Case Name:

Authorson (Litigation guardian of) v. Canada (Attorney

 General)

Between

Joseph Patrick Authorson, deceased, by his litigation

administer Peter Mountney, and his litigation guardian Lenore

Majoros, plaintiff, and

The Attorney General of Canada, defendant

[2003] O.J. No. 5239

69 O.R. (3d) 129

[2003] O.T.C. 1107

38 C.C.P.B. 193

43 C.P.C. (5th) 328

235 D.L.R. (4th) 532

127 A.C.W.S. (3d) 1139

2003 CarswellOnt 5279

Court File No. 99-GD-45963

 Ontario Superior Court of Justice

Brockenshire J.

Heard: March 3-7, 2003.

 Judgment: December 22, 2003.

(80 paras.)

Interest -- Interest as damages (prejudgment interest) -- Torts -- Crown, claims against -- Limitation of actions -- Actions against the Crown -- Applicability of limitation period.

Application by the plaintiff class, on behalf of disabled veterans and their estates, for summary judgment awarding damages on an aggregate assessment basis. The class was successful in its argument that the Department of Veterans Affairs had breached its fiduciary duty by failing to invest or pay interest on the veterans' pensions. The class was prepared to accept the gross figure produced by the Crown as the total of the principal involved, but the parties disagreed on how much income should have been produced by the fund over the previous 82 years. The Crown argued for a bottom-up approach, where the damages were approached on an individual basis for each veteran. The class argued for a top-down aggregate approach.

HELD: Application adjourned for further submissions. It was appropriate to determine the Crown's liability in the aggregate, given the class's acceptance of the Crown's figures for principal, and the state of the law, which made the Crown liability determinable without proof by individual class members. If any limitation period was to have effect, it was the limitation under s. 32 of the federal Crown Liability and Proceedings Act. However, the special relationship between the Department and the disabled veterans encompassed the duty to act with the utmost good faith on behalf of the veterans. The evidence established equitable fraud, which postponed the limitation period from running until the fraud was discovered by the class. The claims of the class members were not statute-barred. There was no genuine issue requiring a trial in connection with the aggregate assessment. The class's expert's approach to calculating income was accepted over the Crown's expert's approach. There should have been annual compounding of interest up until the time that the veterans' records were computerized, and monthly compounding thereafter. Further evidence was required in order to complete the assessment, addressing the issues of capital gains, portfolio investing, and how the calculation and deduction of interest was to be handled.

Statutes, Regulations and Rules Cited:

Bill of Rights.

Class Proceedings Act, ss. 23, 24, 24(1), 28(1).

Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50, s. 32.

Department of Veterans Affairs Act, S.C. 1990, s. 5.1(4).

Financial Administration Act.

Ontario Rules of Civil Procedure, Rule 20.

Statute of Limitations, R.S.B.C. 1960, c. 370.

Trustee Act, s. 38.

Veterans Treatment Regulations.

Counsel:

Raymond G. Colautti, David G. Greenaway and Peter Sengbusch, for the plaintiff.

John Spencer, William A. Knights, Peter Hajecek and Cynthia Kollar, for the respondent.

Reasons for Decisions, Re Assessment of Damages

1 BROCKENSHIRE J.:-- In this class action, on behalf of disabled veterans and their estates, counsel for the class have moved for summary judgment, awarding damages on an aggregate assessment basis. The Crown argued for individual assessments instead, and also raised arguments on the applicability of the summary judgment procedure, the applicability of provincial limitations Acts, and the applicability of laches. Class counsel was quite prepared to accept a gross figure produced by the Crown as the total of the principal involved, but presented widely varying views as to how much income should have been produced by the fund over the past 82 or so years. The Crown puts the figure at $656,816,757. The class presents a range of figures up to some $3.5 billion. These are my reasons for my decisions on these various issues.

