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Conseil québécois sur le tabac et la santé c. JTI-Macdonald Corp.

2012 QCCS 3561

 

JR1353

 
SUPERIOR COURT

(Class Action Division)

 

CANADA

PROVINCE OF QUÉBEC

DISTRICT OF MONTREAL

 

N° :

500-06-000076-980

500-06-000070-983

 

DATE :

June 28, 2012

_______________________________________________________________

PRESIDING:     THE HONORABLE BRIAN RIORDAN, J.S.C.

_______________________________________________________________

No 500-06-000076-980

CONSEIL QUÉBÉCOIS SUR LE TABAC ET LA SANTÉ

and

JEAN-YVES BLAIS

Plaintiffs

v.

JTI-MACDONALD CORP. ("JTI")

and

IMPERIAL TOBACCO CANADA LTÉE ("ITL")

and

ROTHMANS, BENSON & HEDGES INC. ("RBH")

Defendants / Plaintiffs in Warranty (collectively: the "Companies")

v.

PROCUREUR GÉNÉRAL DU CANADA ("Canada")

Defendant in Warranty

________________________________________________________________

RULINGS ON ITL'S MOTION FOR DIRECTIONS ________________________________________________________________

 

 

AND

 

NO 500-06-000070-983

CÉCILIA LÉTOURNEAU

Plaintiff

v.

JTI-MACDONALD CORP.

and

IMPERIAL TOBACCO CANADA LTÉE

and

ROTHMANS, BENSON & HEDGES INC.

Defendants / Plaintiffs in Warranty

v.

PROCUREUR GÉNÉRAL DU CANADA

Defendant in Warranty

________________________________________________________________

RULINGS ON ITL'S MOTION FOR DIRECTIONS ________________________________________________________________

[1]         ITL requests the Court's assistance on several case management issues in the Actions in Warranty[1].  Broadly speaking, it sees four areas of concern:

·        Canada's denials of ITL's Article 403 notices;

·        Revised deadlines for Canada to produce its remaining undertakings and document communication, including the documents relied upon by its experts;

·        ITL's need for further discovery;

·        Deadline for Canada to complete all steps related to its amended Defence to ITL's Amended Action in Warranty. 

ARTICLE 403 DENIALS

[2]         Inspired by the Court's judgment of May 2, 2012 (the "May Judgment") declaring its denials of article 403 C.C.P. notices ("Notices") abusive and thus quashing them, ITL asks that the same treatment be accorded to Canada's denials of 1,566 documents notified to it by ITL under five separate Notices.  As was the case for ITL's denials, all these documents were previously communicated by Canada to ITL pursuant to the document exchange process adopted in these files.

[3]         The Court understands ITL's frustration in this regard.  Even though it did not deny the authenticity of the majority of the documents notified, Canada found numerous reasons for denying about a third of them.  ITL classifies those denials into eight categories, as shown in the following table:

Number of Documents

Reason for denial

398[2]

annotated

56

illegible

725

incomplete

273

missing attachment

138

source cannot be ascertained

278

unauthored

388

unsigned

212

undated

[4]         Given that every one of these documents comes from Canada's own records, a number of these reasons seem doubtful at best and, depending on the circumstances of the document, could well be held to be abusive under the guidelines set out in the May Judgment.  As witness to that, Canada, to its credit, agreed at the hearing that it would drop the "missing attachment" reason for denying 273 documents. 

[5]         In an appendix to its motion, ITL provided 25 examples of documents denied, covering the gamut of the reasons evoked.  In reviewing those documents prior to the hearing, Canada discovered that it could withdraw its denial of about ten of them, although we should add that this does not indicate that the original denial was necessarily unjustified.  For example, several of the obviously incomplete documents had been admitted by Canada in their "complete" form pursuant to another ITL Notice.[3] 

[6]         This document-by-document review at the hearing proved most revealing and helpful to the Court.  It made it clear that the decision on the possible abusiveness of a denial required a review of the circumstances both of the denial and of the particular document.  At this stage, the Court is not in a position to make a global judgment covering all documents in a category. 

