the lawyers who lead the defence in these class action trials, but the last two gentlemen are frequently present at the trial.

Imperial Tobacco: The law goes too far. Justice Gascon went too far

I almost felt sorry for Eric Préfontaine as he rose to present his case. (Mr. Préfontaine represents Imperial Tobacco, but was presenting the case on behalf of all three companies). Each side had clearly been given 90 minutes to make its presentation, and had doubtless structured and rehearsed accordingly. Yet the first words out of Justice Morissette's mouth were to the effect that 90 minutes was now considered to be quite excessive. The judge's scowl was enough to contradict his instruction that the lawyer should nonetheless use his time as he saw fit.

One reason Eric Préfontaine may have taken a full hour despite this warning was that he was frequently interrupted by Justices Dufresne and Kasirer. These interruptions were not kindly ones. The judges disagreed with his interpretation of the rulings of previous judges. They pointed to sections in the written arguments that they did not like. They contradicted some of his assertions, and discouraged his insights into the ruling he was seeking to have overturned. Nonethetless, he soldiered on, pointing to the detriment that would be done to his client's case if the evidence they sought were deprived to them

Justice Québec: The Court does not need this material to render a decision

By contrast, when the lawyers for the provincial government presented their views (first Mr. Benoit Belleau, and then Mr. Francis Demers), the judges sat mostly silently. Their few interventions seemed friendly - one was a suggestion that a legal authority was 'not necessary', another was a soft-ball question about the relationship of the information being sought by the industry to the types of material which would be denied under Access to Information rules.

In a soft baritone made almost inaudible by the hard acoustics of the room, Mr. Belleau presented the case that Justice Gascon had supported. (The Court of Appeal is drop-dead gorgeous, but the stone walls and 30 foot ceilings make the high frequencies necessary to speech simply drop dead).  His colleague, Francis Demers, began his short submission by providing a history of the government's participation in the Supreme Court of Canada decision on the constitutional issues in the British Columbia case and ridiculing the idea of requiring governments to divulge pressure from outside organizations.

All over but the judging.

The hearing wrapped up at 12:33 (after a response to the government's submission by Francois Grondin, who represents JTI-Macdonald. The justices left the room and ater a short pause, Justice Morissette returned alone to say that they hoped they would provide their decision at 2:00 p.m. tomorrow (Wednesday).

One reason they may be in a hurry to provide their views is that the next hearing in this case is only 10 days away. On Friday, December 14th, a Superior Court judge will be deciding whether or not the lawsuit filed by the province last June must be suspended until the constitutional challenge is resolved.

The Appeal Court decision on this case will be posted here as soon as it is available.

Post Script:  Although the ruling was not posted on the public web-site of the Court of Appeal until December 12, it turns out that the decision was in fact rendered the following day. The mood of the court against the companies was reflected in the decision -- the appeal was denied.