Background

2     This class action was certified on October 26, 1999. The class is a national class of disabled veterans and their estates whose pensions or allowances were being administered by the Department of Veterans Affairs. The first claim was that while so administered, their money was not invested, and they lost the proceeds of such investment. There was a further claim for the principal where veterans died while their pensions or allowances were under administration, and the Crown took those funds, instead of passing it to the estates of the deceased veterans. The original plan has been to deal with the issues in four parts - liability for failure to invest, liability for principal re estates, and then quantum in relation to both liability issues.

3     The issue of liability for breech of fiduciary duty by failing to invest or pay interest was decided by me in favour of the class in a decision released October 11, 2000. That decision was appealed to the Ontario Court of Appeal, which upheld that decision in its decision, released March 13, 2002. An important part of the original decision and of the Court of Appeal decision was that it was appropriate, under the Bill of Rights, to declare inoperative s. 5.1(4) of the Department of Veterans Affairs Act, S.C. 1990, which purported to bar any claim for interest on money held under administration. An appeal was taken by the Crown on the Bill of Rights issue to the Supreme Court of Canada, which accepted the Crown's position, subsequent to the argument on quantum.

4     Also, subsequent to the argument on quantum, the subject of this decision, class counsel brought a motion for judgment on the estates issue. On March 24, 2003, I released my decision on that issue, finding that the background and legislative position was much different from that presented on the interest issue, and finding that the Crown was not liable in relation to the estates. That decision has an effect on the assessment here, both because it removes the amount of principal involved from consideration, and perhaps more importantly because the income that could have been earned on that principal also has to be removed from the equation. I will deal with the whole problem in general terms, and address the issues of the separation out of the funds relating to the estates issue and the impact of the finding of the Supreme Court of Canada on the Bill of Rights, at a later time.

Positions of the Parties

5     The position of class counsel is relatively simple. It is that the Crown undertook a position of trust in relation to thousands of disabled veterans, and failed to carry out a fundamental obligation of a trustee, namely to invest trust funds on hand for the benefit of the beneficiaries. As a result, the Crown profited, and the profits remain in the hands of the Crown and it must account therefore. Class counsel further say that there is no limitation period of any kind affecting the obligation of a trustee to account. Class counsel is quite prepared to accept the Crown's own figures, from its annual accounts and from its expert, as to the total amount of principal involved and the balances from year to year which should have been invested. Various models of the income produced by various mixes of investment portfolios had been put forth by experts for the class, and while the Crown put forward its own position on minimal interest, the arithmetic calculations on each side were not disputed. The only issue for the Court was the application of the law, on the particulars of the obligation of a trustee to invest, to the facts, which had been derived from the Crown's own documents, and established in the previous motion. There was therefore no need for a trial and the appropriate lump sum amount of the liability for damages of the Crown could be established on a summary judgment motion.

6     The position of Crown counsel was essentially a "bottom-up" approach, as contrasted to the "top-down" approach of class counsel. The Crown urged that the damages issues should be approached on an individual basis for each veteran. One reason put forth was that the figures in the national accounts and the experts reports were of necessity averages, and the individual account records of each veteran should be reviewed to arrive at a completely accurate figure for the principal involved for each veteran, on which a calculation of damages could be made. Further, the Crown argued that the right to claim damages would be limited by the applicable provincial limitation Acts, which varied from province to province, and that would require individual determination for each veteran. Further, if there were an argument regarding discoverability or laches, both of these would be individual issues and require individual trials. There was a suggestion that the Crown might argue acquiescence by some veterans to the Crown failure to invest. Also, the evidence had indicated that some veterans did receive interest - particularly all of the veterans at Ste. Anne de Bellevue Hospital. That raised a concern by the Crown of a possible double recovery, which in the Crown's submission would call for an individual examination of each veteran or his/her representatives. The position of the Crown was therefore that all of this made the assessment of damages in the aggregate on a motion an impossibility, with individual trials or hearings of some kind being required to individually assess the damages for each veteran.

