2010 QCCA 2312, 2010 QCCA 2312

Imperial Tobacco Canada Ltd. c. Létourneau 2010 QCCA 2312 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-021142-104 (500-06-000070-983) (500-06-000076-980) DATE: DECEMBER 15, 2010 PRESENT: THE HONOURABLE NICHOLAS KASIRER, J.A. IMPERIAL TOBACCO CANADA LTD. PETITIONER – defendant and JTI-MACDONALD CORP. ET AL . ROTHMANS, BENSON & HEDGES INC. ET AL . defendants v.

CÉCILIA LÉTOURNEAU CONSEIL QUÉBÉCOIS SUR LE TABAC ET LA SANTÉ RESPONDENTS – plaintiffs and JEAN-YVES BLAIS RESPONDENT – designated member and ATTORNEY GENERAL OF CANADA IMPLEADED PARY – defendant in warranty JUDGMENT [ 1 ] Petitioner Imperial Tobacco Canada Ltd. seeks leave to appeal from an interlocutory judgment of the Superior Court (the Honourable Brian Riordan) rendered on October 4, 2010.

Justice Riordan dismissed a motion filed by the petitioner to obtain a copy of the list of class members and other related information in possession of the respondents. [ 2 ] Leave is sought pursuant to articles 29 and 511 C.C.P. Petitioner contends that the information concerning the class members is necessary at this stage of the proceedings to permit a full and complete defence and that the effects of the interlocutory judgment cannot be remedied at trial. Invoking the criterion in

article 511 C.C.P., petitioner submits that the pursuit of justice requires that leave be granted. [ 3 ] In its motion before the Superior Court, petitioner had asked for the following: "[to] Order Plaintiff to remit to the Defendants all of the information she or her counsel have gathered regarding the class members, whether through the Plaintiff’s counsels' website or otherwise".

Petitioner stated that the motion presented before the judge sought the information not as evidence but rather as a means of selecting certain class members for examination at trial and, possibly, for appropriate surveys. * * * [ 4 ] The presiding judge decided that the information sought by petitioners was not useful for the purposes of addressing the common questions of fact and law that need be to decided pursuant to the judgment authorizing the motion to institute proceedings on behalf of the class. [ 5 ] At paragraph [22] of the judgment from which leave to appeal is now sought, the judge explained his decision, in part, as follows: [22] [...] nous refuserons quand même d’ordonner la divulgation de l’information, et cela, à cause de sa non-pertinence et non-utilité.

Pour en arriver à cette décision, le Tribunal s’est inspiré des articles 1019 et 1045 C.p.c. ainsi que du besoin critique de circonscrire le débat au stade du procès. [ 6 ] The judge relied on the reasons for judgment he rendered on March 3, 2009 on defendants’ "motion to examine members of the class, to obtain medical records and to obtain information concerning class members from the plaintiff". [1] In that judgment, Justice

Riordan analyzed what he described as essentially the same question as in the present case and decided that the information sought by petitioner was similarly not useful to answering the common questions.

For the same reasons given on March 3, 2009, he dismissed the present motion. [ 7 ] At paragraph [26] of his reasons, the judge alluded to how the wishes of the petitioner might otherwise be accommodated: [26] En dernier lieu, précisons que tout problème potentiel concernant la réalisation de sondages ou la signification de subpoena à des individus pourra être réglé au cours des conférences de gestion régulières tenues dans ces dossiers. * * * [ 8 ] Petitioner argues that the judge erred in his evaluation of the usefulness of access to the list of class members and related information, that he misconstrued the intent of the defendants in requesting access to the lists and that he misapplied the relevant authorities.

Petitioner also claims that because of a comment made by the judge at the hearing, the defendants did not have a proper opportunity to be heard on the issue of the usefulness of the list of class members and related information. * * * [ 9 ] First, as a general matter, it is convenient to recall that the judge charged with overseeing a class action is afforded considerable discretion, by the Code of Civil Procedure and in the decided cases, to manage procedural questions arising after authorization is granted. I take the judge to be alluding to that discretion, in paragraph [22] of his reasons, when he cited

article 1045 C.C.P. and noted the "besoin critique de circonscrire le débat au stade du procès". The exercise of this discretion is reflected in paragraph [26], where the judge proposed an alternate basis for meeting the demands of the petitioner. While discretionary decisions are not insulated from review, it is appropriate on appeal to defer to the judge in the exercise of this power to manage the class action given his hands-on role in seeing the case forward.

The burden on the petitioner of showing an error of principle or an injustice resulting therefrom is not a light one. [ 10 ] Secondly, I think it wrong to say that the defendants did not have a proper opportunity to address the issue of the usefulness of the list of class members and related information in the proceedings below. Counsel for the petitioner cites a comment made by the judge during the hearing that suggested, he says, the judge thought that the matter of usefulness was not in issue.

Yet, even if the judge’s comment had that intended meaning – and I am not convinced that it did – petitioner had made its case in writing on usefulness and that argument received an answer before the judge in the plaintiff’s "plan d’argumentation". In its written motion filed in the Superior Court, petitioner asserted its position in respect of the purported relevance and usefulness of the information sought in no uncertain terms. A stray comment from the bench such as the one cited, made in the heat of pleadings, in no way limited the judge's hand in preparing his reasons.

