Thursday, 27 March 2014

Day 222: There were no witnesses

Today’s session was a less formal affair, with the judge and lawyers in suits instead of gowns. Justice Riordan bounced in, ready for the game. The focus was on documents and getting some agreement between the parties.

A very special exemption

First, there was a request from JTI lawyer, Catherine McKenzie, to have a special exemption from the non-cell phone rule for her colleague Patrick Plante, whose partner was about to give birth. Justice Riordan’s first response was, “Why are you here, Mr. Plante?” and readily agreed to the exemption.

Naturally, Mr. Plante was the first presenter. He had new CDs full of exhibits to exchange for previous versions. The exhibits were numbered in the 3000s and 4000s, and there were no arguments.

When Mr. Plante was done, the judge began to greet Nancy Roberts who had arrived from Toronto. But Mr. Trudel jumped up with an urgent matter. He and Mr. Potter had been trading testy remarks before the judge came in. Mr. Trudel objected to an email Mr. Potter had sent to all concerned.

Mr. Potter explained that he was “apologizing for the labyrinthine changes made by the plaintiffs” and thought a table would help everyone find their way. Mr. Trudel jumped up again, and said he would be arguing about individual members of the class. The judge calmly replied that class members (membres désignés) cannot be added to Létourneau, but they could be in Blais. He admonished the defendants that there was no use rehashing all the steps taken since February 2011, and that we should just go from where we are now.

Judgement on amendments

Then, playing his trump card and settling the argument, Justice Riordan read out his judgement on this matter. The Létourneau statement of claim was accepted as amended in February 2014 and the notion of punitive individual damages was put back into the Blais claim.

Back to the CD Exchange

Ms. Roberts and Ms. Grand’pierre had more CDs to exchange, these ones with the 21000 series of exhibits. Everyone agreed.

Ms. Roberts presented some exhibits to be removed from the 2870 list, and all documents were agreed to. Ms. McKenzie said there were only 3 documents left to debate from JTI, but actually there were a few more than that. There was an exhibit (40366) related to Dr. Gentry’s testimony, a scientific paper where one author was dead and the other three had left the country. A rule had been established earlier for scientific articles, and the objection was withdrawn.

Ms. Roberts got her chance to speak and wanted to mention to the court a few documents that would be losing their 2870 suffix. When she finished her brief list, in about two minutes, the judge asked, “You came in from Toronto for that?” She assured him there was more to come.

Then Mr. Bouchard said that RBH’s fact witness, Mr. Chapman, had more documents that needed to be entered. Their numbers were from 30243 to 30316 and included some with .1, .2 suffixes that were from the plaintiffs. Everyone agreed and made changes to their lists. Next, several 2M exhibits were changed to “AUTH”, meaning authentic. Both sides agreed.

Such a lot of agreement! Remarkably, over 200 documents had been admitted as exhibits. “Have all the uncontested documents been filed, Mr. Bouchard?” asked Justice Riordan. Indeed they had. The plaintiffs were ready to debate a few others.

Colour-coded lists

Plaintiff lawyer Gabrielle Gagné had prepared a list and colour coded the debatable and agreed-to documents. Because she usually operates the computer that we see on the screen while her colleagues are talking, there was no one to assist her as she made her presentation. The judge found some colours hard to read, but the technical difficulties were overcome at last.

Numbering such a vast collection of documents, both real and potential exhibits, has been quite a challenge. The judge and many others have worked hard to eliminate duplicate entries and remove exhibits that have been rejected. This list had them arranged in tabs, and the debate was about tabs 18, 19 and 21.

The first was a speech given by Health Minister Judy LaMarsh in 1965, directed to youth. It mentioned a conference, and the plaintiffs wanted to introduce documents about preparations for that meeting. Ms. Roberts argued that the responding or responsive documents had to “complete, clarify or contradict” the initial exhibit. Ms. Gagné replied that the definition of responsive was not the same on both sides of the court. Ms. McKenzie said that this was not a complementary document, but a tangent or even a Trojan horse. Mr. Trudel added an observation as well.

Calmly, the judge said he would listen to all the arguments and decide at the end.

On the next exhibit, Ms. Roberts once again objected that it did not complete, clarify or contradict the initial document, and Ms. Gagné replied that it was related. The judge said he thought “related” was fine. But, but, but, “complete, clarify or contradict” were your own words, said Ms. Roberts. Mr. Riordan replied that they were obvious responses because they were matters of correspondence. Finally Mr. Bouchard discussed Tab 21 that concerned packaging legislation.

A judgement on exhibits

Justice Riordan declared a break, with time for him to digest the arguments. He came back within a half hour with his judgement. Of the eight exhibits at issue, two had been withdrawn, leaving six at issue. Two of these were accepted (RL9277 and RL 9284) and four documents refused because they have no connection to the ones already in exhibits. They could be accepted later in some other way.

So, that was a day with two judicial decisions. The half-day session was nearly over and it was starting to feel a lot like Friday, for a Thursday. 


Then the calendar was discussed, Justice Riordan trying hard to get more work done and avoid empty weeks. Next week is definitely a break, although various financial statements and a list of plaintiff’s reply witnesses have to be prepared.

The next court date is April 8. Financial documents will be filed at 9:30 a.m. and then the court will be suspended until 1 p.m., which is 10 a.m. in Victoria, B.C. Ms. Roberts and Ms. Gagné will examine and cross-examine Mr. James Sinclair in Victoria, with a live video link to the courtroom.