By likely coincidence, two Justices of the Quebec Superior Court issued rulings on January 10th that will have a direct impact on tobacco litigation in this province.
A green light for the provincial government lawsuit
One was a ruling by Justice Stéphane Sansfaçon which rejected a joint request by ten tobacco companies (the multinationals operating in Canada and their parent companies) to have the Quebec provincial government lawsuit put on ice until the industry's constitutional challenge to the legislation that underpines it is settled.
Justice Sanfaçon considered the impact that a delay would have on a case which he describes as "unusual" not only in the amount of damages sought ($60 billion) but also in the length of time required for pre-trial issues. The public interest, he ruled, was in favour of the trial going ahead, and that a suspension could be imposed at a later date should the constitutional issues not be resolved ahead of the actual trial.
Guidance on "Article 2870" documents
The second ruling issued that day was Justice Riordan's assessment of the way in which 'Article 2870' could be used to convert historic documents into trial declarations in the class action suits today winding up their first 100 days of trial.
Justice Riordan used the first third of his 28 page judgement to give the context for his decisions on 19 specific documents and for the principles he would apply in future questions. (He permitted twelve documents to become evidence in this way, but disallowed seven).
These included the justification for documents from the Legacy web-site, conditions for the declarant/declaration (having personal knowledge, being relevant, not expert testimony, not hearsay, etc), the reasons why personal testimony is not required (other than death), and other considerations (admissibility of evidence from corporations and limitations on the need for cross-examination).
Today was the first day that this ruling was to be used as the basis of decisions on other documents that the plaintiffs wanted to enter into the court record. As test-drives go, it was a slow and bumpy drive.
A quick blast from the recent past
The day began with a visit from a familiar face at this trial. Because some of the documents under consideration were taken from BAT's document deposistory in Guildford near London, and because this document source is technically different than the Legacy sites that were the subject of last week's ruling, the plaintiffs brought a surprise witness to help make their case that Guildford documents should be in the same way that Legacy documents are.
The unexpected appearance of Maurice Regnier, the federal government counsel on this case until its liberation, provoked some good-natured comments from Justice Riordan and some grumpiness from the industry lawyers. Mr. Regnier had a good knowledge of the Guildford document depository, which he had visited on a number of occasions, but in the end he was not asked to testify.
The industry lawyers made a quick assessment and - for the first and last time in the day - conceded a point to the plaintiffs. The session was barely underway before Mr. Regnier again took his leave.
Guidelines? New challenges, more like
Justice Riordan might have thought he was issuing guidelines that might pave the way for a smooth review of documents, but it became clear that his ruling had been received as fodder for new types of arguments to block the introduction of evidence.
The plaintiffs had identified several dozen documents from the Legacy site which the they hoped could be admitted into the trial in accordance with last week's ruling. Andre Lespérance presented a spreadsheet table in which these documents were categorized according to some of the criteria outlined in that ruling.
Everything looked in place for a speedy review, but the day ended up being a painful and repetitive hole-poking exercise. The defendant companies took the position that there were no molehills in this list of documents, and each was a mountain to be defended.
At the outset, Suzanne Coté asked for the opportunity to provide some general comments, and then spent 15 of the 6 minutes she was granted to raise new categories of concerns. To my memory, these focused on the trustworthiness (or not) of information introduced this way and the challenges of distinguishing between fact and opinion in such written material.
These themes would be echoed over the day by her Osler colleague, Nancy Roberts, who made a rare appearance in Montreal today and who lead Imperial Tobacco's defense against the introduction of these documents. Time and again, documents were described as "replete with opinion," "hearsay", "double-hearsay" "without fact."
Do you really want the judge to look more closely at those documents?
Ms. Roberts' usual absence from the courtroom may have contributed to her adopting a more over-the-top style than is the norm in this courtroom, where flamboyant speakers are notable but few. The stridency with which she expressed her concerns - "Just try to find a fact there!" "This document is replete with opinion and should not be subject to the extraordinary remedy of 2870 - may have made Justice Riordan think there was a reason she was trying too hard.
Certainly she prompted him to look carefully at some documents, as he began to challenge her assertions and to disagree with her interpretation. Without her high-handed objections, for example, he might not have looked so carefully at the record of a scientific meeting held in Montreal in 1967 in which BAT scientists clearly accept that smoking causes cancer (they are looking to reduce carcinogenicity) and discussing the "minimum" amount of nicotine needed by a "habituated" smoker.
The plaintiffs may have been disappointed with the length of time each document was taking, but the documents that the judge was looking at so closely were helpful to their case. Time well spent, perhaps.
Another "own goal" from Simon Potter
In a similar way, an objection from Simon Potter backfired on the companies as it gave André Lespérance the opportunity to connect the dots between the documents he was trying to put into evidence and some of the central themes in their case.
|Hans Selye changed|
his mind about testifying
in favour of smoking
after receiving research funding.
Simon Potter thought this document should be excluded. "This is a document to and from an American," huffed Mr. Potter. "What is the utility of the document going in?"
It was this objection that allowed Mr. Lespérance to point out that there were other documents under 2870 consideration which showed that only 16 days after the parent company took note of the relationship between Hans Selye's decision to not testify and his non-receipt of funding, the Canadian companies were offering Dr. Selye $100,000 per year, an offer which was accepted. Lo and behold! In June of that year, Dr. Selye did indeed appear before the parliamentary committee to express his views that there were benefits of smoking.
"Mr. Selye was famous in Quebec," said Mr. Lespérance. "The companies wanted him to testify at the Isabelle committee. They wanted someone to confuse the public, or create a denial."
There were few such entertaining moments in the afternoon. The companies continued to push at what they thought were soft-spots in the plaintiff's rationale, putting particular emphasis on potential witnesses still being alive.
Even seemingly innocuous and routine documents, like organization charts, were the subject of vigorous opposition. ("If a statement is the equivalent of testimony, this is the equivalent of about 100 statements about which people occupied which positions at which point in time," objected Simon Potter).
Most of the documents reviewed today are quite old, and from an historical perspective are important parts of the Canadian tobacco story. They include:
* a 1969 memo shared across the BAT group about the Canadian industry's successful coordination at the Isabelle Committee,
* a 1972 marketing conference where the commercial benefits of low-delivery products were advanced,
* a 1968 meeting where the scientists made clear that there was a difference between making a cigarette that smokers thought was safer (a health reassurance cigarette) and one which was actually less harmful.
Last week's ruling seems to have given the companies new energy to make putting them on the record a longer process than anticipated. As the clock ticked slowly towards quitting time, Justice Riordan sighed "I think I have had enough of this. I will see you tomorrow at 9:30."
Wednesday morning discussion will continue on Article 2870 documents. In the afternoon, the second expert witness for the plaintiffs, Mr. Christian Bourque of Leger Marketing, will testify.
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.