Late yesterday afternoon, I received word that the Montreal tobacco trials would reconvene this afternoon, and that it would be the last session until the final arguments begin in late September.
That is to say, today was the last day for the "Defence proof". I don't think many heard about today's suddenly-scheduled sitting, or perhaps no-one cared to come to see the end of this stage of this long trial.
There were very few lawyers (i.e. only a dozen) in front of the bar, and I was the sole onlooker. Even Justice Riordan had not been made aware that this, indeed, was IT for the defence proof. He smiled broadly when he heard the news that there would be no more witnesses.
There was not much to be done on this last day. For slightly over an hour, a fine tooth comb was run through the now-massive set of defence exhibits. (In addition to media reports, I count about 2,500 exhibits for Imperial Tobacco, 2,000 for JTI-Macdonald, and a paltry 400 for Rothmans, Benson and Hedges.) Much of today's business was taken up in addressing the status of various exhibits, removing reserves, correcting indexing errors.
Some final pieces of evidence were put on the record. Under confidential seal now rest several hundred documents related to the insurance policies of the three companies. (These are relevant to their capacity to pay, apparently). One or two things will be done by e-mail in the coming weeks. One of these is an agreement being negotiated on the defendants' side about how many cigarettes each company sold in Quebec.
Imperial Tobacco would appear not to favour the calculations that the plaintiffs submitted last year, but have not yet apparently convinced their co-defendants to agree on new numbers. Imperial Tobacco's market share in Quebec is lower than in the rest of Canada, and JTI-Macdonald's is higher, so a difference in opinion between these two companies on how the pie of any damages should be cut is not so surprising.
Reluctant to call it over
Within an hour, all that was left was for each of the defendant parties to declare their proof closed. None of them volunteered to do so - and plaintiff lawyer, André Lespérance stood to tease his colleagues on the other side into making this declaration.
It was like pulling teeth. For professionals trained in the art of delivering fine speeches, they were surprisingly reticent to mark the occasion with words. On behalf of Imperial Tobacco, Craig Lockwood mumbled something that the transcript might have caught more clearly than I did.
RBH's lead, Simon Potter, spoke quite clearly -- but only to explain why he was NOT going to declare his proof closed, even though he "had no intention of making further proof." Not until the final thread is knotted, appears to be his view.
Guy Pratte, for JTI-Macdonald, was saved by Justice Riordan's intervention. As though dealing with teenagers, the judge took the matter into his own hands. 'I will assume the proof is closed unless I hear from you."
Running time?
With that declaration, it seems fair to stop the clock, and to time how long the defence took to present its case in comparison with their predictions at earlier stages of the trial.
In February 2012, each party provided a "provisional declaration" of the witnesses they intended to call. At that time, two of the three companies foresaw more than 87 days in testimony (I did not see a time estimate from JTI).
In January 2013, at the request of Justice Riordan, they provided a common "preliminary and partial list of defence witnesses." More than 216 days of testimony would be required, plus additional time for the several witnesses that would be called from government.
In April, just before the defence began, another set of intended witnesses was provided. This list would have taken slightly less time -- at 183 days for witnesses. It was on the basis of this list that Justice Riordan ruled last May 15th that the companies would have to limit themselves to no more than 175 days.
They certainly had no trouble doing so. They used 94 to 97 trial days (depending on whether their proof was considered to start from Day 138 or Day 141 until it closed on Day 234) of which about 85 were used to hear witness testimony. Much less than half the time they ever thought they needed, and only slightly more than half the time Justice Riordan allocated.
A table is pasted below.
Between now and the time the trial is scheduled to return (September 22, 2014), there are two important deadlines. The plaintiffs are to have their written "facts and arguments" submitted by July 8th, and the defendants must submit theirs by September 16th. Further developments will be posted here!
Happy summer...
---------------------------------------------------------------
Comparison of estimated days of defence witness testimony at various stages of the trial
That is to say, today was the last day for the "Defence proof". I don't think many heard about today's suddenly-scheduled sitting, or perhaps no-one cared to come to see the end of this stage of this long trial.
There were very few lawyers (i.e. only a dozen) in front of the bar, and I was the sole onlooker. Even Justice Riordan had not been made aware that this, indeed, was IT for the defence proof. He smiled broadly when he heard the news that there would be no more witnesses.
There was not much to be done on this last day. For slightly over an hour, a fine tooth comb was run through the now-massive set of defence exhibits. (In addition to media reports, I count about 2,500 exhibits for Imperial Tobacco, 2,000 for JTI-Macdonald, and a paltry 400 for Rothmans, Benson and Hedges.) Much of today's business was taken up in addressing the status of various exhibits, removing reserves, correcting indexing errors.
