Day 222: There were no witnesses

Today’s session was a less formal affair, with the judge and lawyers in suits instead of gowns. Justice Riordan bounced in, ready for the game. The focus was on documents and getting some agreement between the parties.

A very special exemption

First, there was a request from JTI lawyer, Catherine McKenzie, to have a special exemption from the non-cell phone rule for her colleague Patrick Plante, whose partner was about to give birth. Justice Riordan’s first response was, “Why are you here, Mr. Plante?” and readily agreed to the exemption.

Naturally, Mr. Plante was the first presenter. He had new CDs full of exhibits to exchange for previous versions. The exhibits were numbered in the 3000s and 4000s, and there were no arguments.

When Mr. Plante was done, the judge began to greet Nancy Roberts who had arrived from Toronto. But Mr. Trudel jumped up with an urgent matter. He and Mr. Potter had been trading testy remarks before the judge came in. Mr. Trudel objected to an email Mr. Potter had sent to all concerned.

Mr. Potter explained that he was “apologizing for the labyrinthine changes made by the plaintiffs” and thought a table would help everyone find their way. Mr. Trudel jumped up again, and said he would be arguing about individual members of the class. The judge calmly replied that class members (membres désignés) cannot be added to Létourneau, but they could be in Blais. He admonished the defendants that there was no use rehashing all the steps taken since February 2011, and that we should just go from where we are now.

Judgement on amendments

Then, playing his trump card and settling the argument, Justice Riordan read out his judgement on this matter. The Létourneau statement of claim was accepted as amended in February 2014 and the notion of punitive individual damages was put back into the Blais claim.

Back to the CD Exchange

Ms. Roberts and Ms. Grand’pierre had more CDs to exchange, these ones with the 21000 series of exhibits. Everyone agreed.

Ms. Roberts presented some exhibits to be removed from the 2870 list, and all documents were agreed to. Ms. McKenzie said there were only 3 documents left to debate from JTI, but actually there were a few more than that. There was an exhibit (40366) related to Dr. Gentry’s testimony, a scientific paper where one author was dead and the other three had left the country. A rule had been established earlier for scientific articles, and the objection was withdrawn.

Ms. Roberts got her chance to speak and wanted to mention to the court a few documents that would be losing their 2870 suffix. When she finished her brief list, in about two minutes, the judge asked, “You came in from Toronto for that?” She assured him there was more to come.

Then Mr. Bouchard said that RBH’s fact witness, Mr. Chapman, had more documents that needed to be entered. Their numbers were from 30243 to 30316 and included some with .1, .2 suffixes that were from the plaintiffs. Everyone agreed and made changes to their lists. Next, several 2M exhibits were changed to “AUTH”, meaning authentic. Both sides agreed.

Such a lot of agreement! Remarkably, over 200 documents had been admitted as exhibits. “Have all the uncontested documents been filed, Mr. Bouchard?” asked Justice Riordan. Indeed they had. The plaintiffs were ready to debate a few others.

Colour-coded lists

Plaintiff lawyer Gabrielle Gagné had prepared a list and colour coded the debatable and agreed-to documents. Because she usually operates the computer that we see on the screen while her colleagues are talking, there was no one to assist her as she made her presentation. The judge found some colours hard to read, but the technical difficulties were overcome at last.

Numbering such a vast collection of documents, both real and potential exhibits, has been quite a challenge. The judge and many others have worked hard to eliminate duplicate entries and remove exhibits that have been rejected. This list had them arranged in tabs, and the debate was about tabs 18, 19 and 21.

The first was a speech given by Health Minister Judy LaMarsh in 1965, directed to youth. It mentioned a conference, and the plaintiffs wanted to introduce documents about preparations for that meeting. Ms. Roberts argued that the responding or responsive documents had to “complete, clarify or contradict” the initial exhibit. Ms. Gagné replied that the definition of responsive was not the same on both sides of the court. Ms. McKenzie said that this was not a complementary document, but a tangent or even a Trojan horse. Mr. Trudel added an observation as well.

Calmly, the judge said he would listen to all the arguments and decide at the end.

On the next exhibit, Ms. Roberts once again objected that it did not complete, clarify or contradict the initial document, and Ms. Gagné replied that it was related. The judge said he thought “related” was fine. But, but, but, “complete, clarify or contradict” were your own words, said Ms. Roberts. Mr. Riordan replied that they were obvious responses because they were matters of correspondence. Finally Mr. Bouchard discussed Tab 21 that concerned packaging legislation.

A judgement on exhibits

Justice Riordan declared a break, with time for him to digest the arguments. He came back within a half hour with his judgement. Of the eight exhibits at issue, two had been withdrawn, leaving six at issue. Two of these were accepted (RL9277 and RL 9284) and four documents refused because they have no connection to the ones already in exhibits. They could be accepted later in some other way.

So, that was a day with two judicial decisions. The half-day session was nearly over and it was starting to feel a lot like Friday, for a Thursday. 

Calendar

Then the calendar was discussed, Justice Riordan trying hard to get more work done and avoid empty weeks. Next week is definitely a break, although various financial statements and a list of plaintiff’s reply witnesses have to be prepared.

The next court date is April 8. Financial documents will be filed at 9:30 a.m. and then the court will be suspended until 1 p.m., which is 10 a.m. in Victoria, B.C. Ms. Roberts and Ms. Gagné will examine and cross-examine Mr. James Sinclair in Victoria, with a live video link to the courtroom.

Day 95: Important Square Pegs

It was another quiet and thoughtful day at the Montreal tobacco trial.

The discussion continued on the plaintiff's proposal that 19 documents be "admissible as testimony" under the provisions of Article 2780 of Quebec's Code of Civil Procedure. There were only a handful of lawyers present, and even fewer observers.

Yesterday, Pierre Boivin and Philippe Trudel had made the case on behalf of the plaintiffs, and Guy Pratte had presented the objections of JTI-Macdonald. Today Suzanne Coté presented the concerns of BAT/Imperial Tobacco and Simon Potter gave the view of PMI/Rothmans Benson and Hedges.

The plaintiff's had clearly gone to some efforts to skinny down their initial request for a hundred or more documents from the Legacy site. Those discussed today could be counted on fingers and toes.

Nonetheless, the objections to these documents took the full time allotted. While a core concern of the companies is that they will not be able to cross-examine the documents, it certainly sounded like they were doing a good job of challenging their credibility or value.

As with yesterday, I am unable to helpfully summarize the legal issues debated, let alone analyze them. But after letting the arguments wash over me for two days I have a much better sense of the importance of the misfit between an historical approach to assessing events and a legal approach.

The documents in question reflect key moments, key decisions, and key thoughts in the 50 year history of tobacco industry actions that are on trial.

They show the prestigious physicist that BAT engaged to lead its scientific efforts, Charles Ellis, directing research efforts on the pharmacological properties of nicotine as early as 1962. They show senior Imperial Tobacco officials meeting in the same year with U.S. public relations agents to strategize their response to the growing concerns about lung cancer (Exhibit 547).

Should Bob Bexon's letters
become posthumous testimony?

They show a future Imperial Tobacco president, 20 years later, acknowledging in a handwritten note to his colleague that "if our product was not addictive, we would not sell a cigarette next week." (Exhibit 266).

The problem for the plaintiffs is that the authors of these documents, and the other people involved in these events are dead. Which means that they cannot be called to testify, and cannot be cross examined.

The documents are important historical evidence, but they are apparently flawed as trial evidence. They are historic square pegs and the defendant companies want to keep the holes round. It is now up to Justice Riordan to decide if the holes can be tailored to fit. It is unlikely that he make his decision known until the new year.

On Monday, this trial will resume with the appearance of a former market analyst at Imperial Tobacco, Philip Cadieux. 

Tomorrow - a different trial. We will cart our notebooks down to the 15th floor of the Palais de Justice and watch industry lawyers seek to punt any action on the Quebec government's lawsuit until their constitutional challenge has been finalized.

Day 94. Nineteen Documents.

Courtroom 17.09 at Montreal's Palais de Justice was almost empty today. There was no witness. No media. No audience. There were hardly any lawyers.

