Another six months.....

 This morning the Ontario Superior Court quickly extended protection under the Companies Creditors Arrangement Act (CCAA) for Canada's three large tobacco companies for another six months. As it now stands, the companies have until at least March 31, 2021 before anyone can take any legal action against them.

As a COVID-precaution, the hearing was a virtual one. Instead of an aging court room where accoustics made the exchanges inaudible in the public galleries, today's proceedings were hosted by ZOOM, where the public phone-line crackle made exchanges mostly inaudible.

Reading the tea leaves  

In advance of the hearing, there were two signs that the extension would be agreed to quickly. 

The first was a court order issued two weeks ago. On September 15 - hours before the companies had to file their requests for an extention -- Justice McEwen added another experienced hand to the mediation payroll: Daniel Shapiro. The timing of the appointment and Mr. Shapiro's experience in adjudicating settlement payments to thousands of individuals is noteworthy in the context of the Quebec court award to almost 100,000 injured smokers which precipitated the CCAA process.

The second was the absence of any documents filed by any of the parties suing tobacco companies ahead of this hearing. Previously these long extensions have been objected to (in vain) by lawyers representing the Quebec class actions, who have expressed concern about the absence of meaningful negotiations and the impact of further delays on the ability of any victim receiving any compensation. This time, their silence spoke for them.

During the hearing, representative of Ontario farmers (whose lawsuit about events in the 1990s is over a decade old) grumbled that members of that class action were also beginning to die off, but did not oppose another 6 months of protected mediation. 

How big a pie?

The Monitor's reports which are required before each extension provide business data for each of the tobacco companies. Information from the latest reports, when combined with that from previous reports, show both revenues and profits for each company.  

This business data provides a reality check against the combined claims of the provinces and injured smokers for more than $500 billion. 

Currently, there is only one-hundredth of that amount in the Canadian kitty - and it only grows by $1.5 billion per year. The entitlement and ability of Canadians to access resources of the foreign owners of these companies is far from established. Those companies have also adopted a Mother Hubbard approach, providing dividends to their (protected) shareholders instead of reserving funds to compensate injured consumers. 

Actual and Projected Cash Balance

Links to documents

• Imperial Tobacco - Motion to Extend Stay to March 31, 2021
• Imperial Tobacco - Monitor's Report, September 2020
• Rothmans, Benson & Hedges - Motion to Extend Stay to March 31, 2021
• Rothmans, Benson & Hedge - Monitor's Report, September 2020
• JTI-Macdonald - Motion to Extend Stay to March 31, 2021
• JTI-Macdonald - Monitor's Report, September 2020

Zoom hearing to extend creditor protection now scheduled for September 29th.

The protection that was granted by Ontario courts to Canada's 3 large tobacco companies expires on September 30th.  

A request to extend the companies' protection from their creditors will be heard on September 19th. 

Unlike previous hearings, this one will be done via ZOOM. Members of the public will be able to follow proceedings by a listen-in only phone-line.

This information was posted on the monitors' web-page earlier this week. 

September 15, 2020

Stay Extension and Virtual Protocol Update: Please be advised that the motion to extend the stay of proceedings scheduled for September 29, 2020 will proceed by Zoom Video Conference pursuant to the protocol (the "Protocol") which can be found here: Revised Zoom Hearing Protocol. Pursuant to the Protocol, any person on the Service List that wishes to appear virtually on the motion must register by 4:00p.m., 2 business days in advance of the hearing (Friday September 25th, 2020 for the motion scheduled September 29th, 2020), by emailing Veritext Litigation Solutions Canada, Inc. (veritextcanada@neesonsreporting.com) and copying each Monitor's counsel (mpercy@dwpv.com, msassi@casselsbrock.com and nancy.thompson@blakes.com) and also advise if they intend to make submissions. Participants are not permitted to forward or share any link provided to them related to the motion. A listen-only phone line will be posted to the Monitor's website by 10:00 a.m. not less than 2 business days prior to the hearing for access by the general public. This listen-only phone line will be muted and no submissions can be made over it. No recording of any part of the hearing, in any format may be made unless authorized in advance by the Court.

Materials related to this hearing should be posted at least one-week before the hearing, and made available on the monitors' web-sites:

• Imperial Tobacco
• JTI-Macdonald
• Rothmans, Benson and Hedges

"Today, it's smiles all around."

What a contrast!

Last year, when Canada's 3 large tobacco companies first appeared together before Justice Thomas McEwan of the Ontario Superior Court to ask for an extended insolvency period, the tension in the courtroom was palpable. Dozens of lawyers representing tobacco companies and those suing them jostled aggressively for seating, exchanging hostile looks and stiff words.

