Friday, 13 November 2015

The Court of Appeal keeps Riordan in the game, but suggests restraint

Last week, two of the defendant tobacco companies in the Quebec class actions asked the Court of Appeal to block any further involvement of Justice Brian J. Riordan in the case until the higher courts had weighed in on his judgment.

My colleague who observed the hearing on November 5, conjectured that the unexpected delay in their ruling meant the three judges were not agreed on how to respond. But today Justices Bich, Savard and Schrager gave every appearance of agreement in their unanimous ruling. They spoke together in rejecting the companies' request.

Or did they just employ another style of split decision? At the same time that they rejected the request, their comments while doing so effectively gave the companies most of the outcome they were seeking.

A request for a suspension of any lower court action

In their motion for a "Stay of First Instance Proceedings" Rothmans, Benson and Hedges and Imperial Tobacco had asked the Court to "suspend all proceedings before the Superior Court of Quebec in [the tobacco class actions] until final judgment to be rendered by the Court of Appeal."

As explained in today's ruling, this request was triggered when Justice Riordan and the the plaintiffs tried to set up a case management meeting to discuss some hanging threads.
* The plaintiffs, wanted to do some advance work in identifying the 100,000 eligible claimants, such as gaining access to the province's cancer registry.
* The plaintiffs wanted to be able to present their view that the companies had been guilty of "abuse of procedure" in the scorched-earth style of their defence.

Neither of these two issues found favour with these two defendants. (JTI-Macdonald did not participate in the request for a suspension). Their view was that all these threads should be considered cut after the Court of Appeal struck down the provisional execution element in Justice Riordan's ruling,

"Abuse of Process as a strategy"

In the decade and a half it took before they were able to present their final written arguments, the plaintiffs had gathered examples of conduct by the tobacco companies which they considered went beyond those of acceptable practice in Quebec. They detailed these in the final pages of their brief, hoping to get a ruling from Justice Riordan that validated their concerns about abuse of process.

But Justice Riordan refused permission to present these issues during closing arguments last fall. Not because he felt they were not a valid issue for concern, but because he did not want to derail the final steps of the trial. He left open the possibility that he would consider this issue after he had ruled on the main substance of their claim.

Technically, the complaints were linked to a request for provisional execution (which can be granted on the basis of abuse of process). But even without this connection - and after provisional execution has been taken permanently off the table by the Court of Appeal -  the plaintiffs still want to be able to air their grievances with how the companies ran their case.

Getting a ruling about the infamous scorched-earth litigation tactics of the companies would not only feel good, it might help prevent this industry or others from trying it again.

The companies strongly want to avoid such a review. Last week's request would have had the effect of at least postponing this review, and they also want Justice Riordan to recuse himself from any such process. (Cited in para 12 of today's ruling)

Not what you asked for, but what you wanted

The Court of Appeal ruled today it would not agree to imposing a suspension on lower court proceedings during the appeal. They said the circumstances were too iffy ("nous nageons dans les hypothèses") for them to wade in. Their was no clear vision of what it was that they were being asked to prevent.

Justice Riordan is thus under no order to suspend his involvement. But the plaintiffs and the judge received some heavy advice to hold their horses on the two issues that had been proposed for discussion at the management conference.

The plaintiffs were told that advance work on identifying potential claimants was not on, as it fell into the realm of "execution of judgment" that was suspended during an Appeal. (para 25) They were also told that they should take the question of abuse of process off the table until after the Appeal was heard, as it would not be possible to consider any individual actions by the companies without also looking at the overall context bound up in the appeal. (para 32).

The advice to Justice Riordan, albeit couched in softened and hypothetical language, was that he should refuse to hear the plaintiffs on this question in order to avoid 'potentially conflicting rulings and a waste of judicial time'. (free translation, para 33).

So the judges say they turned the companies down. But to these eyes, by getting most of what they wanted, it looks like the companies won.