COURT FILE NO.: 492/02

DATE: 20030514

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Justices Then, Greer, and Swinton

B E T W E E N:

canadian imperial bank of commerce and high river limited partnership

Appellants

- and -

DELOITTE & TOUCHE, DELOITTE & TOUCHE LLP, DELOITTE TOUCHE TOHMATSU, DELOITTE TOUCHE TOHMATSU LLP, DELOITTE TOUCHE TOHMATSU f/k/a DELOITTE TOUCHE TOHMATSU INTERNATIONAL, NOEL C. WOODSFORD, RONALD G. McNEILL, DOUGLAS STIRLING, KATHERINE CAMPBELL, CHRISTINA FEATHERSTONE and CHRISTINE TAY

Respondents

Glenn Hainey and John Callaghan, for the Appellants

J.L. McDougall, Q.C. and Michael Schafler, for the Respondents

HEARD: February 25, 2003

Swinton J.:

[1] This is an appeal by the plaintiffs from an order of Gans J. dated July 22, 2002, dismissing the plaintiffs’ motion for certification of this action as a class proceeding, as well as striking certain paragraphs of the Amended Statement of Claim as disclosing no reasonable cause of action.

The Motion for Certification

[2] In this proposed class proceeding, the plaintiffs allege negligence, negligent misrepresentation, and reckless misrepresentation by the defendants in connection with the audits by Deloitte & Touche of the 1995 and 1996 financial statements of Philip Services Inc. (“Philip”). In 1997, sixty financial institutions, defined as the “Original Lenders” in the Amended Statement of Claim, advanced funds exceeding US$1,000,000,000 to certain borrowers associated with Philip. The plaintiffs plead that the Original Lenders relied on the accuracy of those financial statements when funds were advanced. They also plead that there were significant misstatements in those financial statements with respect to Philip’s earnings. They allege that there were a large number of errors and irregularities in Philip’s books and records which would have come to light had Deloitte performed a proper audit. Instead, according to the plaintiffs, Deloitte performed the audits recklessly or negligently, and inaccurately represented to the Original Lenders that it had conducted proper audits and that the financial statements fairly presented Philip’s financial position.

[3] In 1998, the Philip Borrowers defaulted on the loan, and Philip sought protection under the Companies’ Creditors Arrangements Act, R.S.C. 1985, c. C-36. Certain U.S. subsidiaries sought protection under U.S. bankruptcy law. In April, 2000, a plan of arrangement was approved by the Ontario Superior Court of Justice, and a plan of reorganization was approved by the U.S. Bankruptcy Court.

[4] The proposed class has 69 members, made up of 18 Original Lenders who continue to hold debt, 26 Original Lenders who no longer hold debt, 16 Assignees who are current holders of the debt, and 9 Assignees who no longer hold debt. The Assignees are called “Successors” in the pleading. It is the position of the appellants that all 69 members should be in the class. They say that if there is no class proceeding certified, it could result in 34 separate actions having to be brought on against the same defendants.

[5] These entities claim to have suffered losses in excess of US$524,000,000 as a result of the default of the Philip Borrowers. In December, 2000, Philip, by its receiver and manager, commenced a separate action seeking damages for breach of contract, negligence and negligent misrepresentation in connection with the 1995 and 1996 audits conducted by Deloitte. If this action is certified, the receiver and manager has agreed to be bound by the legal determinations made in respect of the common issues in this action.

[6] The plaintiff, Canadian Imperial Bank of Commerce (“CIBC”), was one of the Original Lenders which continues to hold debt. The plaintiff, High River Limited Partnership, acquired from some of the Original Lenders the obligations, rights, title and interests in loans made to the Philip Borrowers, including any causes of action against Deloitte. CIBC and High River are prepared to act as representatives of the proposed class members, and they have been approved by all current holders of the outstanding debt of Philip.

[7] Section 5(1) of the Class Proceedings Act, 1992, S.O. 1992, c. 6 provides:

5(1) The court shall certify a class proceeding on a motion under section 2, 3 or 4, if

(a) the pleadings or the notice of application discloses a cause of action;

(b) there is an identifiable class of two or more persons that would be represented by the representative plaintiff or defendant;

(c) the claims or defences of the class members raise common issues;

(d) a class proceeding would be the preferable procedure for the resolution of the common issues; and

(e) there is a representative plaintiff or defendant who,

(i) would fairly and adequately represent the interests of the class,

(ii) has produced a plan for the proceeding that sets out a workable method of advancing the proceeding on behalf of the class and of notifying class members of the proceeding, and

(iii) does not have, on the common issues for the class, an interest in conflict with the interests of other class members.