The entire day was given to discussions about the status of  19 documents that were referred to in historian Robert Proctor's (now abridged) expert report.

The list of documents under discussion was flashed on the screen, and most of them are already on the trial record as exhibits. Without a witness to testify about them, however, they have been relegated to the category of documents admitted under Justice Riordan's "May 2nd Judgement." It would seem this is not good enough.

The plaintiffs want each of these 19 documents to be given a higher standing and asked Justice Riordan to admit them as proof under the provisions of Quebec's Code of Civil Procedure:

2870. A statement made by a person who does not appear as a witness, concerning facts to which he could legally testify, is admissible as testimony on application and after notice is given to the adverse party, provided the court authorizes it.

The court shall, however, ascertain that it is impossible for the declarant to appear as a witness, or that it is unreasonable to require him to do so, and that the reliability of the statement is sufficiently guaranteed by the circumstances in which it is made.

The reliability of documents drawn up in the ordinary course of business of an enterprise, of documents entered in a register kept as required by law and of spontaneous and contemporaneous statements concerning the occurrence of facts is, in particular, presumed to be sufficiently guaranteed.

After nine months of trial-watching, I should have a better handle on these issues. But even after listening to the presentations by Pierre Boivin, Philippe Trudel and Guy Pratte on the legal theory and practice, and their thoughtful discussions with Justice Riordan, my attempt to explain the legal issues would be counter-productive.

What I could understand is that this is a reminder of the challenges in redressing wrongdoings from previous generations. Evidence delayed may become evidence denied!

Gossip from another trial --

The session adjourned early and, a little embarrassed at having so little to report on my day, I dropped by the 12th floor office of another justice of the Quebec Superior Court who is a long trial involving Imperial Tobacco and Rothmans, Benson and Hedges.

This case involves a dispute between the failed insurance company Kansa General and the two tobacco companies it insured. Documents on the Legacy site explain why the IMASCO chose this insurer, as it was the only company willing to include liability for "health hazards" and it was willing to pick up legal costs of defending against liability claims.

I was intrigued by the number of Appeal Court rulings (such as this one) on the issue of whether or not the companies would be required to disclose itemized accounts for the legal fees they were claiming from the insurance company. I wondered if the court file had any further details.

I spent a pleasant half hour sitting in airy office of the secretary to Justice Jean-Yves Lalonde. With files from other cases stacked around me, I used the remaining small space of a coffee table to rummage through a banker's box of filings.

In the time available, I did not get very far. But I did uncover .... oops! the content that followed this section has been removed as a result of a court decision obtained at the request of  Imperial Tobacco's lawyers.  More information on this turn of events to follow...

Tomorrow discussion on the eligibility of documents for admission under 2870 will be continued. When the court returns next Monday, Philip Cadieux will testify. He once worked as a market data analyst with Imperial Tobacco.

Day 81: Preparing the ground for the next phase

See note on accessing documents at the end of this post. 

It was clearly not business-as-usual when the Montreal trial of the Quebec class action suits resumed this morning after its scheduled one-week break.

For one thing, the entire Palais de Justice was eerily quiet at the normal beginning of the business week. The hallways and cafeteria were silent and empty - no line-up at any of the building's three coffee bars. And in front of Courtroom 17.09, only a few industry lawyers were present, in a last-minute conference over newly cerlox-bound volumes.

Those of us unaware of the reasons for the empty halls and late start had little time to speculate before the fire alarm sounded and the entire building was evacuated. On the long trek down 17 flights of stairs I reminded myself how fortunate I was that, unlike the women at this trial who work for Osler Hoskin and Harcourt, I am not expected to wear stiletto heels to court.

By the time the building had been re-opened, it was 11 o'clock. Justice Riordan looked  sheepishly at those who had not benefited from prior notice of the alarm and greeted the court "good afternoon". The drill, with its ambiguity of real and pretend alarm was an apt opening for a day set aside to hash out some of the many issues seeking resolution before the trial's next stages. Don't forget to plan an escape route!

Paving the road ahead

Individually and collectively, the items discussed today will influence the shape of the next stage of this trial.

The defendants presented reasons to reduce the scope and impact of the expert witnesses who will begin testifying later this month. They argued against further sources of evidence, and also against the value of  evidence already on the trial record. In a motion filed but not made public, they are proposing to increase the workload and burden of proof on the plaintiffs. My guess is that they may also want to alter the course of the trial by having a pretext to knock a few more times on the door of the Court of Appeal.

Justice Riordan, who was given much to respond to today, also signaled his own view that the trial is moving into a new phase. He again pressed the defendants for further details on their state of readiness, ("I just want to know the status so we can begin scheduling hearings"). He reminded the court that the plaintiffs were expected to have finished presenting their side by the end of February (42 sitting days and counting). He dropped several hints about the challenges that the plaintiffs would have to meet in making their case.

The not-so-contentious stuff

A number of items discussed seemed to have had the heat removed from them. These included:
* progress on the use of confidential information on financial statements, for which a deadline of November 16 was established for the two companies (ITL and RBH) with whom agreements have not yet been reached.
* treatment of documents from the CTMC, whose scanning and transfer should be completed within this calendar year. (Whether or not the trial will hear from another former CTMC employee, the 90 year old Jean Clavel, is still unresolved.)
* agreement by plaintiffs to reduce the number of documents planned to be put to the final major industry witness, John Barnett (current president of RBH).
* possible admission of a document showing that BAT's marketing director, Paul Bingham, ghost-wrote a report for use by academic Jean Boddewyn to fight against advertising bans may be introduced.

Two other items were deferred until tomorrow. One of these is the management of the voluminous record of market surveys done by Imperial Tobacco whose confidentiality was rejected by Justice Riordan earlier this summer. The other is a still-not-explained "motion for directions" that has been filed by the companies, which I believe suggests additional evidentiary burdens on the plaintiffs.

Much of this abridged day was taken up talking about three issues: admissibility of documents from the Legacy collection, parliamentary privilege, and evidence of a man who died before being able to testify for this trial.

Legacy Documents: "Simply because documents are authentic means nothing"

As promised, Simon Potter had filed a motion asking Justice Riordan to prevent Kim Klausner, librarian of  the UCSF Legacy collection, from appearing at the trial, and prohibiting documents from that collection from being put on this trial record.

Before he presented his motion, André Lespérance outlined the three categories of documents he wished to introduce. The first were documents that would have been expected to have been in the corporate records of the Canadian companies now defending themselves, either because they were authored by or sent to an employee of a Canadian company. The others were the scientific knowledge and positioning of public issues that would have become part of the knowledge of the Canadian operations.

Philippe Trudel explained that although the documents were linked to the findings of their expert witnesses, the plaintiffs acknowledged that they would have to present support for the evidentiary value of the documents.

None of this satisfied Simon Potter. He rejected the relationship between the U.S. companies and the Canadian defendants. ("[The plaintiffs] have a habit of saying these are 'maisons mere'. We know this is not true in the case of JTI. We know it is not true in the case of B&W. ... My client was not under a 'maison mere' that had the name Philip in it."). Accepting these documents onto the record would be a "perversion of the rules of evidence," he said, as it would shift the burden of proof onto the defendants.

He dissed the expert witnesses who will begin testifying later this month. "Robert Proctor, who says he is a historian", Mr. Potter described the well-published Stanford University Professor of the History of Science. "In the case of Mr. Pollay it gets worse! Mr. Pollay has simply taken exhibits and produced them as fact of what happened." 

Justice Riordan seemed unmoved by this line of argument. He pointed out that the defendants had had the expert reports for a few years. "If the reliance on the documents is misleading, you have had plenty of opportunities to use your own experts to question the document, or to provide counter proof," he said. (He also repeated cautionary comments to the plaintiffs on the challenges they would face in introducing evidence this way). He said he would not prevent the plaintiffs from Ms. Klausner.

After lunch, Simon Potter tried a new approach. The introduction of evidence this way, he said, was an attempt to side-step the application of section 2870 of Quebec's Code of Civil Procedure. To this, Justice Riordan sounded more sympathetic. He looked towards the plaintiffs and suggested that he had trouble understanding why the "familiar road" would not be the first option, and used air-quotes around "catholic" to suggest they follow a more conventional approach.