[7]         Moreover, it is not necessary to go to that extent now.  The Notices, covering nearly 15,000 documents[4], are preliminary steps in the process of filing documents into the record.  The great majority of those 15,000 will likely not be produced at trial and the same applies to the 1,566 that were denied.  It goes without saying that only the documents that ITL wishes to produce need be reviewed in this regard.

[8]         Consequently, the Court will follow the process that it specifically decreed at paragraph 51 of the May Judgment: "Le processus décisionnel sur ces questions doit se dérouler pièce par pièce.  Chaque objection fera l'objet d'une décision distincte qui pourra être révisée en appel selon le processus habituel en semblable matière." 

[9]         Ten days prior to a witness's appearance at trial, the party calling him makes its best effort to notify the other parties of the documents it intends to use with that witness.  Canada will thus learn of the documents ITL is seeking to admit into the record ahead of time and will be able to do a thorough review of them with an eye to allowing their production, perhaps subject to certain reasonable conditions or limitations, as foreseen in the May Judgment.

[10]      For the moment, therefore, the Court refuses ITL's request for an order under article 54.1 of the Code of Civil Procedure with respect to the denials under the Notices.  Any decision in this regard will be made on a document-by-document basis.

COMMUNICATION OF UNDERTAKINGS AND DOCUMENTS

[11]      This issue has three parts:

·        Completion of initial document communication;

·        Completion of undertakings;

·        Communication of documents relied upon by Canada's experts.

[12]      Concerning initial document communication, in spite of ITL's suspicions that all documents have not been communicated, Canada assured all concerned that the process was now complete, subject, as is always the case, to later discovery of other relevant documents of which it is currently unaware.  Accordingly, no more need be said about that here.

[13]      Concerning the balance of the 2,200 undertakings resulting from the discoveries of Messrs. Martel and Choinière, Canada confirms that the great majority of those will be communicated by June 27, 2012, with the rest coming by July 13.  ITL is comfortable with those delays.

[14]      Concerning the documents relied upon by its experts, Canada undertakes to communicate all such documents to the Companies by July 10, 2012, except those coming from Dr. David Burns.  Our judgment excluding the majority of his report is the object of a motion for leave to appeal.  Depending on the outcome of that, if his report is ultimately filed in one form or another, Canada undertakes to communicate the relevant documents to the Companies thirty days after the filing.

[15]      These delays for both the undertakings and the experts' documents seem to satisfy the Companies and the Court hereby ratifies them and orders Canada to comply with that schedule.

REQUEST FOR FURTHER DISCOVERY

[16]      This issue also has three parts:

·        The completion of the discoveries of Dr. Martel of Agriculture Canada and Mr. Choinière of Health Canada;

·        Permission to examine Mr. Byron Rogers of Health Canada, possibly in lieu of Mr. Choinière in light of the latter's limited knowledge of the facts relating to these files;

·        Permission to examine a person from each ministry (the "Librarians") familiar with the document retention and filing systems used in its archives and library.

[17]      It is not irrelevant to underline at the very outset that extensive discovery of Canada's representatives has already been carried out.  As of June 9, 2011, Dr. Martel had been examined by the Companies for a total of some 18 days, 10 of which being by ITL[5], while Mr. Choinière's examination was "limited" to 16 days as of July 14, 2011.  In the course of those, Canada agreed to some 2,200 undertakings.  As well, the Court decided the hundreds of objections made in these discoveries on October 25 and 31, 2011 and February 15 and 16, 2012.

[18]      The Court also wishes to point out that, although the trial has already started in these files, it cannot accept Canada's argument that it is too late for ITL to request additional discovery in the Action in Warranty.  On a number of occasions the Court attempted to make it crystal clear that the fact that it was starting the hearing in the principal action before the Action in Warranty was technically ready for trial would not prejudice the parties in the normal preparation of that segment of the files.  That Canada should raise this argument in an apparently serious manner now, therefore, is quite distressing and shakes the Court's confidence in its ability to transmit a clear message to the parties.

