Décision

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

2011 QCCS 5881

(Class Action Division)

CANADA

PROVINCE OF QUÉBEC

DISTRICT OF MONTREAL

N° :

500-06-000076-980

500-06-000070-983

DATE :

October 31, 2011

________________________________________________________________

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

________________________________________________________________

N^o 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 "AGC")

Defendant in Warranty

JUDGMENT ON OBJECTIONS

IN THE EXAMINATION OF MR. DENIS CHOINIÈRE

AND

N^O 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

JUDGMENT ON OBJECTIONS

IN THE EXAMINATION OF MR. DENIS CHOINIÈRE

No.

Question

Decision

1: U-40

O-24

Q 301

Objection:  To advise for other individuals mentioned as employees of Health Canada in the Briefs of Documents [as subsequently marked as exhibits] who have been sent a document dealing with tobacco or smoking and health or who have received the document, to advise when these individuals mentioned as employees of Health Canada in Health Canada’s documents were employed by Health Canada, what their positions and titles were and the years during which each individual held the position at Health Canada.

Order AGC to communicate the information as agreed upon between the parties.

2: U-41

Q 304

Under Advisement: To review the pension records that Canada maintains for its employees and advise whether any of the individuals shown on Exhibit DC-F-3 are dead [because they are no longer receiving their government pension or otherwise]; or whether they are alive.

Order AGC to communicate the information as agreed upon between the parties.

3: U-42

Q 304

Under Advisement: If the individuals shown on Exhibit DC-F-3 are still alive, to provide their last known address and last known telephone number, as shown in the records of the Government of Canada.

Order AGC to communicate the information as agreed upon between the parties.

4: U-43

Q 304

Under Advisement: To provide the last known address and last known telephone number, as shown in the records of the Government of Canada, of the personnel who are shown as authors or recipients of the approximately 3,000 documents that have been designated as relevant to the examination of Mr. Choinière and are in the binders.

Order AGC to communicate the information as agreed upon between the parties.

5: U-37

Q 304

Objection: To the extent documents [organization charts] are provided, to advise whether the mandate or the responsibility shown as assigned to those groups as set out in the documents are accurate. 

Order AGC to advise the Companies as to any inaccuracies in the organization charts, should any be discovered.

6: U-118

Q 752

Under Advisement: To advise whether Canada requested and reviewed the files of the Health Ministers during the period from 1954 to 1998 to determine if all the relevant documents have been produced.  Includes files at National Health and Welfare, files of the Minister at the House of Commons, Parliamentary Library or the Minister’s personal file.

Objection withdrawn, subject to the agreement among the parties that only documents under their possession and control need by reviewed and communicated.

Orders AGC to advise the Companies as to which minister's files deposited with Library and Archives Canada have been reviewed for the purposes of document production and as to which files AGC did not have access and the reasons why, if known.

7: U-285

Q 1117-1118

Under Advisement: To advise whether Health Canada released the information in the Abstract to the Second Report on the Canadian Veterans Study, publicly, because the Minister of Health had refused to make a statement to the Public Health Association.

To review the records of National Health and Welfare and also the Minister’s files and advise whether Canada has the information or documents that would be responsive to this question.

Same as objection #6

8: U-312

Q 1213

Under Advisement: To make inquiries and produce, if available, copies of all documents that either the Prime Minister’s Office had or Mr. Drury had concerning the request for a meeting, the meeting of June 21, and what happened as a result of the meeting on June 21, 1963.

Same as objection #6

9: U-317

Q 1222

Under Advisement: To make inquiries and advise whether Health Canada has any documents or other evidence in its files to indicate whether or not Prime Minister Pearson spoke to Minister LaMarsh about the type of statements she should be making on the causation issue and the statistical association issue; and to review and produce from the Minister’s file, the Department’s file and the Prime Minister’s file any documents that support the statement.

Same as objection #6

10: U-880

Q 3988

Under Advisement: To make inquiries and advise whether the records of the Treasury Board and specifically Minister Drury [at one time President of the Treasury Board] have been collected and reviewed for documents such as MCS3220 (Tab 985).

Same as objection #6

11: U-639

Q 2923

Under Advisement: To make inquiries for Judy LaMarsh’s file and produce, if available, copies of any documents on this general smoking and health issue outlined in Tab 462.  [Re:  Two meetings of Advisory Committee on Smoking and Health]

Same as objection #6

12: U-729

Q 3410

Under Advisement: To make inquiries and advise whether Health Canada has documents evidencing meetings [of Health Department officials and Industry], whether they are memos, letters or handwritten notes at any time from the time Allan MacEachen became Minister from December 18, 1965 to November 28, 1967.

Same as objection #6

13: U-737

Q 3514

Under Advisement: To review Allen MacEachen’s personal correspondence and produce, if available, copies of the letters sent to him and the letters received by him from Imperial concerning the meeting of May 1968. (Tab 750, MCS2477)

Same as objection #6

14: U-738

Q 3514

Under Advisement: To review Allen MacEachen’s file and also Canada’s files and identify or produce copies of any notes of the meeting or a memo of the meeting that the Minister made that would indicate who was present at the May 1968 meeting.  (Tab 750)

Same as objection #6

15: U-739

Q 3514

Under Advisement: To review Allen MacEachen’s file and identify or produce copies of any notes of the meeting or a memo of the meeting that would indicate what was discussed at the May 1968 meeting.

Same as objection #6

16: U-742

Q 3548

Under Advisement: To review the Minister’s files and produce a copy of a letter dated November 15, 1968 from Imperial Tobacco which forwards copies of the Ad Hoc Committee Minutes.

Same as objection #6

17: U-758

Q 3737

Objection:  To review the Minister’s file and produce copies of any other items of correspondence between Imperial or the Ad Hoc Committee and the Department or the Minister in the period of the first tar and nicotine press release dated November 20, 1968 to December 12, 1969. 

Same as objection #6

18: U-759

Q 3737

Under Advisement: (1)To make inquiries of the Prime Minister’s Office and produce copies of any other items of correspondence between Imperial or the Ad Hoc Committee and the Department or the Minister in the period of the first tar and nicotine press release dated November 20, 1968 to December 12, 1969.