He pointed out the vulnerabilities of being too novel: "C'est beau de faire de la jurisprudence, mais parfois la jurisprudence de la Cour supérieure est juste temporaire." - "It's good to set a precedent - but sometimes the precedents in the Superior Court are only temporary."

Deborah Glendinning added that she saw the evidentiary issues with Legacy documents joined with concerns with documents introduced against her objections after Justice Riordan's judgement on May 2 imposed sanctions on her client. "The rules of evidence require that the contents be properly admitted into evidence in order for an expert to testify on them....  Simply because documents are authentic means nothing."

She also took a shot across the bow of  the the first expert witness, Robert Proctor. "[His] opinions and conclusions are not admissible ... just because [the documents] are authentic does not permit an expert to testify. We have a real problem because many of the documents are not yet proven, and there is no way for them to be proven. That has been our problem since the beginning. This evidence from the experts can not be done until this is resolved." 

André Lespérance pointed out that the defendants would run into similar challenges when trying to support the conclusions of their expert witnesses, especially those who relied on extensive archival records from newspapers. Justice Riordan asked André Lespérance to table tomorrow a plan on his use of documents from the Legacy collection, and the issue will be taken up again on Thursday.

Parliamentary Privilege - take 2

Last week, Justice Riordan had indicated he had little appetite to revisit the issue of the use of parliamentary privilege, and when Guy Pratte (who represents JTI-Tobacco) stood to speak on the topic it was clear he was on a short leash.

While acknowledging Justice Riordan's decision to manage the documents in question on an individual basis, Mr. Pratte expressed the view that the other part of the original motion on privilege had not been dealt with -- the striking out of the sections of the statement of claim that referred to statements made in parliament. The only role of those parts of the claim would be to use privileged documents in ways that are not permitted, he said, and therefore they should be struck down.

Justice Riordan has repeated his position on parliamentary privilege on several occasions ("I'm allowing documents in, but I'm going to control the use of them"), but has not given the defendants the satisfaction of a written ruling or a decision that they can trot over to the Court of Appeal. Again today he was forceful in shutting down attempts to reopen the issue. Each of the defendant companies gave it a try, and each was cut short.

To Simon Potter's concerns for "directions on how to live with the judgement that has been rendered - Do we mount a defense against what these experts are clearly trying to do", Justice Riordan said only: "If a witness starts to say something you think goes against parliamentary privilege, I will hear your objections."    

To Suzanne Coté's attempt to draw a parallel between the companies' request to strike down sections of the claim and Justice Riordan's statements, he was even blunter. "I am going to say it one more time. I have the discretion. I am not going to strike down these claims.  I – will – not – strike – the – claims."

The posthumous testimony of David Schechter?

In the last item of the day, the trial returned to the issue of the destruction of scientific documents by Imperial Tobacco. André Lespérance is seeking to put one more nail into the plaintiff's case that the actions of Simon Potter and Imperial Tobacco were improper. 

(It's not just documents that can disappear -- Simon Potter, who in a former life as Imperial Tobacco's outside counsel had been a central figure in the events, left the courtroom before this topic came up).

The nail in question is the written testimony of David Schechter before the American judge who tried the US government case against tobacco companies. In February 2005, the former lawyer for BAT's American operation, Brown and Williamson, who had been involved in developing the document destruction plan, had testified that "Keeping the documents out of the hands of Canadian litigants is one possibility" for those actions.

(Gladys Kessler had required that witnesses in the DOJ case all provide written testimony. Hostile witnesses were offered previous testimony or dispositions and given the opportunity to correct it. No one could say that testimony in that court was unexpected!) 

Mr. Schechter might have had the opportunity to testify directly at this trial, but died shortly after receiving a subpoena to do so. (In May 2011, Justice Riordan authorized an unusual procedure to obtain testimony from Mr. Schechter and another lawyer in the BAT group, John Meltzer. John Meltzer's testimony was presented earlier this June, Exhibit 510).

Suzanne Coté threw up a number of reasons to keep Mr. Schechter's testimony out of this trial. She said that the necessity of this testimony had not been proven, that other testimony on the subject was before the trial, and that she would be unable to cross-examine the witness.

Ms. Coté also suggested that Mr. Schechter's testimony may not have been that reliable. She referred to the trial record of his time in court, and his frequent memory lapses. She pointed out that he was on medication and "undergoing analysis for many years." 

Justice Riordan smiled as he reminded the court of the high number of memory lapses this court has witnessed. He said he would "think about it, and maybe render a judgement Wednesday."

Tomorrow the trial will continue without witnesses. Discussion will focus on the defendants' "motion for directions" and the treatment of Imperial Tobacco's CMA market research. 

To access trial documents linked to this site:

The documents are on the web-site maintained by the Plaintiff's lawyers. To access them, it is necessary to gain entry to the web-site. Fortunately, this is easy to do.

Step 1: Click on: https://tobacco.asp.visard.ca

Step 2: Click on the blue bar on the splash-page "Acces direct a l'information/direct access to information" You will then be taken to the document data base.

Step 3: Return to this blog - and click on any links.

Day 60: A bolt from the blue

See note on accessing documents at the end of this post.    

My guess is that each of the six legal teams involved in the Quebec tobacco class action suits spent hours this weekend reviewing scenarios for the scheduled testimony today of RJR/JTI-Macdonald's chemical analyst, Ray Howie.

If so, they may wish they had just gone to the movies or played with their children. What happened today threw over everyone's game plan for the day, and may even change the course of this trial.

The day started routinely enough. André Lespérance unhurriedly introduced documents and asked questions, which Ray Howie calmly answered.

For about an hour the focus was on the company's efforts in the early 1980s to allay concerns about (and avoid regulations over) carbon monoxide in cigarette smoke. It was a perfectly interesting story and a juicy example of the industry's willingness to sidestep health concerns (see below).

Mid-morning Kevin LaRoche, who represents JTI during Mr. Howie's testimony, tried to put some brakes on the damage to his client. He told Justice Riordan that he was concerned that the discussion of the company's actions related to the effect of their cigarettes on fetal weight and cardiovascular disease was wandering away from the "class diseases" of lung disease and addiction.

André Lespérance, likely thinking that this was no different from scores of objections on relevance that are quickly dismissed, briefly responded that their claim included the companies' failure to warn and therefore questions about informing smokers of the risks of carbon monoxide to heart disease and fetal weight was relevant.

Kevin Laroche pressed his case, saying that the scope needed to be limited “otherwise it becomes a Royal Commission of Inquiry into the behaviour of the industry which is one thing it can't be if we want it to finish in this century."

Justice Riordan dropped a bombshell:  I maintain the objection.  Unexpectedly, the plaintiff's case lay on the chopping block. Swaths of evidence presented and planned was suddenly ruled not relevant to the trial.

Immediately Bruce Johnston and Philippe Trudel were on their feet. Bruce Johnston pointed out that the Letourneau claim on addiction in particular relied on allegations that the companies lied, which they needed the opportunity to prove. It's a stunning, STUNNING objection, he exclaimed. Indeed they all looked quite stunned.

Justice Riordon then made a second surprising statement, inviting the plaintiffs to refer the decision he just made to the Court of Appeal. He went further to say that he would welcome that higher court's clarification. This sudden desire for a higher court's view is very different than his usual more biting references to the frequency with which the tobacco companies try to appeal his decisions.

Philippe Trudel recovered quickly enough to request the opportunity to present a motion for reconsideration in the afternoon, which was agreed to.

So, six months into the trial, what was that cause of action again?

And so it was that in the afternoon Mr. Howie was sent home and Justice Riordan was presented with some quickly developed arguments for and against a mid-trial change in the scope of examinations.