7     I will attempt to unravel this tangled skein one string at a time.

Aggregate Assessment

8     S. 24(1) of the Class Proceedings Act provides that,

"The Court may determine the aggregate or a part of a defendant's liability to class members and give judgment accordingly where,

(a) Monetary relief is claimed on behalf of some or all class members;

(b) No questions of fact or law other than those relating to the assessment of monetary relief remained to be determined in order to establish the amount of the defendant's monetary liability; and

(c) The aggregate or a part of the defence liability to some or all class members can reasonably be determined without proof by individual class members.

9     This section gives specific statutory authority for what is being sought by class counsel.

10     Furthermore, the Court is not being asked to assess damages for pain and suffering, as in a personal injury action, or even financial loss as in say, breach of a contract of employment, where the personal characteristics and situation of the plaintiff are of prime importance in determining the quantum. This is a case of a breach of a fiduciary obligation to invest funds on hand, and the measure of the damages has always been restitution - the making good to the beneficiaries for what the fiduciary should have earned on the fund, or what the fiduciary made for itself from the use of the fund. The principal was put briefly by Chancellor VanKoughnet in Wightman v. Helliwell (1867) 13 Gr. 330 (Upper Can. Chan.) at p. 344 where he said,

"The principal and the object in every case is to make good the loss caused by the acts of omission or commission of the trustee, or to wrest from him any benefit he has, or is taken to have derived from the use of the trust monies."

These words, going back to before Ontario even existed, encapsulate the approach still taken in equity today, of calculating equitable damages for misappropriation or failure to invest by a trustee based on what the trustee did or failed to do, rather than the suffering or loss resulting to the affected plaintiff. See, among a multitude of others, Guerin v. The Queen, (1984) 13 D.L.R. (4th) 321, S.C.C. and LAC Minerals Ltd. v. International Corona Resources Ltd. (1989), 61 D.L.R. (4th) 14 (S.C.C.).

11     In view of the acceptance by class counsel of the Crown figures for principal in its accounts and its experts' reports, and the state of the law, which makes the Crown liability here determinable without proof by individual class members, I conclude this is an appropriate case for determining the Crown liability in the aggregate.

Limitation Acts

12     Argument before me ran from Monday, March 3rd to Friday, March 7, 2003. The reasons of the Supreme Court of Canada in Markevich v. Canada, [2003] S.C.J. No. 8, were released on March 6th. That decision appeared to affect the position of Crown counsel before me, in arguing the applicability of the various provincial limitations Acts, so I permitted the filing of supplementary written argument with further materials. I have considered all of that in addition to the materials filed and the arguments presented during the week of oral hearings.

13     I find the reasoning of Major J. in Paragraphs 39 and 40 of his decision on behalf of the Court in Markevich to be particularly apt and applicable to the case before me. Mr. Markevich was a resident of British Columbia who had not paid any income tax assessed as due from him. Revenue Canada neglected to take collection proceedings for some 12 years after the assessment issued. Mr. Markevich argued that the claim was then statute barred. One of the questions was which statute? The Crown Liability and Proceedings Act, R.S.C. (1985) C-50 provides in s. 32, that,

"... the laws relating to prescription and the limitation of actions in force in a province between subject and subject apply to any proceedings by or against the Crown in respect of any cause of action arising in that province, and proceedings by or against the Crown in respect of a cause of action arising otherwise than in a province shall be taken within 6 years after the cause of action arose."

Major J. in para. 39 noted that tax debts may arise

"... from income earned in a combination of provinces or in a foreign jurisdiction. The debt is owed to the Federal Crown, which is not located in any particular province and does not assume a provincial locale in its assessment of taxes."

Therefore he says, on a plain reading of s. 32, the cause of action in the case before him arose, "otherwise than in a province". Further, in Para. 40 of his decision he notes that if the cause of action were found to arise in a province the limitation period applicable could vary considerably depending upon the province in which the income was earned and its limitation periods. This plus difficulties with income earned in two or more provinces could impair the equitable collection of taxes. The Court could therefore assume that Parliament intended for limitation provisions to apply uniformly throughout the country, to proceedings like tax collections.