[8] In the certification motion, the motions judge determined that certain causes of action should be struck. He concluded that the Original Lenders who have assigned their right to sue the defendants do not have a cause of action until the defences of champerty and maintenance have been decided. As well, he concluded that the Amended Statement of Claim does not disclose a cause of action for reckless misrepresentation. Finally, he held that the Amended Statement of Claim does not disclose a cause of action against the individual employees and partners of Deloitte who are named as defendants.

[9] He then went on to determine that there were several issues common to all members of the proposed class:

(a) Does the Financial Information contain material misstatements?

(b) Did Deloitte owe a duty of care to the Plaintiffs and to the members of the proposed class?

(c) Did Deloitte breach this duty of care?

(d) What was the value of Philip at the time of its reorganization?

(e) Insofar as the Successors are concerned, does the prohibition of champerty and maintenance apply to their claims?

[10] He concluded that these issues are common to members of the class, and are necessary for the resolution of the matters in issue. However, when dealing with the issue whether a class proceeding was the preferable procedure, he went on to say, “I am not sure that the individual issues unique to each member of the proposed classes will not overtake the action”. As an example, he stated that the determination of the Deloitte duty of care to the Original Lenders would have to be decided on a case by case basis - although he had earlier found this to be a common issue. He also decided that the issues of reliance and causation could not be decided on a global basis, nor could damages be assessed other than on an individual basis. As well, the motions judge found that the defence of contributory negligence would likely be an individual issue.

[11] When considering whether a class proceeding is the preferable procedure, the motions judge stated that the risk of several actions with potentially conflicting results could be avoided by a test case. He also concluded that there was a strong likelihood that the same experts would give opinion evidence on the standard of care and damages in the individual actions, which would avoid the potential of inconsistent decisions. As well, he concluded that other Lenders and Successors would be likely to await the outcome of the actions by CIBC and High River, since the two plaintiffs “own” approximately 35% of the proposed total claim. He was also concerned that the court would have to review the facts surrounding each assignment to the Successors, which would be a complex and lengthy undertaking. Finally, he determined that Deloitte would be “hard pressed” to argue the inapplicability of any adverse finding on any of the common issues in subsequent proceedings, and to do so might arguably create an abuse of process. Therefore, he determined that certification should not be granted, because a class proceeding was not the preferable procedure.

[12] The appellants argue that the motions judge erred in striking the causes of action discussed above, as well as in determining that a class action was not the preferable procedure.

The Law

[13] The Supreme Court of Canada, in Hollick v. Toronto (City) (2001), 2001 SCC 68, 205 D.L.R.(4th) 19, emphasized that courts should not take an overly restrictive approach to the interpretation of class proceedings legislation, but should interpret it in such a manner as to give full effect to the benefits foreseen by the drafters (at 29). The three main objectives of the legislation are judicial economy (by avoiding unnecessary duplication in fact-finding and legal determinations), improved access to the courts, and behavioural modification.

[14] In defining what is a common issue, the Court has held that an issue is in common if its determination is necessary to the resolution of each class member’s claim. As well, the class members’ claims must share a “substantial common ingredient” in order to justify a class action (Western Canadian Shopping Centres v. Dutton, 2001 SCC 46, [2001] 2 S.C.R. 534 at 554).

[15] McLachlin C.J.C. went on in Hollick, supra, to discuss the principles to be applied in determining whether a class proceeding is the preferable procedure, stating at pp. 34-35:

The term [“preferable”] was meant to capture two ideas: first the question of ‘whether or not the class proceeding [would be] a fair, efficient and manageable method of advancing the claim”, and second, the question of whether a class proceeding would be preferable “in the sense of preferable to other procedures such as joinder, test cases, consolidation and so on”…

She also stated, at p. 35:

The question of preferability, then, must take into account the importance of the common issues in relation to the claims as a whole. It is true, of course, that the Act contemplates that class actions will be allowable even where there are substantial individual issues: see s. 5. It is also true that the drafters rejected a requirement, such as is contained in the American federal class action rule, that the common issues “predominate” over the individual issues…

She went on to emphasize that the common issues must be considered in the context of the action as a whole, and that the court must consider all reasonably available means of resolving class members’ claims (at 36).