It was up to Philippe Trudel to make the arguments for the plaintiffs. He pointed to the numerous clauses in motion to institute proceedings that specifically refer to the company's failure to warn, and the detailing of 31 diseases caused by smoking. Among those claims is the allegation that "Mrs. Létourneau is addicted to nicotine, a toxic product and her addiction exposes her to an increased risk to get one or many of the diseases associated with cigarette use, as well as expecting a reduced lifespan." [unofficial translation]

He also referred to the decision of Justice Jasmin when certifying the class action, and the questions that were set to guide the joint proceedings: [unofficial translation]

* Did the defendants have knowledge of, or could be presumed to know about the risks and dangers associated with their products

* Did the defendants put in place systematic policies of non-disclosure of these risks and dangers

* Did the defendants trivialize or deny these risks and dangers?

It was not only the plaintiffs that thought these issues were part of the trial, Mr. Trudel pointed out, but also the defendants. He referred to the company's filings and the plans to have expert witnesses rebut allegations about many diseases.

Earlier attempts to strike down the parts of their claim that included other diseases, he reminded Justice Riordan, had been rejected by Justice Julian in a 2006 ruling. Justice Riordan himself, in a 2001 decision had rejected a request by Health Canada to limit questions to their witness, Denis Choiniere. At the time he had said that such information was relevant "in light of the claim for punitive damages." 

A decision to prevent the introduction of evidence to support their allegations was just another way of striking those allegations out of the claim, he pointed out. 

Both Mr. Trudel and his colleague Bruce Johnston tried to explain why industry actions to minimalize disease risks was part and parcel of their cause of action and their theory of the case.

Mr. Pratte, who led the industry's positions took a different approach in presenting his arguments, ignoring any pleadings or case materials. He acknowledged that the plaintiffs had met the necessary test of showing that these diseases were included in the pleadings. But this was not sufficient to allow these issues to remain part of the case, he said. He relied on case law and legal analyses which he shared with the other lawyers, but did not display on the screens.

Mr. Potter seemed to respond to hints dropped by Justice Riordan of a desire to rein in the trial. He reminded the judge of his decision in June to rule questions regarding 'firesafe' cigarettes irrelevant. He suggested that Justice Jasmin's foundational questions were not always relevant. 

For Imperial Tobacco, Craig Lockwood made a very short comment to the effect that there "needs tie back of common issues and class definition. There needs to be a substantive hook into the damages." For the federal government, Maurice Regnier said nothing.

We're awake now

Last week, Justice Riordan complained that Bruce Johnston's questions might be intended to "wake up the judge." His ruling today has certainly shaken up the plaintiffs.

Justice Riordan adjourned the day without ruling on the motion for reconsideration. 

Back to Ray Howie and Carbon Monoxide

Before this dramatic turn, Ray Howie had continued his testimony about events at the company. He continued to maintain that he had little involvement in 'smoking and health' issues and was mostly unaware of the engagement of boss, Derick Crawford, on this file.

His ability to make this sound credible took a bit of a beating when André Lespérance asked him to read aloud a handwritten note received from his boss at the end of 1981. In it, Derick Crawford brought him up to speed on the threat of government action on carbon monoxide and the plans of the CTMC "to put together an industry document comprising input from all four companies trying to refute the alleged dangers of CO." Mr. Howie's proposed task was to quickly write up "two pages of facts on why we feel there is no justifiable evidence at this time to associate CO with any health disorder."

The problem identified in the memo and in Ray Howie's testimony was that the evidence wasn't all on their side - particularly with respect to the effect of carbon monoxide on fetal weight which "does not look too good." (Exhibit 600C, see also Exhibits 600, 600A, 600B)

The 30-year old memo seemed much more compelling after being read aloud in his Irish accent than if just flashed on the screen. Mr. Howie said the as events turned out, he had not written the paper requested. The government eventually "backed off" and had not regulated carbon monoxide levels until the passage of C-51 in 1988. 

Mr. Howie will continue his testimony tomorrow. Former RJR-Macdonald President, Peter Hoult, is expected to testify on Wednesday and Thursday.

To access trial documents linked to this site:

The documents are on the web-site maintained by the Plaintiff's lawyers. To access them, it is necessary to gain entry to the web-site. Fortunately, this is easy to do.

Step 1: Click on: https://tobacco.asp.visard.ca

Step 2: Click on the blue bar on the splash-page "Acces direct a l'information/direct access to information" You will then be taken to the document data base.

Step 3: Return to this blog - and click on any links

Day 53: Voice of the Pioneer

There were two morning sessions today at the trial of the Quebec class actions against tobacco companies. The first morning session took place in the regular court room at Montreal's Palais de Justice, and the second took place three hours later in Victoria, British Columbia.

Morning in Victoria: Peter Gage reminisces about Macdonald Tobacco 

Other witnesses have been expected to travel to Montreal, but in view of the age of this witness (92) it was decided that the proceedings could come to him. The Victoria location was not the only adjustment that was made in light of Mr. Peter Gage's advancing years. His testimony today was as a witness for JTI-Macdonald, even though it will be months before the defendant companies call witnesses in the normal schedule. It is a long trial indeed, when the lifespan of witnesses is weighed against the schedule.

This is the first time that this trial has used teleconferencing to patch in a witness from another city. Let's just say that the technology worked as well as can be expected, but not as well as one would hope. Lawyers, clerks, videographers and family members squeezed into a bare-bones Victoria meeting room that could have been plucked from the set of "The Office." Meanwhile in Montreal, the proceedings were watched on the monitors that are mounted throughout the room.

A legal hearing is a verbal dance that is hard to coordinate across two rooms and 3,000 miles, and everyone adjusted to the changed pattern. Justice Riordan's direction of the proceedings was done with a deliberately light hand, and the number of interruptions and interjections was reduced (although Bruce Johnston did not pass up the opportunity to parrot the objections to evidence that the plaintiffs routinely face).

Doug Mitchell, who has represented JTI-Macdonald for many years, sounded more like a NPR or CBC radio host than tough litigator today, as he invited Peter Gage to reminisce about Macdonald tobacco. And in radio terms Peter Gage was a great interview - a colourful raconteur of social, industrial and family history.

Peter Gage told the story of arriving from a modern tobacco plant in England in 1956 to take up a position as assistant to David Stewart, son of the iconic owner-operator of Macdonald tobacco, Walter Stewart. What he found on his arrival was a manufacturing plant that was 50 years out of date, and a management culture that would have given Freud a field day.

"Walter Stewart was a complete autocrat. He insisted on deciding everything. He didn't like anyone interfering with his decisions - he was semi-benevolent despot."

Mr. Gage's suggestions for improvements to the factory almost got him fired . "He  [Walter Stewart] didn’t talk to me for two years." The silent treatment was extended much longer to the son, David. The witness laughed as he recounted Sunday breakfast at the Stewart family home, to which he was often invited. The father could not even bring himself to ask the son to pass the marmalade jar.

Intermediaries were the norm at the plant, where employees conspired behind the scenes to work around Walter Stewart's bizarre behaviour. Because no one but Walter Stewart could have a telephone, for example, an 'out of order' sign was placed on the factory's public phone to leave the lines open for business calls. Christmas bonuses were given in cash, and accompanied by a note in Mrs. Walter Stewart's hand to "on no account acknowledge this."

Canada's second largest tobacco company ran with almost no management staff.
"What was unique is that there were no positions in the factory – it was a company without any sales people, everything was sold through agencies. We had no marketing department and no Research and Development department. Our head office consisted of Mr. and Mrs. Stewart - basically there was no overhead at all." 

The plant made 35 million cigarettes a day - but not enough to keep up with demand. Mr. Gage's description of the production quota had the courtroom in stitches:
"Mr. Stewart and his wife opened the mail in the morning which comprised of orders for cigarettes. They had an adding machine and when the total came to the amount of cigarettes you could produce in the factory he didn’t open any more mail."

1945 promotion
for Export cigarettes

Even with virtually no advertising, the company did very well, holding about 40% of the Canadian market until the market expansion of the 50s and 60s. The trust fund into which all of the profits of the company were paid supported local charities, especially hospitals and universities.

This Willy Wonka scenario came to an end in 1968, when Walter Stewart died and David Stewart took over (his mother remained President).

