COURT FILE NO.: CV-21-00667624-0000 DATE: 20240131 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: PARIS CAMERON-GARDOS and LINDA CAMERON Plaintiffs

• and – CRAWFORD AND COMPANY (CANADA) INC. Defendant

Counsel: Alexi N. Wood and Saad Gaya for the Plaintiffs Luciana P. Brasil and Jacqueline M. Palef for the Defendant

HEARD: In writing

Contents A. Introduction . 2 B. Facts . 2

1. The Death of George Gardos . 2
2. The Blood Tainting Class Actions . 2
3. The Pre 1986/Post 1990 Hepatitis C Settlement Agreement 3
4. The Role of Crawford & Company (Canada) Inc. 5
5. The Depletion of the PELD FUND and the Compensation of Claims of Ms. Cameron and Mr. Cameron-Gardos . 7
6. The Suspension of Ms. Cameron’s and Mr. Cameron-Gardos’ PELD Fund Claims . 8
7. Efforts to Address the Deficiency of the PELD Fund . 9 C. The Statement of Claim .. 10 D. Discussion and Analysis . 13
8. The Test for Leave to Sue an Administrator 13
9. Breach of Contract 16
10. Negligence . 17
11. Breach of Fiduciary Duty . 18
12. Are the Claims Barred by the Release? . 18
13. Are the Claims Statute-Barred? . 19 E. Conclusion . 19

PERELL, J.

REASONS FOR DECISION

If not now, then when? If not today, Then, why make your promises? A love declared for days to come, Is as good as none. [ If Not Now : Tracy Chapman]

A. Introduction

1Linda Cameron, who resides in Toronto, Ontario, is the widow of George Gardos. Paris Cameron-Gardos, who resides in Rotterdam, Netherlands, is their son. Ms. Cameron and Mr. Cameron-Gardos are claimants under “the Pre 1986/Post 1990 Hepatitis C Settlement Agreement.” This agreement was approved in Ontario in the Hepatitis C class action known as McCarthy v. The Canadian Red Cross Society.

2Ms. Cameron and Mr. Cameron-Gardos bring a motion for the leave of the court to sue Crawford & Company (Canada) Inc., which is a claims management company, for breach of contract, negligence, and breach of fiduciary duty with respect to the administration of the Settlement Agreement.

3For the reasons that follow, I grant Mr. Cameron-Gardos and Ms. Cameron leave to sue Crawford.

B. Facts

1. The Death of George Gardos

4In 1991, George Gardos was 45 years old. In the course of being treated for cancer, he received a blood transfusion. The blood was contaminated with Hepatitis C (HCV).

5On October 14, 1993, Mr. Gardos died from the effects of being transfused with a contaminated blood product.

2. The Blood Tainting Class Actions

6Between 1996 and 1998, national class actions were commenced in British Columbia, Alberta, Ontario, and Québec seeking damages for personal injury and wrongful death on behalf of persons who had received blood products and who became infected with HIV.

7There were two groups of national class actions. One group, which I shall refer to as the Parsons Actions was comprised of: Endean v. The Canadian Red Cross Society (British Columbia); Parsons v. The Canadian Red Cross Society (Ontario); Kreppner v. The Canadian Red Cross Society (Ontario); Honhon c. Canada (Procureur général) (Québec); and Page v. Canada (Procureur général) (Québec). The Class Members of the Parsons Actions were persons who had been transfused with contaminated blood between January 1, 1986 and July 1, 1990 and family members. In 1999, there was a national settlement of the Parsons Actions.

8The second group of national class actions was with respect to persons who had been harmed from blood products before January 1, 1986 and after July 1, 1990. I shall refer to this group as the McCarthy Actions. This group was comprised of: Killough v. Canadian Red Cross Society (British Columbia); Adrian v. AG Canada (Alberta); McCarthy v. Canadian Red Cross Society (Ontario); McCarthy v. Connaught Laboratories Limited (Ontario); and Desjardins c. Canadian Red Cross Society (Québec).

9It took longer to settle the McCarthy Actions. There was a national settlement of these class actions, and in 2007, the courts approved the Settlement Agreement in the McCarthy Actions.

3. The Pre 1986/Post 1990 Hepatitis C Settlement Agreement

10The Settlement Agreement in the McCarthy Actions and its funding and compensation scheme were based on calculations using actuarial predictions that the parties agreed were sound and reasonable. The quantum of the payments was determined using the disease level of the Class Member and on the probability of disease progression through various levels of the disease.

11The Settlement Agreement provides compensation to: (a) Primarily Infected Class Members; and, (b) Secondarily Infected Class Members; i.e., spouses or children who have contracted HCV as a result of contact with a Primarily Infected Class Member. The Settlement Agreement also provides compensation for the Estates of HCV Infected Class Members and compensation to Family Members and Dependents of HCV Infected Class Members.

12Under the Settlement Agreement, a Compensation Fund of $1,023,475,575 was established of which Canada paid $962 million. Canada also paid $20 million for administration of the settlement. The Administrator was Crawford and Company (Canada) Inc.

13The Settlement Agreement provides that Canada will not be liable to provide further funding in the event that the Compensation Fund is inadequate to compensate all Class Members who have met the eligibility requirements. Section 5.09 states:

5.09 ... the Parties agree that Canada will not be liable to provide further funding in the event that the Compensation Fund is inadequate to compensate all Class Members who have met the eligibility requirements. For greater certainty, any risk of insufficiency in the Compensation Fund will be borne by the Class Members.

14Section 7 of the Settlement Agreement provides for the creation of a trust to hold the Compensation Fund and the appointment of a trustee to oversee the trust.

15Under the Settlement Agreement, the following are the categories of compensation:

a. Lump sum payments to living HCV Infected Class Members based on the age and disease level of the Class Member. b. Payment for past loss of income or past loss of services for HCV Infected Class Members who are at the higher disease levels. c. Payments to the estates of HCV Infected Class Members who were deceased at the time of the application for compensation. There are two categories of estate claims; one where the HCV Infected Class Member died before January 1, 1999, and the other where the HCV Infected Class Member died on or after January 1, 1999. The payments to estates involve a combination of lump sums and payments for past loss of income and past loss of services. d. Lump sums for Family Members of the HCV Infected Class Member. e. Payments to the Dependents of deceased HCV Infected Class Members for the loss of support (i.e. loss of income and loss of services).

