Wednesday, 2 October 2013

A very different discussion

While the Blais/CQTS-Létourneau class action suits take an unusual two-week break, two other tobacco related court trials moved forward in Montreal courts.

The first of these. as already reported, took place at the Court of Appeal last Friday.

The second, taking place this week, is an attempt by the tobacco companies to avoid being sued by the Quebec government. They want the Court to throw out parts of the  the Tobacco-Related Damages and Health Care Costs Recovery Act, Bill 43, the legal foundation for the government's suit.

The story so far

Four years have passed since Bill 43 was passed and almost as long since the companies first filed their challenge to the law. Yet it is only now that the substance of their concerns has made its way to court. (A chronology of related events is at the bottom of this post).

Proliferating pre-trial motions are an inherent part of tobacco litigation - they don't call it a scorched earth strategy for nothing!

Quebec is not the first government to have its damage recovery law put through the constitutional wringer. It was British Columbia that, starting in 1997, developed the template for these laws and it was the B.C. law that faced a few setbacks before being given the Supreme Court of Canada's stamp of approval in 2005.

But if you thought the Supreme Court settled the matter for all Canadian provinces with similar laws, you are not a tobacco industry lawyer in Quebec!  The industry's view is that the constitutionality of the Quebec law is not, as they say here, a "chose jugéé", and this is because Quebecers have more rights than other Canadians.

Quebec's Charter of Human Rights and Freedoms gives specific rights with respect to trials (section 23) and, unlike the Canadian Charter, gives limited property rights (section 6). (A convenient explanation of the Quebec Charter, its relationship to other laws, and how it differs from its federal equivalent through the inclusion of economic and social rights can be found here).

This week the companies were finally able to put their views before Justice Robert Mongeon of Quebec's Superior Court.

Taking it down a level

The swank penthouse courtroom where the Blais/CQTS-Létourneau trial takes place is one floor and many star-levels above the modest 16th floor courtroom of this week's hearing.

No high ceilings. No fancy overhead screens. No computer networking. No sound system. No stenographer.  Twelve lawyers -- the government lawyers were outnumbered two-to-one -- crowded around tables that would not have looked out of place in a high school cafeteria.

But it was not only the facilities that had been taken down a notch. The tense and prickly atmosphere between tobacco lawyers and their opponents was also considerably reduced. During the breaks the lawyers chatted comfortably amongst themselves, even joking about the issues before them. (An industry laughed about "an addictive product being called 'Craven'!" .  "That's one of yours, isn't it?" another teased.)

Nor did Justice Mongeon show the same level of caution in his remarks that Justice Riordan displays. He openly disagreed with the arguments put to him, with the interpretation of certain rulings (including some of his own) and even with the philosophical approach they were taking. His interjections were always given in the tone of a relaxed exchange of ideas.

Perhaps, in a short trial where whatever he writes will inevitably be appealed to a higher court, Justice Mongeon is not worried that his remarks will make any difference to the outcome.

This trial has no witnesses, no evidence. In effect, the relaxed hearing was no more (or less!) than a legal and philosophical discussion about some legal principles. Close your eyes and you could have been listening to a debate in the Faculty Club. All that was missing was the whisky.

The right to a fair trial
Every person has a right to a full and equal, public and fair hearing by an independent and impartial tribunal, for the determination of his rights and obligations or of the merits of any charge brought against him. (Quebec Charter of Human Rights and Freedoms, s.23)
Simon Potter (who represents Rothmans, Benson and Hedges) was the first to present the case, and to explain that this Quebec law would deprive his clients of a fair trial and would deprive them of their economic rights.

He lay the blueprint for the arguments that would be built on later by François Grondin (JTI-Macdonald) and Eric Préfontaine (Imperial Tobacco). In silent support of their colleagues were RBH counsel Pierre-Jérôme Bouchard and Emira Tufo, JTI Counsel Guy Pratte and Patrick Plante and Imperial Counsel, Julien Morissette.

Say this for Mr. Potter, he explains things clearly and verbally underlines and highlights his key points to that they can't be missed. Even without access to the thick binder of written material arguments and submissions that are hidden from public view, his argument was not too difficult to follow.

