Indexed as:

Authorson (Litigation guardian of) v. Canada (Attorney





Joseph Patrick Authorson, by his Litigation guardian, Lenore

Majoros, (respondents in appeal), and

The Attorney General of Canada, (appellants in appeal)


[2000] O.J. No. 4779


101 A.C.W.S. (3d) 676


Docket Nos. M26705 and (C35254)



 Ontario Court of Appeal

 Toronto, Ontario


McMurtry C.J.O.

(In Chambers)


Heard: December 8, 2000.

 Judgment: December 20, 2000.


(11 paras.)


Practice -- Appeals -- Stay of proceedings pending appeal -- Balance of convenience and justice -- Perfecting appeals -- Time for, extension of -- Factum, case on appeal or appeal book -- Filing of factum or appeal book -- Hearing of appeal -- Consolidation of appeals for hearing.


This was an application by the Crown for a stay pending appeals. The plaintiffs, veterans of the Armed Forces, brought class proceedings for interest on funds administered by the Federal Department of Veteran Affairs. They obtained summary judgment on the issue of liability. The Crown's motion to dismiss the action on the grounds that there was no obligation to pay interest or that the action was brought in the wrong forum was dismissed. The Crown's application for an adjournment was also dismissed. Determination of damages was adjourned to a date not yet set. The Crown applied for leave to appeal from the summary dismissal of its applications in Divisional Court. It also brought appeals from the summary decision as to liability and now sought a stay of the decision as to liability and the assessment of damages. It also sought to transfer the Divisional Court appeals, should leave be granted, to the Court of Appeal to be heard together with its other appeals, and for orders extending the time for perfection of the appeals, permission to file factums in excess of the 30 page maximum, removal of the matter from the expedited list and permitting additional time for oral argument.

HELD: Application allowed in part. The Divisional Court appeal was to be transferred to the Court of Appeal. The issues on the Crown's motion were so intertwined with the summary judgment in favour of the veterans that it was appropriate to hear the matters together. A stay was refused because the balance of convenience favoured continuation of the proceedings. The Crown was entitled to an extension to perfect its appeal. Three days was allotted for the hearing of oral arguments based on the Crown's estimates. While factums in excess of 30 pages were appropriate, no decision was made until counsel were better able to provide reasonable estimates of the desired lengths.


Statutes, Regulations and Rules Cited:

Courts of Justice Act, s. 6(3).



Dale Yurka, for the appellant, The Attorney General of Canada.

David G. Greenaway, Raymond G. Colautti and Peter Sengbush, for the respondents.





The judgment of the Court was delivered by

1     McMURTRY C.J.O. (endorsement):-- 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 armed 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:


1.            An order staying the decision of Brockenshire J. on the issue of liability;

2.            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;

3.            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;

4.            An order extending the time for perfection of the appeal;

5.            An order permitting the parties to file factums in access of the thirty pages in length;

6.            An order removing this matter from the list of expedited summary judgment appeals;

7.            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.