16At the time of the settlement, it was anticipated that approximately $80 million would be required to pay the claims for loss of income and loss of services. However, the total required for loss of income and service claims was actuarially difficult to predict, and, therefore, a segregated PELD Fund (Past Economic Loss and Dependents Fund) was created to safeguard against the possibility that an over-subscription might deplete the Compensation Fund and adversely affect the lump sum payments. Thus, $93.1 million was segregated from the Compensation Fund to establish the PELD Fund. Section 2.07 of the Settlement Agreement provides:

2.07 The Trustee upon implementation of this Settlement will transfer ninety three million one hundred thousand dollars ($93,100,000.00) from the Compensation Fund into a separate fund to be known as the Past Economic Loss and Dependants Fund, for the purpose of providing compensation for damages for past loss of income and past loss of services in the home to Approved HCV Infected Class Members or Approved HCV Personal Representatives pursuant to Sections 2.05 and 2.06, and for compensation to Dependants pursuant to Sections 4.03 and 4.04.

(1) All amounts payable under Sections 2.05, 2.06 and Section 4.04 will be paid from the Past Economic Loss and Dependants Fund.

(2) Notwithstanding Section 2.07(1) and (2), in the event that the Past Economic Loss and Dependants Fund is insufficient to provide compensation for damages for past loss of income and past loss of services in the home to Approved HCV Infected Class Members or Approved HCV Personal Representatives as provided in Sections 2.05 and 2.06, and for compensation to Dependants pursuant to Sections 4.03 and 4.04, the Courts, on application by Class Counsel, may order the Trustee to transfer an additional amount from the Compensation Fund to the Past Economic Loss and Dependants Fund, but only to the extent that the funds held in the Compensation Fund after such a transfer remain sufficient pursuant to Section 5.07(2).

(3) Any undistributed funds remaining in the Past Economic Loss and Dependants Fund on the completion of all payments required to be made under Sections 2.05, 2.06 and 4.04 will be transferred back to the Compensation Fund.

17To understand the problems that subsequently occurred it is necessary to appreciate that the creation of the PELD Fund was to prioritize and protect the Compensation Fund, which paid the general damages, over protecting the PELD Fund. It was only if there was a surplus in the Compensation Fund that support might become available for oversubscription of the PELD Fund.

18Section 3.02 of the Settlement Agreement specifies the particulars for the PELD Claims, including the option to make an “election or “no election” for compensation for PELD Claims:

Under the “No Election” option – 8/11ths of $45,000 ($32,727.27) payment to the Estate and up to 8/11ths of $5,000 ($3,636.36) for incurred uninsured funeral expenses (these two amounts will be indexed from January 1, 1999). Under this option, only the approved HCV Personal Representative must sign the Release (unless there is more than one executor); his or her signature does not affect the rights of Family Members to individually submit a claim for compensation as per Schedule C3A and Dependants to claim loss of support or loss of services.

Under the “Election” option – 8/11ths of $108,000 ($78,545.45) lump sum payment to be shared as agreed by the HCV Personal Representative and the Family Members and up to 8/11ths of $5,000 ($3,636.36) for incurred uninsured funeral expenses (these two amounts will be indexed from January 1, 1999). Under this option, all claimants must sign the release, even if a claimant has opted not to receive compensation. The approved HCV Personal Representative may have to sign twice, as the HCV Personal Representative acting on behalf of the Estate and as a Family Member and/or Dependant. The lump sum is paid as directed in the Allocations Chart in full satisfaction of all claims including compensation for loss of support or loss of services for Dependants and compensation as per Schedule C3A to Family Members. This option was not available if compensation was received under the program for an HIV Secondarily Infected Person.

19Subsection 3.02 (7) outlines that any payments made pursuant to 3.02(2) will be paid in the following proportions and from the following sources: (a) 41.7% from the Compensation Fund; (b) 35.05% from the Dynamic Non-Segregated Family Fund; and (c) 23.3% from the Past Economic Loss and Dependents Fund.

20Section 16.01 of the Settlement Agreement addresses the appeal process for claimants. Section 16.01 states:

A person who has submitted a claim may appeal any decision of the Administrator as to eligibility, deficiencies or amount of compensation with respect to that claim. An appeal of the Administrator's decision must be filed within 30 days of receipt of the decision appealed from, failing which the decision will be final and binding. The appeal will be made to the Court of the jurisdiction where the person submitting the appeal was resident on the Approval Date and will be conducted exclusively in writing. The decision of the Court will be final and binding and shall not be subject to any further right of appeal. Notwithstanding that the Administrator has made a decision with respect to a claim, the Administrator has discretion to allow appeals which it determines will be successful.

4. The Role of Crawford & Company (Canada) Inc.

21Crawford & Company (Canada) Inc. is a Canadian corporation with its head office in Toronto, Ontario. It is a subsidiary of Crawford & Company, which is based out of Atlanta, Georgia.

22I pause here to note that in June 2018, Epiq Class Actions Services Canada Inc. acquired Crawford’s legal administration services operations. For present purposes Crawford accepts that Crawford and Epiq are one and the same such that it is not necessary for both entities to be named in the proceedings. [1]

23Section 8 of the Settlement Agreement provides that a court-appointed Administrator will manage the claims process and the article outlines the duties and responsibilities of the Administrator. Section 8 states:

Article Eight - Administration

8.01 Administration

The Parties will ask that the Courts appoint an Administrator to administer the Compensation Plan with such powers, rights, duties and responsibilities as are agreed by the Parties and approved by the Courts. Without limiting the generality of the foregoing, the duties and responsibilities of the Administrator will include:

(a) establishing and staffing "The pre 1986 I post-1990 Hepatitis C Claims Centre";

(b) developing, installing and implementing systems and procedures for receiving, processing, evaluating and making decisions respecting Claims including making all necessary inquiries (including consulting medical personnel) to determine the validity of any Claim and requiring any claimant to have a medical examination;

(c) reporting to the Courts, to Canada and to Class Counsel respecting Claims received and being administered;

(d) providing personnel in such reasonable numbers as are required for the performance of its duties, and training and instructing them;

(e) keeping or causing to be kept accurate accounts of its activities and its administration of the Compensation Plan, preparing such financial statements, reports and records as are required by the Courts, in form and content as directed by the Courts, and submitting them to the Courts, to Canada and to Class Counsel monthly or so often as the Courts direct;

(f) receiving and responding to all enquiries and correspondence respecting Claims, supplying claim forms, reviewing and evaluating all Claims, making decisions in respect of Claims, giving notice of its decision, receiving compensation payments on behalf of the Class Members out of the Trust Fund and forwarding the compensation in accordance with the provisions of the Compensation Plan within a reasonable period of time and communicating with a claimant, in either English or French, as the claimant elects;

(g) assisting in the completion of claim forms and attempting to resolve any disputes with claimants;

(h) maintaining a database with all information necessary to permit the Courts to evaluate the financial viability and sufficiency of the Trust Fund from time to time;

(i) such other duties and responsibilities as the Courts may from time to time by order direct;

(j) appointing an Auditor;

(k) obtaining consents from individual Class Members to dismissal of action without costs prior to providing any compensation and provide same to Canada; and

(1) obtaining full and final releases from claimants prior to payment of claims and provide same to Canada.