[19]      Starting first with the request to examine Byron Rogers, his name is raised by ITL because, according to its motion, he is "a current employee of Health Canada, who has been employed by Health Canada and engaged in tobacco matters since 1979, according to answers to undertakings received.  He also was given the task of reviewing documents between 1963 and 2005 under heading “Light and Mild” and “Knight Case File Review”, as shown by the extract from the AGC’s objective data about “file sources” of 44 documents". 

[20]      ITL does not explain why it waited nearly a year to make this request to the Court. 

[21]      The first that the Court heard either about ITL's dissatisfaction with Mr. Choinière's knowledge of the case or about its desire to examine another Health Canada representative in addition to or in place of Mr. Choinière was when ITL served its present motion - eleven months after adjourning Mr. Choinière's examination.  In the interim, ITL voiced no dissatisfaction in this regard at any of the hearings on the objections or at any of the myriad other court dates held in these files. 

[22]      Sixteen discovery days and 2,200 undertakings later, it is hard to generate great sympathy for ITL's position.

[23]      Below, we permit reasonable follow-up discovery in writing of Mr. Choinière.  We acknowledge that much of this process must, for practical purposes, be done by way of undertaking. 

[24]      The fact that Mr. Rogers reviewed documents dating between 1963 and 2005 does not make him either their author or an authority on their contents.  It seems obvious that, even if he were to be examined, he could do little more than resort to undertakings and additional document production.  Mr. Choinière is capable of that.  And in any event, if Mr. Rogers is truly a key witness, ITL can call him to testify at trial.

[25]      The Court refuses the request to examine Mr. Rogers.

[26]      Concerning the Librarians, in its motion ITL advances the following reasons in justification of its request to examine the Librarians:

38. As for Librarians or other knowledgeable persons from Canada being produced as additional discovery witnesses, among the issues raised by the pleadings in these Class Actions and Actions in Warranty is that Canada set the standard for warnings (or no warnings) with respect to cigarette products including, without limitation, any health risk, compensation or addiction warnings, and that there was widespread knowledge of the health effects of smoking during the Class Period.  It is important to know when or approximately when Health Canada and Agriculture Canada had knowledge of the developing and changing scientific positions and what Canada did in response to the demands of certain groups for different forms of warnings and with respect to “less hazardous” cigarettes, based on the information and knowledge that Canada had at the relevant times.

39.  …

40.  The dates of receipt by Canada of the relevant books, journal articles, conference papers, newspaper articles and other documents, as found in Canada’s productions to date, could be subject to inferences to be drawn from some of the file source data provided to date, but counsel for the AGC will not admit a date of receipt or approximate date of receipt without specific follow up questions on each of the documents;

41.  Neither Dr. Martel nor M. Choinière has personal knowledge of the date of receipt of documents that were not sent to them and received by them their discovery examinations. (sic)

[27]      In question are the hundreds of thousands of documents communicated to date by Canada pursuant to the document exchange process adopted in these files.  Is it really necessary to know the date of receipt of every one of those documents?  Surely it would be possible for ITL to be more selective as to the key documents to be considered.

[28]      As well, if this issue is so important, and since it has been clear for a year that Messrs. Martel and Choinière do not have - nor could any one individual possibly have - personal knowledge of the dates of receipt of these documents by the ministries, what is the justification for waiting until now to request this?  ITL offers none.

[29]      Although the Court experiences the same difficulty in generating sympathy for ITL's position here as it did with respect to the examination of Mr. Rogers, it does see fit to provide it some relief on the point.  This is set out in the following section dealing with the follow-up discoveries of Messrs. Martel and Choinière.

[30]      Thus, given the tardiness of the request, and in light of the obvious overkill of the targeted information, as well as the discovery permitted below that appears to be more than adequate for ITL to make its proof on the matter, the Court refuses the request to examine the Librarians.

