Friday, 23 June 2017

How slow is too slow? Reflections in Quebec and British Columbia

Almost eight months have passed since November 30th, the date that the Quebec Court of Appeal finished hearing the arguments for and against Justice Riordan's condemnation of the decades' long behaviour of Canada's large tobacco companies in the Blais/CQTS and Létourneau class action suits.

Yet a ruling by the five-judge panel is still nowhere in sight!

The friendly bets made in my social circle have all been lost --- that the Court would take no more than 6 months to decide, that the ruling would be released by the second anniversary of Riordan's decision, that their work plan would ensure it was wrapped up before St. Jean Baptiste Day (tomorrow) launched the summer . 

Is the length of the appeal process something that adds to the burden of those smokers and their families who have already waited decades for compensation?  Justice Riordan thought so, which is why he originally included an early payout ("provisional execution") for the victims.

Twenty-three months today the Appeal Court found that such a provisional execution would be unfair to the companies. They though Justice Riordan was overly pessimistic in predicting that the appeal process would take 6 years - hinting that from their point of view there was "the possibility of an expedited process".

An expedited process that takes more than 2 years to clear the next hurdle?  Well, time is relative, as it has been famously pointed out. Perhaps in the judicial system this is as fast as things can go.

The question of what constitutes a reasonable time frame was the subject of a hearing in a very different court in a not-so-different case today. Justice Smith of British Columbia's Supreme Court was considering a motion by Imperial Tobacco to dismiss the Knight class action "for want of prosecution".

Knight v. Imperial Tobacco is one of the very few actions against tobacco companies in Canada -- or indeed the world -- to become a certified class action. It was filed in British Columbia in 2003 by the law firm Klein Lyons (now Klein Lawyers). The suit is named after Kenneth Knight, a BC resident who bought Player's Light cigarettes in the belief that they were less harmful than other cigarettes. It seeks to recover damages for all B.C. residents who bought light and mild cigarettes on the basis that "the defendant, Imperial Tobacco Canada Limited, engaged in “deceptive trade practices” contrary to the Trade Practices Act in the marketing of its light cigarette brands."

This class action was given the green light of certification by Justice Satanove of the B.C. lower court (the Supreme Court) in 2005 , the same year as the Quebec class actions were authorized. The B.C. upper court (the Appeal Court) upheld most of her decision in 2006.

Since then, there has been a lot of water under the bridge. The attempt by Imperial Tobacco to hold the federal government responsible for any potential liabilities in this and the B.C. cost recover case took more than a little court time: it was not until the Supreme Court ruling in 2011 that the federal government was immune from such involvement that this side-issue was settled.

But like most of the tobacco litigation in Canada, this case has been on the back burner while the parties concerned wait to see how the Blais and Létourneau cases resolve. The BAT Annual report (p. 144) lists multiple aggregate claims in Canada, with "standstill agreements" or "no trial date".  My impression has been that it was considered prudent to put other trials on hold to wait for the courts resolve key legal issues, for the possibility of settlement to be exhausted, and for the economic impact (i.e. bankruptcy) to be worked through.

The BAT annual report suggests that it was lasts fall, when Doug Lennox of Klein Lawyers tried to move the Knight case along, that Imperial Tobacco decided to ask that this delay be a reason to dismiss the case. "After being dormant for several years, the plaintiff delivered a Notice of Intention to Proceed, and Imperial delivered an application to dismiss the action for delay."

The Vancouver Court House is a considerable distance away, so I was not among those who would have heard the tobacco company argue that the 'inordinate delay' has harmed its ability to defend its actions. Too many potential witnesses have died, it would appear, for the company to marshal the evidence it needs. And besides, they don't sell 'light' cigarettes anymore.

Justice Smith, to whom these arguments were being presented, also presides over the B.C. government cost recovery lawsuit.  He would know better than most that these cases are playing out in larghissimo tempo. (He would also be aware of the legal complexities when these cases are handled simultaneously -- not so long ago he and a colleague on the New Brunswick bench came to opposing decisions on a similar pre-trial issue).

One irony in all this is that Imperial Tobacco was challenged in the Quebec class actions about the delaying tactics it used to try to avoid a trial in that province. These "abuse of process" concerns were put before Justice Riordan in the the final arguments of the plaintiffs (in part as a justification for provisional execution), but the judge refused to hear them until the main issues had been resolved.

The Appeal Court subsequently hinted strongly that issues related to this case be suspended until the appeals on the main judgment were exhausted.

So while an argument on industry-triggered delays has been further delayed in Quebec, Imperial Tobacco has been able to claim that delays resulting from its delays should annul the case against it.

Justice Smith reserved his decision. Any bets on whether he will have made his ruling on delays before the Court of Appeal has decided on a potentially "expedited" case?