The Standard of Review

[14] The decision to certify a class proceeding is an exercise of discretion. In Carom v. Bre-X Minerals Ltd. (2000), 51 O.R. (3d) 236, the Ontario Court of Appeal held that a measure of deference is advisable when reviewing the exercise of discretion of a class proceedings judge. The Court stated there that it would intervene where the motions judge has erred on a matter of general principle (at 248).

Causes of Action

Original Lenders

[16] The motions judge held that until the issue of champerty and maintenance is determined, the Original Lenders, save for the Remaining Lenders, do not have a cause of action. He reasoned that if there has been a valid assignment of the right to pursue the cause of action against the defendants by the Original Lenders, the assignors no longer have a right to pursue the cause of action.

[17] The appellants submit that it is premature to exclude the Original Lenders who have made assignments from the proposed class, since the determination of the validity of the assignments will not be made until trial. They fear that certain limitation periods will have run against the Original Lenders who are assignees, should it be determined at trial that the assignments are void due to the doctrine of champerty and maintenance.

[18] However, the appellants have failed to disclose any cause of action which those Original Lenders currently have a right to pursue. If the assignments are valid, they have no cause of action. Therefore, the motions judge did not err when he excluded this group of Original Lenders from the proposed class, as they currently have no cause of action, as required by s. 5(1)(a). At most, they may have a contingent cause of action.

Reckless Conduct or Fraudulent Misrepresentation

[19] The motions judge determined that the claim of reckless misrepresentation was, essentially, a claim of fraudulent misrepresentation. In his view, the claim for fraudulent misrepresentation should be struck, because the details of fraud were not pleaded with particularity. He described the pleading as containing “a few bald allegations of ‘recklessness’”, unsupported by any statements of fact separate from those expressed in support of the claim for negligence. As well, he concluded that it was not sufficient to plead negligence and recklessness disjunctively. Therefore, he concluded that the pleading did not admit a cause of action for recklessness.

[20] The appellants argue that the claim for reckless misrepresentation is properly pleaded. In paragraph 1(c), they seek a declaration that the defendants acted negligently or made reckless or negligent misrepresentations. “Reckless” is defined as “without caring whether they were true or false, or without believing that they were true”. They also argue that this cause of action is properly pleaded in a disjunctive manner, as the same acts which give rise to negligent misrepresentation are said to give rise to reckless misrepresentation.

[21] In determining whether the Amended Statement of Claim discloses a cause of action, the court must conclude that it is plain and obvious that the action cannot succeed, assuming that everything pleaded is proved (Hunt v. Carey Canada Inc. (1990), 74 D.L.R. (4th) 321 (S.C.C.) at 334-336). In a claim for fraudulent misrepresentation, the plaintiff must prove that a false representation has been made intentionally or recklessly – that is, without caring whether it was true or false or without believing it to be true; the defendant made the representation intending it to be acted upon; and the representation caused the plaintiff to act to his detriment (Parna v. G. & S. Properties Ltd. (1970), 15 D.L.R. (3d) 336 (S.C.C.) at 344).

[22] In Hughes v. Sunbeam Corp. (Canada) (2000), 11 B.L.R. (3d) 236 (Ont. S.C.J.), Cumming J. struck a pleading in which negligent and fraudulent misrepresentation were pleaded disjunctively, as he was of the opinion that the allegations of intentional and negligent wrongdoing were not properly pleaded in the alternative. Clearly, he had a number of concerns about the way in which negligent and fraudulent misrepresentation were pleaded. However, his main concern appears to have been the failure to plead that the defendants intended that the plaintiffs would rely on the misrepresentation (at 245-6). Indeed, in contrast to his decision in Hughes, he refused to strike a claim that the defendants were reckless in their negligent misrepresentations in CC&L Enterprise (Trustee of) v. Fisherman (2001), 8 C.C.L.T. (3d) 240 (Ont. S.C.J.) at 257.