Some final pieces of evidence were put on the record. Under confidential seal now rest several hundred documents related to the insurance policies of the three companies. (These are relevant to their capacity to pay, apparently). One or two things will be done by e-mail in the coming weeks. One of these is an agreement being negotiated on the defendants' side about how many cigarettes each company sold in Quebec.
Imperial Tobacco would appear not to favour the calculations that the plaintiffs submitted last year, but have not yet apparently convinced their co-defendants to agree on new numbers. Imperial Tobacco's market share in Quebec is lower than in the rest of Canada, and JTI-Macdonald's is higher, so a difference in opinion between these two companies on how the pie of any damages should be cut is not so surprising.
Reluctant to call it over
Within an hour, all that was left was for each of the defendant parties to declare their proof closed. None of them volunteered to do so - and plaintiff lawyer, André Lespérance stood to tease his colleagues on the other side into making this declaration.
It was like pulling teeth. For professionals trained in the art of delivering fine speeches, they were surprisingly reticent to mark the occasion with words. On behalf of Imperial Tobacco, Craig Lockwood mumbled something that the transcript might have caught more clearly than I did.
RBH's lead, Simon Potter, spoke quite clearly -- but only to explain why he was NOT going to declare his proof closed, even though he "had no intention of making further proof." Not until the final thread is knotted, appears to be his view.
Guy Pratte, for JTI-Macdonald, was saved by Justice Riordan's intervention. As though dealing with teenagers, the judge took the matter into his own hands. 'I will assume the proof is closed unless I hear from you."
Running time?
With that declaration, it seems fair to stop the clock, and to time how long the defence took to present its case in comparison with their predictions at earlier stages of the trial.
In February 2012, each party provided a "provisional declaration" of the witnesses they intended to call. At that time, two of the three companies foresaw more than 87 days in testimony (I did not see a time estimate from JTI).
In January 2013, at the request of Justice Riordan, they provided a common "preliminary and partial list of defence witnesses." More than 216 days of testimony would be required, plus additional time for the several witnesses that would be called from government.
In April, just before the defence began, another set of intended witnesses was provided. This list would have taken slightly less time -- at 183 days for witnesses. It was on the basis of this list that Justice Riordan ruled last May 15th that the companies would have to limit themselves to no more than 175 days.
They certainly had no trouble doing so. They used 94 to 97 trial days (depending on whether their proof was considered to start from Day 138 or Day 141 until it closed on Day 234) of which about 85 were used to hear witness testimony. Much less than half the time they ever thought they needed, and only slightly more than half the time Justice Riordan allocated.
A table is pasted below.
Between now and the time the trial is scheduled to return (September 22, 2014), there are two important deadlines. The plaintiffs are to have their written "facts and arguments" submitted by July 8th, and the defendants must submit theirs by September 16th. Further developments will be posted here!
