Friday, 6 November 2015

Tobacco companies seek to bench Justice Riordan

It would appear that it is not enough for the the tobacco companies who came out on the losing side of Justice Riordan's decision to take their complaints about his ruling to the Appeal Court. On November 5 they were back at the higher court to ask it to put a stop to any future involvement by Justice Riordan in the case until their appeal is finally resolved.

What triggered their demand was an email they had received from the judge on August 13 2015, in which he reminded all parties that he had not received the information he had ordered be sent to him within 60 days of his judgment. The order is in paragraph 1247 of his judgment.
ORDERS the Plaintiffs to submit to the Court within sixty (60) days of the date of the present judgment, with copy to the Companies, a detailed proposal for the distribution of all amounts awarded herein, both with respect to punitive damages and to moral damages for Blais Class Members, including provisions for the publication of notices, for time limits to file claims, for adjudication mechanisms and any other relevant issues, as well as with respect to the treatment of any amounts resulting from provisional execution.
The final phrase (marked in bold) was rendered inoperative by the Court of Appeal's rejection of provisional execution, but the Judge was anxious to get on with the first part of his order and finalize a distribution plan of monies to the class members, victims of cancer and emphysema.

There followed some back-and-forth correspondence between the lawyers and Judge Riordan.  Predictably, the plaintiffs' lawyers wanted to proceed with case management in Judge Riordan's court and the tobacco company lawyers did not.

The plaintiffs'  lawyers proposed preliminary work on a distribution plan for monies awarded and revisiting the question of abuse of process as agenda items for a case management conference.

And that brings us to the request the companies put to the Appeal Court this Thursday for an order suspending all proceedings in the lower court until final judgment is rendered, an event that will be years away. 

Industry:  A threat to their rights to appeal

Uncharacteristically, the court hearing started an hour late at 12:15 PM.  Judges Marie-France Bich, Manon Savard and Mark Schrager had to finish dealing with other cases before them the same morning.  When proceedings finally got underway, lawyer Simon Potter explained that any action in Justice Brian Riordan's court on the case would jeopardize their appeal.

Deborah Glendinning  for Imperial Tobacco focussed her attention on the suggestion that the question of abuse of process might once again be discussed.  According to her, not only was their no abuse of process, any further discussion of it in Superior Court would also threaten the appeal process. (Her colleague, Eric Préfontaine, played his usual back-up role, offering various precedents to support the arguments of his colleagues.)

Once again, the third company (JTI-Macdonald) was not involved in this procedural appeal. This makes the third court hearing in a row in which they have not been a participant. Hmmmm...

Smokers: Getting a head start on a big administrative task

In a brief presentation, Philippe Trudel acknowledged that most, but not all, issues were under appeal. But he felt there were still some areas of legitimate discussion and some preliminary work that could usefully be done in Superior Court.

He pointed out that identifying 100,000 potential class members was a big job and that doing some preliminary work through the lower court would save time later on.  However, Philippe Trudel lamented that, not only were the tobacco companies seeking to stop this work, they were seeking to stop all work by the Superior Court on tobacco.  The tobacco companies wanted to block even a case management meeting to discuss what could and what could not be done by the Superior Court while the tobacco case was under appeal.

Not an easy decision?

The judges frequently interrupted the lawyers seeking clarification of the relevant sections of the Civil Code of Procedure (Articles 999, 1030, 1042, 1043). Seeking clarification, however, is not the same as getting it.

The conflicting views between the parties of how the rules should be applied is not as surprising, perhaps, as the judges' shifting signals on how straightforward their decision was. There was some thought they would render judgment right after the hearing. However, after a short recess, they came back to the bench and said judgment would be delayed until the following morning (Friday). But when Friday morning came, their decision was delayed once again. Possibly next week.