Wednesday, 8 May 2013

"Interlocutory indigestion"

For information on accessing documents, see note at the end of this post

This has been a week of anticipation for the litigants in the Montreal tobacco class action trial.

Last week, the judge in his multi-billion lawsuit heard three days of arguments on the tobacco companies' request that they should be allowed to walk away from the case without having to formally present any  defence.

Justice Riordan indicated that he would rule on these questions this week -- and he boxed himself into that commitment by scheduling the opening day of the companies' defence for next Monday (May 13th). Fair to say there has been a fair amount of e-mail checking the past couple of days to see whether his ruling had yet been delivered.

A ruling did arrive today -- but this one is not on the BIG QUESTION of whether or not the class actions should be thrown out, but is instead on a sets of requests made by Imperial Tobacco on how the evidence against them would be managed.

Although all three companies requested an end to the trial, only Imperial Tobacco asked for the plaintiffs to be limited in how they could use the 3100 exhibits that have been put on the trial record over the past 14 months.

The answer to these questions today was a resounding  and explicit "NO". The tone of the ruling implicitly signals that the companies have very little reason to hold any hope that Justice Riordan will agree to dismiss the case.

No further privileges on parliamentary statements:
On several occasions, the companies made claims before parliamentary committees about tobacco issues. Although many documents related to these statements, and the companies' preparations for parliamentary hearings, have been subject to claims of "parliamentary privilege," Justice Riordan has elected to postpone any final ruling on which material will be allowed and which won't. In today's ruling, he again keeps the door open for this material, saying that he saw no justification to intervene to disallow this material or to force the plaintiffs to provide further information on how these documents would be used. (Later this month, the plaintiffs are to indicate whether there was an extra-parliamentary "repetition" for this material).

No downgrading of NQA exhibits  
Imperial Tobacco has consistently objected to the filing of exhibits on which no questions have been asked of witnesses (NQA), and had formally asked for these exhibits to be given the same lesser status that Justice Riordan had established in his "May 2nd" ruling for documents that were not entered through witnesses. ("Authenticity proven, but not their veracity"). Today he ruled that Imperial had failed to provide any legal arguments ('authority') which would support this request to make these documents "second-class exhibits" and rejected this request.

No requirements to rule out some exhibits
Imperial Tobacco had requested that the plaintiffs be required to disclose which of the 3100 exhibits now on the trial records they would not be  using in their final arguments. Justice Riordan described this tall order as  "a most novel approach to the rules of evidence" and refused it, saying "there is no rule of law of which the Court is aware that would require such a divulgation."

No further requirements to identify parts of exhibits
Somewhere over the last year, at the request of Imperial Tobacco, Justice Riordan had asked the plaintiffs to mark-up long exhibits by highlighting those passages that they would be relying on. Gradually, this was applied to all documents over 10 pages in length. Last week, Imperial Tobacco asked for this obligation to be imposed on all documents, and for the plaintiffs to be restricted from using parts of the documents that were not highlighted in this way.

Again, the judge said no, and stressed that "there is no rule of evidence or procedure that requires a party to divulge its ultimate strategy with respect to each exhibit at the time it is filed." 

No constraints on admitting further admissions - at least not yet
Imperial had asked for the plaintiffs to be forced to identify any portions of the lesser-status "2 May/2M" documents that would later be held up as "admissions" by the plaintiffs. The company argued that any such passages needed to be included in the proceedings (the initial paperwork), and could not be introduced at a later stage.

Justice Riordan did not rule directly on this request, but punted this issue for a later decision. He said "ITL can plead its case again with specificity after the plaintiffs have completed their final argument and identified the admissions in question."  One reason he cited for this reticence was the spectre of additional rounds of appeals: "The carrot of a shortening of the proof in defence is overshadowed by the stick of interlocutory indigestion" 

On May 13th, the second phase of this trial will begin when the companies present their first witness, historian Jacques Lacoursière.  Before then - hopefully - his ruling on the pre-defence motions!

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:

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.