8.02 Decisions of the Administrator

The Administrator will give notice of its decision in respect of a Claim to a claimant promptly after the decision is made. A decision of the Administrator in respect of a Claim will be final, subject to the claimant's right to appeal pursuant to Article Sixteen of this Agreement.

8.03 Administrative Fees and Expenses

The fees, disbursements, applicable taxes and other costs for the Administration of the settlement will be paid out of the Trust Fund at times, in a manner and in amounts approved by the Courts. The total fees, disbursements, and other costs for the Administration of the settlement, including the Trustee's fees, legal fees pursuant to Section 8.05(2) of this Agreement, disbursements, applicable taxes and other costs, shall not exceed twenty million dollars ($20,000,000.00) except in exceptional circumstances and with the prior approval of the Courts and not for the sole or predominant purpose of funding legal fees under Section 8.05.

8.04 Calculation and Notice of Payments

The Administrator will notify the Trustee and Canada and Class Counsel of the amount of compensation to be made in respect of the preceding month within five business days after the end of each month. The notice from the Administrator will set out the facts upon which the calculation is based and the residence information set out in the statutory declaration of each claimant.

24Paragraph 35 of the Settlement Approval Order provided that leave of the court must be obtained if an action against the Administrator is to proceed:

35. THIS COURT ORDERS that no Person may bring any action or take any proceeding against the Administrator, the Trustee, the Investment Advisor, the Court Monitor, Fund Counsel or the Appeals Officers, or their employees, agents, partners, associates, representatives, successors or assigns for any matter in any way relating to the administration of the Settlement Agreement or implementation of this judgment except with leave of the Court.

5. The Depletion of the PELD FUND and the Compensation of Claims of Ms. Cameron and Mr. Cameron-Gardos

25On November 12, 2008, Balpreet Singh, a lawyer from Baker Law acting for Mr. Cameron-Gardos contacted Crawford. He inquired about the “election” or “no election” option under Section 3.02 of the Settlement Agreement, which provides two options for compensation for PELD Claims. He requested further information so that he could make a calculation of the two options.

26On April 13 and 14, 2009, Mr. Cameron-Gardos contacted Crawford. He confirmed that Mr. Singh was his legal representative. Mr. Cameron-Gardos sought information about the calculation process for a PELD Claim.

27Later in 2009, in pursuance of compensation for the Settlement Agreement, Mr. Cameron-Gardos and Ms. Cameron submitted three claims; namely:

a. File # HC-07-01779, which was the Estate Claim b. File #HC-07-16999, which was Ms. Cameron’s Claim c. File #HC-07-17000 – which was Mr. Cameron-Gardos’ Claim

28On December 10, 2009, Crawford approved the Estate Claim, and sent Ms. Cameron an Approval Letter. The Approval Letter set out the “Election” and “No Election” options available to Ms. Cameron and Mr. Cameron-Gardos with respect to the PELD Fund, outlined the appeal process as per Section 16.01 of the Settlement Agreement, and stated the terms of the Full and Final Release.

29By the end of 2009, in the Administration of the Settlement Agreement, there was a greater number of Class Members with higher disease levels than anticipated. This circumstance had a cascading effect. One thousand one hundred and fifty-six PELD Fund claims were paid with a total value of $97,999,248.

30Throughout December 2009, Ms. Cameron spoke with Crawford about the “Election” and “No Election” Options described in the Approval Letter. She and Mr. Cameron-Gardos had to decide between: (a) compensation in the amount of 8/11ths of $108,000 under Article 3.02 of the Settlement Agreement, or (b) a payment from the PELD Fund as “Approved Dependants” under Article 4.04.

31Crawford told her that opting for the PELD Fund would likely result in a significantly larger compensation amount, taking into consideration Mr. George Gardos’ earning record and his relatively young age at the time of his death. Relying on this advice, Ms. Cameron and Mr. Cameron-Gardos elected to receive compensation from the PELD Fund.

32On January 5, 2010, Crawford received the executed Full and Final Release and Form 11 from Ms. Cameron selecting the “No Election” option for herself and for Mr. Cameron-Gardos.

33With the receipt of the release, on January 6, 2010, the Estate Claim was approved in the amount of $33,425.84 and a cheque was issued on January 18, 2010.

34On February 12, 2010, Ms. Cameron’s Claim and Mr. Cameron-Gardos’ Claim were approved. Full and final releases were executed. Ms. Cameron received a spousal amount of $22,842.10. Mr. Cameron-Gardos received $13,705.05. The payments were made via direct deposit on March 12, 2010.

35Throughout this application process and initial approval, at no point did Crawford suggest that the PELD Fund was in danger of being depleted. Crawford did not suggest that there was any urgency in making an application for a payment from the PELD Fund, or that Ms. Cameron and Mr. Cameron-Gardos, the Plaintiffs, would be better compensated if they forwent a PELD Fund claim.

6. The Suspension of Ms. Cameron’s and Mr. Cameron-Gardos’ PELD Fund Claims

36In February 2010, payments from PELD Fund were suspended when it was believed the PELD Fund was close to being exhausted.

37On March 15, 2010, Mr. Cameron-Gardos contacted Crawford asking about the PELD Claim.

38On June 24, 2010, Mr. Cameron-Gardos contacted Crawford requesting an update on the PELD Claims. He was told that Class Counsel were gathering information, but no claims were to be approved until direction from the Courts was obtained.

39On June 25, 2010, Ms. Cameron contacted Crawford. She too requested an update on the status of the PELD Claim. She asked whether waiting for further direction from Class Counsel would impact the compensation available. Crawford advised that it was waiting to hear from Class Counsel for direction.

