Wednesday, 12 December 2012

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.