Friday, 14 December 2012

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.