Happy summer...
---------------------------------------------------------------
Comparison of estimated days of defence witness testimony at various stages of the trial
Imperial
Tobacco
|
||||
Witness
|
Feb
2012
|
Jan
2013
|
Apr
2013
|
Actual
|
Barnes, L
|
1
|
**
|
*
|
|
Blanche, N
|
**
|
1
|
||
Boswall, A
|
3
|
**
|
||
Chan, A
|
3
|
**
|
||
Crawford, P
|
2
|
**
|
||
Duplessis, G
|
5
|
3
|
**
|
3
|
Hirtle, K
|
**
|
1
|
||
Hogg, J
|
0.5
|
|||
Kalhok, A
|
3
|
**
|
1
|
|
Kemball, B
|
4
|
**
|
||
Massey, S
|
10
|
10
|
**
|
|
Mercier, JL
|
2
|
2
|
**
|
|
Porter, A
|
4
|
**
|
2
|
|
Potter, S
|
2
|
**
|
||
Read, G
|
5
|
**
|
3
|
|
Ricard, E
|
4
|
4
|
**
|
1
|
Robitaille, R
|
1
|
|||
Sinclair K
|
**
|
0.5
|
||
Total
|
21
|
46
|
14
|
|
Rothmans,
Benson and Hedges
|
||||
Witness
|
Feb
2012
|
Jan
2013
|
Apr
2013
|
Actual
|
Barnett, J
|
1
|
**
|
||
Black, G
|
1
|
**
|
||
Chapman, S
|
2
|
2
|
**
|
3
|
Other marketing
|
1
|
**
|
||
Other Executive
|
0.5
|
**
|
||
Total
|
4.5
|
3
|
3
|
|
JTI
Macdonald
|
||||
Witness
|
Feb
2012
|
Jan
2013
|
Apr
2013
|
Actual
|
Gage EP
|
n/a
|
n/a
|
3
|
|
Gentry, J
|
*
|
4
|
**
|
2
|
Hood, J
|
*
|
**
|
||
Hoult, P
|
*
|
6
|
**
|
3
|
Howie, R
|
*
|
4
|
**
|
2
|
Lane, F
|
*
|
**
|
||
Lang, Ed
|
*
|
**
|
||
Marcotulio, R
|
*
|
4
|
**
|
|
Massicotte, GP
|
*
|
**
|
||
Newman, L
|
2
|
**
|
3
|
|
Piehl, D
|
*
|
**
|
||
Poirier, M
|
*
|
**
|
||
Robb, R
|
*
|
4
|
**
|
2
|
Sauro, M
|
**
|
|||
Trudelle, M
|
*
|
**
|
||
Walker, W
|
**
|
|||
Total
|
24
|
15
|
||
Health
Canada
|
||||
Witness
|
Feb
2012
|
Jan
2013
|
Apr
2013
|
Actual
|
Bacynsky, JA
|
1
|
|||
Beatty, P
|
*
|
1
|
||
Bégin, M
|
2
|
|||
Bray, DF
|
2
|
|||
Catley Carlson, M
|
1
|
|||
Cherry, WH
|
8
|
|||
Choinière, D
|
*
|
2
|
2.5
|
|
Colburn, HN
|
10
|
|||
Collishaw, N
|
*
|
*
|
12
|
|
Crombie, D
|
1
|
|||
Dodge, D
|
1
|
|||
Forbes, WF
|
*
|
|||
Fry, JL
|
1
|
|||
Jean, M
|
1
|
|||
Kaiserman, M
|
5
|
*
|
4
|
|
Kirkwood, D
|
15
|
|||
Lalonde, M
|
7
|
*
|
3
|
3
|
Law, M
|
3
|
16
|
||
Leclair, M
|
2
|
|||
Liston, AJ
|
5
|
*
|
4
|
2
|
MacEachen, A
|
*
|
|||
Morrison, AB
|
10
|
*
|
||
Neville, B
|
*
|
|||
Rawson, B
|
2
|
|||
Rickert, B
|
1
|
*
|
2
|
|
Robinson, J
|
*
|
7
|
||
Rogers, B
|
*
|
1
|
||
Agriculture
Canada
|
||||
Ashby, E
|
0.5
|
0.5
|
||
Basrur, PK
|
1
|
|||
Brandle, JM
|
1
|
*
|
1
|
|
Cartier, J
|
*
|
2
|
||
Court, W
|
*
|
*
|
2
|
|
Johnson, PW
|
5
|
3
|
1
|
|
Marks, CF
|
5
|
*
|
1
|
2
|
Martel, Y
|
*
|
1
|
||
Pandeya, RS
|
3
|
*
|
3
|
|
Rosa, N
|
1
|
|||
Size, C
|
0.5
|
½
|
||
Walker, K
|
2
|
|||
Zilkey, B
|
3
|
*
|
3
|
1.5
|
Total Government
|
60
|
?
|
108.5
|
12
|
Experts
|
||||
Witness
|
Feb
2012
|
Jan
2013
|
Apr
2013
|
Actual
|
Barsky, S
|
*
|
2
|
*
|
1,5
|
Bourget, D
|
*
|
4
|
*
|
2
|
Davies, J
|
2
|
4
|
*
|
3
|
Dixon, M
|
2
|
10
|
*
|
3
|
Duch, R
|
5
|
4
|
3
|
2
|
Durand, C
|
1
|
2
|
1.5
|
|
Flaherty, David
|
1
|
4
|
3
|
3
|
Goumeniouk, A
|
*
|
4
|
*
|
|
Heckman, J
|
5
|
6
|
*
|
2
|
Lacoursière, J
|
5
|
3
|
3
|
4
|
Marais, L
|
*
|
7
|
*
|
3
|
Mundt, K
|
5
|
4
|
*
|
2
|
O’Connor, K
|
5
|
4
|
*
|
|
Perrins, R
|
5
|
10
|
6
|
3
|
Price, B
|
2
|
4
|
*
|
2
|
Rice, D
|
*
|
2
|
*
|
|
Semenik, R
|
5
|
4
|
*
|
|
Soberman, D
|
*
|
5
|
*
|
5
|
Viscusi, K
|
*
|
2
|
||
Young, S
|
*
|
2
|
||
Consumer Survey
|
*
|
|||
Total
|
43
|
83
|
15
|
41
|
Experts
|
||||
Witness
|
Feb
2012
|
Jan
2013
|
Apr
2013
|
Actual
|
Class members
|
60+
|
60
|
60?
|
0
|
Total
|
188.5+
|
216+
|
183.5+
|
85
|
** identified on the witness list, but no time estimate given