Same as objection #6

19

Q 530

Objection:   Since Canada will not admit that there was a meeting between Dr. Steacie and Imperial Tobacco (as referred to Tab 38), to advise of what facts, if any, Canada relies upon to say that there was no contact between Dr. Steacie and Imperial Tobacco. 

Orders AGC to provide any documents in their possession and control indicating whether or not there was a meeting between Dr. Steacie and ITL, as referred to in Tab 38, or showing any contact between them in the context of these cases.

20

Q 555

Objection:  To make inquiries and advise whether Canada has any  facts [other than the one sentence read from RL9001 by Me Regnier] to deny the accuracy of the statement in RL9001 that “Dr. Cameron was entirely in agreement with our view that cancer research is far beyond our scope”. 

Orders AGC to provide any documents in their possession and control indicating whether “Dr. Cameron was entirely in agreement with our view that cancer research is far beyond our scope”, or not.

21: U-2228

Q 946

(1) Objection:  If there are any documents in the 334,000 which Canada has communicated and which Canada intends to rely upon to say that the statements just quoted from in the memo which is RL9004 are untrue, to identify those documents.

Objection withdrawn

22

Q 2915

(1) Objection:  To advise whether Health Canada has any facts or any documents to explain, or provide information, on why Imperial had sent a copy of the 1964 Code and a signed agreement to the Minister and then a copy of the Code itself to the Deputy Minister.

Objection withdrawn and AGC will provide such documents only.

23

Q 3534

Objection:  To make inquiries and provide Health Canada’s position on the point made in the memo (Tab 752), paragraph 2, that the 4 tobacco companies agreed that the Ad Hoc Committee should cooperate with the Federal Government in the possibility of establishing a system for the periodic testing of the tar and nicotine levels of cigarette smoke. 

Objection withdrawn and AGC will provide such documents only.

24

Q 3534

Objection:  To advise whether it is Health Canada’s position that the Ad Hoc Committee agreed or did not agree to cooperate with the government in considering the merits of a practical means of informative labelling as outlined under points 2 and 3 of the November 28, 1967 letter (Tab 752)

Objection withdrawn and AGC will provide any documents relating to this issue.

25: U-983

Q 4166

Under Advisement: To make inquiries and advise during the period 1960 up to 1983 that the Minister [of Health] was addressing [in her speech] at Tab 1987 that there were any other countries that had the level of voluntary cooperation with the tobacco industry that Canada had during that time.

Question withdrawn

26: O-34

Q 385

Objection:  To make any inquiries at all to determine when Canada had the two journal articles mentioned [Wynder and Doll & Hill], [or with respect to any of the journal articles [in the Discovery Binders]see next objection. 

(at p. 315-316,Tab 6)     "Tobacco smoking as a possible etiologic factor in bronchiogenic carcinoma", by Ernest Wynder and Evarts Graham, Attorney General's    production 01620678 » (tab 6), and

(at p. 319, Tab 8) Attorney General's production 01620652,  article by Richard Doll and Bradford Hill from the British Medical Journal, dated September thirty (30), nineteen fifty (1950).

Adjourned

27: U-58

Q 385

Objection:  To make inquiries and confirm that for all of the articles referred to during the examination as coming from the possession of Health Canada, to advise if Health Canada has the original journals from which the articles are in a library at Health Canada or in the Library of Parliament and, if so, to produce the original journals in order to ascertain the dates when the articles were received. 

Adjourned

28

Q 422

Objection:  To make inquiries and advise whether the document found at Tab 22 was in Health Canada’s possession as of approximately March 1965.

Adjourned

29:

Q 422

Objection:  To advise whether Canada will admit that within a reasonable time for the request above Dr. Colburn had the article found at Tab 22 in his possession.

Adjourned

30: U-70

O-45

Q 444

Objection:  To make inquiries and advise whether Canada will agree that as of at least December 1953 it was aware of the studies into the issue of smoking and health that are found at Tabs 6, 8, 15 and 16 of Exhibit DC-4.  

Adjourned

31: U-106

Q 717

(1) Objection:  To review the records of Health Canada and advise whether Health Canada was aware of the report of Dr. Hammond and Daniel Horn that was made in or about June 1954.

[only undertakes:  To advise whether the report of Dr. Hammond and Dr. Horn made in or about June of 1954 to the American Medical Association is in Canada’s productions.] 

Me VALERIE A.E. DYER:

( p. 509  ) Canada's production 01420325, from the Toronto Daily Star, June twenty-two (22), nineteen fifty-four (1954), headed .. "Cigarettes hasten death -  M.D."  …

(p. 510 )

 715Q-And in this newspaper report, it starts by saying -quote -, "The medical and scientific director of the American Cancer Society has predicted that smoking habits would  change now that a link between cigarettes and cancer and heart disease has apparently been established." And this particular article has the pictures of  doctor Cuyler Hammond, Daniel Horn and doctor Cameron who are said to be authors of the cigarette report.  (p. 511)

716Q-And was Health Canada aware of the report of doctor  Hammond and Daniel Horn in or about June of nineteen  fifty-four (1954)?...

I-   I don't remember.

Me VALERIE A.E. DYER:

717 Q-Okay, then.  Could you go back, please, to the   records of Health Canada, either as produced by you  in your three hundred and thirty-four thousand (334,000) productions, or elsewhere if it isn't there, and advise us if Health Canada was aware of the report of doctor Hammond and Daniel Horn that was made in or about June of nineteen fifty-four(1954) and...

Me MAURICE REGNIER:

Well, I can undertake to tell you whether the  cigarette report... I'm just wondering if the report             is identified within this document.  It seems to be a report to the American Medical Association.  We'll  try to see if we have anything which, in our mind, corresponds to the report mentioned in this article, and if it's in our production.

Adjourned

32

Q 790

Objection:  If ITCAN counsel went to each of the [Time Magazine]articles found at Tab 2804 of DC-4, to advise whether the statements made in the articles and those developments were known to Health Canada at or about the date of the articles and whether Health Canada was aware of the statements within a year or within a few months. 

... “This would be the same for every other article, under Tab 2804”....