14     Here, we have class members located all across Canada. No doubt at least some of them have resided in more than one province during the time that their funds were under administration. The concepts in Markevich are even more apt in this case, because we have here class members from coast to coast all claiming for the same reason against the Department of Veterans Affairs, in relation to Veteran's pensions and allowances, which were intended for the benefit of disabled Canadian veterans of the Canadian Armed Services. I conclude, if any limitation period is to have affect here, it is to be the six-year limitation under s. 32 of the Crown Liability and Proceedings Act, as this is a,

"... Proceedings ... against the Crown in respect of a cause of action arising otherwise than in a province ...".

This effectively removes the various provincial limitations Acts, and their diverse wordings, from consideration in this case.

Equitable Exemption from Federal Limitation

15     The primary position of class counsel was that where money that a trustee was supposed to hold for the benefit of a beneficiary continues to be in the hands of the trustee, a trustee cannot set up a statute of limitations defence as an answer for a demand for money in the hands of the trustee.

16     The response of Crown counsel was that two recent cases, Wewaykum Indian Band v. Canada [2002] S.C.J. No. 79 and Daniels, et al. v. Canada, [2003] S.J. No. 73, 2003 SKQB 58, both say that limitation periods are effective in claims against the Crown as a trustee.

17     As I read those cases, it is not as simple as that. Wawaykum dealt with a complicated and long-standing dispute between two Indian bands over reserve lands, with a claim being made against Canada for failing to somehow resolve the problem in its "fiduciary" capacity in relation to Indians and Indian lands. Binnie J., writing for the Court, observed that, Canada has been generally regarded as being in a fiduciary position in relation to the Indians of Canada, but the extent of its fiduciary obligations depended on the particular situation. The dispute there had been ongoing for many many years, and the Indian bands had had legal advice thereon since the 1930s. He concluded that their claims had long been barred by laches and acquiescence, but at the request of counsel also looked at the limitation periods and concluded the action would also be barred by the ultimate 30 year limitation in the British Columbia Statute.

18     In Daniels, the claim was by a proposed class made up of Indians who were veterans, who claimed they were discriminated against by Canada in that they did not receive, or were not told they were entitled to receive veteran's benefits that were given to other veterans that were not Indians. Here to, the Crown was described as a "fiduciary" on the basis of its general obligations to the Indian population.

19     McLellan J. refused to certify the class action on the grounds that on its face, the claims were statute barred under the Federal and Provincial Statute, success in the face of that would depend upon the doctrine of discoverability, and in the situation before him, that would be an individual issue which, together with other individual issues, led him to conclude that a class action was not the preferable procedure.

20     Certainly neither of these were cases on all fours with this one, in which the Crown was found to be in breach of the specific fiduciary obligation to invest trust funds, and is alleged to have profited from that situation by having available to it the funds belonging to the veterans on an interest free basis, and with the Crown alleged to still have in its hands the profit made from that situation over the years.

21     Class counsel provided me with a series of cases which indicated that limitations Acts were to be interpreted as applying to common law actions only, with equitable claims being outside of any statutory limitation provisions and with the Courts of equity instead applying the equitable bars of latches and acquiescence to create fairness and eventually repose amongst the litigants. However, the cases cited to me - Bulli Coal Mining Company v. Asborne [1899] A.C. 351, Soar v. Ashwell [1893] 2 Q.B. 390 and in Re Sharpe [1892] 1 Ch. 154 (Eng. C.A.) are all English and before 1900, before the unification of the English courts of equity and common law. In Sharpe, Fry L.J. at p. 172, said that, a trustee or fiduciary cannot set up the statute of limitations as an answer to a demand for money that was in his hands, but he qualified that statement by saying that he was, "... speaking, of course without regard to recent legislation which extends certain benefits under the Statute of Limitations to trustees ..."