[31]      Concerning Messrs. Martel and Choinière, judging by the language used at the conclusion of the last day of discovery in each case, and by the absence of any objection on the part of Canada's counsel, the parties seemed to agree that additional days of discovery would be required, particularly for Mr. Choinière.  ITL's attorney concluded those days' hearings with the following statements:

·           So rather than trying to carry on with this part of the examination now, I'm going to adjourn, because I'm asking you to produce the witness again, and we may be asking the judge for the same thing.  But we're finished for today and there's no set date for any return. (Examination of Yvon Martel on June 9, 2011)

·           Mr. Choinière and counsel, at this point I'm going to adjourn - I would say - and perhaps you say here "suspend the examination", until I have an answer particularly with respect to the agreement on documents, and one which is agreed, one is under advisement, and the specifics of that.  I don't know whether my reasonable expectations that we can deal with the documents in that efficient way will be achieved, so I'm going to adjourn now.  Secondly, we've barely scratched the surface of your new documents recently produced.  And then, finally, it may make some sense to deal with undertakings and refusals before any reattendance. (Examination of Denis Choinière on July 14, 2011)

[32]      That being said, and whatever the reserve of rights, it is high time that ITL move this process to a timely conclusion.  It submits that it wishes to conclude all discovery of Canada's representatives by the end of September.  It also states that in Dr. Martel's case it is possible to complete the examination by way of written questions and responses.  The Court takes ITL at its word on both counts and the timetable set out below reflects that.

[33]      As for the completion of the examination of Mr. Choinière, ITL's comments indicate that he has little direct knowledge of the facts and, as a result, Court deduces that he must generally answer questions by way of undertakings.  In that light, it makes little sense to recommence discovery sessions only to suspend them again while Canada's attorneys amass the undertakings requested.  Logic requires that the process be completed in writing, with ITL providing a list of questions to which Canada will reply in writing.  The delays for this exchange are set out in the timetable below.

[34]      Two additional points must be dealt with on this topic.

[35]      First, Canada wishes to restrict any further discovery to the amendments to ITL's Action in Warranty.  Given ITL's reserve of rights, as cited above, Canada's position is unreasonable.  Moreover, it is unworkable in light of the delays established here below for its Amended Defence.  As such, ITL will be allowed to "complete" both discoveries on any issues not already fully canvassed in the preceding sessions, subject to the following.

[36]      Second, although the Court refuses ITL's request to examine the Librarians, it will allow ITL to obtain part of the information it believed would come through them as part of its follow-up to the Martel and Choinière discoveries. 

[37]      As appears from ITL's motion, its main interest in this regard appears to be to "know when or approximately when Health Canada and Agriculture Canada had knowledge of the developing and changing scientific positions" and to ascertain this information from "the dates of receipt by Canada of the relevant books, journal articles, conference papers, newspaper articles and other documents, as found in Canada’s productions to date".  That seems neither unreasonable nor completely irrelevant. 

[38]      What does seem unreasonable, however, is the overkill factor of forcing Agriculture Canada and Health Canada to search for the dates of receipt of tens of thousands of "books, journal articles, conference papers, newspaper articles and other documents" merely because they have been communicated to ITL as part of a general obligation in these files to exchange all documents in a party's possession that are "relevant" to the matters in issue.

[39]      The Companies are extremely sophisticated and knowledgeable about the tobacco industry and the scientific and popular literature related to it.  They and their teams of experts surely know what are the key publications marking the progression of "the developing and changing scientific positions" over the Class Period.  There are not several hundred thousand of such documents, which is the dimension of the document production by Canada to date.  In fact, it seems obvious that a mere handful of relevant documents would be sufficient to establish ITL's argument on this point.  Moreover, they already know which documents Canada possessed on the topic.