Me. Drouin:  “Yes, these are all refusals”. 

Adjourned

33

Q 792

Under Advisement: To review Tab 88 (AG01420534) being an article by Percy Stocks and John Campbell dated October 15, 1955 and advise when Health Canada prepared or received this document.

Adjourned

34: U-166

Q 812

(1) Under Advisement: To make inquiries and determine when the Canadian Cancer Society reports at Tabs 189, 192 were received.

(2) Objection: To what extent Tabs 183, 189 and 192 were discussed at National Health and Welfare.

Adjourned

35: U-168

Q 812

Under Advisement: To make inquiries and advise when Tab 190 (AG00178861) was received by Health Canada.

Objection: To advise whether it was discussed within Health Canada and, if so, to identify the documents there the report is being discussed.

Adjourned

36: U-212

Q 913

Objection:  To examine Canada’s records and advise, as of August 1956, which articles, if any, of Stocks, Wynder and Graham that Dr. Lossing had in his possession. 

Adjourned

37: U-440

Q 1899

Under Advisement: To make inquiries and advise approximately when the documents listed in DC-17 [Government knowledge summary]were received by Health Canada.

Adjourned

38: U-441

Q 1899

Under Advisement: To make inquiries of Health Canada’s records, including those items in Canada’s objective coding that are not shared among the parties and provide a reasonable estimate of when the documents listed in DC-17 came into Health Canada’s possession

Adjourned

39: U-451

Q 1905

Undertaking / Under Advisement: To make inquiries and advise or take under advisement questioned asked as with DC-17, the documents: AG00618998 and AG00272881.

Adjourned

40: U-443

Q 1900

Under Advisement: To review Tab 2800.1.1 and:

(1) Advise of the approximate date of receipt of this excerpt from the 1967 U.S. Surgeon General’s report by Health Canada, and the extent of its distribution by Health Canada.

(2) To identify in Canada’s productions the entire 1967 USSG Report or produce a copy of the same.

(3) Advise of the receipt and distribution of the entire 1967 U.S. Surgeon General’s Report.

Adjourned

41: U-444

Q 1901

Under Advisement: To review Tab 2800.1.2 and:

(1) Advise of the approximate date of receipt of this 1968 U.S. Surgeon General’s report by Health Canada, and the extent of distribution by Health Canada.

(2) To identify in Canada’s productions the entire report or produce a copy of the same.

(3) Advise of the receipt and distribution of the entire 1968 U.S. Surgeon General’s Report.

Adjourned

42: U-445

Q 1902

Under Advisement: To review Tab 2 (2800.2 / AG01524216) and advise of the approximate date of receipt of this. Surgeon General’s report by Health Canada, and the extent of distribution by Health Canada.

Adjourned

43: U-702

Q 3194

Under Advisement: To make inquiries and advise when approximately the technical report on tar and nicotine at Tab 2840 was received by the Department of Health.

Adjourned

44: U-58

Q 385

Objection:  To make inquiries and confirm that for all of the articles referred to during the examination as coming from the possession of Health Canada, to advise if Health Canada has the original journals from which the articles are in a library at Health Canada or in the Library of Parliament and, if so, to produce the original journals in order to ascertain the dates when the articles were received. 

Adjourned

45: U-67

O-43

Q 422

Objection:  To produce, if available, copies of all articles from Canada relating to smoking and health, or S&H, that were in the Department of National Health and Welfare Library which deal with the developing scientific knowledge of the possible relationship between smoking and health, [as subsequently amended by agreement between counsel in July/August 2011 emails on how libraries would be searched.] 

Adjourned

46

Q 422

Objection:  To produce the library card or the library records that will show what documents on the issue of smoking and health or lung cancer, or any of the diseases that are pleaded by either of the Plaintiffs, and when those articles or books came into the library of the Department of National Health and Welfare.  [as subsequently dealt with in the  agreement between counsel in July/August 2011 on how libraries would be searched.]

Adjourned

47: U-413

Q 1842

Under Advisement: To provide a list of all the articles of a research or scientific nature on issues of smoking and health, less hazardous cigarettes, surveys, and all of the matters that are raised in the main action and in the third party action and provide a list of the articles that Health Canada has, including their dates and the approximate dates Health Canada received the articles, by reviewing the library cards or attached transmittals.

Adjourned

48: U-612

Q

Undertaking: Review Health Canada’s documents and the Library of National Archives and produce any memos prepared by Health Canada concerning this meeting [of November 1, 1963] and steps to be taken after this meeting

Adjourned

49: U-853

Q 3936

Under Advisement: To review the library records of the scientific section within the general library, the special scientific library that was in the Banting building and make reasonable enquiries of Canada’s regional offices to determine what articles and what books Health Canada had in those libraries that dealt with the issue of tobacco and the topics that are the subject matter of the litigation and advise what exists.

Adjourned

50           U-1008

Q 4247

(2) Objection:  If the articles [in PD8888 found in DC-10, being the Armstrong-Jones 1927 article, the Dorsey 1936 article, the Lewin 1931 article and the Johnston 1942 article] exist in Health Canada’s Libraries, to provide the cards that show that the journals in which the articles are found are being checked out by people. 

Adjourned

51: U-72

Q 457

Objection:  To advise whether Health Canada has any evidence of any advice given to Dr. Cameron, by Dr. McKinnon, after December 21, 1953 and into early 1954 on the issues raised in this file copy or potential draft copy of the letter.  (Tab 30 of DC-4, AG00555078)  To provide any answer to the letter.

Objection:  If anyone else at the University of Toronto advised.

Adjourned

52: U-89

Q 572

(1) Objection:  To advise where in Health Canada’s records there is any advice that was given to the Department of National Health and Welfare on the issue of smoking and a possible connection with cancer of the lung from January 28, 1954 through to at least June of 1963. 

Adjourned

53: O-53

Q 666

Objection:  To advise whether members of the Department of National Health and Welfare were aware of what was being reported in the press (Tab 27, December 11, 1953) about the possible connection between smoking and cigarettes.

Adjourned

54: U-103

Q 712

(1) Objection:  To make inquiries and advise whether the Department of Health is monitoring articles reporting on the issue of smoking and cancer, in 1954.