In Soar v. Ashwell, Bowen L.J. at p. 398, picked up and applied the statement by Fry L.J. as a principle without noting the qualification that Fry L.J. had placed upon it. Class counsel has not provided more recent case law or any Canadian jurisprudence suggesting that a trustee with money in his hands cannot raise a limitation defence to a demand for that money. Indeed Halsbury's Laws of England (4th Edition) Vol. 16 (Equity) indicates in para. 1476 that the more modern English view is the inverse - that the equitable defence of laches is now allowed only when there is no statutory bar.

22     Class counsel provided me with a line of English cases, including Nocton v. Ashburton [1814] A.C. 932 (H.L.) 593, Archer v. Moss [1971] 1 All. E.R. 747 (Eng. C.A.) 747, King v. Victor Parsons & Co. [1973] 1 W.L.R. 29 (Eng. C.A.) Tito v. Waddell (No. 2) [1977] 3 All E.R. 129 and Kitchen v. Royal Air Force Association [1958] 1 W.L.R. 563 (Eng. C.A.). All of these cases discuss "equitable fraud" which was defined by Lord Denning in Archer v. Moss as,

"Conduct by the defendant or his agent such that it would be against conscience' for him to avail himself of the lapse of time". All of these cases appear to have entered into this discussion in the context of an exemption in the British Limitations Act against the running of time, when the right of action is concealed by the fraud of the defendant or his agents'."

23     However, in Guerin v. The Queen (1984), 13 D.L.R. (4th) 321 (S.C.C.) at p. 345, Dickson J. imported into Canadian Law the ratio of the English decisions, without mention of the specific exemption in the British Limitations Act by saying,

"It is well established that where there has been a fraudulent concealment of the existence of a cause of action, the limitation period will not start to run until the plaintiff discovers the fraud, or until the time when, with reasonable diligence, he ought to have discovered it. The fraudulent concealment necessary to toll or suspend the operation of the Statute need not amount to deceit or common law fraud. Equitable fraud was defined in Kitchen v. Royal Air Force Association et al. [1958] 1 W.L.R. 563 at p. 573, as, conduct which, having regard to some special relationship between the two parties concerned, is a non-conscionable thing for the one to do towards the other' is sufficient. I agree with the trial judge that the conduct of the Indian Affairs branch towards the band amounted to equitable fraud. Although the branch officials did not act dishonestly or for improper motives in concealing the terms of the lease from the band, in my view their conduct was nevertheless unconscionable, having regard to the fiduciary relationship between the branch and the band."

The limitation in question in Guerin was six years, as provided by the Statute of Limitations R.S.B.C. 1960, c. 370. Dickson J. found that the six years did not start to run until the Indian Band became aware of the actual terms of the lease in issue, years after it was signed. No mention was made of that statute having a specific exemption for fraudulent concealment, like the English Statute. I am not aware of any such exemption affecting the six-year limitation period under s. 32 of the Crown Liability and Proceedings Act either, but because of Guerin, that does not matter.

24     Was there, in the terms of the definition from Kitchen v. Royal Air Force Association adopted by Guerin, conduct by the Crown through the DVA towards the disabled veterans which, having regard to their special relationship was "a non-conscionable thing" for the one to do towards the other? In my view, the special relationship between the DVA and the disabled veterans has to be seen as encompassing not only the duty to invest, but generally the duty to act with the outmost good faith on behalf of the veterans, the duty to avoid any conflict with its obligations to the veterans, the prohibition against using the position for personal gain, and the obligation on the DVA to disclose to the disabled veterans any material information.

