Thursday, 8 May 2014

Day 231: 45 minutes to nowhere

The Montreal tobacco trial sat for a brief 45 minutes yesterday, May 7th.

There were two main topics discussed -- and on neither of them did Justice Riordan seem to get the answers he was seeking.

How can I rule in secret?

The first was the proposal made by both sides last week that the issue of confidentiality of business records be resolved at the end of the trial.

The financial status of the companies is relevant to any punitive damages that might be assigned against them, and so the companies were required to file current financial statements. They were made part of the trial record last month, and put under seal to allow the companies to make a case that the should remain confidential.

Although the debate on the request of the companies for these records to remain sealed, the issue has yet to be discussed

The plaintiffs asked that it be postponed to the end of the trial. My inference is that they want no risk of further delays while another interim (interlocutory) ruling is sent to the Court of Appeal. If Justice Riordan ruled that these documents should be public, the companies would almost certainly do what they could to prevent that outcome.

Today, Justice Riordan shared  his "uncertainties" about the suggested approach of a delay on this question. "If the confidentiality issue is still open at the time that I [make a ruling],  it will be necessary for me to decide the question and execute it right away by divulging the things I consider appropriate."  

He asked whether the companies would renounce their right to appeal his decision on confidentiality if this approach was taken. The answer "no" did not seem to surprise him. He responded without enthusiasm to the various options put to him of how he might manage the issue - saying that under these suggested approaches he would be asked to skate a fine line!

She made herself clear.

If there was a big ticket item in this morning's discussion, it was the postponed discussion about Justice Riodran's suggestion to have a small sample of class members testify before the issue of medical records has been resolved. (The Court of Appeal has yet to decide how it will treat Imperial Tobacco's request to overturn Justice Riordan's ruling against their having access to these individual medical files).

Imperial Tobacco is the only company wanting to hear from these witnesses, and Ms. Côté, it would appear, is the only one of its many lawyers on this case who can speak to this part of their defence. Justice Riordan has had to wait until Ms. Côté could be present to suggest this way of accelerating business.

Ms. Côté came prepared with many justifications to her resounding "NO" to his suggestion. In her trade-mark staccato and with her right-hand index finger steadily wagging, she reminded the judge of her right to run her defence the way she desired. ("C'est mon droit!") and of her earlier cooperation in getting a preliminary ruling last year. She talked of the need to have these records in the selection of their witnesses, and also in the choice of questions to witnesses and the sequencing of both.

She said she was confident that the Court of Appeal would agree with her. She even cited one of the comments from the higher bench during the February hearing as being supportive of her position that these personal records were important to her ability to challenge the recollection and behaviour of smokers.

Alternative approaches -- like interviewing a sampling of class members through out-of-court depositions were briefly discussed, but there seemed to be no agreement on these either.

Justice Riordan did not belabor the point. If he was disappointed or felt backed into a corner of an increasing delay, he showed it only in a back-handed way. He complimented the ability of Ms. Côté's seat-mate to follow the discussion. "Your French is getting pretty good, Maitre Lockwood. By the time the trial finishes in 2020, you will be fully bilingual!"

Three May Days

Until the issue of class members is resolved, there are now only 2 days of trial remaining - and only 1 witness.

Next Wednesday, the last of the "2870" documents will be considered. On the following Friday, the head of JTI-Macdonald, Mr. Michel Poirier, will testify.

Another trial. Another management discussion!?

With more time on my hands than I expected, I went to enjoy a late breakfast at the cafeteria on the 5th floor of the Palais de Justice. My concentration on the morning's crossword was broken by the arrival of familiar voices at the long table beside me.

A dozen men and a couple of women -- among them Sylvana Conté, Allan Coleman, Francois Grondin -- were settling down to exchange views on the instructions they had just received from "Sanfaçon." I gathered they meant Justice Stéphane Sanfaçon, who is presiding over the Quebec government cost-recovery law-suit against their clients.

Neither good at nor comfortable with eavesdropping, I moved to a distant table.  Had I stayed, perhaps we would all know more about what is going on in that mysterious venue!