[23] The claim here is, in essence, for fraudulent misrepresentation. While the Amended Statement of Claim pleads negligence and recklessness in the alternative, it does set out the facts to be relied upon in proving the elements of the torts. The plaintiffs have specifically pleaded that Deloitte intended that the Original Lenders would rely on the representations made in paragraph 44(b). While there is overlap in the facts pleaded in support of the two claims, that is not fatal, as the same representations and reliance underlie both claims. In my view, given the low threshold to sustain a pleading at this stage, the motions judge erred in striking the claim for reckless misrepresentation. There is sufficient detail here to meet the requirements for pleading fraudulent misrepresentation.

Individual Partners and Employees

[24] The motions judge also concluded that the claim for negligent misrepresentation against the partners and employees of Deloitte was subsumed by the action against the defendant partnerships, and no individual cause of action was asserted against the partners and employees. Therefore, the claims against them were not properly pleaded.

[15] The individual defendants include Noel Woodsford, who was at all material times a chartered accountant and the engagement partner for Deloitte’s 1995 and 1996 audits of Philip. He was also the partner overseeing the day to day services provided to Philip. Also named was Ronald McNeill, who was at all material times a chartered accountant and the advisory partner on Deloitte’s 1995 and 1996 audits of Philip. The other individual defendants, Douglas Stirling, Katherine Campbell, Christina Featherstone and Christine Tay, were each chartered accountants and employees of Deloitte involved in one or both audits.

[16] In ADGA Systems International Ltd. v. Valcom Ltd. (1999), 43 O.R. (3d) 101 (C.A.), the Ontario Court of Appeal confirmed that officers or employees of a corporation can be held personally liable for tortious conduct, even when they are acting in the course of their duty, provided that the tort is properly pleaded against the individual (at 112).

[17] The claims of negligent and reckless misrepresentation both require the plaintiffs to prove at trial that there have been representations of fact by each of the defendants upon which they relied. When one reads the Amended Statement of Claim, one finds that the representations complained of are found in the 1995 and 1996 financial statements of Philip and Deloitte’s accompanying opinions. Throughout the pleading, one finds references to representations by Deloitte made in those financial statements. There is no pleading of any representation by any of the individual defendants. Paragraph 42, for example, states:

Deloitte, Woodsford, McNeill, and Stirling knew, through their participation at meetings of Philip’s Audit Committee, that the Original Lenders would be provided with the 1995 and 1996 financial statements and Deloitte’s accompanying opinions.

Similarly, in paragraph 44(b), it is pleaded that each of the defendants knew or ought to have known that the “audited financial statements and opinions were intended by Deloitte to be relied upon and were relied upon by lenders”. This is followed by the statement that the Original Lenders relied upon Deloitte. Furthermore, paragraphs 46 and 89 set out the representations made by Deloitte. No mention is ever made of a representation by an individual partner or employee to the Original Lenders, nor any reliance on these individuals. With respect to the defendant employees, the only specific allegation is found in paragraph 90, where it is said that the defendant partners and employees were reckless or negligent in conducting or supervising Deloitte’s audits as described above.

[18] In my view, the motions judge correctly determined that there was no cause of action properly pleaded against the individual partners and employees. He was correct in his conclusion that “when all the verbiage is cut away, the cause of action reduced to its lowest common denominator is a claim in respect to the provision of the Financial Information arising out of the opinions of Deloitte and not those of the individuals”. This is a case where the elements of tortious conduct alleged to have been committed by the individuals, separate from the conduct of Deloitte, have not been properly pleaded. Therefore, it is plain and obvious that there is no reasonable cause of action against them.

[19] In addition, the motions judge properly concluded that a plaintiff may choose to bring a proceeding in the name of a partnership or in the name of the individual partners, but it is improper to do both, unless there is independent tortious conduct alleged against the individual partner (Wabi Iron Works v. Patricia Syndicate (1923), 54 O.L.R. 640 (C.A.); CC & L Dedicated Enterprise Fund (Trustee of) v. Fisherman, [2001] O.J. No. 4622 (S.C.J.) at paragraph 45). Given my earlier conclusion that there is no tortious conduct properly pleaded against the individual partners, the action can not proceed against both the individual partners and the partnership. The motions judge correctly struck the claims against the individual partners.

Whether a Class Proceeding is the Preferable Procedure

[25] Generally, there are three objectives underlying class proceedings: judicial economy, access to justice, and behavioural modification. In this case, the plaintiffs conceded before the motions judge that the main objective of the class proceeding was to achieve judicial economy, with perhaps a second goal of avoiding inconsistent decisions.

