COURT OF APPEAL FOR ONTARIO
DATE: 20001220
DOCKET: M26705
(C35254)
RE: JOSEPH PATRICK AUTHORSON, BY HIS LITIGATION GUARDIAN, LENORE MAJOROS (Respondents in Appeal) v. THE ATTORNEY GENERAL OF CANADA (Appellants in Appeal)
BEFORE: McMURTRY C.J.O. (In Chambers)
COUNSEL: Dale Yurka
For the appellant, The Attorney General of Canada
David G. Greenaway, Raymond G. Colautti and Peter Sengbush
For the respondents
HEARD: December 8, 2000
Motion brought on behalf of appellants.
E N D O R S E M E N T
[1] On October 11, 2000, the Honourable Mr. Justice Brockenshire granted partial summary judgment for the plaintiffs in this class proceeding. The Attorney General of Canada has appealed that summary judgment. The action itself was brought on behalf of all veterans of the Canadian arm forces for whom the Department of Veterans Affairs administered certain funds between 1914 and 1990 and upon which funds, it was asserted by the plaintiffs, the Crown was required to pay interest.
[2] The plaintiffs brought a motion for summary judgment seeking a determination of the issue of liability. The Crown countered with its own motion for summary judgment on the basis that there was, at law, no obligation on the Crown to pay interest on the funds administered. Additionally the Crown sought to have the matter dismissed on the basis that it had been brought in the wrong forum, namely, the Superior Court of Justice rather than Federal Court. Finally, the Crown sought an adjournment of the plaintiffs’ motion for summary judgment on the basis that it had been unable to complete a search of the extensive records it maintained on behalf of all of the class members.
[3] In his decision of October 11, 2000, Brockenshire J. granted judgment for the plaintiffs on the issue of liability to pay interest to the veterans whose estates had been administered by the DVA. Mr. Justice Brockenshire dismissed the application for an adjournment, the jurisdictional objection and the Crown’s motion for summary judgment. The issue of damages was adjourned for an evidentiary hearing the date for which has not yet been set.
[4] The Crown sought leave to appeal in Divisional Court from the dismissal of its motion for summary judgment and the dismissal of its application for an adjournment, which application was outstanding at the date of the hearing before me. The Crown has appealed to this court the granting of summary judgment in favour of the plaintiff on the issue of liability.
[5] Counsel for the Attorney General of Canada brought a motion in this appeal on December 8, 2000 seeking the following relief:
An order staying the decision of Brockenshire J. on the issue of liability;
An order staying the proceedings before Brockenshire J. in the Superior Court of Justice in respect of the assessment of damages flowing from his finding of liability;
In the event that leave is granted in Divisional Court, an order under Section 6(3) of the Courts of Justice Act to transfer those appeals to the Court of Appeal for hearing together with this appeal;
An order extending the time for perfection of the appeal;
An order permitting the parties to file factums in access of the thirty pages in length;
An order removing this matter from the list of expedited summary judgment appeals;
An order permitting additional time for the hearing of oral argument.
[6] Counsel for the respondents conceded that if leave were granted in Divisional Court, it would be appropriate to exercise my authority under Section 6(3) of the Courts of Justice Act to transfer those appeals to the Court of Appeal for consolidation with this Appeal. I am now advised that the motion for leave to appeal has been heard in the Divisional Court and that, on consent of the parties, leave was refused in respect of the proposed appeal from the refusal to grant an adjournment and also, on consent, leave to appeal was granted from the dismissal of the Crown’s motion for summary judgment. The issues on the Crown’s motion for summary judgment are so intertwined with the respondents’ summary judgment that it is appropriate that these issues be heard together. Accordingly, I order that the Crown’s appeal with respect to the dismissal of its applications for summary judgment be transferred to the Court of Appeal.
[7] Counsel for the Crown has sought to stay the order of Brockenshire J. pending the hearing of this appeal. The practical effect of such a stay would, of course, be to stay the continuation of the proceeding in relation to the damages. The Crown submitted that this hearing will require an extensive amount of preparatory work and last for many days. The Crown also submitted that regardless of the outcome of the litigation, it would be obliged to bear all of the costs incurred, given the nature of the proceedings. In contrast, the respondents submitted that their proposed methodology for determining damages would require a very short hearing. The respondent also submitted that the class of plaintiffs included many very elderly person who would be prejudiced by unnecessary delay. On balance, I am of the opinion that the balance of convenience requires that the proceedings before Brockenshire J. should continue and the Crown’s application for a stay of the proceedings should therefore be dismissed.
[8] With respect to the time for oral argument, Counsel estimated that the hearing will require three days and the matter will be scheduled for a three-day hearing subject to a more precise allocation of time at a later date should it be appropriate.
[9] I am also satisfied that the Crown should be permitted an extension to February 7, 2001 to perfect the appeal. While I am satisfied that factums in excess of thirty pages are appropriate, counsel were not yet in a position to provide an estimate for the length of their proposed factum. As a result, when counsel are better able to provide a reasonable estimate as to the desired length of their factums, they may renew their application in this regard.
[10] The appeal will remain on the list of expedited summary judgment appeals.
[11] The costs of this motion are reserved to the panel hearing the appeal.
“McMurtry C.J.O.”