Thursday, 11 December 2014

Day 253: "Every party has an ending."

At 11:17 this morning, the trial of the combined Blais-Létourneau tobacco class actions came to an end.

Although the 90 minute hearing that lead to this end did not give much of a sense of occasion, it did capture the not-always-tasteful flavour of the last 33 months of trial. There was eloquence. There was eye-rolling. There was anger. There was laughter.  And not all of it from in front of the bar!

Money comes first.

The first issue discussed was the earnings of the companies.

Only a couple of weeks ago, Imperial Tobacco had refused to join in on an arrangement that would shelter their financial statements from public view should Justice Riordan impose punitive damages against them. (The capacity to pay is a criteria in any assessment of these damages).

A partial change of heart appears to have taken place, for today they were adopting the same approach they had earlier rejected: substituting complete financial statements for a top line statement of pre-tax and post-tax earnings. One set of confidential exhibits were soon swapped for another. (Taking the cake of reduced evidence, they are nonetheless not relinquishing their eating rights to keep the number permanently from view).

There was no agreement on what should constitute an assessment of the income of the companies. Pre-tax or post tax? With or without consideration of the money that they were paying in penalties under an agreement with the federal government?

(As a result of their settlements, Imperial Tobacco and Rothmans Benson and Hedges make annual payments in the range of 3% of their income. According to these same agreements ITL earned $1,29 billion in 2007 and RBH earned $671 million in 2008.)

Justice Riordan wanted details on how the settlement payments to governments were presented on the financial statements. The way Simon Potter defined these provided one of the trial's more droll moments. "This doesn't have to do with smuggling, it has to do with mis-labelling."  It takes a special kind of moxie to present the absence of tax stamps as primarily a labelling issue!

The sur-rebuttals

The real meat of this morning's hearings was the defendants' rebuttal to the plaintiffs' rebuttal of their defence to their claim. Or, as the French apparently say, the "surplique".

On behalf of Imperial Tobacco, Ms. Deborah Glendinning presented a reasonably punchy version of their key arguments: that there was no evidence linking any harms to any individuals, that neither of the two forms of causation - conduct causation or disease causation- had been established, that low-tar/light cigarettes were supported by government, that the companies' polling on people's beliefs about smoking were not reliable as trial evidence.

She ended, however, with something of a kicker. She revealed for the first time the reason that Imperial Tobacco had decided against calling any Quebec smokers to testify (after months of playing coy about their plans to prolong the trial with this testimony).

"I will explain to you why we did not call them. We went to the Court of Appeal. They established the principle that we thought needed to be established. It is a class action but this does not stop the plaintiffs from having to prove individual causation and individual injury. They said that was the plaintiffs' burden and they didn't see how it could be done when they had not called [any class members].

With that judgement we no longer required class member evidence because we knew they could not meet the burden and that there is thus no option but to dismiss the case."

The Bou Malhab refrain

Mr. Guy Pratte provided JTI's response in a similarly condensed style. As Ms. Glendinning had done, he encouraged the judge to see that the 2011 Bou Malhab decision of the Supreme Court prevented a ruling on behalf of a group of smokers.

Mr. Pratte has had particular responsibility in this trial to debunk the work of plaintiff' expert epidemiologist, Jack Siemiatycki. He did so again today.

It did not matter, he said, that the defendants' experts had come up with a similar estimate of the number of people whose lung cancer could be attributed to smoking. They had done so doing different methods -- top down, not bottom up.

He seemed to suggest that the criticisms of Mr. Siemiatycki's approach should prevent the judge from accepting any calculation - even one by other experts. "If the number is invalid statistically, and the range is unknown, then it cannot be validated by another number." 

(André Lespérance, who was given the last word in the trial, gave Justice Riodan a brief but strongly worded argument that Mr. Pratte's analysis was incorrect).

What is justified in a free and democratic society

Mr. Potter, the doyen of tobacco lawyers in this case, took exception to the way that the plaintiffs had referred to the use of criminal law powers by the federal government in its ban on tobacco advertising. (Although he now represents Rothmans, Benson and Hedges, he worked for Imperial Tobacco in fighting these laws in the 1980s and 1990s).

He reminded the judge that the Supreme Court had said the first federal law had gone too far - and that this law had explicitly allowed for sponsorship promotions. For these and other reasons, he felt that using these laws as a basis to judge previous industry actions was not justified.

So long, and thanks for all the fish

The sporadic "thank yous" that have been directed to Justice Riordan over the past few sitting days became a chorus today, as everyone gave their parting words.

It was an awkward chorus, but one expressed in sincere ambiguity. "These have been emotional times," said Simon Potter. "It is impossible that everyone will not be left with very abiding and strong memories of the time here."  Mr. Lespérance said that the trial would "linger in people's memories."

Justice Riordan expressed appreciation to the support staff and tokens of appreciation were presented on behalf of the lawyers by the (always gracious) François Grondin. The lawyers were also thanked by the judge for their diligence and professionalism.

"I fear that the hardest work will start in the next few minutes," he said before announcing the AMEN to every trial:  "Judgment reserved."

As I packed my computer away, I watched the two lines of lawyers cross paths and shake hands. Just like a hockey game!