(2) Objection:  To advise if Health Canada was reading, keeping track of and in some cases saving such articles. 

Adjourned

55: U-108

Q 762

Under Advisement: To make inquiries and advise whether Canada has proof that the press clippings mentioned previously are being circulated to other people and National Health and Welfare and, if so, to produce the documents verifying circulation or identify them the documents communicated to date.

Adjourned

56: U-111

Q 726

Under Advisement: To review Tabs 10, 41, 66, 81, 90, 91, 97, 131 and 173 and (1) confirm that the Department of National Health and Welfare was regularly receiving the Canadian Cancer Society Newsletters; (2) to confirm that the newsletters were being read at the time so that National Health and Welfare could keep abreast of the developments in Canada; and (3) confirm that National Health and Welfare had knowledge or the means of knowledge of the research underway and the education underway under the hospices of the Canadian Cancer Society.

Adjourned

57: U-134

O-65

Q 786

(1) Objection:  To examine Health Canada’s records and advise whether Health Canada was aware of the Time Article dated June 13, 1955 entitled “Medicine:  Smoking and Cancer”, or the statements made by President Elmer Hess and Mr. Hammond, in or about 1955.

(3) Objection:  To advise, whether or not Canada has the Time article, was Health Canada aware of the statements quoted from President Hess and Mr. Hammond, wherever they may have been reported.

[Note:  Will answer:  (2) [Undertaking:  To advise if that Time article of June 13, 1955 is in Canada’s productions.]

Adjourned

58: U-135

Q 788

Objection:  To make inquiries and advise whether Health Canada was aware of the results in the report of the World Health Organization in or about 1955 (which is reported on in the July 11, 1955 Time Magazine Article).

Adjourned

59: U-136, 137

Q 789

Objection:  To make inquiries and advise (1) whether Health Canada was aware of the report in Time Magazine entitled “Medicine:  Cancer up or down” dated November 14, 1955; and, (2) to advise whether it was aware of, from any other source, the statements made by Cuyler Hammond at the American Cancer Society’s annual meeting.

Adjourned

60: U-

Q

Objection:  To make inquiries and advise (1) whether Health Canada was aware of the report in Time Magazine entitled “Medicine:  Cancer and women smokers” dated March 5, 1956 (Tab 2804); and, (2) to advise whether it was aware of, from any other source, the statements reported in that article.

Adjourned

61: U-232

Q 948

(2) Objection:  To advise whether Canada has any documents which would suggest that the two statements quoted [that Imperial offered to make its entire library of information on smoking and health available to the Government of Canada in August 1958] and Dr. Cameron’s response were false.  (Will only undertake to try to identify any documents which refer to the invitation by Mr. Laporte to Dr. Cameron.)

AGC will provide any documents in its possession or control that refers to the offer or the inexistence of such offer.

62: U-239

Q 948

Under Advisement: To review Canada’s files including the Library or other sources where Health Canada has articles and advise if Health Canada has the following articles, or any documents that refer to the articles at:  Tabs 49, 72, 75, 98, 100, 106, 107, 111, 112, 113, 114, 116, 118, 119 and 120.

Adjourned

63: U-238

Q

Under Advisement:  To review Canada’s productions and Health Canada’s files and advise approximately when Canada received the articles found at Tabs 128 and 129.  (DC-4)

Adjourned

64: O-93

Q 1063

Objection:  To advise whether as of May 19, 1963 Health Canada accepts that the following statement was an accurate statement with respect to causation and proof of causation:  “Laboratory experiments have failed to provide support for the theory of cigarette lung cancer causation posed by the statistical association studies” at page 27 of Tab 260.

Adjourned

65: O-94

Q 1065

Objection:  To advise whether the Department of National Health and Welfare accepted as accurate, as of May 1963, the following:  “The actual tobacco smoke itself has never been shown to induce cancer in animals or human beings” at page 28 of Tab 260.

Adjourned

66: O-95

Q 1067

Objection:  To advise whether Health Canada has any facts or any evidence to show that as of May 1963 tobacco smoke had induced cancer in animals or human beings.  (See Tab 260). 

Adjourned

67: O-96

Q 1068

Objection:  To advise whether Health Canada accepts the accuracy of the statement of the extent of the experiments, and the scientific knowledge as at May 1963:  “Inhalation experiments using tobacco smoke and various animal species have uniformly failed to result in any lung cancer attributable to the inhalation of smoke”.  (See Tab 260)

Adjourned

68: U-375

Q 1659

Under Advisement: To advise whether the 1964 U.S. Surgeon General’s report was widely distributed within the Department of National Health and Welfare and that a number of officials read at least the introductory portions of the report.

Adjourned

69: U-1104

Q 4607

Objection:  To make inquiries and advise whether Health Canada had any reports or information to disagree with the statement that it is only a minority subgroup where there is no decrease in nicotine intake detected, during the period 1971 and 1972.  See Tab 1052. 

Orders AGC to provide copies of all documents in its possession or control relating to this question, without being obliged to qualify whether the document shows disagreement or not.

70:

Q 28

Under Advisement: To make inquiries and advise whether the files of Mr. C.A. Pearson, who was an employee of Health Canada, were requisitioned and searched for and then the relevant documents communicated.

Adjourned

71: O-9

Q 28

Objection :  To  produce the documents listed in the certificate from the C-51 litigation that Canada was refusing to produce [not yet produced] have been reviewed for relevance in the current proceeding, and to produce those that are relevant and not privileged.  [Undertaking given only for the certificate issued in 2002 or 2003 for C-71, not for C-51 certificate]

Adjourned

72: U-629

Q 2913

Under Advisement: To make inquiries of the Department of National Revenue and produce copies of any correspondence from Imperial Tobacco to the Department of National Revenue that deal specifically with the issues pleaded, including correspondence concerning the Advertising Code, the position of the Government of Canada on the smoking and health issue, etc.

Adjourned

73: U-630

Q 2913

Under Advisement: To make inquiries of the Department of National Revenue and produce copies of any documents communicated that deal with the economic aspect of the tobacco industry in Canada and specifically the tax revenues generated for the benefit of Canada from excise taxes and other tobacco taxes.

