Monday, 30 September 2013

On the other side of the street...

When Justice Riordan granted the industry's request for an extra week's suspension in October, no mention was made that this was the week when the companies' lawyers were finalizing presentations for two different tobacco-related hearings.

A court room at the
Ernest Cormier Building,
Montreal's Court of Appeal
The first of these took place last Friday (September 27) in the beautiful Art-Deco Ernest Cormier building that lies kitty-corner to the court-house where the Montreal Tobacco Trials are being held.

It was in one of the smaller hearing rooms of Montreal's Court of Appeal that Justice Jacques Fournier spent three hours listening to why he should - or shouldn't - allow the foreign owners of Canada's tobacco companies to appeal a lower court decision which denied them a "get out of jail free card" in the Quebec government's suit.

The second hearing began this morning and will continue through this week at Quebec's Superior Court. Four years after the tobacco companies launched a constitutional challenge to the law which underpins the Quebec government tobacco lawsuit, the arguments are finally before Justice Robert Mongeon. -  More about this hearing in tomorrow's blog!

Tenth time lucky? 

Eight years have passed since a Vancouver court was first asked whether provincial governments could include the foreign parent-companies (i.e. British American Tobacco or Philip Morris) in their lawsuits to recover the costs of treating smoking-related diseases.

In the intervening years, the same question was asked in three other provinces. As in British Columbia (2005), courts in New Brunswick (2009), Ontario (2012) and now Quebec (2013) have all ruled that foreign owners may not be excused from these lawsuits.

Higher Courts have agreed. Although Appeal Courts in British Columbia, New Brunswick and then Ontario have permitted appeals to lower court rulings, they have upheld all of them. The Supreme Court of Canada has twice declined to hear further appeals (re British Columbia and New Brunswick), and may do so again when it decides the request for a review of the Ontario ruling.

Yet despite having - count 'em - NINE court decisions against them, BAT and Japan Tobacco nonetheless are trying their luck one more time. (Philip Morris has not participated in the appeal process to decisions subsequent to their loss in the B.C. rulings).

Shades of Grey

And so it was that last Friday morning a dozen tobacco industry lawyers crowded onto the hard benches in and waited for Justice Jacques Fournier to work his way though a handful of other cases before they could make their pitch that this time it was different.

There were some faces familiar from the Blais/CQTS-Létourneau trial, and some new ones. Among the lawyers involved in both cases were JTI-Macdonald's counsel, François Grondin and Guy Pratte, as well as Imperial Tobacco's counsel Sylvana Conté and BAT's Vancouver-based lawyer Dennis Craig.

There was no fancy dress for this occasion. Instead of identical black robes, the company lawyers wore nearly identically tailored grey suits. Justice Fournier's baby-blue woolen sweater, worn under his jacket, was a striking contrast.

Getting past the first gate

The first hurdle at the Court of Appeal is to get a single judge to agree that the issue is worth a second look.

To that end, the grey-suited contingent who faced Justice Fournier from the spectator's seats behind the industry's side of the room may have been designed to send a visual message that this was an important case. (A colleague reminds me that the "wall of flesh" is a standard tobacco courtroom tactic.)

Nonetheless, their case was presented as though they knew they had an uphill battle. They acknowledged the temptation to see this as a settled issue, and energetically provided Justice Fournier with a series of reasons to think that it was worth opening the door to the appeal.

Francois Grondin, who represented Japan Tobacco, presented the first and longest presentation and also fielded most of the judge's questions.

He focused quickly on the ways in which the law was different in Quebec, and why the ruling of the Quebec lower court did not deserve to stand unchallenged. He said that Justice Sansfaçon had "taken the wrong approach" and had made serious errors in the way he interpreted provisions of Quebec's Civil Code. Of particular concern to him was what he saw as a failure to recognize that the government action should be dealt with under the Code's rules for "personal actions of a patrimonial nature" (Article 3148).

BAT's twin subsidiaries, BAT Investments and BAT Industries, each had their own representatives. Both of them offered Justice Fournier additional novel questions that the Appeal Court should weigh in.   Are we dealing with "prejudice" or "cost" and aren't these different? What if the fault is not committed in Quebec? How then can there be a prejudice in Quebec? What about subrogation? Can a voluntarily assumed obligation be a damage?. 

Perhaps they were hoping to incite the institutional vanity of the Appeal Court. They frequently stressed the unique legal framework in Quebec, and pointed to the intellectual juiciness of the new legal issues that might surface if their appeal were granted.

André Fauteux, the government lawyer who is directing Quebec's tobacco litigation efforts, was tasked with giving Justice Fournier the reasons to reject the appeal. If the other side had offered the temptation of novel legal questions, Mr. Fauteux presented the business case for not wasting court time on an issue that had been thoroughly gone over.

Similar questions about similar laws had been raised in similar courts by the same plaintiffs in different provinces, Mr. Fauteux pointed out. No more time should be spent re-hashing arguments that have been heard and dismissed elsewhere. "You don't need 3 judges to reach the same conclusion."

Around 1:00 p.m., Justice Fournier gathered his books and prepared to leave, commenting on the ease of the decision that lay before him. The extent to which that comment was ironic might be reflected in how long it takes him to make a formal decision.

Postscript: On October 4th, 2013, Justice Fournier turned down the industry's requests for leave to appeal. He said that the appeals would not likely succeed and that he had not been convinced that it was in the interests of justice to allow the appeal.

During the rest of this week, the trial of the industry's constitutional challenge to Quebec's Tobacco-related Damages and Health Care Costs Recovery Act continues in Room 16.03 of the Palais de Justice.

The Blais/CQTS-Létourneau action resumes next Monday, October 7th.