25     In supplementary reasons relating to costs, released in this case by the Court of Appeal on June 5, 2002, Austin J.A. listed a number of facts, which he gleaned from the materials, which list is directly relevant to the present issue. The list is as follows:

(a) From the very beginning, the legislative scheme in question authorized the payment of interest on treatment allowances administered by DVA;

(b) From 1951 on, the Financial Administration Act explicitly allowed the payment of interest in respect of monies held in any special purpose account in the Consolidated Revenue Fund;

(c) There was some evidence that interest would be paid if demanded

(d) For some time interest was credited on the accounts of all the veterans at St. Anne de Bellevue Hospital near Montreal;

(e) On the other hand, where veterans raised the matter of interest, they were told by department officials that such arrangements were not possible;

(f) From at least the early 1970s on, DVA and others were aware of their duty to invest funds under their administration;

(g) Amongst the proposed solutions' to the problem' of not paying interest or investing were keeping quiet' and eliminating the old liability';

(h) The solution' chosen was to prohibit action; and

(i) On the evidence, neither the problem' nor the solution' was drawn to the attention of Parliament."

26     In my view, this short list, drawn from the mass of materials produced by the Crown, is more than sufficient to meet the definition of "equitable fraud" adopted for Canada in Guerin as stopping the limitation period from running until the fraud was discovered by the class.

27     Although the "problem" had been under discussion for years at the senior levels of the DVA, these discussions were confidential, and I saw no evidence that this information reached the front line workers that dealt with the disabled veterans and their families. This information all came to light after the commencement of this action, and the demands for production commenced. Of course, under s. 28(1) of the Class Proceedings Act, any limitation period is suspended in favour of any class member on the commencement of the class proceeding.

28     I find that the two cases cited by the Crown, indicating that Limitation Acts are effective against claims of breech of a fiduciary obligation by the Crown are clearly distinguishable on their facts, while the exemption from limitations by reason of equitable fraud, until actual discovery of the fraud, is clearly on all fours with this case. I conclude that none of the claims of the class members are statute barred.

Discoverability

29     In Haberman v. Peixeiro et al. (1997), 151 D.L.R. (4th) 429 (S.C.C.) the court discussed this principal, saying in para. 36,

"... discoverability is a general rule applied to avoid the injustice of precluding an action before the person is able to raise it."

In the same paragraph, the court quotes Lord Denning where he said,

"It appears to me to be unreasonable and unjustifiable in principle that a cause of action should be held to accrue before it is possible to discover any injury and therefore before it is possible to raise any action."

30     In Smyth v. Waterfall (2000), 50 O.R. (3d) 481, Borins J.A. for our Court of Appeal put it at p. 485 that,

"The discoverability rule is a rule of fairness which provides that a limitation period does not begin to run against the plaintiff until he or she knows, or ought reasonably to know by the exercise of due diligence, the fact or facts upon which his or her claim is based .... The determination of when the limitation period begins to run is one of fact."

31     In Public Trustee v. Mortimer et al., (1985), 49 O.R. (2d) 741 (H.C.J.) a case in which Mortimer, as executor, made off with estate funds in which the Cracknell's and others had interests, and in which a limitation defense was raised, Southey J. said that,

"The standard of diligence which the defrauded person needs to prove is a high one, except where the party defrauded is entitled to rely on the other party. The Cracknell's were cestui que trusts for whom Mortimer was trustee under Mrs. Cooper's will. They were clearly entitled to rely on him, and I find as a fact that they did so without suspicion. That being so, it is clear on the authorities that they did not act without due diligence, and the limitation period did not commence to run until they acquired knowledge of Mortimer's arrest:"

Southey J. quoted from Franks On Limitation of Actions (1959) (London) p. 237 in support of the foregoing, as follows:

"This principle that ignorance negatives laches underlies the rules governing fraud and mistake. Thus where the plaintiff's claim to relief rests upon the defendant's fraud or where, being non fraudulent, its existence has been fraudulently concealed from the plaintiff by the defendant, lapse of time cannot prejudice the plaintiff until he discovers the true situation or could, with the exercise of reasonable diligence, have discovered it. Where the parties stand in a fiduciary relationship to each other, it is insufficient for the defendant to show simply that the plaintiff had the means of discovering the fraud: he must prove that the plaintiff's suspicions were aroused and that he determined not to investigate. This general rule that time does not count against the plaintiff until the fraud is or could be discovered applies, not only where the doctrine of latches is alone applicable, but also where the statute is applied by analogy; and semble where it applies directly as well."