The better view of the whole is not so much that petitioner did not have the opportunity to make an argument but that, in the opinion of the presiding judge, that argument did not win out at the end of the day. [ 11 ] Thirdly, petitioner has failed to convince me that the trial judge wrongly exercised his discretion in deciding that the information sought was not useful at this stage of the proceedings.

The judge wrote that the usefulness of the information was that dealt with in the judgment of March 3, 2009 when he dismissed petitioner’s motion to examine members of the class, to obtain medical records and to obtain information concerning those members from the plaintiff. [2] The context then was, of course, different but the substance of the information sought on March 3, 2009 was broadly similar to what is now requested in the present motion.

In the earlier decision, the judge explained that what was sought in the motion, including but not limited to the demand to examine members of the class, was not relevant or useful to the common questions that had been identified at authorization.

This was confirmed by Doyon, J.A. when leave to appeal that judgment was refused. [3] Justice Doyon wrote: [11] Estimant que les questions communes (ou traitées collectivement) se limitent aux agissements et à l'état d'esprit des requérantes, alors que les questions que les requérantes veulent poser visent essentiellement soit les gestes et la connaissance des membres du groupe, soit des réclamations individuelles, il conclut que les interrogatoires recherchés ne seraient d'aucune utilité aux fins de l'adjudication des huit questions principales identifiées dans le jugement d'autorisation. […] [13] Avec égards pour l'opinion des requérantes, je ne peux voir en quoi ces conclusions pourraient être déraisonnables ni en quoi le juge de première instance aurait mal exercé son pouvoir discrétionnaire.

La nature et la formulation des questions devant être traitées collectivement et les conclusions identifiées par le jugement d'autorisation supportent les conclusions du juge de première instance en ce que rien ne permet de croire que les interrogatoires recherchés pourraient, à ce stade des procédures , aider à répondre à ces questions. (Emphasis in the original.) [ 12 ] I agree with the presiding judge that the question of usefulness can be approached in the same way as it was in the March 3, 2009 judgment.

This is especially true given the fact that the earlier motion and the one before the judge in this case were substantially similar in respect of the further information that the defendants sought at what is a comparable stage of the proceedings. I am of the view that the justification offered by Justice Doyon for dismissing the motion for leave in the previous case is fully transposable here. [ 13 ] Fourthly, the judge made no reviewable error in his treatment of the applicable legal principles and authorities. Petitioner is correct that, strictly speaking,

article 1019 C.C.P. is not the governing rule in these circumstances. But I think paragraph [7] of the judgment makes it plain that the judge understood this and that his reference to

article 1019 in paragraph [22] does not suggest otherwise. Counsel for the petitioner cites three cases that he says the judge should have followed in which demands to furnish lists of class members were granted. In written argument, counsel stated that "no judgment has ever been rendered in the Province of Quebec refusing the communication of a list of known class members and information related thereto". With respect, these cases do not suggest that there exists an absolute imperative to communicate class lists "and information related thereto" in circumstances such as those of the case at bar.

Instead, even where the communication of lists is ordered, these cases underscore the discretionary authority enjoyed by the presiding judge, at this stage of the proceedings, to measure the suitability of demands for information relating to members. [4] The

presiding judge did just that. He decided that the information sought by petitioners was not appropriate to divulge at this point because it was not useful or relevant to answering the common questions. [ 14 ] Lastly, petitioner argues that the judge misconstrued the intent of the defendants in seeking the information. It is submitted that the request was not made to secure material as evidence but rather only to select certain class members for examinations at trial and, possibly, for participation in surveys.

Whether or note those reasons could ever justify the information sought, it is clear to me that the judge did not misunderstand the request. Indeed, at paragraph [26] of his reasons he alluded to both of these goals explicitly. He said that such matters could be attended to, where appropriate, during case management conferences held as the proceedings progressed. I infer that he was of the view that it was more efficient to proceed in this manner, consonant with his authority under

article 1045 C.C.P. In so doing, the judge was exercising his discretion as presiding judge and petitioner has not demonstrated that this should be disturbed on appeal. [ 15 ] When reviewing the exercise of a presiding judge's discretion to manage a case, articles 29 and 511 C.C.P. offer only a narrow corridor for allowing leave to appeal. Notwithstanding able argument by counsel, I am of the view that petitioner has not shown that the pursuit of justice requires that such leave be granted. FOR THESE REASONS , the undersigned, [ 16 ] DISMISSES the motion for leave to appeal, [ 17 ] With costs.

NICHOLAS KASIRER, J.A. Mtre Karim Renno OSLER HOSKIN & HARCOURT For the petitioner Mtre Bruce W. Johnston Mtre Philippe H. Trudel TRUDEL & JOHNSTON For the respondent Cécilia Létourneau Mtre Marc Beauchemin DE GRANDPRÉ CHAIT For the respondent Conseil québécois sur le tabac et la santé Mtre Nathalie Drouin JOYAL LEBLANC Department of Justice (Canada) For the impleaded party Date of hearing: December 14, 2010