Maintained with respect to "the economic aspect of the tobacco industry".  The parties will attempt to agree on an admission as to the general magnitude of the tax revenues earned.

74: U-631

Q 2913

Under Advisement: To make inquiries of the Department of National Revenue and produce copies of any communication with the Ad Hoc Committee or the CTMC on the issues  dealing with the Advertising Code, the position of the Government of Canada on the smoking and health issue, etc. (As in U/T 629 and U/T 630)

Adjourned

75: U-419

Q 1856

Under Advisement: To produce any documents in Canada’s files that related to the World Conference on Smoking and Health in 1979.

Adjourned

76: O-145

Q 1873

Objection:  To advise what facts and what documents Canada has that show that, in Canada, someone else did more research (than Health Canada did) into smoking and health problems and the rates of disease in Canada that were attributed to smoking. 

AGC confirms that it has no facts or documents that show that someone else did more research in Canada than Health Canada.

AGC is unable to quantify the amount of research that was done.

77

Q 1874

Objection:  To advise who in Canada did more research than Health Canada and its contracted researchers into smoking behaviour, smokers’ motivations for smoking and programs on how to motivate people to quit smoking.

To advise of the facts and documents Canada has to support the fact that more research was done by others.

AGC is unable to quantify the amount of research that was done.

78: U-424

O-146

Q 1875

Objection:  To advise of the facts and documents Canada has that show that someone else in Canada did more work, more research work into tar and nicotine retrieval, monitoring tar and nicotine levels than the University of Waterloo and later Labstat on behalf of Health Canada.

See #76

79: U-442

Q 1899

Under Advisement: To review DC-17 (428 documents) and confirm or deny that each of the reports and memos identified in this exhibit refer to a possible connection or connection between smoking and a disease, or between smoking and addiction.

Maintained.

A party is not obliged to perform this sort of task in the context of a discovery.

80: U-804

Q 3863

(2) Objection:  To make inquires and provide the legal names of all the companies retained by Health and Welfare Canada to do surveys on smoking habits or addiction or any other matters at issue in this litigation with respect to smoking issues.

See Objection 91

81: U-397

Q 1792

Under Advisement: To identify in Canada’s productions all of the applications for research funding and all approvals for research funding of the researchers that were identified in DC-G and also identified in the transcript.  [at pp. 1327-1336: Forbes, Young, Robinson, Rickert, University of Waterloo, Labstat, Basrur, University of Guelph]

Adjourned

82: U-398

Q 1793

Under Advisement: To make inquiries of Canada and advise how much money was given to each researcher that was named in DC-G or identified in the transcript or the organization such as the University of Waterloo or Labstat Inc. or the University of Guelph which were the recipients of monies on behalf of a team of researchers.

Adjourned

83:       U-1276

Q 5076

O-259

Objection:  To advise whether Canada has any records (that have already been prepared) that would compare the amount being spent on the research aspect of the health problems to the amount of taxes that Canada is collecting for the same period of time.

Adjourned

84:

Q 900

Under Advisement: To make inquiries and advise whether the press release (AG01431123) fairly summarizes the findings in the final Canadian Veterans Study report.

Question withdrawn

85: U-776

Q 3783

Objection:  To advise whether Health Canada accepts that the report from its contracted survey company, Canada Facts, accurately reflected the opinions and awareness of Canadians in respect of the questions at the time [Canada’s] survey was taken in December 1964.  (Tab 3094, AG01499906)

[Context: Undertaking:  Only agrees to advise if the results of the survey are disputed.  (p. 2759, ll. 1-3)

Maintained in part.  AGC will advise the Companies of any survey results that they dispute.

86

Q 3783

Objection:  To advise with respect to all of the Government Canada surveys listed in Exhibit DC-K marked for identification of Canada’s position as to the reliability (which is the reproducibility) of Canada’s survey results.

See #85

87

Q 3783

Objection:  To advise, with respect to all of the surveys that were done by survey firms or researchers hired by the Government of Canada, of Canada’s position on the validity of Canada’s own survey results and whether the surveys validly measured the questions that the surveys set out to measure.

See #85

88

Q 3804, 3805

Objection:  To advise whether Health Canada accepts that the numbers in Table 15 of Tab 3146 are accurate and to confirm that its contracted research [reported] in the survey is accurate.

See #85

89: U-801

Q 385

Objection:  To review Tab 1713 / AG01104435 and confirm that the facts in this press release based on the survey “Smoking Habits of Canadians, nineteen seventy-seven (1977)” are accurate.  If the facts are not accurate to advise and provide facts or documents to support the position.

See #85

90: U-802

Q 3859

Objection:  To confirm the accuracy of the survey and the genuineness of the survey at Tab 1713.

See #85

91: U-804

Q 3863

O-197

(1) Under Advisement:  To make inquiries and provide the names of any market research or survey research firms that were retained by Health Canada, whose names have not been identified on this examination in exhibits DC-J and DC-K. 

(2) Objection:  To make inquires and provide the legal names of all the companies retained by Health and Welfare Canada to do surveys on smoking habits or addiction or any other matters at issue in this litigation with respect to smoking issues.

Maintained.  AGC has previously provided the information necessary to answer this question.

92:       U-1064B

Q 4471

Under Advisement: To make inquiries and advise whether a repeat of the survey found at Tab 3275 was conducted using the same recipients to see if the levels of awareness and levels of success in quitting had changed over the longer term, up to date.

Undertaking:  To make inquiries and advise whether a repeat of the survey found at Tab 3275 was conducted using the same recipients to see if the levels of awareness and levels of success in quitting had changed over the longer term, up to 1998]

Dismissed.  The "science" and knowledge about quitting is relevant even after the class action period.

93: O-57

Q 723

Objection:  To advise whether Canada accepts, disputes or denies that the documents from the Canadian Institute of Public Opinion, Gallup Poll of Canada accurately represents the results of its poll.  (See Tab 73 / PD10117, 1954 press release with survey results)

Adjourned

94:

Q 723

Objection: To advise whether Canada has any facts or information by which it will be able to challenge the accuracy, reliability or validity of the survey results reported.  (See Tab 73 / PD10117)

Adjourned

95: U-107

Q 724

Objection: If Canada intends to dispute the level of awareness of 89% of Canadians having heard or read anything recently that cigarette smoking may be a cause of cancer to the lung at the time the poll was taken in 1954  (See Tab 73 / PD10117), to produce the evidence. 