This change in ownership came amid the great upheaval in the tobacco business after the health harms from smoking were established. Yet Macdonald had no strategy to deal with this, said Peter Gage.
"The feeling was if you could put a man in the moon they ought to be able to come up with an antidote for the health problem of cigarettes. A lot of people were of the same view. But as you know it didn’t happen. ...We knew there was a problem. We had no research facilities. There was nothing we could do about it.... We had no any major discussions with the industry or even withourselves because we didn’t have the facilities – we didn’t even have a chemist on the side. We were spectators to the scene in some ways."

The publication of tar
numbers  in 1969 was a
"Pearl Harbour" moment
for David Stewart

David Stewart took charge of the company as the pressure for health reform was building. The government for the first time published the tar values of Canadian cigarettes. The publication of these numbers (not favourable to Macdonald brands) took David Stewart by surprise. "He thought it was the Pearl Harbour of the tobacco industry." 

Peter Gage took a message of concern about "the numbers racket" to John Munro, and in a later meeting with David Stewart the tobacco manufacturer told the Health Minister that he "wanted Macdonalds to be dealt with differently because of its major donations to charity."

Mr. Gage said that David Stewart was not a good business man, but rather had a love for history. Without any great business talent, he began to reform the company - modernizing production, launching into advertising and introducing more contemporary brands (like Contessa for "ladies"). He toyed with diversifying into other businesses, and dreamed of buying a castle in Scotland.

For a while he wanted to provide $10 million to fund research to prevent cancer from smoking, and met with doctors to discuss this. "The doctors were frank with their speeches. They told David the only sure way was to stop people smoking. Although research was going on they personally didn’t feel optimistic about the results. It [the meeting] had a big influence on David Stewart - that was when he first thought of selling the business."

In 1974, David Stewart sold Macdonald Tobacco to the RJ Reynolds company. Two years earlier, Peter Gage had moved to Imperial Tobacco, where he worked in operations until 1982. For many years he negotiated the purchase of tobacco from Ontario farmers, and participated in official Canadian trade delegations to promote tobacco sales overseas. He has been retired or semi-retired for 30 years.

Montreal morning: Silvana Conte does not grovel

Imperial Tobacco lawyer Silvana Conte has not been seen in the courtroom since May 17 when she demanded (not asked) for an in camera session to present her reasons for requesting a sealing order on some Imperial Tobacco documents. She was spectacularly unsuccessful in the end - Justice Riordan mocked her request in his ruling ("Franchement"  he wrote) and the Court of Appeal turned a deaf ear to her request for his decision to be reviewed.

Undeterred by her record, and little changed in her demeanor, she returned today with the goal of protecting  another Imperial Tobacco document from disclosure.

The document in question, by inference, involves ITL scientist Dr. Massey and is related to an industry position on smoking and health. A long-ago case-management ruling by Justice Blanchard determined that the draft of this document would remain privileged, but the final version of the document would be made public. The company was given until a year ago to provide the final version -- the penalty for being late was that the draft version would lose privilege.

For over an hour - and with a thick book of legal authorities - Silvana Conte argued that the company should not have to face the consequences for failing to produce the final version - Where We Stand - for several months. Justice Riordan, she said, has the authority to let the company off the hook, by virtue of Article 9 of the Code of Civil procedure, and the responsibility to do so.

She had a most peculiar way of asking for a favour. Only slightly less high-handed in tone than in May, she made it sound like her company was the injured party. She surrounded her request with references to the "quasi-constitutional" rights of solicitor-client privilege, the Quebec Charter of Rights and Freedoms, and the obligation of the courts to err on the side of caution. There was nothing in her tone that said "please," or that acknowledged that their legal team was in a pickle of their own making, as they had clearly faulted on a deadline.

Most curiously, she failed to respond to Justice Riordan's questions and hints about wanting to know why the delay had occurred, or what circumstances might help justify his support of her request.

Philippe Trudel took little time in offering the plaintiff's perspectives - that the document should be made public by virtue of the Blanchard ruling and the company's failure to meet the conditions of it. He provided e-mail exchanges that Ms. Conte had neglected to include in her binderized materials - ones which showed a shift in ITL's strategy to keep the document private after the deadline had passed. Without producing the original document, Mr. Trudel suggested that it was so different enough from the document claimed to be a final version that some demonstration was required of the relationship between the two versions.

After a short break, Justice Riordan said he would rule on the matter when Mr. Massey testified later in the trial.

Housekeeping issues

With some time to spare, the focus shifted to the nit-piky task of entering non-controversial documents into evidence. JTI's document doyenne, Catherine McKenzie, provided versions of all Canadian laws and voluntary industry codes, which are now on the trial record (Exhibits 40002, 40003, 40004 and 40005 series).

Tomorrow's session will similarly have a Montreal morning session focused on documents and a Victoria morning session during which Bruce Johnston will begin his cross examination of Peter Gage. 

Day 48: And we're back! ......

The summer break ended for the Quebec class action tobacco trials sharp at 9:30 on Monday, August 27th, 2012 when Justice Brian Riordan entered courtroom 17.09 for the first trial day in 9 weeks.

It didn't take long for the summer to recede into history, and for things to return to the 'normal' of this trial. Lawyers from six parties (the two class action plaintiffs, the three tobacco companies and the federal government) soon engaged in a fractious day of arguments and testimony.

There was barely a pause to acknowledge the passing earlier this month of one of the class representatives, Mr. Jean-Yves Blais.

Jean-Yves Blais: 1944-2012

Jean-Yves Blais outside the courtroom
March 12, 2012

When Mr. Blais attended the opening day of the trial, five months earlier, he seemed in poor physical and mental health, much older than his 67 years. He struggled to answer the questions the media gently put to him.

Supporting him at the court that day were his wife, Lise, and his son, Martin. They were in court again today, and Justice Riordan expressed his condolences directly to them.

Mr. Blais was one of an estimated 1,200 Quebecers who have died from lung cancer or respiratory disease since the trial last sat in June.

Inner workings exposed
The morning and the early part of the afternoon were spent going through an agenda of more than a dozen case management issues that required court time. Other less contentious changes that were made during the summer may become evident later.

It is said that the two things that are better to not see made are laws and sausages. Case management of a lawsuit of this length and magnitude might also qualify for such a viewer advisory.  Sausage meat is not as finely ground as many of the points made today!

Changes to the witness list

New on the witness list, if I heard the name correctly, is Mr. Leblond, a former leaf blender with Imperial Tobacco Canada. He is scheduled to appear later this week.

Dropped from the witness list is Mr. Roger Martin, who is currently the Dean of the Rotman School of Management, but who once was a consultant to Imperial Tobacco Canada. Instead of testifying, he prepared an affadavit on how his engagement with Imperial Tobacco was unrelated to the super-charged issue of removing scientific documents from the reach of litigants. In his affadavit, Mr. Martin explains that it  is entirely coincidental that Mr. Roger Ackman and Mr. Patrick Dunn chose to chronicle their dispute over destruction of documents at ITL during a communications training session. His account also explains why it is entirely normal that there is no other record to substantiate this version of events, and no other record of that meeting. An entertaining read.

A change in venue has been made for the questioning of Mr. Peter Gage, former RBH employee. Next week, lawyers will decamp to Victoria, British Columbia and will question him from there while those based in Montreal can  watch the proceedings on screen.

Disagreements about documents 

The plaintiffs have subpoenaed documents from the CTMC, and a motion to quash this subpoena will be argued next Tuesday. A former employee of  the CTMC (Ms. Takacs?) will appear in connection with that motion. This arrangement was arrived at despite exuberant industry protests decrying a "fishing expedition" and "discovery of a non-party in the middle of the trial." Watching these discussions but keeping quiet was CTMC's counsel (and new face to the trial), Ms. Genevieve Gagnon from the lawfirm Julie Chenette

Other disputed documents which have been newly requested by the plaintiffs include records from Imperial Tobacco's defence of a claim in Ontario by the estate of Miriana Spasic, who died of lung cancer in 1998.

The federal government asked, and received, an extension on the time available to them before being required to file case material. This was granted under the shadow of a pending Court of Appeal ruling that might remove the federal government from the case altogether. Before granting their request, Justice Riordan teased the federal lawyers with a proposal that the government volunteer to provide the information to the industry irrespective of the eventual Court of Appeal in return for a longer extension.