He said it was the compounded effect of the many provisions of the law - "le cumul" - that tilted the balance of a trial under this law so much in favour of the government that the companies would be deprived of an equal or fair trial. The removal of any limitation period! The presumption of causation! The reverse burden of proof! His job in defending his clients would be well-nigh impossible.

Mr. Potter argued that tobacco companies were the only Quebecers to have been exposed to such unfairness to date, and that the judge should intervene to prevent such an approach from spreading.  "We have never seen anything like this - something that has so helped the side of the plaintiffs and so hindered the defendants."

Yes, he said, the government had the right to sue, and the section of the law which gave them this right was constitutional. But as for the rest? "Section 23 should not be powerless before the parts of the law that deal with the equitability of the process."

Justice Mongeon and respect for the law.

It was on the key question of whether the courts or the legislature had the upper hand that Justice Mongeon gave the least comfort to Mr. Potter. He repeated more than a few times that legislators had the power to change the rights of citizens. "Rights are determined by law, restrictions are determined by law" ... "the responsibilities of your client can be changed by legislators."

In a jovial and anecdotal way, he suggested he had learned the hard way that courts had a limited role to play. He spoke of a case where he had ruled to protect what he saw as the right of a person to a free and fair trial and was "shot down in flames" by the Court of Appeal. "They told me that I had to follow the way the law was written down."

Citing a recent high profile case (The Kazemi claim), he acknowledged ruefully that the Court of Appeal "took 73 paragraphs to tell me I was wrong on one point."

He spoke of the need for future laws that might affect lawsuits. "We are in an evolving world  - What if we were to have an environmental catastrophe?" (Was he thinking of Lac Megantic?) "If the legislator puts a special rule in place, the damages will be established in a different way in addition to the normal ones ... is it fundamentally unlawful?"

Despite saying that he was still "undecided" on these questions, his interventions seemed to me to be more numerous and more sincere sounding that mere devil's advocacy would require.  "This is not the first time that a legislator changes the rules." .... "Every trial will have its share of fairness or unfairness." ... "What is good for some is bad for others."

The right to property 
Every person has a right to the peaceful enjoyment and free disposition of his property, except to the extent provided by law. 
(Quebec Charter of Human Rights and Freedoms, s. 6)
Quebec's Tobacco-related Damages and Health Care Costs Recovery Act removes limitation periods that would otherwise prevent lawsuits for wrongs that had been committed more than a few years' earlier.

This, argued François Grondin and Eric Préfontaine, affected the companies' rights to the enjoyment of their property. Particular concern was expressed that Bill 43 "retroactively" removed the limitation period for the class actions now underway. (These suits were filed a decade before Bill 43 was passed). 

With $60 billion on the table following the Quebec claim and $27 billion involved in the class action suit, the "patrimoine" of the industry was put at great risk, said. Mr. Grondin. "If this doesn't infringe property rights, what would?"

For much of their presentation, Mr. Préfontaine and Mr. Grondin identified and cited some of the 60 or so authorities they had brought to the trial,  many of which seemed to be based on the application of similar property right provisions in the European Convention on Human Rights

Again, the judge's comments offered cold comfort. He questioned how the companies' view could be reconciled against well accepted existing laws, such as those that "presume" the value of a car in a car accident, or that allow for property expropriation, or that set unequal tax rates.

The other side of the argument

Today lawyers for the Quebec government will present their views to Justice Mongeon. Stay tuned for a report from my fellow blogger, Pierre Croteau.

A chronology of related events

June 19, 2009
The Tobacco-related Damages and Health Care Costs Recovery Act (Bill 43) comes into force.

August 29, 2009
Imperial Tobacco, JTI_Macdonald and RBH file a constitutional challenge against Quebec's Bill 43. (The later amended version of this motion is not available electronically).

October 2, 2009
Quebec government asks the court to dismiss the constitutional challenge, in light of the 2005 Supreme Court decision.

November 2, 2010
Justice Paul Chaput rules against the government, and allows the constitutional challenge to proceed. (The Court of Appeal says it will not reconsider the request.)

January 10, 2011
Justice Stéphane Sansfaçon turns down the industry's request for the government lawsuit to be suspended until the constitutional issues are resolved.

The Constitutional challenge to Quebec's damage recovery act continues today and possibly tomorrow. On Monday (October 7), the class action trial resumes. Mr. Anthony Kalhok is the expected witness.