Adjourned

96: U-355

O-118

Q 1342

Objection:  If concession requested in U-354 is not given, to review Health Canada’s records [agreed] and the Parliamentary Library records[objection] and produce or identify all of the press clippings concerning the lead up to the November 1963 National Conference and the press coverage later in the Province of Quebec or in the border cities or town of Ontario and Quebec or Quebec and New Brunswick. 

[Context U-354 is:  Under Advisement:  To advise whether Health Canada agrees that the National Conference of November 1963 received widespread press coverage in Canada. AGC  agreed to answer if “any” (and ITCAN modified question] and to provide Health Canada press clippings only]

Adjourned

97:

Q 1680

Objection:  To advise whether Canada admits that Canada was distributing the 1964 U.S. Surgeon General’s report through its Queen’s Printer bookshops. 

Adjourned

98: U-570

Q 2484

Objection:  To identify in Canada’s productions the document that Canada says shows the policy decision to request a reduction in the tobacco constituents.

Maintained.  The question requests the AGC to interpret documents and give their opinion thereon.

However, AGC agrees to provide the documents reflecting the requests mentioned in paragraph 202 of the Defence in Warranty in the Blais file.

99

Q 4560

Objection:  To advise whether Canada agrees with the general statement that most smokers who smoked the lower nicotine and lower tar cigarettes have an overall reduction in the tar and nicotine that they take into their bodies.

Maintained.  Requests an opinion and not a fact.

100:      U-1067

Q 4493

Under Advisement: To make inquiries and advise whether Health Canada is taking the position that at any time in the class period beginning in 1950 that it was not generally known that cigarette smokers found it hard to quit.

Maintained.  This issue relates to the principal action and there are no allegations on this point in the action in warranty.

101:      U-1068

Q 4493

Under Advisement: To make inquiries and advise whether Health Canada is taking the position that it was not generally known to the public that nicotine played a role in developing a dependence on cigarette smoking or the habit of cigarette smoking from the 1940s forward.

See #100

102:      U-1069

Q 4493

Under Advisement: To make inquiries and advise of any additional facts or documents that Canada is relying upon to support the position that it was not generally known that cigarette smoking could be habit forming and that nicotine played a role.

See #100

103:      U-1071, 1072

Q

Objection: Advise, well in advance of trial, whether Health Canada is taking any position with respect to the plaintiffs’ claim regarding the youth market and advertising to youth

Answer includes:  “We never know at trial what will happen”, p. 3383, ll. 2-3

See #100

104: U-1072

Q 4493

Under Advisement: To advise of any facts Canada intends to rely upon to take any position on youth marketing issues prior to trial.

See #100

105:      U-1073

Q 4514

Under Advisement: To make inquiries and advise whether there is any document whereby the Department or the Minister issued a statement saying that the conclusion of the report that there had been no nicotine spiking occurring in Canada was issued and, if so, to identify the same.

Adjourned

106:      U-1079

Q 4522

Under Advisement: To make inquiries and advise whether Health Canada has any position on the statement of fact or conclusion that addiction causes compensation and, if so, to identify any factual evidence from the Government of Canada on that issue.

Question withdrawn

107:      U-1080

Q 4522

Under Advisement: To make inquiries and advise whether Canada is taking a position on the phenomenon referred to as compensation as to whether smokers completely compensate or partially compensate or do not compensate at all and, if so, what is the position.

Dismissed, subject to the Companies' providing an explanation as to their understanding of the terms: complete, partial and temporary.

108:      U-1081

Q 4522

Under Advisement: To make inquiries and advise of all the facts and documents that Canada relies upon regarding whether Canada is taking a position on the phenomenon referred to as compensation as to whether smokers completely compensate or partially compensate or do not compensate at all.

See #107

109:      U-1082

Q 1117

Under advisement: Advise whether Health Canada intends to take a position at trial on the accuracy of the plaintiff’s allegation in the Létourneau action that smokers of lower yield brands inhale more deeply.

See #107

110:      O-251

Q 5014

Objection:  To advise whether Health Canada has taken a position from 1963 forward on whether or not smoking is an important factor in the development of the diseases listed in paragraph 82 of the Letourneau Action (or DC-Q for identification, being an English translation of the same) coronary insufficiency and, if so, when. 

Dismissed.  The knowledge of a party on this point is relevant in the context of the package warnings (as of 1989 / voluntary warnings as of 1971) and in light of the claim for punitive damages.

111:      U-1241

Q 5014

Under Advisement: To review paragraph 82 of the Letourneau Plea and advise whether Health Canada has taken a position at any time that smoking can cause any of the specific diseases noted and, if so, when.

See #110

112: U-1242

Q 5014

Under Advisement: To review paragraphs 83 through 92 of the Letourneau Pleas and advise whether Health Canada has taken any position with respect to the alleged consequences of smoking contained in these paragraphs and, if so, when.

See #110

113:      U-1243

Q 5014

Under Advisement: To make inquiries and identify any documents wherein Health Canada took a position publicly that smoking was an important factor in any of the diseases or consequences pleaded in the Letourneau Plea.

See #110

114:      U-754

Q 3690

Under Advisement: To review the press clippings files and press clippings in the possession of Health Canada and advise whether Health Canada will be taking the position at trial that the issue the issue of the association between smoking and lung cancer, and death from lung cancer, was well publicized.

Maintained.  The term "well publicized" is vague at this stage.

115:      U-1019

Q 4325

Under Advisement: To review Canada’s public documents and identify any documents where Canada has used the word “addiction”.

Maintained.  The request is excessive and unrealistic and the Companies have most of these documents already and could do the work themselves.

116: O-113

Q 1243

Objection:  To advise what facts, if any, Canada has to refute the statement [in RL9043]that the Deputy Minister expressed the opinion that the time had come to determine what the official attitude ought to be. 