[26] The motions judge found that there are five common issues, and that the resolution of those issues would advance the litigation for all proposed class members. Nevertheless, he did not find the class proceeding to be a preferable procedure. It was suggested by the appellants that he used an improper test in determining whether a class proceeding would be preferable here, when he stated that he feared that the individual issues would overtake the action. The appellants argue that he applied the predominance test, which has been rejected by the Supreme Court of Canada in Hollick, supra. However, when one reads his reasons as a whole, one finds reference to the proper tests, including the fact that the predominance of the common issues was not required.

[27] Nevertheless, when he considered this issue, the motions judge appears to have contradicted himself in saying that the issue of the duty of care is an individual issue, when he had earlier found it to be a common issue. Indeed, he erred in determining that each Original Lender must show a special relationship with Deloitte in order to prove a duty of care, thus making the duty of care an individual issue. The Amended Statement of Claim pleads that there is a duty owed to a class of plaintiffs – namely, the Original Lenders.

[28] The Supreme Court of Canada has held that a duty of care can be owed to a class of plaintiffs. In Haig v. Bamford, [1977] 1 S.C.R. 466, Dickson J. determined that where an accountant who was to prepare audited financial statements for a corporation had actual knowledge of a limited class who would use and rely on the information, the accountant had a duty of care to members of that class (at 476-7). In that case, the plaintiff was an investor who had not been identified at the time that the financial statements were prepared, but the accountant was aware that the financial statements were to be used to attract equity investment for the company from a limited number of potential investors (at 478).

[29] LaForest J., writing for the Supreme Court of Canada in Hercules Managements Ltd. v. Ernst & Young, [1997] 2 S.C.R. 165, summarized the analysis to be used in determining whether there is a duty of care in a negligent misrepresentation action (at p. 200):

A prima facie duty of care will arise on the part of a defendant in a negligent misrepresentation action when it can be said (a) that the defendant ought reasonably to have foreseen that the plaintiff would rely on his representation and (b) that reliance by the plaintiff, in the circumstances, would be reasonable.

He went on to state that the duty may be negated by policy concerns about indeterminate liability. However, where there is no concern about indeterminate liability, a duty of care will be found. Earlier, he had explained the conditions where such concerns would not arise (at 198):

… in cases where the defendant knows the identity of the plaintiff (or of a class of plaintiffs) and where the defendant’s statements are used for the specific purpose or transactions for which they were made, policy considerations surrounding indeterminate liability will not be of any concern since the scope of liability can be readily circumscribed.

[30] The way in which negligent misrepresentation is pleaded in the Amended Statement of Claim makes the duty of care a common issue. In paragraph 3 of the Amended Statement of Claim, it is pleaded that “Knowing that lenders such as the Original Lenders would rely thereon, Deloitte gave an unqualified opinion in connection with its audits of Philip’s consolidated financial statements” for 1995 and 1996. The paragraph goes on to say that the Original Lenders relied upon those statements in advancing loans. Thus, it has been pleaded that Deloitte knew of a class of lenders who would rely on these financial statements, and those lenders did rely on the information.

[31] Counsel for the respondents made reference to the fact that the financial statements here were prepared six months and eighteen months before the loans were made, suggesting that there could be no duty of care in such circumstances. However, it is clear from Haig, supra, that a duty of care can arise if the accountant knows that the financial statements are to be used by a limited class, such as investors or lenders, even if the identity of the individual members of that class is unknown at the time of the preparation of the financial statements.

[32] Given Haig and Hercules, and the way in which negligent misrepresentation has been pleaded, the issue of the duty of care is a common issue, since the plaintiffs base their claim on the fact that there was a class of plaintiffs known to Deloitte, to whom the financial statements would be shown for purposes of obtaining financing.

[33] The respondents also argued that there was an individual issue of reliance that must be considered in determining whether there was a duty of care because of a covenant in the 1997 Credit Agreement. In that covenant, the lenders undertook to complete an independent investigation and promised that they would not rely on information provided to them by the Administrative Agent, CIBC.

[34] There is no question that the issues of reliance and contributory negligence are individual issues. The effect of the provision of the Credit Agreement will be an issue at trial when the judge determines reliance and contributory negligence. However, the existence of this provision does not turn the issue of duty of care into an individual issue, given the way in which the duty of care has been pleaded in the Amended Statement of Claim.

