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

2011 QCCS 4085

 

JR1353

 
SUPERIOR COURT

(Class Action Division)

CANADA

PROVINCE OF QUÉBEC

DISTRICT OF MONTREAL

N° :

500-06-000076-980

500-06-000070-983

DATE :

July 20, 2011

_________________________________________________________

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 (the "AG")

Defendant in Warranty

_________________________________________________________

JUDGMENT ON RBH'S MOTION TO STRIKE THE NAME OF ONE OF

ITS COUNSEL FROM PLAINTIFF'S WITNESS LIST

_________________________________________________________

AND

NO 500-06-000070-983

CÉCILIA LÉTOURNEAU

Plaintiff

c.

JTI-MACDONALD CORP.

and

IMPERIAL TOBACCO CANADA LTÉE

and

ROTHMANS, BENSON & HEDGES INC.

Défenderesses / Demanderesses en garantie

v.

PROCUREUR GÉNÉRAL DU CANADA

Defendant in Warranty

___________________________________________________________

JUDGMENT ON RBH'S MOTION TO STRIKE THE NAME OF ONE OF

ITS COUNSEL FROM PLAINTIFF'S WITNESS LIST

___________________________________________________________

[1]         RBH seeks to obtain an order requiring the name of Mtre. Simon Potter to be struck from the Plaintiffs’ witness list in these files.  Mtre. Potter's implication in this regard arises in the early 1990's when, for his previous firm, he acted as counsel to ITL.  He is now counsel to a different company and with a new firm.

[2]         RBH advances three basic arguments in support of its request:

a.  that Plaintiffs fail to demonstrate that the testimony is necessary, that there are no other means of obtaining the desired evidence and that, in any event, the evidence is not central or critical to the actions;

b.  that Plaintiffs fail to show the seriousness of calling him as a witness, in that they did not seek out other means of obtaining the desired evidence, did not act in a timely manner and have increased from 3 to 141 the number of documents on which he would be questioned; and

c.  that RBH would suffer undue prejudice if he were to testify, given that Plaitiffs' counsel could attempt to impugn the credibility and ethics of their lead counsel.

[3]         For several years now, Plaintiffs have consistently indicated that they intend to call Mtre. Potter as a witness and his name has always appeared on their witness lists.  They argue that RBH renounced to making this type of motion in light of the fact that the matter was raised in front of its president during a discovery several years ago, with no action being taken then.  They have also consistently stated that they do not intend to ask for his disqualification, preferring to leave it up to him to decide if he should withdraw or not, based on his appreciation of his ethical obligations.

[4]         His testimony is relevant, in their submission, on three issues:

a.    to support Plaintiffs' claim for punitive damages;

b.    to provide a type of estoppel to the Companies' position that the class members knew of the dangers of smoking; and

c.    to show that exceptions to the solicitor-client privilege apply.

[5]         All these issues are relevant to the files and, prima facie, Mtre. Potter appears to have knowledge that would be necessary in order to understand the full story.  Nonetheless, that does not mean that he, a lawyer ad litem, should be required to testify on them.

[6]         RBH is correct in its submissions that such a step cannot be permitted unless certain criteria, well established in the case law, are met, necessity and the absence of any other reasonable means of making the proof being in the lead. 

[7]         In that regard, the Court of Appeal has refused leave to appeal of our decision approving the issuance of two letters rogatory.  They concern two foreign witnesses who appear to be in a position to provide information that could alleviate the need for Mtre. Potter's testimony.  Nevertheless, there is no guaranty that those two witnesses can bring all the proof required by the Plaintiffs on the issues mentioned.  The same holds true for the testimony of ITL's former in-house counsel and its president, both of whom will also testify.

[8]         The Plaintiffs have the right to put before the Court the three issues in question.  They do not have the right to call Mtre. Potter as a witness unnecessarily.  What cannot be known now is whether or not his testimony will, in fact, be necessary once all the other avenues have been exhausted.  The present motion is, therefore, premature and the Court must dismiss it.

[9]         In closing, the Court wishes to make it clear that it will enforce a process that respects the well-established reticence to require an attorney ad litem to testify.  More precisely, we will not allow Mtre. Potter to be called unless and until it is clear that there is no other alternative.  Thus, only time will tell whether or not he will have to testify, but it is not possible to rule that out at this stage.

BASED ON THESE REASONS, THE COURT:

[10]      DISMISSES RBH's Motion to Strike the Name of One of its Counsel from Plaintiffs' Witness List;

[11]      Costs to follow suit.

 

 

 

Hearing Date:  July 6, 2011

 

_____________________________

BRIAN RIORDAN, J.S.C.

 

AVIS :
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