Adjourned

117:      O-107

Q 1203

Objection:  To advise whether Canada admits that the purpose of the National Meeting was the purpose communicated to Imperial in Tab 291, or to advise of the purpose of that meeting. 

Adjourned

118:      O-102

Q 1173

Objection:  To confirm that as of June 26, 1963 that final approval for funding necessary to implement the expenditure for education had not been received. 

Adjourned

119:       U-510

Q 2029

Under Advisement: If there are posters used that were part of other education campaigns or information campaigns that are referred to in Canada’s productions to identify the same; and if the originals of such posters are still available, to produce copies.

Adjourned

120:     O-285

Q 1462

Objection:    To advise of the facts that Canada relies upon in denying the statement in paragraph 83 at page 14 of the Statement of Claim in the Warranty Action

Adjourned

121:     O-123

Q 1469

Objection:  To make inquiries and advise on what basis AGC denies in its Plea in Warranty paragraph 83 of ITL's Action in Warranty in Blais. 

Objection withdrawn to this question as reformulated.

122:      O-127

Q 1496

Objection:  To advise on what basis AGC denies that PD963, Tab 648, supports the pleading in paragraph 83 of the ITL's Action in Warranty in Blais. 

Maintained.  This represents argument.

123:     O-133

Q 1563

Objection:  To advise whether Health Canada agrees that when the Minister of Health is making the recommendation and requesting legislative authority in the document at Tab 914, that the Minister is accepting that it is the responsibility of Health Canada to ensure that smokers were properly and adequately informed of the risks of smoking to health and of the components of cigarette products.  (See Tab 914). 

Question withdrawn

124

Q 1624

Objection:  To advise whether Health Canada agrees that up to the end of November 1998, the Minister of Health and the Department of Health continued to see that it was the Department’s responsibility to ensure that Canadians who smoke received accurate information on the health risks of tobacco.

Objection withdrawn to the question as reformulated.

125:      U-510

Q 2029

Under Advisement: If there are posters used that were part of other education campaigns or information campaigns that are referred to in Canada’s productions to identify the same; and if the originals of such posters are still available, to produce copies.

Question withdrawn

126:      U-764

Q 3766

Under Advisement: To review Canada’s documents and identify all letters from the Department to individuals that provide copies of the tar and nicotine press releases or which provide comments and advice on what will happen if a smoker switches from one type of cigarette to another, as set out in Tab 2862.

Maintained.  This does not fall within a review of facts that a witness would normally provide.  The documents in question have been communicated to the Companies and they are in a position to do the review themselves.

127:      U-535

Q 2204

Under Advisement: To review Canada’s productions to date and provide any other notes that Dr. Kaiserman made on Tab 2503 or a subsequent draft of Tab 2503 dealing with the standard for “Light” and “Mild” descriptors on cigarette packaging.

Maintained.  The document was created after the class action period.  Dr. Kaiserman can be called to testify at trial with respect to earlier periods.

128:      U-536

Q 2204

Under Advisement: To review Canada’s productions and produce, if available, copies of any notes or memos or e-mails sent by Byron Rogers and dealing with Tab 2503 in general and the first two paragraphs in particular.

See #127

129:      U-537

Q 2204

Under Advisement: To review Canada’s productions including the e-mail traffic at the time and produce any e-mails exchanged among Mr. Choinière, Dr. Kaiserman and Mr. Rogers with respect to the product standard outlined in Tab 2503 and in particular the first two paragraphs of the memo.

See #127

130:      U-538

Q 2205

Under Advisement: To review Canada’s productions and identify any subsequent drafts of the memo found at Tab 2503.

Orders the AGC to produce the final version of TAB 2503.

131:      U-539

Q 2205

Under Advisement: To review Canada’s productions and identify the final draft, if any, of the memo found at Tab 2503.

Orders the AGC to produce the final version of TAB 2503.

132:      U-598

Q 2773

Under Advisement: To review Canada’s records and identify the internal memorandum referred to in the article at Tab 3040 (AG01581397) (press article referring to no prosecution for light and mild descriptors).

Objection withdrawn, subject to privilege issues.

133:      U-599

Q 2773

Under Advisement: To make inquiries and produce any contemporaneous correspondence which is around May 1992, wherein a privilege claim was made or wherein a complaint is made about an improper release of the memorandum found at Tab 3040.

Objection withdrawn, subject to privilege issues.

134: O-90

Q 1036

Objection:  To advise whether the answers to the question posed in the House of Commons, question 756, at page 6 of Tab 246 (AG01423510) and answered by Revenue Minister Mr. Fleming accurately sets out the tax revenues from tobacco products and to advise whether Canada has any reason to believe that when Dr. Josie made this transposition of information the information was untrue or inaccurate. 

Maintained.  The document speaks for itself.

135:      U-873

Q 3973

Under Advisement: To review Canada’s productions and identify in the documents produced to date by begdoc number any of the analyses of the impact on the federal government’s tax revenue of brining in regulations or legislation to control cigarette sales or advertising in the period 1970 to 1971.

Maintained.  It is not up to the witness to review the evidence for this reason.

136:      U-1264

Q

Undertaking: Advise whether, with the exception of a reduction in the tobacco tax rate in the early 1990’s, it is correct that the Federal Government, from 1950 forward, has repeatedly increased the rates of tax on tobacco products.

Objection withdrawn, subject to relevancy.

137:      U-1272

Q 5070

Under Advisement: To review Canada’s productions and produce the contracts prepared for the study and the interim or final report prepared that dealt with the financial impact of the health consequences and the specific proposal relating to tax policy to affect the changes

Question withdrawn

138: U-1273

Q 5070

Under Advisement: To review Canada’s productions and identify any study preparing regarding the economic cost or health costs of smoking and the anticipated costs or savings that could be affected by a reduction in smoking.

Question withdrawn

139:      U-1274

Q 5071

Under Advisement: To review the summary of Mr. Thornton regarding the Federal and Provincial Tobacco taxes on cigarettes during the periods 1965, 1970, 1973 and 1976 and advise whether Canada accepts his summary as accurate.

Maintained.  The document speaks for itself.

