Wednesday, 14 May 2014

Day 232: A newly resolute judge

It was a great day to be in Montreal -- one of the first truly warm days of the season, with the trees finally turning green and the restaurant patios fully ready for business. All over town, Montrealers were sporting the colours of their hockey team - anticipating the Habs' seventh-game victory in the Stanley Cup quarter finals later in the evening.

It was business dress, of course, in the courtroom where this week's only hearing of the Montreal tobacco trials had its usual 9:30 a.m. start. But the mood of the courtroom was as wound-up as the hockey arena would be later that night.

Only 20 hours earlier, the Court of Appeal had backed Justice Riordan's management of the trial, slapping down the attempt by Imperial Tobacco to impose further (medical-record-seeking) delays. Today, the judge would finally be able to impose a schedule for the end of the trial.

Justice Riordan began the session, grim-faced, with a few small items. Are some records exhibits? (yes). How best to manage ruling on confidentiality of financial statements? (still being worked out, I think). Can duplication be avoided in the companies' common positions on final arguments? (yes)

These throat-clearing items dispensed with, his show-down with Imperial Tobacco's counsel, Suzanne Côté, began.

For weeks he has asked, without getting an answer, whether or not the company intended to call witnesses even if they lost their appeal and were not able to use the medical records of these Quebec smokers. Today he told Suzanne Côté that the time had come to fish or cut bait! "Next Tuesday morning we will hear members of the group."

Ms. Côté still would not commit to a course of action. She used the well-worn excuses to demand time. They were still reading the ruling, she protested, and had not yet consulted with their client. She would need a week before she would know whether class members would be called and, if so, she would need more than a week to prepare for the testimony.

With obvious frustration, Justice Riordan gave her until next Tuesday night to communicate her team's intentions. He gave no sympathy to her demand for preparation time.  "ITL has known for months that it was possible that they won't have access to medical records - you are not starting from zero. You knew very well that there was a possibility that the Court of Appeal would reject your request. I would be stunned if you were not already prepared."

The trial will convene next Wednesday to hear what Imperial Tobacco has decided and to plan next steps.


Other than the class members and a few loose threads, the only other items before the end of the trial  are the final arguments. Justice Riordan pushed the parties for agreement on time-frames for the preparation of their 'notes and authorities' and the time required to present final arguments.

Pre-empting the discussion from becoming too bogged down was his clear intention to put a finishing line on the exercise. "I want everything wrapped up by Christmas. Put this in your mind."

The last day for exhibits

The remainder of the day was spent processing a few hundred "2870" exhibits, and a small handful that were entered with consent. This exercise has been repeated several times over the past year and a half, and Justice Riordan's patience with the companies' vociferous arguments seems to be wearing thin.

One flash-point was when Imperial Tobacco counsel, Nancy Roberts, wanted to enter one side of an exchange of correspondence over complaints about cigarette ads. She wanted the judge to allow the response to become a full exhibit, but to refuse the same status to the complaint that initiated the review. The authors of those complaints were alive, she said, and should have been asked to come and vouch for the correspondence and be available for cross-examination.

"It is said that the law is an ass," said Justice Riordan. "But I try not to be too often." He told her the documents would be allowed on file without any qualifications to diminish their status, and gave her a week to subpoena the authors. Ms. Roberts sputtered a protest, and was clearly upset. From that point to the end of the day, her aggrieved tone made the exercise even more unpleasant to watch.

Even when Justice Riordan sided with her on a later document disputed by the plaintiffs, it was coloured with a relationship made fractious over months. Pierre Boivin reminded the judge that Ms. Roberts was demanding a concession that she had been unwilling to agree to for the plaintiffs. "I agree with you, they were unreasonable," Justice Riordan told him. "But I do not want to be unreasonable." 

Some of the titles of the documents could be seen on the overhead screens, but it is hard to know how interesting to the outsider the material filed today will be.

The trial resumes next Wednesday, with a management discussion about the schedule. On Friday, May 23rd, the head of JTI-Macdonald will testify about the companies financial situation.

This post has been backdated to provide continuity in indexing