Saturday, 2 April 2016

Recuse me?

March is a month of deadlines, and no less so in the tobacco litigation biz. Soon I will provide an update on the month's events.

But first, some startling news from the Supreme Court: Justice Suzanne Côté is on the case!

The second-to-most-recently appointed justice of Canada's Supreme Court will soon apply her deep knowledge of tobacco litigation to deciding whether Japan Tobacco can have another kick at the can regarding the constitutionality of Quebec's Tobacco-Related Damages and Health Care Costs Recovery Act (TDHCCR).

Ms. Côté was appointed to Canada's highest level court in late 2014, just weeks before the conclusion of the Blais-Létourneau trial in which she was such a dominant defender of the industry.

The Quebec law whose fate is now before her (and two of her colleagues) was also, as you will remember, a key component of the Blais-Létourneau class action trial.

As far as I observed, Ms. Côté never presented the case of Imperial Tobacco in the Constitutional Case which is now before her (Imperial Tobacco's case was presented by her partner at Osler, Eric Préfontaine). She did, however, represent the opposition of her client and (by the nature of their shared defence) the other companies regarding this law during the Blais-Létourneau case. One prominent occasion was their 2013 mid-trial request to have the actions dismissed. In his decision against the companies, Justice Riordan applied the TDHCCR in favour of the plaintiffs.

After Ms. Côté's appointment to the Supreme Court, it was only a matter of time before the fate of her former client and the intertwined fates of all the companies would be before that bench. This is the first occasion, and it came a few months ago when JTI sought leave to ask the Court to review the September 2015 decision of the Quebec Court of Appeal.

The odds should have been against this judge being handed the task of giving the request a thumbs up or thumbs down to this request. Only one-third of the Supreme Court bench is selected to decide whether the appeal will go forward.

Yet her assignment to that task (together with Justices Wagner and Cromwell) was recently  made public on the Supreme Court website.

I am genuinely shocked. I would have expected that Justice Côté would have recused herself, or that the Court would have not assigned her to the task.

The apparent conflict of interest is obvious.
  • The interests of JTI in this case are very much wound up in the interests of her former client, and the case which would have provided most of her billable hours over the past few years.
  • There is a clearly coordinated litigation strategy managed by the companies in the class actions and cost recovery cases filed against them. Justice Côté was a high profile and key player in executing that strategy in Quebec. 
  • The fate of the companies is merged, and not only because of their decision to provide a common defence. The TDHCCR allows penalties to be assigned solidarily, possibly forcing one company to pay-up for the faults of another.
  • Any continuing doubt created by a SCC appeal on the TDHCCR will help Imperial Tobacco in the Blais-Létourneau case, if only by causing delays.
Whether there is a real conflict of interest for Justice Côté is a separate issue.

I watched her in court over many months, and came away admiring the many strengths of this woman. There is no denying her deep intelligence, stamina, and willingness to be effective. If she weren't so scary, I might well have warmed to her. (In recent days I have come to think that Me. Suzanne Côté offered to corporations what Ms. Marie Henein provides for rapists.)

As a judge, the Honourable Madame Justice Suzanne Côté has a different job to do than she did as defence counsel. Her former clients, including Imperial Tobacco, have no further right to her loyalties. Unlike many judges, she has personal insight into the behaviour and mindset of tobacco companies and their lawyers. If anyone would know whether they deserved the benefit of any doubt, she would.

It may be too late for recusal. It is never too early for redemption.



I forgot to include in the above post a reference to the position of Justice Côté's former client with respect to the law whose fate is now before her. In their final written arguments on the Blais-Létourneau case, Imperial Tobacco challenged the constitutionality of the law.

“1412. The Tobacco-Related Damages and Health Care Costs Recovery Act (“HCCRA”) does not operate to revive these claims. The HCCRA is, in the submission of Defendants, unconstitutional. In any event, the HCCRA does not, on its wording, operate to revive those claims for punitive damages that are asserted by Plaintiffs in this common questions trial and that were prescribed when these proceedings were commenced”.