The Macdonald Stewart Foundation documents

The plaintiffs indicated that visits had been made to the archives of the Macdonald-Steawart Foundation, and there was a brief discussion on how documents from this archive could be integrated into the trial record.

1964 Handwritten letter
between company presidents
Macdonald-Stewart collection 

The Macdonald tobacco company was a privately held business before it was sold to RJ-Reynolds in 1974 by David Stewart. (The company operated as RJR-Macdonald until it was sold to Japan Tobacco, and has been known as JTI-Macdonald since 1999). Some of the business material that was in the personal collection of the Stewart family was transferred to the foundation that was created with the proceeds of the sale.

In addition to an excellent collection of cigar indians and cigarette paraphenalia, the archives also include documents that shed some light on the relationship between the companies during the years when the health harms of smoking were becoming widely recognized. Because these documents are not under the control of any of the tobacco companies (some of the letters we have seen in the collection were sent to the home addresses of the company managers, thus escaping company files) they would not have been exchanged as part of the 'discovery process'.

Ed Ricard returns - again

By the afternoon, the case management discussion wound down and Ed Ricard, former marketing strategist to Imperial Tobacco and the official company witness, was recalled to the stand.

From his first questions, Bruce Johnston swung hard at the witness. His goal was clearly to attack the credibility of the company's spokesperson at the trial.

Mr. Johnston pointed out several discrepancies between what Mr. Ricard had said over the years of providing information through deposition or testimony and the court record from other witnesses or documents. He repeatedly invited Mr. Ricard to change his testimony - but not once was this invitation accepted. "I am not going to change my testimony," Mr. Ricard repeated again and again. "I stand by exactly what was said."

Mr. Ricard's view of events sounded like a hard story to stick to, and with Bruce Johnston 'sticking it to him,' he soon began to look as battered as his testimony.

The first issue addressed was the putative existence of an agreement between the federal government and the industry that constrained the company's ability to provide truthful information to its clients regarding health consequences of smoking. Mr. Ricard had testified that he recalled clearly reading that such an understanding existed. A request for documentation related to this claim resulted in more than 60 documents being produced by Imperial Tobacco (Mr. Ricard did not know how those documents were selected). When pressed to point to the document among those that was the source of his belief about an agreement, Mr. Ricard read a prepared statement into the record.

His taut text sounded so different than his previous testimony that the impression that it was written by someone else was instantly set. He said that the voluntary code agreement to not tinker with the health warning was "consistent with his understanding" that the government did not want the industry to be more forthright with its customers about the dangers of smoking. The delivery of this crafted message made him look even more like a man paid to take the fall.

Mr. Johnston highlighted the implausibility of such an agreement from several angles. Would not the president of the company or the head of public relations know of its existence?  But even when told neither Mr. Jean Louis Mercier or Mr. Descoteaux did not maintain that such an agreement existed, Mr. Ricard did not bend. "It does not change my testimony."

Mr. Johnston then turned to correspondence in which the department of Health was asking the industry to provide more health information. In particular, he focused on the response from the CTMC to a 1977 request for more educational messages, as Sweden in which the Paul Paré (who was both CTMC president and president of Imperial Tobacco) refused the request by saying that the companies "cannot be reasonably expected to advertise or promote the concept that people should not smoke, or that smoking is bad for you."

"Mr. Paré wrote what he wrote," said Mr. Ricard today. "It does not change my testimony."

Mr. Johnston then turned to other topics in which the testimony of Imperial Tobacco's main witness was inconsistent with documents or with the views of other witnesses.  Did the company ever market to 16 year olds? (Mr. Ricard said no, Mr. Descoteaux said yes). Did it suggested that some cigarettes were less harmful? (Mr. Ricard said lower tar cigarettes were less harmful, ITL President Marie Polet said that it was very wrong to suggest they were safer).

By the end of the afternoon, Ed Ricard looked like a punching bag. He took the pounding, he swung with the blows and offered no real defence. Yet by day's end he had still not budged.

Mr. Ricard will return to testify over the next two days (Tuesday and Wednesday).  On Thursday, Mr. Leblond is scheduled to testify for the first time.

Summer rulings

During the summer recess, three rulings were issued in this case, none of them favourable to the tobacco companies. In late June, Justice Riordan ruled on two issues that were argued just before the summer recess. In one June 28th ruling, he rejected the tobacco companies' argument that they should not have to provide particulars on their finances to the plaintiffs (although he imposed confidential treatment of these documents). In another ruling on the same day, he refused most of the requirements Imperial Tobacco was seeking to have imposed on the federal government (although he imposed deadlines on the government).

From the Court of Appeal last week, Justice Allan Hilton refused Imperial Tobacco leave to appeal the June 5th decision of Justice Riordan to not put 8 documents under confidential seal.

More rulings are to come ... this Friday the Court of Appeal will hear requests from two of the companies regarding the June 28th ruling on financial records. On the same day, the federal government will request leave to appeal Justice Riordan's decision to disallow some of the expert opinion of David Burns.

Please release me, let me go....

The three parties involved in the Quebec class action suits assembled in the Pierre-Basile Mignault room in Montreal's beautiful Court of Appeal on Thursday, August 9 to seek a decision on whether the federal government can be liberated from this trial.

The Court of Appeal was asked to decide whether the February 2012 decisions of Justice Riordan to allow Imperial Tobacco to expand its claim against the federal government, and to reject the government's request for dismissal of all the third party/action in warranty claims made against it by the three tobacco companies.

Getting the Court of Appeal to overturn a lower court decision is a two-step process - the usual first step is to convince one judge of the Appeal Court that an appeal is justified, the second is to convince a bench of three judges that the initial ruling was wrong.  But just over three months ago, Justice Kasirer deferred the decision on the government's request for leave to appeal these decisions, and set an unusual mid-summer hearing for three of his colleagues to consider  all issues together. So it was that the questions were the subject of a one-day hearing before Justices Jacques Léger, Jacques Fournier and Clément Gascon.

Belt and suspenders: two legal principles to support the federal position.

Within my circles, the case for the federal government is considered very strong. The Supreme Court, after all, unanimously determined a year ago that that it was "plain and obvious" that similar claims by the tobacco companies in two B.C. cases had "no reasonable chance of success and should be struck out." Core government policy decisions, the Court confirmed, are shielded from lawsuits. Moreover, it said, the floodgates of such "indeterminate liability" against the government should be kept closed. With the same industry claimants, the same government defendants and the same government-industry interactions involved, the issue has already been decided, the government and its supporters say. It is a chose jugée!

To add to this belt of legal doctrine the suspenders of a second legal principle are attached - the doctrine of precedent. Because the Supreme Court unanimously sided with the government in this chose jugée, and because such decisions are binding on all lower courts, it is thought inevitable that the Quebec Court of Appeal will come to the same conclusion. This is what the New Brunswick Court of Queens Bench decided last February when it struck out similar third party claims by the same companies against the same government over the same issues.

These two issues were the core of the federal government case presented confidently during the morning session by counsels Nathalie Drouin and Maurice Régnier. Their presentations detailed the many ways in which the actions in warranty were identical to the third party claims that had been considered and struck out by the Supreme Court and the many reasons why the Court should make exceptions to the general rule of not allowing appeals of such rulings when a trial is ongoing. The amended claim of Imperial Tobacco was dissected and presented an unacceptable attempt to slide past the Supreme Court decision.

(When available, the written arguments of the federal government and industry will be posted here).

Hoist on its own petard?

Despite the safe money being on the federal side, the tobacco company representatives (Suzanne Coté and Craig Lockwood for Imperial Tobacco, Simon Potter for Rothmans Benson and Hedges and Doug Mitchell for JTI-Macdonald) offered the judges a variety of reasons to refuse to consider the appeal and to uphold Justice Riordan's decision.

During their afternoon's presentations, they took several swings at the strategy of the federal government leading up to the trial, especially its decision of postponing any attempt to get out of the Quebec case until the BC issues were resolved. (A few weeks before the Supreme Court issued its decision, the federal government reached an out of court arrangement with the plaintiffs - it too was rejected by Justice Riordan.)