40On July 8, 2010, Mr. Cameron-Gardos contacted Crawford. He said that Class Counsel had advised him personally that the PELD Fund was insolvent and that a motion would be made to the Court to address the matter.

41On September 7 2010, October 18, 2010, November 8, 2010, December 20, 2010, March 1, 2011, April 1, 2011, April 8, 2011, May 24, 2011, and May 26, 2011, Mr. Cameron-Gardos contacted Crawford for updates. Mr. Cameron-Gardos was advised that Crawford was waiting for a decision from the Court on how to address the insolvency of the PELD Fund.

42On November 30, 2012, it was determined that the PELD Fund was insolvent. An Actuarial Report dated October 10, 2013, indicated that the PELD Fund had been exhausted and that the Compensation Fund itself would be in a deficit position by the end of 2016.

7. Efforts to Address the Deficiency of the PELD Fund

43In August and September 2015, the Joint Committee of Class Counsel held seven consultation sessions to consider the problem of the insolvency of the PELD Fund. The meetings were in Vancouver, Toronto, and Montreal. The meetings were webcast live over the internet.

44Class Members were invited to provide written submissions to the joint Committee for consideration and presentation to the courts. They were also invited to communicate with the Joint Committee by telephone if they wished to do so.

45On December 15, 2016 with reasons released on December 22, 2016, there was a joint hearing in Toronto of the four courts for, among other things: (a) an assessment of the financial sufficiency of the Compensation Fund; and (b) a declaration that future payments out of the PELD Fund shall be in a manner to be determined by the courts at a future hearing. The requested declaration was granted. [2]

46On January 11, 2017, Klein Lawyers, a law firm in the Class Counsel group, disseminated an update to Class Members.

47On January 18, 2017, Ms. Cameron contacted the Administrator to review the amount that may be payable to her and Mr. Cameron-Gardos. She was told that the amount was $431,165.09. However, she was told that it was unlikely that this sum would be paid but there would be a pro rata payment.

48On March 20, 2019, Ms. Cameron contacted Crawford. She was told that with further indexing the PELD Fund Claim now totaled $521,165.

49On October 16, 2019, a joint hearing of the Courts took place in Toronto to determine how to distribute the surplus in the Compensation Fund to claimants who had not received their full entitlement for their PELD Claim. The Courts ordered those payments be issued proportionally to claimants in two instalments.

50On January 14, 2020, Ms. Cameron received a letter from Crawford informing her that, as a result of the deficiency in the PELD Fund, she would receive a pro-rata distribution share in two installments. The letter stated:

On October 16, 2019, a joint hearing was held in Toronto before the Court. At the hearing the Justices determined the manner in which the surplus left in the compensation fund could be used to pay claimants who have not yet received a payment on their Past Economic Loss and Dependant (“PELD”) Claim. These are the claims that were submitted for loss of income, loss of services, loss of support and dependant claims but have not been paid as there was not enough money in the PELD fund. A number of options were put before the court at the hearing. Several class members appeared and made submissions. The Justices considered the options and decided that a pro-rata distribution was the preferred option to distribute the surplus. This pro-rata share will be approximately 20% of each claimant’s full entitlement. The courts ordered that the pro-rata share will be paid in two installments. The first pro-rata installment is being paid now and the second installment will be at a later date, once a number of deficiencies and appeals are resolved. We anticipate the second installment will be paid in mid-2020.”

51In March 2020, Ms. Cameron and Mr. Cameron-Gardos received the first payment of $47,527.78.

52In March 2021, they received the second and final payment of $64,170.60.

53Mr. Cameron-Gardos and Ms. Cameron submit that they are still owed $409,466.62. On August 24, 2021, they commenced their action against Crawford.

54On February 28, 2022, the four courts from across the country had a hearing in a virtual courtroom. The courts, among other things, approved a third and final pro rata payment to eligible claimants of the PELD Fund; and made a declaration with respect to the termination of the Settlement Agreement including the direction that the Trustee notify the parties and the Court Monitor and provide a summary of what remains in the Trust with this date to be known as the “Termination Date”.

55In December 2022, pursuant to motions in writing, the courts across the country ordered that: (a) the Pre-1986/Post-1990 Settlement would be terminated on December 9, 2022; (b) any funds remaining in the Trust Fund would be transferred to Canada; (c) the Trustee would be discharged on termination; and (d) Class Counsel, the Administrator, the Auditor, the Appeal Officer, Fund Counsel, and the Investment Advisors would be discharged on termination. [3]

C. The Statement of Claim

56Mr. Cameron-Gardos and Ms. Cameron’s Statement of Claim is succinct. I set it out below. For present purposes, the material facts of this pleading are assumed to be true and capable of proof:

CLAIM

1. The Plaintiffs claim:

(a) damages for breach of contract, breach of fiduciary duty, and negligence in the amount of $409,466.62;

(b) aggravated and punitive damages in the amount of $50,000;

(c) pre-judgment and post-judgment interest in accordance with the provisions of the Courts of Justice Act, R.S.O. 1990, c. C.43;

(d) costs of this action; and

(e) such further and other relief as to this Honourable Court may seem just.

The Parties

2. The Plaintiffs, Paris Cameron-Gardos (“Paris”) and Linda Cameron (“Linda”) are individuals residing in Amsterdam, Netherlands, and Toronto, Ontario respectively. Linda is Paris’ biological mother.

3. The Defendant, Crawford & Company (Canada) Inc. (“Crawford” or the “Settlement Administrator”) is a corporation with its head office in Toronto, Ontario. Crawford’s parent company, Crawford & Company, is based out of Atlanta, Georgia. Crawford is a claims management insurance company.

4. George Gardos (“George”), Paris’ late father and Linda’s late husband, died in 1993 from the side effects of a unit of blood contaminated with Hepatitis C that he received during a cancer treatment in Toronto two years earlier. He was 47 years old.

Background

5. During the late 1970s and 1980s, Canada suffered a preventable public-health disaster that affected thousands of Canadians. The country’s national blood supply had been contaminated with both HIV and hepatitis C. Individuals were unsuspectedly infected by these viruses either through blood transfusions, or through the use of blood products to treat hemophilia. A public inquiry was held, resulting in a report titled “Commission of Inquiry on the Blood System in Canada,” by Horace Krever.

