Thursday, 20 March 2014

Day 219: The foggy road ahead

It was an odd amalgam of formal legal arguments, informal negotiations, logistical discussions and name-calling during the half-day session of the Montreal Tobacco Trials.

As the "defence proof" winds to a close (only 3 more expert witnesses to go!), there is a lot of interest in seeing the next stage take shape. When will the plaintiffs present their counter proof? What structure will be imposed on the final arguments? Will there be class members?

All these were up for discussion -- but for someone, like me, who has little or none of the paper work, there was more mystery than discovery. Nonetheless, I am reasonably confident that little has yet been decided. If anyone knows for sure what will be happening in May, they aren't sharing.

The calendar and remaining defence witnesses

There seems to be little incentive for the defence to get to the end of this trial, and those few witnesses who remain seem to be steadily pushed later in the schedule. Illness. Jewish Holidays. Personal issues. Scheduling conflicts.

Today another empty week appeared. There will be no hearings for the first two weeks of April.

The court was informed -- in the mildest of tones, as though it were never ever much of an issue -- that Simon Potter and Lyndon Barnes would not, after all, be called as witnesses for Imperial Tobacco. An interesting cross-examination never to be heard!

The plaintiffs' counter-proof

As far as I know, the plaintiffs still intend to call three experts to respond to things that have been said in recent months: Mr. Paul Slovic will reply to Kip Viscusi's views on warnings, Mr. Siemiatycki will respond to the comments of the past two weeks and perhaps Mr. Proctor will also return.

But when? Not yet settled.

Quebec smokers as witnesses

One reason for the uncertainty about the counter-proof is the ongoing dance about the scheduling of class members. Will they testify after the defence counter-proof? Or will they be heard first, as would be the normal course of events?

Imperial Tobacco is the only company with plans to call these Quebecers. I heard today that it has identified some of the individuals they wish to call, but have not yet shared their entire list with the plaintiffs. Suzanne Côté, who is managing this aspect of the case for Imperial, was told to provide the list of witnesses by next week.

Before scheduling her witnesses, Ms. Côté wants to know how the Appeal Court will rule on her request that it allow access to the medical records of these people. She said today that she would not schedule witnesses in advance of this, as she did not want to have to recall them for a second appearance.

If the Appeal Court upholds Justice Riordan's ruling to keep these records out of bounds, witnesses will likely be scheduled soon after. If, on the other hand, it says that the records must be produced, then all bets seem to be off the table.

I heard today that it can take a considerable time for a complete version of those records to be obtained - and that's before the argy-bargy about expert opinion on them!

Capacity to pay: show us the money

One of the last parts of the trial will be evidence on how much money the companies have. It has yet to be scheduled, but today's brief discussion makes it sound like it might be a lively one.

Financial capacity to pay is a factor in determining amounts of punitive damages, as set out in Quebec's Civil Code, article 1621:  Where the awarding of punitive damages is provided for by law, the amount of such damages may not exceed what is sufficient to fulfill their preventive purpose.

Punitive damages are assessed in the light of all the appropriate circumstances, in particular the gravity of the debtor's fault, his patrimonial situation, the extent of the reparation for which he is already liable to the creditor and, where such is the case, the fact that the payment of the damages is wholly or partly assumed by a third person. 
(There are lots of unusual expressions in Quebec courts. "Patrimonial situation" seems a very peculiar way to describe assets.)

Today, Justice Riordan instructed Imperial Tobacco and Rothmans, Benson and Hedges to provide updated financial statements to the plaintiffs. (The versions made public will be redacted).

The plaintiffs know all too well the situation of JTI-Macdonald. Last week the Court of Appeal rejected their request for a review of the ruling of Justice Mongeon to not impose a hold-back on the revenue from that company before it is sent back to Tokyo in the form of a loan-payment.

Their "transactions" to reorganize themselves into a debtor subsidiary instead of a profitable branch plant as a tax-minimizing strategy remain intact. Where, you might ask, is Revenue Canada ????

The amended proceedings

It would appear that there have been several versions of the plaintiffs' motion to amend their claim, a subject that has been discussed at least twice before. It sounded like the areas of concern had been considerably narrowed, and Justice Riordan indicated he would rule soon. (Another connected motion was not revisited today).

The final arguments

Justice Riordan has circulated an outline for the final arguments - not, he emphasized, to limit what they say or what topics are covered, but to create a parallel structure to each submission for ease of review.  The parties have responded to this, and it was discussed today. Much more than that, I can't tell you!

The trial resumes on Monday with testimony by Stephen Young.