Simon Potter painted a picture of a recalcitrant government, resisting Judge Riordan's appeals to bring forward its motion to be dismissed from the case. He cited Judge Riordan's frustrated comments in his February ruling that although he had "beseeched Canada to present its Motion to Dismiss in time so that these files could follow what appeared to be an inevitable path to the Supreme Court of Canada hand in hand with the BC proceedings. The Court's urgings fell on deaf ears." Potter pointed out that in a ruling as early as 2008, Justice Riordan had pushed the federal government to fish or cut bait. The outcome was a decision of Justice Riordan to postpone a final decision on the federal involvement, a case management decision the Court of Appeal should respect, he concluded.

Craig Lockwood took swipes at other actions of the government, in particular its continued engagement in licensing 'lower tar' varieties of tobacco after evidence of compensation had been shared with them.  The industry should be permitted to show that these actions were wilful and reckless, he said, and therefore the federal government should remain in the case.

The B.C. (and New Brunswick) cases should not be considered precedents, the industry argued, as they were decided on laws quite different than those in Quebec. Because the Supreme Court ruling was on the statutes in those provinces and not on common law or other principles, the ruling did not automatically apply to Quebec's differing laws. In support of this position, they emphasized the logic of Judge Riordan's ruling that  another Supreme Court ruling (on the Canadian Food Inspection Agency) was more relevant as it reflected the constitutionality of different proceedings in different jurisdictions. The distinctiveness of Quebec's legal system was repeatedly emphasized by the industry's representatives.

Judicial solidarity?

To date, the Court of Appeal has turned down almost all of the appeals sent its way in this case, and concerns about allowing any appeals of decisions made while the trial was under way were reflected in some of the comments from the bench. Justice Leger pointed out that Justice Riordan would have taken the Supreme Court decisions into account before making his decisions. Justice Gascon reflected on the slippery slope of allowing appeals of interlocutory judgements.

A BIG decision

In this case, the Court of Appeal will have to decide whether to draw a line between the Quebec class action and the B.C. and New Brunswick case s and, if so, on which side of that line the federal government’s future involvement lies. 

It is not only the federal government and industry that have a lot riding on the outcome of this hearing. If the government is excused from the case, valuable experience and expertise sympathetic to the plaintiffs' side will leave the room. Testimony by the government's expert witnesses, which support the plaintiff's case, will not be available. The imbalance between the resources of four local law firms and those of three of the world's largest multinationals may become more important.

The Canadian public also stands to lose a unique opportunity for a judicial review, however strangely constructed, of the government's handling of a one of Canada's most sustained and deadly epidemics.

Day 47: Big Tobacco really doesn't want the plaintiffs to see their financial records

With no witnesses scheduled for the last day of the trial before the two month summer pause, business suits replaced the formal court gowns normally worn by the lawyers and judge. But unlike the last day of school, when it is customary to let the pupils leave early, the lawyers and judge put in an extra-long day, arguing a number procedural motions until almost 6pm.

Most of the day's issues concerned the federal government. Normally the Attorney General has three or four lawyers sitting quietly at the back of the courtroom, but on this day they showed up with almost a dozen, taking over much of the lawyers' seating area normally used by the plaintiffs. (The plaintiffs left most of their team in the office for the day, creating the room for the extra federal government people).

But the most interesting and important issue of the day was the one argued first, which had relatively little to do with the federal government. For some time the plaintiffs have been asking the defendants to turn over their financial statements for the last five years. The tobacco companies have refused, so today it went before the judge.

The reason the companies' recent financial statements are important is because the plaintiffs are asking for punitive damages if they win. Punitive damages are extra damages awarded by the court that go beyond just compensating the victims. They are only awarded by the courts in exceptional circumstances, when the defendants' conduct is so reprehensible that they justify an exceptional penalty. The purpose of punitive damages is to punish the worst of the worst and, hopefully, deter others from acting the same way.

Since punitive damages are meant to be a punishment, the court needs to know the tobacco companies' financial status in order to be able to tell what amount of punitive damages will make them say "ouch"! (A $1 million fine might be devastating for one company but not even make a richer company break a sweat). It is up to the plaintiffs asking for punitive damages to put facts about the defendants' financial status in front of the court, so that the court can decide an appropriate amount if it decides that punitive damages are justified in this case.

So, true to form, the defendants are refusing to hand over their financial information until the judge makes them.

The industry lawyers argued that handing their financial information over to the plaintiffs now is premature because punitive damages are supposed to be awarded based on the defendant's financial status at the time of the final judgment, not the time of the trial. Recognizing that the plaintiffs have to submit all their evidence, including evidence on punitive damages, during the evidentiary phase of the trial, the industry would like to wait until almost the very end of the trial before handing over the information. They also argued that their last five years' information is too much; they only want to hand of three years of information when they do eventually have to hand it over. Lastly, they asked the judge, if he does make them to hand over the information, to require that the plaintiff lawyers keep the information from their clients.

The plaintiffs have already promised to keep the financial statements confidential when they get them, and the judge could easily and justifiably order that they be held confidentially. But by making the extraordinary request that the plaintiff lawyers keep this information from their clients, the tobacco industry is essentially asking the court to rule that le Conseil québécois sur le tabac et la santé (the Quebec Council on Tobacco and Health) and representative Cecilia Letourneau and Jean-Yves Blais cannot be trusted to follow court orders. As far as this blogger is aware, the Quebec Counsel, Mme Letourneau and Mr Blais do not have a record of prior unlawful behaviour to justify this extraordinary exception to the foundational principle of our legal system that lawyers must be completely transparent with their clients.

On the other hand, the three defendants, Imperial Tobacco Canada Ltd. (the Canadian subsidiary of British American Tobacco), Rothman, Benson & Hedges Inc. (the Canadian subsidiary of Philip Morris International) and JTI-Macdonald Corp. (the Canadian subsidiary of Japan Tobacco International), have all recently been convicted of smuggling their own products to avoid taxes. Who is the biggest risk to disobey a court order here?

For his part, plaintiff lawyer Philippe Trudel pointed out to the judge that the plaintiffs need the defendants' financial statements as early as possible to give their experts enough time to go over the information and develop a position on what amount of punitive damages is justified. Making them wait until the end of the evidentiary phase of the trial may leave them insufficient time to analyze the financial statements. There is no harm to the defendants to hand over the information right away, as long as the plaintiffs keep the information confidential, but there could be harm to the plaintiffs from getting the information late. Thus, Mr Trudel argued, the fair thing to do would be for the judge to order that it be handed over right away. Mr Trudel also pointed out that the plaintiffs have to finish entering their evidence before the defendants enter their evidence, so it does not make sense to wait until until just before the end of the defendants' evidence for the defendants to hand over their financial statements (as the defendants are proposing), because the time for the plaintiffs to enter evidence will be over.

Justice Riordan will give his decision on this issue at a future time.

And so ended the interesting part of the day. The remainder was taken up with legal arguments between the federal government and Imperial Tobacco over document disclosure, admissions, depositions of Health Canada and Agriculture Canada witnesses, and schedules and timelines for filing legal arguments.

The trial will resume in late August with the last few plaintiff witnesses agains Imperial Tobacco, after which the plaintiffs will move on to evidence against the other defendants. Thank you for following this very important trial and have a great summer (or winter if you are in the Southern Hemisphere).

By Michael DeRosenroll for Cynthia Callard

Day 40 : Parliamentary Privilege

When the trial of the Quebec class action suits against tobacco companies resumed this Monday morning, Montreal was recovering from the Grand Prix weekend that is the traditional start to this city's summer festival season.

This year, the spotlight was on student protests against an event labelled as “sexist, elitist and polluting” and media interest in the students' decision to march nude overtook coverage of the race.

Times have changed. 

Grand Prix 1998

It is not that many years since Montrealers were in the street protesting for the Grand Prix.

In 1997, taxi drivers and other 'small businesses' locked down the city temporarily to voice their opposition to the proposed federal law to end tobacco sponsorship (as a result of a threat of F1 organizers to remove the Grand Prix from Montreal, the ban on sponsorship promotion was delayed by a few years).