6. The hepatitis C cases eventually led to two separate class actions, one for individuals infected between 1 January 1986 and 1 July 1990, while the other for individuals infected prior to 1986 and after 1 July 1990.

7. In 2007, the Government of Canada entered into a settlement agreement for the “Pre-1986/Post-1990” class action (the “Settlement Agreement”). The Settlement Agreement set up a $962 million fund to compensate victims of the scandal based on certain criteria agreed upon by the Class Counsel and the government. There were five separate categories of compensation and an administrator of the fund would determine individual claims. Of these categories, the Past Economic Losses and Dependents fund (the “PELD” fund), was allocated $931 million.

The Plaintiffs are approved for compensation

8. In 2009, with the assistance of counsel, Paris and his mother, Linda, applied for the for the Pre-1986/Post 1990 hepatitis C settlement compensation scheme in accordance with the Settlement Agreement. Three claims were submitted on their behalf:

i. File # HC-07-01779 – on behalf of the estate of George Gardos;

ii. File #HC-07-16999 – on behalf of Linda Cameron; and

iii. File #HC-07-17000 – on behalf of Paris Cameron-Gardos.

9. The Settlement Administrator, Crawford, approved all three applications between December 2009 and February 2010. Linda was approved for a spousal amount of $22,842.10. Paris was approved as a child under the age of 21 for an amount of $13,705.05. Lastly, the estate of George Gardos was approved for an amount of $33,425.85. These amounts were paid in full in March 2010.

10. Subsequent to these disbursements, Paris and Linda were required to make an election as to whether they would agree to receive further compensation in the amount of 8/11ths of $108,000 or receive compensation from the PELD fund. Under the guidance of Crawford’s representative, Paris and Linda opted for the PELD fund. Crawford advised that under this option, they would receive a significantly larger compensation amount due to Mr. George Gardos’ earning record and his relatively young age at the time of death.

11. On the advice of Crawford, the Plaintiffs engaged in a detailed application involving extensive searches for CRA documentation. Once the relevant materials were submitted, Crawford advised that Ms. Cameron and Mr. Cameron-Gardos would be entitled to approximately $300,000.

12. Throughout this process, at no point did Crawford suggest that the PELD fund was in potential danger of being depleted.

The Plaintiffs do not receive their approved compensation

13. Subsequent to this initial activity in 2009 and 2010, the Plaintiffs did not receive any official correspondence or payments from Crawford throughout the entire period that Crawford acted as Settlement Administrators.

14. In 2016, Linda spoke with a representative of the Defendant, Kevin O’Connell, by telephone, following up on the amounts due to her and her son. He acknowledged that no further payment had been made to the Plaintiffs since 2010 and assured her that at the time, the indexed amount owed had now increased to $431,165.

15. Linda followed up again with Crawford on 20 March 2019 as the outstanding funds had still not been paid out. Mr. O’Connell confirmed that the amounts owed had not yet been distributed Linda and Paris, and that further indexing over the interim period would result in an additional $90,000 owed to them. This brought the total amount owed to the Plaintiffs in March 2019 to $521,165.

16. Mr. O’Connell at no time suggested that there would be insufficient funds to cover the amounts owed to the Plaintiffs.

The Plaintiffs are under-compensated

17. On 14 January 2020, Linda received a letter from the current administrators, EPIQ Global, informing her that, as a result of underfunding in plan, she would receive only a pro-rata distribution share in two installments of approximately $47,527.78 each.

18. Linda and Paris were shocked. The Defendant had never provided any indication to either Plaintiff that there was a possibility of underfunding or that the funds would be distributed on a “first come, first serve” basis.

19. In March 2020, Linda received the first pro-rated payment of $47,527.78. A subsequent payment was provided in March 2021, in the amount of $64,170.60.

20. The Plaintiffs are still owed $409,466.62.

Breach of fiduciary duty and negligence

21. As a result of the relationship between the parties, the Defendant Settlement Administrator owed the Plaintiffs a fiduciary duty to responsibly manage their approved settlement funds.

22. The Defendant breached its fiduciary duties to the Plaintiffs by mismanaging the PELD fund, by failing to compensate the Plaintiffs the full amount that they were owed, and by failing to provide the Plaintiffs any meaningful official correspondence over a period of nine years.

23. As a result of this breach, Linda and Paris have suffered and will continue to suffer damages until they have been fully compensated for the loss of their late husband and father respectively.

24. Furthermore, the Defendant’s negligence in administrating the settlement fund has caused the PELD fund to deplete so significantly that the Plaintiffs have been barred from recovering their approved amounts under the Settlement Agreement.

Breach of contract

25. As the Settlement Administrator, the Defendant was bound by the duties and responsibilities listed out in the Settlement Agreement. Crawford’s actions as alleged herein have resulted in a material breach of the terms of this Settlement Agreement. Specifically, Paris and Linda plead that the Defendant breached the Settlement Agreement by failing to compensate the Plaintiffs in accordance with the provisions of the Settlement Agreement’s compensation plan within a reasonable period of time, and furthermore, by failing to meaningfully communicate with the Plaintiffs as required by the Settlement Agreement.

26. The Plaintiffs plead and rely upon section 27.1(15) of the Class Proceedings Act, 1992, SO 1992, c 6.

27. The Plaintiffs propose that this action be tried in the City of Toronto.

D. Discussion and Analysis

1. The Test for Leave to Sue an Administrator

57The test for leave to sue an administrator of a class action settlement is straightforward, and as it happens it is identical to the test used for the cause of action criterion for certification in a class action. The test is whether the class member’s claim against the Administrator has a reasonable possibility of success. [4] This is also the test used under the Rules of Civil Procedure to determine whether a plaintiff has a legally viable cause of action. [5]

58Where pursuant to rule 21.01 (1)(b) of the Rules of Civil Procedure, a defendant submits that the plaintiff’s pleading does not disclose a reasonable cause or action, to succeed in having the action dismissed, the defendant must show that it is plain, obvious, and beyond doubt that the plaintiff cannot succeed in the claim. [6]

59In R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42 at paras. 17-25, the Supreme Court of Canada noted that although the tool of a motion to strike for failure to disclose a reasonable cause of action must be used with considerable care, it is a valuable tool because it promotes judicial efficiency by removing claims that have no reasonable prospect of success and it promotes correct results by allowing judges to focus their attention on claims with a reasonable chance of success. [7]

60On a motion under rule 21.01 (1)(b), the court accepts the pleaded allegations of fact in the statement of claim as proven, unless they are patently ridiculous or incapable of proof. [8]

61The failure to establish a cause of action usually arises in one of two ways: (1) the allegations in the statement of claim do not come within a recognized cause of action; or (2) the allegations in the statement of claim do not plead all the elements necessary for a recognized cause of action. [9]

62The test for leave to sue an Administrator is not (as suggested by both parties) the statutory test for leave to bring a secondary market claim for misrepresentation pursuant to statutes that regulate the financial markets for equity and debt security instruments.