[40]      But while we won't limit ITL to a mere handful, we cannot permit it to go to the absurd level it is requesting.  It will have to do the preparatory work required to identify in its own mind a reasonable number of key documents in Canada's possession for which it requires details.

[41]      Accordingly, in its follow-up questions to Messrs. Martel and Choinière, ITL will have the right to identify up to 100 hundred documents included in the document productions of each ministry and require the ministry to specify the dates of receipt thereof, to the best of the ministry's knowledge.  As with every other case management decision in these files, the Court will always be available to hear reasonable argument as to possible modifications of this order.

[42]      In conclusion on the discovery issue, the following timetable should be sufficient for the completion of the discoveries of Canada's representatives by ITL, excluding discovery on the amended Defence in Warranty, which is dealt with in a later section.  The starting point for these steps must logically be July 13th, the deadline for Canada to communicate the remaining undertakings from the previous examinations.  We shall also grant the parties an extra week in the case of Mr. Choinière, since it appears that there will be more questions for him than for Dr. Martel.

A.  ITL will communicate to Canada written follow-up discovery questions for Agriculture Canada and the undertakings provided by Dr. Martel;

By August 10, 2012

B.  Canada will reply in writing to the Agriculture Canada questions;

By September 7, 2012

C.  ITL will communicate to Canada written follow-up discovery questions for Health Canada and the undertakings provided by Mr. Choinière;

By August 17, 2012

D. Canada will reply in writing to the Health Canada questions.

By September 14, 2012

COMPLETION OF ALL STEPS REQUIRED TO AMEND THE DEFENCE IN WARRANTY

[43]      On this item, the Court assisted the parties to come to an agreement on a timetable applicable to all the remaining steps of the process.  One step that was overlooked at the hearing, however, was the possibility for ITL to examine Canada on its Amended Defence.  It makes sense to allow such discovery but, as with the case of Canada's discovery of ITL in relation to the amendments, it should be in writing.  This seems particularly logical in light of the rather limited scope of the amendments. 

[44]      In the below timetable, the Court establishes what appear to be reasonable delays for the various steps required.

A.  ITL will identify to Canada the source of information on which each amended paragraph of the Amended Action in Warranty is based, including all documents that ITL plans at the present time to produce in support thereof;

By July 3, 2012

B.  If it deems it necessary, Canada will communicate to ITL written discovery questions relating to the amendments only;

By August 3, 2012

C.  If discovery questions are communicated, ITL will reply in writing;

By August 29, 2012

D. Canada will file its Amended Defence to the Amended Action in Warranty, along with its Declaration under article 274.2 C.C.P.;

By September 28, 2012

E.  Canada will file any further expert reports in reply to the Amended Action in Warranty;

By October 26, 2012

F.  If it deems it necessary, ITL will communicate to Canada written discovery questions relating to the amendments only;

By October 26, 2012

G. If questions are communicated, Canada will reply in writing.

By November 23, 2012

[45]      Finally, and in an effort to be crystal clear, since the parties have essentially unlimited access to the Court in these files, should any modifications appear necessary, it will be a simple matter to put the question to the Court for a rapid decision.  This option is, of course, open with respect to all case management rulings made in these files.

 

                                                          

                                                                  _____________________________

      BRIAN RIORDAN, J.S.C.

Hearing Date:  June 21, 2012



[1]      The other two Companies do not join in on the present motion.

[2]      Many documents were denied for more than one reason, thus resulting in a total number of denials greater than the number of documents denied.

[3]      Given the nearly 15,000 documents notified by ITL to Canada, it is not surprising that some duplication would occur.

[4]      The figures are sometimes difficult to understand in this section.  Canada indicated that ITL had sent Notices for 14,957 documents and that it had not denied 67% of them.  However, ITL complains of 1,566 denials.  Whatever the numbers, the volume of documents is significant.

[5]      The exact number of days for Dr. Martel might vary somewhat, since there were contradictions in the pleadings on that, whereas there seems to be consensus on the 16 days for Mr. Choinière.

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