It would be going too far to say today's hearing felt like a love-in, but there was certainly a cease-fire. It would not have been evident to anyone casually walking in before or during the short session that there were opposing sides before the judge. As the room slowly filled up, the exchanges between the archaically robed men set the agreeable tone: "How was your time in Florida?" "Today it's smiles all around!"

It took 10 brief minutes for the Judge to hear and approve the request for an extension of another 6 months on his Order that granted each company the right to operate their business pretty-much-as usual while all lawsuits against them were suspended.  First Imperial Tobacco, then Rothmans, Benson and Hedges and then JTI-Macdonald identified that they had duly submitted the required paperwork and passed the judge a draft order to be endorsed.

It was a mere formality when Justice McEwan checked for consent for the orders, which were quickly signed as unopposed.

For the record

It was only after consent was approved that Mark Meland commented on the companes' request for a further 6 months to come to a deal.

Mr. Meland represents the Quebec smokers whose court-ordered compensation payments totalling $13 billion have been blocked by these proceedings. Among dozens of lawsuits, theirs is the only one to have made it to trial and to have received not one but two rulings strongly in their favour.

These are the 'creditors' who have appeared the most frustrated by the proceedings. In previous sessions, Mr. Meland has spoken at length and persuasively (if to no discernable effect on the judge) about the harm that the process was causing the Quebec class action victim, who were dying without ever seeing justice.

Today, his comments were not intended to change any immediate decision, but to qualify past and future rulings of Mr. McEwan.

Mr. Meland diplomatically responded to the rough treatment his concerns had been given by Justice McEwan last fall. Without saying so directly, he suggested that Justice McEwan had been unfair and inaccurate in suggesting that this Quebec team was not committed to the mediation process when it had objected last fall to a length extension of the stay.

Perhaps Mr. Méland's second point was directed at the Judge, or perhaps it was directed at the victims for whom justice is still undelivered, 20-plus years after their lawsuit began.  "Our agreement to the extension is not a negation of the urgency," he said. "People are dying, they are getting weaker. The urgency has not abated, but we have a common desire to get to a settlement as soon as possible."*

He signalled that a further extension would likely not be agreed to by them. By September 30th, a resolution should be in hand, he said -- by that time 18 months would have elapsed since the insolvency proceedings began. "We must be mindful of the impact this has on our clients."

Since we're all being agreeable....

Imperial Tobacco may have over-estimated the willingness of their opponents to nod along with their requests. Just when things seemed ready to quickly wind up, they proposed a new and previously uncirculated motion, the details of which remain murky. Neither was this motion on the materials posted for the hearing, nor had they been circulated to other parties.

Without consent, Justice McEwen could not immediately put this request on his silver platter. He indicated that it thought it was a reasonable request, and said he would give ITL a chance to get a response from the other parties by the end of this week before deciding on his next step. To these ears, he seemed to signal that those who opposed the request had a choice: they could accept an out of court agreement to the companies' request, or they could come back and lose an argument before this judge.

Left unsaid

Very little was said today -- and there was no hint of what is or is not going on behind the closed doors of the negotiation.  Other than Mr. Méland's reminder of the dwindling health of those whose cancers and lung diseases were linked to the wrongful behaviour of the companies in the last century, there were no references to considerations of health. The companies whose business as usual was being protected could just as easily be making pencils.

* Verbatim quotes are even less reliable today. This Ontario court a step even further back in time, directing all reporters to limit themselves to paper and pen. 

Next stop - September 30th?

The apparent goal of next Thursday's hearing before Justice Thomas McEwen was revealed this week when the "motion record" of one of the 3 tobacco companies currently granted insolvency protection by that court was made public.

The companies are now asking for a (further) 6-plus month period in which all lawsuits against the will be frozen.  extension of the stay on all lawsuits against them. The current stay expires on March 12, and they are asking for it to be extended to September 30.

Such a request usually triggers the filing of financial data and other information in the monitor's reports. More to come!

RBH  Request for stay to be extended to September 30th. 

Links to key documents:

Motion for stay extension:

• Rothman's Benson and Hedges
• JTI-Macdonald
• Imperial Tobacco 

Monitor's Reports

• Rothman's Benson and Hedges
• JTI-Macdonald
• Imperial Tobacco

A Three Week Preponement

Yesterday notice went up that the next hearing before Justice McEwen is scheduled for February 20th -- a full 3 weeks earlier than originally scheduled.

Intriguing, yes! But not very informative.

We know from news reports that this month the parties have been intensively negotiating. As the TYEE put it "a small army of lawyers are meeting this month in Toronto [in January] as part of a mediation process aimed at settling lawsuits launched by 10 provinces, as well as class action suits and individual actions."

Have they cooked up a deal? Agreed to an earlier extension so they can all enjoy March break with their kids?

Generally material is posted ahead of such hearings by one week. Perhaps by this time next week we will know what this hearing is about.