63That much litigated test for leave is a statutorily prescribed test that requires the court to be satisfied that: (a) the statutory action is brought in good faith, and (b) there is a reasonable possibility that the statutory action will be resolved at trial in favour of the plaintiff. [10] The statutory action for secondary market misrepresentations is a complex cause of action, much different from common law or equity actions for misrepresentation, breach of contract, or breach of fiduciary duty, which are sometimes joined to the statutory claim and for which leave is not required.

64What is the common denominator of the test for leave to sue an administrator and the test for leave to bring a misrepresentation action in the secondary market for securities is that the plaintiff must show that his or her action has a reasonable possibility of success.

65In the immediate case, both parties referred to Letendre Estate v. Crawford & Co. (sub nom. DePagie v. Crawford & Company Inc.), 2017 ABQB 92, for the obvious reason that it is a case involving a motion to leave to sue Crawford as the administrator of the pre-1986/ post-1990 Hepatitis C Settlement Agreement. [11]

66In the Letendre Estate case, before his death, Mr. Letendre had applied for and been granted compensation under the under the pre-1986/ post-1990 Hepatitis C Settlement Agreement. He was compensated at disease level 2 under the Settlement Agreement. Mr. Letendre alleged that he had been misclassified, and he alleged that Crawford as Administrator had breached its duties by not properly evaluating Letendre’s claim for compensation. Justice J.T. Henderson of the Alberta Court of Queen’s Bench found that Mr. Letendre had not established a reasonable possibility of success in his proposed action against the Administrator. The Alberta Court of Appeal affirmed the decision.

67In his judgment, Justice Henderson referred to the judgment of Justice Pitfield in Endean v. Canadian Red Cross Society, 2008 BCSC 78 and to the judgment of Justice Cullity in Musyka v. John E. Callaghan LLP, [2008] O.J. No. 3588 (S.C.J.). [12] [13] These were other cases where leave to sue Crawford as the Administrator of the pre-1986/ post-1990 Hepatitis C Settlement Agreement had been denied. In Endean, Justice Pitfield stated at paragraph 22:

22 [...] The leave requirement was incorporated into the approving orders to ensure that the process, as it pertains to decisions of the Administrator, would be governed by the Settlement and not by an action in court. Relief from the adverse effect of any decision of the Administrator, a Referee or the court which is alleged to be unsupportable, whether or not that is on the fact the case, is not something that can be derived from an action against the Administrator.

68In Musyka v. John E. Callaghan LLP, Justice Cullity echoed Justice Pitfield’s thought that Settlement Agreements are designed to have compensation paid pursuant to the detailed and comprehensive scheme that was negotiated by the parties and approved by the court. In paragraph 35 of his judgment, Justice Cullity said:

35. A Class Action settlement is designed to streamline the process of resolving complex claims, avoid a multiplicity of litigation, reduce the cost of litigation to both the claimants and the defendants and to provide certainty to the claimants and the defendants.

69Justice Henderson noted that both Endean and Musyka demonstrate the legal policy that the decisions of the Administrator should be dealt with in accordance with the procedures of the Settlement Agreement. He noted that permitting court proceedings to achieve compensation for HCV claimants was counterproductive and inconsistent with the objectives of class actions where parties can agree about the mode of procedure for the determination and payment of compensation.

70However, – and this is the key point for present purposes – Justice Henderson appreciated that a balance was necessary. He appreciated that leave to sue the Administrator might be appropriate in some situations. At paragraphs 37 and 38 of his decision, Justice Henderson stated:

37. However, a balance is required. Where the evidence on a leave application shows circumstances that suggest an administrator has misconducted itself or where the evidence on the motion clearly shows that the administrator's duties have been breached, then further litigation may be justified or even required. […]

38. I conclude that the "reasonable possibility of success" test should be applicable in relation to the present motion. In my view, this test strikes the appropriate balance and is consistent with other similar applications for leave in the securities and bankruptcy contexts.

71With this background about the test for granting leave to sue an Administrator, I return to the immediate case. As foreshadowed by its factum, it should be appreciated that Crawford’s defence in the immediate case apparently will be similar to the defence advanced in the Letendre Estate case. The thrust of Crawford’s defence is that as Administrator, it was just following the scheme of the Settlement Agreement and it was allocating PELD Funds as required by the Settlement Agreement and by the directives of the courts across the country.

72The thrust of that defence, however, misunderstands the allegations and the causes of action being advanced in the immediate case. The essential allegations in the immediate case are not about the calculation of the PELD Fund or about the directives of the courts about how to deal with surpluses and deficits. In the immediate case, the essential allegation of wrongdoing is that Crawford – which as Administrator would necessarily have known that the PELD Fund was insolvent with no assurances that there would be a rescuing surplus from the general Compensation Fund – was advising Mr. Cameron-Gardos and Ms. Cameron about elections about compensation. Knowing what it knew, allegedly Crawford was organizing futility.

73If Mr. Cameron-Gardos’ and Ms. Cameron’s allegations are proven, then the case at bar is distinguishable from the Letendre Estate case, which decided no more than that the Estate of Mr. Letendre did not have a reasonable cause of action.

74With this background about the test for leave, the question in the immediate case is whether Mr. Cameron-Gardos and Ms. Cameron have pleaded causes of action that have a reasonable possibility of success. It is to that question, I now turn.

75I foreshadow to say that my conclusion is that they have demonstrated that their several causes of action have a reasonable prospect of success.

2. Breach of Contract

76The elements of a breach of contract claim, which is actionable without proof of damages, are: (a) the plaintiff and the defendant are parties to a validly formed contract; and, (b) the defendant fails to perform his or her obligations under the contract. [14]

77In the immediate case, Mr. Cameron-Gardos and Ms. Cameron plead that Crawford breached the crucial term of the Settlement Agreement that requires the Administrator to pay the compensation within a reasonable time. Although poorly pleaded, the thrust of the pleading in contract is that Crawford’s duties in administering the contract and in communicating to Class Members were not performed or not properly performed because they did not pay compensation within a reasonable time.