[35] Moreover, even though reliance and causation are significant individual issues, that does not preclude the certification of a class proceeding, as determined in cases such as Western Canadian Shopping Centres, supra, and Carom v. Bre-X Minerals Ltd. (C.A.), supra at 252, 255. Unlike Bre-X, this is not a case where there were many representations to many parties over a long period of time. Even though reliance was a significant individual issue there, a class proceeding was still certified. Here, there are two sets of representations found in the two financial statements. While the reliance of each Original Lender on those representations will have to be determined at some point, it will only be after a determination of significant common issues with respect to liability - particularly the existence of a duty of care to the Original Lenders, the standard of care for auditors, the determination whether there were material misstatements in the financial statements, and whether the misstatements were made negligently or recklessly. All of these are significant common issues, requiring extensive documentary and oral evidence and, with respect to the standard of care issues, expert evidence. There are other common issues as well, including elements of damages and champerty and maintenance. Resolution of these issues is very important to the course of the litigation, as success in respect of the common issues will significantly advance the litigation for the proposed class members, while if those issues are decided in favour of the defendants, the litigation will come to an end.

[36] Finally, while the motions judge considered other alternatives to a class proceeding, he erred in determining that there were reasonable alternatives available. He suggested that a test case might be an alternative, yet this is, in fact, not a viable alternative. Absent agreement by the defendants, there can be no test case which binds them, and there is no indication that the defendants have agreed or will agree to such a procedure.

[37] Moreover, the motions judge erred in suggesting that the determination of issues in an individual action will likely bind the defendants in subsequent actions involving other parties, since it might be an abuse of process if the defendants do not accept those conclusions. The only way to ensure that the defendants are bound by the results in any individual action is through a class proceeding. The Divisional Court in Mont-Bleu Ford Inc. v. Ford Motor Company of Canada (2000), 48 O.R. (3d) 753 held that a class proceeding was the only way in which to bind all members of the class and avoid multiplicity of proceedings. Similarly, in Bywater v. Toronto Transit Commission (1998), 27 C.P.C. (4th) 172 (Ont. Ct. (Gen. Div.)), Winkler J. stated, at p. 177, that “… absent a judgment by a court of competent jurisdiction on the basis of the admission, res judicata does not apply to the proposed class.”

[38] In summary, there are a number of common issues, which are significant to the resolution of this dispute. While there are also significant individual issues related to reliance, contributory negligence, and damages, they do not, in my view, overwhelm the common issues. Moreover, there is no reasonably available alternative procedure to a class proceeding which is preferable, since the decision in one action will not bind the defendants with respect to the common issues. Given these facts, a class proceeding will promote the objective of judicial economy. Therefore, the motions judge erred in holding that a class proceeding was not the preferable procedure.

Conclusion

[39] The appeal is allowed in part. The appellants requested an order granting certification, if a class proceeding were held to be the preferable procedure. However, such an order would not properly be given by this Court, as there are further substantive and procedural issues to be determined on the motion for certification – for example, whether there is an acceptable plan for proceeding. Therefore, paragraphs 1 and 2(b) and (c) of the order of the motions judge dated July 22, 2002 are set aside, and the matter is referred back to a class proceedings judge to deal with the remaining substantive and procedural issues in the certification motion in light of the determination that a class proceeding is the preferable procedure.

[40] Counsel may make written submissions with respect to costs within 30 days of the release of this decision.

___________________________

Swinton J.

___________________________

Then J.

Greer J.

Released: May 2003

COURT FILE NO.: 492/02

DATE: 20030514

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Then, Greer and Swinton JJ.

B E T W E E N:

canadian imperial bank of commerce and high river limited partnership

Appellants

- and -

DELOITTE & TOUCHE, DELOITTE & TOUCHE LLP, DELOITTE TOUCHE TOHMATSU, DELOITTE TOUCHE TOHMATSU LLP, DELOITTE TOUCHE TOHMATSU f/k/a DELOITTE TOUCHE TOHMATSU INTERNATIONAL, NOEL C. WOODSFORD, RONALD G. McNEILL, DOUGLAS STIRLING, KATHERINE CAMPBELL, CHRISTINA FEATHERSTONE and CHRISTINE TAY

Respondents

REASONS FOR JUDGMENT

Swinton J.

Released: May 14, 2003