140: O-260

Q 5077

Objection:  To advise with respect to the amount collected in taxes whether Canada segregates the amount of cigarette taxes it collects by province [in order to determine the amount that was collected in Quebec].

#73, part 2.

141:     O-261

Q 5079

Objection:  To make inquiries with respect to the sale of cigarettes and cigarette products in Quebec that pass through Indian reserves and advise whether Canada has any reliable estimate of the amount of taxes foregone by reason of these sales in the period 1963 to 1998. 

Maintained.  This question, as posed, is irrelevant for the actions in warranty.  As well, each Company is able to make evidence on its own of the percentage of the Quebec market that contraband cigarettes represented.

142:

Q 5080

Objection:  To advise whether Canada has any reliable estimates of the number or weight or quantity of cigarettes or cigarette products that were sold in Quebec through Indian reservations, either passing through the Indian reserve or being manufactured on the reserve. 

See #141

143

Q 5083

Objection:  To advise whether Canada agrees that the plastic bags of [contraband] cigarettes bear no warnings.

Maintained.  The question is irrelevant for the actions in warranty.

144

Q 5085

Objection:  To advise whether Revenue Canada or Health Canada or any other branch of the Canadian government has done, or requested, any studies on the quantity of the illicit trade in cigarettes in the period 1963 to 1998.

See #141

145:     O-230

Q 4934

Objection:  To advise whether Health Canada agrees that the SNUS product can serve as a gateway out of smoking for smokers. 

Question withdrawn

146:

Q 5096

Objection:  To review paragraph 100 of the Plea in Warranty and advise of the facts Canada has to support the denial that the bureaucrats were exercising their professional judgment when providing information and advice to Imperial, to the CTMC or to smokers and potential smokers.

Dismissed.  This is a key element in AGC's defence and the Companies have the right to know on what that position is based.

147:

Q 5096

Objection:  To advise of the facts Canada in the Plea in Warranty relies upon to deny in paragraph 100 that Canada’s employees were performing administrative and operational functions. 

See #146

148

Q 26

Objection :  To advise whether Canada agrees that the statements of fact in the documents produced by Canada as identified in Exhibits marked [DC-A, DC-B, DC-C and DC-D] written by a Government of Canada employee in the course of performing his or her duties for the Government of Canada and that purport to be based on personal knowledge are true unless, first, Canada  identifies a later document that corrects it or, secondly, AGC advises that Canada disputes the truthfulness and veracity of its employees who are speaking in the documents on behalf of personal knowledge in the course of performing their duties.  [within the delays permitted for answers to undertakings in Quebec]

Adjourned

149:

Q 27

Objection:  If Canada is going to take the position that a statement in a document authored by a Government of Canada employee, while in the course of performing their job duties, is false and that the person writing the document is lying, to identify any such situations where Health Canada  says employees and former employees of Canada were not telling the truth.  [or advise to contrary within the delays permitted for answers to undertakings]

Adjourned

150

Q 28

Objection :  With respect to statements in the documents that are authored by a Government of Canada employee, or former employee, to the extent that those employees set out their opinions or interpretations of documents in writing, to advise whether Canada accepts that those were the opinions and interpretations that were made at or about the time the relevant document was written. [or advise to contrary within the delays permitted for answers to undertakings in Quebec] [unless otherwise advises within the delays permitted for answers to undertakings]

Adjourned

151:

Q 28

Objection :  To advise if Government of Canada takes the position that the statements of opinions or interpretations were untrue at the time they were made, and if so that the statement will be so identified either during the examination or at least 60 days before trial.  [or advise to contrary within the delays permitted for answers to undertakings]

Adjourned

152:

Q 793

Objection:  If Canada disputes the accuracy (true copies and dates) of any of the other paper copies of articles found in the 23 volumes of documents (Exhibit DC-4) as taken  from the Flaherty DVD, to so advise. 

Adjourned

153

Q 736

Objection:  To make inquiries and advise whether Canada admits that the document prepared by [Deputy Minister] Dr. Cameron to the Minister at Tab 48 (AG00177080) accurately states the facts as of February 12, 1954 or advise of any inaccuracies.

Orders AGC to produce any documents in its possession and control relating to the subject matter of this memo.

154

Q 937

Objection:  To review Tab 117 and advise whether the statement quoted from this memo accurately reflects the position of Dr. Cameron [Deputy Minister] as of July 1957 that "If asked the direct question, 'Is there any connection between smoking and lung cancer?', Dr. Cameron feels he would have to answer that heavy smoking may be one or appears to be one of the contributory factors involved, although certainly not the only one.  It appears to him that a combination of various factors, smoking among them, or one (1) group of factors in combination with another group, could result in lung cancer.".  [Tab 117]

Orders AGC to produce any documents in its possession and control relating to the subject matter of this memo.

155:

Q 2029

Under Advisement: To review the documents listed in DC-18, at the tabs noted in DC-18 and confirm that the press release or minutes of meetings do in fact refer to a project or an initiative of Health Canada with respect to either informing the public of the dangers or the risks of smoking or dealing with persuading smokers to quit or non-smokers not to start smoking.

Question withdrawn

156

Q 2119

Under Advisement: To make inquiries and confirm that the press releases noted in Exhibit DC-I accurately represent the facts as of the time of each press release.

Question withdrawn

157: U-5

Q 28

Under Advisement: To review the lists of documents provided by ITCAN (Exhibits DC-A to DC-D) and have Health Canada provide a breakdown from box “department source” and advise whose files have been searched and, if possible to provide with more granularity the source of the documents.

Adjourned

158:      U-374

Q 1658

Under Advisement: To review AG01662774, DC-2800.1(a) and advise from whose file the document extract from the 1964 USSG Report came.

Adjourned

159

Q 1658

Under Advisement: To review AG01083529, DC-2800.1(b) which includes the foreword by Surgeon General Luther Terry to the end of the acknowledgements and advise from whose file the extract from the 1964 USSG Report came.

Adjourned

160:      U-376

Q 1659

Under  Advisement: To advise whether the document found at Tab 2800.1(c) is Mr. Phillips’ copy, or the extract that Mr. Phillips had, of the U.S. Surgeon General’s report.

Adjourned