78Even reading the claim for breach of contract generously, there are numerous problems about this pleading of breach of contract, but the problems do not rise to the level that it is plain and obvious that Mr. Cameron-Gardos and Ms. Cameron do not have a cause of action for breach of contract.

79A major pleading problem in the immediate case is that it is not clear that there is privity of contract between Mr. Cameron-Gardos and Ms. Cameron. Rather, it appears that they are third party beneficiaries. The general rule is that a third party beneficiary does not have the right to enforce a contract. [15]

80It is, however, not plain and obvious that privity is an insurmountable problem that could not be addressed by an amended pleading. In Fraser River Pile & Dredge Ltd. v. Can-Dive Services Ltd., [1999] 3 S.C.R. 108, and London Drugs Ltd. v. Kuehne & Nagel International Ltd., [1992] 3 S.C.R. 299, the Supreme Court of Canada held that there could be new common law exceptions to the doctrine of privity. [16] [17]

81In the immediate case, the current pleading of breach of contract wants for pleading the constituent elements of a breach of contract claim, but it is not plain and obvious that a breach of contract claim could not be pleaded.

82In these circumstances, it is appropriate to grant Mr. Cameron-Gardos and Ms. Cameron leave to prosecute a breach of contract claim against Crawford.

3. Negligence

83A cause of action in negligence does not depend upon a contractual relationship between the parties. Rather it is based on a duty of care relationship.

84The elements of a claim in negligence are: (1) the defendant owes the plaintiff a duty of care; (2) the defendant's behaviour breached the standard of care; (3) the plaintiff suffered compensable damages; (4) the damages were caused in fact by the defendant's breach; and, (5) the damages are not too remote in law. [18]

85The elements of a claim of negligent misrepresentation are: (1) duty of care based on a special relationship between the plaintiff and the defendant; (2) an untrue, inaccurate, or misleading representation; (3) the defendant making the representation negligently; (4) the plaintiff having reasonably relied on the misrepresentation; and, (5) the plaintiff suffering damages as a consequence of relying on the misrepresentation. [19]

86Read generously, the succinct Statement of Claim in the immediate case is adequate to plead a general negligence claim and also a claim for negligent misrepresentation.

87The negligent misrepresentation claim would be based on an allegation, akin to a duty to warn allegation, that although Crawford would have known that the PELD Fund was bone-dry, Crawford went through a futility exercise of offering information and advice about what election a claimant should make.

88Once again although the pleading wants for particulars, in the immediate case, there is enough pleaded for Mr. Cameron-Gardos and Ms. Cameron to demonstrate that their negligence causes of action have a reasonable prospect of success.

89One final note, in advancing their negligence claims, Mr. Cameron-Gardos and Ms. Cameron rely on s. 27.1(15) of the Class Proceedings Act, 1992 [20] which states:

Duty of administrator, other person or entity

(15) An administrator appointed by the court or, if no administrator is appointed, the person or entity who administers the distribution of the settlement funds, shall administer the distribution in a competent and diligent manner.

90Crawford, however, submits that s. 27.1 (15) does not and cannot apply to the immediate case because it is a recent (2020) amendment to the Class Proceedings Act, 1992. [21] This submission is technically correct. However, the submission begs the question of whether s. 27.1 (15) is a codification of the pre-existing common law about the responsibilities of settlement administrators. Thus, it is also not plain and obvious that Mr. Cameron-Gardos and Ms. Cameron cannot rely on this provision to advance their negligence claims.

4. Breach of Fiduciary Duty

91A cause of action for breach of fiduciary relation does not depend upon a contractual relationship between the parties. Rather it is based on a fiduciary relationship that can arise: (a) categorically for certain relationships; for example, a trustee and beneficiary relationship or a lawyer-client relationship, or (b) in an ad hoc manner.

92The constituent elements of a claim for breach of fiduciary duty are: (1) a fiduciary relationship; (2) a fiduciary duty; and (3) breach of the fiduciary duty. [22]

93A fiduciary relationship can arise in an ad hoc manner depending upon the particulars of the association between the parties. The elements of an ad hoc fiduciary relationship are: (1) a defined person or class of persons vulnerable to a fiduciary's control (the beneficiary or beneficiaries); (2) an undertaking by the alleged fiduciary to act in the best interests of the alleged beneficiary or beneficiaries; and (3) a legal or substantial practical interest of the beneficiary or beneficiaries that stands to be adversely affected by the alleged fiduciary's exercise of discretion or control. [23]

94Vulnerability alone is insufficient to support a fiduciary claim, and the vulnerability must arise from the relationship between the fiduciary and the beneficiary in the sense that the beneficiary is at the mercy of the fiduciary holding the discretion or power. [24] The existence of an ad hoc fiduciary relationship is a question of fact to be determined by examining the specific facts and circumstances on a case-by-case. [25]

95Cases about alleged breaches of fiduciary duty involve four issues: (1) the determination of whether the relationship is fiduciary; (2) the determination of the duties that arise from the particular relationship; (3) the determination of whether a particular duty has been breached; and (4) the determination of the extent of liability for the breach of the particular fiduciary duty. [26]

96In the immediate case, there is no categorical fiduciary relationship for Administrators. However, on a case-by-case basis, administrators are not excluded from being fiduciaries on a case-by-case basis.

97In the immediate case, it is not plain and obvious that there is no ad hoc fiduciary relationship, and it is not plain and obvious that there is no reasonable claim for breach of fiduciary duty.

5. Are the Claims Barred by the Release?

98Mr. Cameron-Gardos and Ms. Cameron signed a release of Canada and the defendant entities in exchange for payment from the Compensation Fund.

99In the immediate case, in arguing that leave should not be granted Crawford baldly submits that Crawford is amongst the releasees in the release signed by Mr. Cameron-Gardos and Ms. Cameron and therefore, Crawford submits that Mr. Cameron-Gardos and Ms. Cameron have released any causes of action against Crawford and leave to sue should not be granted.

100These are very contestable submissions.

101Crawford obviously comes to the litigation after the fact of the blood tainting for which Canada assumed responsibility to pay compensation. The claims against Crawford are about the administration of the Settlement Agreement and it is arguable that these claims are not, to use the language of the release, “in any way relating to or arising from the infection of Class Members with Hepatis C through the blood system during the Class Period.” Thus, it is arguable that Crawford is outside the scope of the release. If the release is to be interpreted as broadly as Crawford would have it, then it is odd why it would also have the protection of Paragraph 35 of the Settlement Approval Order.