In those days, the Players' Grand Prix was an untouchable icon of Quebec tourism. Imperial Tobacco's blanketing of the city with promotion of the event/brand was welcomed by many as a contribution to the festival atmosphere. The City of Montreal and the Government of Quebec twinned their logos with those of a cigarette brand.

This year, almost 14 years since these class actions were filed, the Quebec government chose the Friday of the Grand Prix weekend to slap the tobacco industry with a $60 billion lawsuit.

Picking up where they left off six years ago

It's hard to know whether any of the lawyers assembled in courtroom 17.09 this morning had spent much time at the racetrack on the weekend.

On the one hand, those thick books of authorities don't produce themselves! On the other hand, the parties have had more than 6 years to prepare their arguments for today's hearing on the legally exotic question of parliamentary privilege  and how it relates to this case.

In 2006, the tobacco companies had argued before Justice Carole Julien, among other things, that since parliamentary immunity would make it impossible for some allegations to be proven, such sections of the statements of claim should be struck down. In his decision, Justice Julien reflected a bit on the nature of parliamentary privilege, but left to the trial the decision on any specific parts of the claim.

Today was the day for the debate. The core question was whether the companies can have their words before various parliamentary committees held against them in this trial.

Guy Pratte: defender of public witnesses

Canadian Lawyer 2008

When JTI-Macdonald signed Guy Pratte (of Borden Ladner Gervais) to their team, they engaged one of the more experienced defenders of witnesses before tribunals. "Today I find myself representing people who are embroiled with public inquiries, parliamentary or otherwise," he told the Canadian Lawyer in 2008.

His clientèle is diverse. Before commissions of inquiry, he has represented both Conservative Brian Mulroney and Liberal Jean Pelletier. In court, he has stood for both the Canadian Medical Association and his current tobacco client, JTI-Macdonald.

Mr. Pratte apparently keeps an open mind on the question of parliamentary immunity. Before the Gomery Inquiry he argued that parliamentary privilege should not prevent a witness (Chuck Guité) from being cross examined about his testimony before a parliamentary committee. Today he took a very different position.

Parliamentary immunity cannot be waived (except by Parliament)

Mr. Pratte had the responsibility for expressing the core views of all three companies. It took the bulk of the morning (including many initial interruptions from Justice Riordan) to present their case.

Guy Pratt appealed to the constitutional role of parliamentary privilege and its basis in the 17th century British Bill of Rights provisions that "the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament." As such, allowing this trial to consider statements given by tobacco companies to parliamentary committees would be a threat to democratic principles of freedom of speech for parliamentary witnesses.

It wasn't enough to protect the tobacco companies from repercussion on anything they said to Parliament, Mr. Pratte argued, it was also necessary to prevent all of the preparatory work (like planning documents, records of meetings, etc) from being put on the trial record.  The privilege should be extended to all of those who worked with the tobacco companies and the witnesses they recruited to support their views and these other submissions to Parliament.

The law prohibits the use of any of this parliamentary material to support allegations of liability or to impugne credibility, he said. The fact that the industry circulated their parliamentary briefs was irrelevant, he suggested, as dissemination did not "waive" the privilege. There are limited situations where parliamentary privilege does not apply, he said, but they were not applicable to this case.

Lawyers for the other two tobacco companies supported his views. On behalf of Rothmans, Benson and Hedges, Jean-Francois Lehoux spoke only briefly. The sole purpose of introducing the material was to harm the defendants' position, he said, and therefore directly against the principle of parliamentary immunity.

On behalf of Imperial Tobacco, Suzanne Cote emphasized that any actions taken by tobacco companies after their testimony could not be viewed as weakening their right to immunity."Only Parliament can waive privilege – that means that anything that a witness says or does cannot be seen as a waiver of privilege." 

She outlined the wide scope of records she wanted protected. In addition to any verbatim records (like Hansard), she also felt that immunity extended to documents submitted to committees, any preparatory material, newspaper reports on events in Parliament, and newsletter or other communications material produced by the companies related to their testimony.

Parliamentary immunity can be lost. 

On behalf of the plaintiffs, André Lespérance presented during the afternoon the reasons why the roughly forty documents under question should be admitted to the trial, and the discretion on how to interpret the application of immunity to their contents left to the judge.

Like Mr. Pratte, Mr. Lespérance has perviously dealt with the issue of parliamentary privilege in the Gomery Inquiry.  (He represented the Attorney General of Canada on the unsuccessful attempt by Alphonso Gagliagno to get a Federal Court judicial review of Justice Gomery's ruling that Guy Pratte could not cross-examine Chuck Guité -- it's a small world).

Mr. Lespérance provided a more tempered application of the principles of parliamentary immunity, and to the application of the concept that only Parliament can waive privilege. He pointed to many occasions in which courts cite parliamentary evidence as a context-setting historic fact, including the citation by the Supreme Court of Canada of speeches by Jake Epp. He noted that the tobacco companies had included parliamentary citations in some of their filings and said that allowing reference to some testimony and not others would not be balanced.

The challenge, said Mr. Lespérance, is determining where parliamentary immunity begins and where it ends. He suggested that the case law was not yet well established and that there were gaps ('lacune') that needed to be filled. He noted that the United Kingdom had introduced a Defamation Act to clarify the limits of privilege.

Mr. Lespérance said that the tobacco companies had proactively repeated outside of Parliament what they had said inside, and by doing so they had lost immunity. Under such circumstances, the need for Parliament to waive immunity didn't apply.

Nonetheless, the plaintiffs needed to be able to introduce the parliamentary records to establish historic fact, to help establish the position of the companies and to contribute to the determination of punitive damages.

For most of the day, Justice Riordan had said little other than to clarify page references or document sources. After Mr. Lespérance moved back to his seat, the Judge looked down and asked, almost as an afterthought, if Mr. Lespérance had requested Parliament to waive its privileges in this case. The answer was not entirely audible to the back of the room, and may not have been to the judge either, for he asked again:

Justice Riordon: It strikes me it might be in your interests to do so (ask Parliament to waive privilege). Have you?
André Lespérance: No.


Renunciation and repetition different concepts

The federal position was represented by a new face to the trial, Mr. Jean-Robert Noiseux from the Attorney General's office. The federal government supported the position of Mr. Lespérance and repeated the view that while only Parliament can renounce parliamentary privilege, once a person decides to repeat outside the House of Commons what they said inside, they lose the benefits of the privilege.

He provided additional authorities, including the memorable case of André Ouellet, then Minister of Consumer and Corporate Affairs. (Mr. Ouellet was held in contempt of court after repeating outside the House his view that a judge's acquital of sugar companies on charges of price fixing was a "silly decision".) Mr. Noiseux pointed out that the courts had ruled that MPs mailings to constituents ('householders') did not benefit from parliamentary immunity. As Mr. Lespérance had done, he went through specific documents in question to suggest why each should be admissible. Mr. Noiseux concluded by recommending that decisions be reached on a document-by-document basis.

During the replies from each side that closed the hearing, Guy Pratte cautioned against a blanket introduction. Suzanne Coté characterized repetitions outside the House as being extensions of parliamentary testimony, and therefore also privilege. Mr. Lehoux forcefully, but briefly, expressed his views that the documents in question be struck down immediately.

In this closing section, Justice Riordan hinted that a document-by-document decision may be required. "It’s a document by document process...  we can't really do anything else."

Filling the void

In making his ruling on Chuck Guités testimony, Justice Gomery had noted that 'One of the difficulties I have in deciding whether to maintain or dismiss the objection is that there is no Canadian case directly dealing with the issue."  Whatever the outcome of today's hearing (including the inevitable appeals!), it will help fill that void.


A little light reading.

• Canadian House of Commons description of parliamentary privilege
• Supreme Court of Canada ruling on parliamentary privilege:  Vaid
• Gomery ruling re parliamentary privilege
• Federal Court re Gagliano
• Julien ruling on privilege
• Privy Council  Jennings vs. Buchanan

That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament. English Bill of Rights, 1689


Tomorrow, Mr. Jacques Woods will return to the stand.