102The claims against Crawford arise long after the class period and arguably do not arise from the infection of Class Members but arise from misfeasance in the advice given to claimants during the administration of a settlement. In any event, it is not plain and obvious that the release protects Crawford from misfeasance or malfeasance in the administration of the Settlement Agreement.

103Thus, the releases are not at this juncture a reason to refuse to grant leave to Mr. Cameron-Gardos and Ms. Cameron to sue Crawford.

6. Are the Claims Statute-Barred?

104In its factum Crawford baldly asserts that Mr. Cameron-Gardos’ and Ms. Cameron’s claims are subject to the two-year limitation period of Ontario’s Limitations Act, 2002, [27] and that the plaintiffs’ limitation problems cannot be cured by discoverability principles. Thus, Crawford, once again, submits that leave to sue it should not be granted in the immediate case.

105On a motion to determine whether a plaintiff has pleaded a legally viable cause of action, it is rare that a limitation period defence can be successfully invoked before it has been pleaded in a Statement of Defence but, in any event, in the immediate case, it is not plain and obvious that the plaintiffs will not be able to rebut the presumption that their claims are statute-barred.

106In this last regard, I note that the various causes of action have different constituent elements that will affect the commencement date for the running of limitation periods. I also note that Mr. Cameron-Gardos and Ms. Cameron have a reasonable argument that the commencement date for the running of the limitation periods was March 2021, when they received the final PELD payment, which would make an August 2021 action a timely lawsuit.

107Thus, the limitation period defence does not at this juncture justify a refusal to grant leave to Mr. Cameron-Gardos and Ms. Cameron to sue Crawford.

E. Conclusion

108For the above reasons, I grant Mr. Cameron-Gardos and Ms. Cameron leave to sue Crawford.

109To be clear, nothing that I have said is a determination of the merits of their lawsuit or of the merits of Crawford’s yet to be pleaded defences.

110If the parties cannot agree about the matter of costs, they may make submissions in writing beginning with the submissions of Mr. Cameron-Gardos and Ms. Cameron within twenty days of the release of these Reasons for Decision followed by Crawford’s submissions within a further twenty days.

Perell, J. Released: January 31, 2024

[1] On January 1, 2019, the Court appointed Epiq in place of Crawford to continue as the Administrator. [2] McCarthy v. The Canadian Red Cross Society, 2016 ONSC 8032. [3] McCarthy v. Canadian Red Cross Society, 2022 ONSC 6973. [4] Letendre Estate v. Crawford & Co. (sub nom. DePagie v. Crawford & Company Inc.), 2017 ABQB 92, aff’d 2018 ABCA 326. [5] R.R.O. 1990, Reg. 194. [6] Dawson v. Rexcraft Storage & Warehouse Inc. (1998), 164 D.L.R. (4th) 257 (Ont. C.A.); Hunt v. Carey Canada Inc. (1990), 74 D.L.R. (4th) 321 (S.C.C.). [7] 2011 SCC 42 at paras. 17-25. [8] Folland v. Ontario (2003), 64 OR (3d) 89 (C.A.); Nash v. Ontario (1995), 27 O.R. (3d) 1 (CA); Canada v. Operation Dismantle Inc., [1985] 1 S.C.R. 441; A-G. Canada v. Inuit Tapirisat of Canada, [1980] 2 S.C.R. 735. [9] 2106701 Ontario Inc. (c.o.b. Novajet) v. 2288450 Ontario Ltd., 2016 ONSC 2673 at para. 42; Aristocrat Restaurants Ltd. v. Ontario, [2004] O.J. No. 5164 (S.C.J.); Dawson v. Rexcraft Storage & Warehouse Inc., , [1998] O.J. No. 3240 at para. 10 (C.A.). [10] Wong v. Pretium Resources, 2021 ONSC 54; Tietz v. Cryptobloc Technologies Corp, 2021 BCSC 2275; DALI Local 675 Pension Fund (Trustees) v. Barrick Gold, 2019 ONSC 4160; Rahimi v. SouthGobi Resources Ltd, 2017 ONCA 719; Theratechnologies Inc v. 121851 Canada Inc., 2015 SCC 18. [11] 2017 ABQB 92, aff’d 2018 ABCA 326. [12] 2008 BCSC 78 , [2008] B.C.J. No. 91 (S.C.). [13] [2008] O.J. No. 3588 (S.C.J.) [14] Atlantic Lottery Inc v Babstock, 2020 SCC 19; Adams-Smith v. Christian Horizons, [1997] O.J. No. 2887 (Gen. Div.). [15] Benzie v. Hania, 2012 ONCA 766; Fenrich v. Wawanesa, 2005 ABCA 199. [16] , [1999] 3 S.C.R. 108. [17] , [1992] 3 S.C.R. 299. [18] Mustapha v. Culligan of Canada Ltd., 2008 SCC 27 at para. 3. [19] Queen v. Cognos, [1993] 1 S.C.R. 87 [20] S.O. 1992, c. 6. [21] S.O. 2020, c. 11, Sched. 4, s. 25. [22] Galambos v. Perez, 2009 SCC 48; Hodgkinson v. Simms, [1994] 3 S.C.R. 377; Lac Minerals Ltd. v. International Corona Resources Ltd., [1989] 2 S.C.R. 574; Frame v. Smith, [1987] 2 S.C.R. 99; Canadian Aero Services Ltd. v. O'Malley, [1974] S.C.R. 592 at p. 616. [23] Elder Advocates of Alberta Society v. Alberta, 2011 SCC 24; Galambos v. Perez, 2009 SCC 48. [24] Elder Advocates of Alberta Society v. Alberta, 2011 SCC 24; Galambos v. Perez, 2009 SCC 48. [25] Galambos v. Perez, 2009 SCC 48; Hodgkinson v. Simms, [1994] 3 S.C.R. 377; Lac Minerals Ltd. v. International Corona Resources Ltd.. [26] Investors Syndicate Ltd. v. Versatile Investments Inc. (1983), 42 O.R. (2d) 397 (C.A.); Canadian Aero Services Ltd. v. O’Malley, [1974] S.C.R. 592 at p. 616. [27] S.O. 2002, c. 24, Schedule B.