32     This case has been mentioned repeatedly in other cases in Ontario and elsewhere, and has never been disagreed with let alone overruled. The effect of it is to reverse the onus on discoverability where a fiduciary relationship exists, so that instead of the plaintiff, or here, all of the class members having to show that they exercised reasonable diligence, in inquiring why they were not receiving interest (the Crown's position); instead the obligation would be on the Crown to prove that the suspicions of each class member was aroused and that he or she determined not to investigate. No such evidence was produced by the Crown.

Laches and Acquiescences

33     These equitable defences are perhaps best, and most briefly, described in Halsbury's Laws of England (4th Ed.) Vol. 16 (equity) where at para. 1477 it is said,

"In determining whether there has been such delay as to amount to laches, the chief points to be considered are (1) acquiescence on the plaintiff's part and, (2) any change of position that has occurred on the defendant's part. Acquiescence in this sense does not mean standing by while the violation of a right is in progress, but assent after the violation has been completed and the plaintiff has become aware of it."

At Para. 1478, where it is said,

"Acquiescence implies that the person acquiescing is aware of his rights and is in the position to complain of an infringement of them."

At Para. 1479, it is said that,

"... a person who is entitled to rely on the fidelity of another is not bound to inquire as to the other's conduct until he has reason for suspicion. Fraud is not condoned unless the injured party has full knowledge of all the facts and of the equitable rights arising of those facts."

Finally, at Para. 1482, it is said that,

"In ordinary cases of claims to enforce equitable rights, where it is not a case where staleness of demand would operate as a defence, the Court looks for evidence of the circumstances which constitute laches, namely acquiescence by the plaintiff or a change in position on the part of the defendant; and the plaintiff is not barred unless such evidence is given."

34     It appears that here to, if these equitable defences are to be made out, the onus is on the defendant to provide the evidence. This has not happened.

35     The Crown raised a further argument that many of the disabled veterans are now deceased and s. 38 of the Trustee Act imposes a two-year limitation after the death of the deceased on an action by the executor or administrator for all torts or injuries to the person or to the property of the deceased. I accept that our Court of Appeal, in Lafrance Estate v. Canada [2002] O.J. No. 4381 has interpreted that section as covering even actions for breach of fiduciary duty when the claim is for injury of a personal nature. However, this is a provincial limitation contained in a provincial statute. I have above determined that the cause of action here arises, "otherwise than in a province" and that the only limitation period applicable is s. 32 of the Crown Liability and Proceedings Act. I therefore conclude that s. 38 of the Ontario Trustee Act, or similar provisions in other provinces, would not affect the claims against the aggregate damage award by or on behalf of the heirs or beneficiaries of deceased disabled veterans.

36     Class counsel, in its written submissions re discoverability did on March 26, 2003 makes the point in Paragraph 22, that the Crown at p. 68, Para. 210 of its factum took the position that,

"It was only with the judgment of this Court in October 2000, that the Crown learned it was in a fiduciary relationship to the veterans whose funds it administered."

Class counsel says,

"If as it maintains, the Crown had been ignorant of its fiduciary obligation to pay interest, the class members should not be penalized for failing to have discovered that obligation earlier. To do so, it is respectfully submitted, would serve to allow a limitation period to operate as an instrument of injustice', which per La Forest J. in M.(K.) v. M.(H.) (supra) the Courts will not allow."

I concur with that submission.

Conclusion re Limitations Defence

37     As is apparent in reading the decision of La Forest J. in M.(K.) v. M.(H.) (1992), 96 D.L.R. (4th) 289 (S.C.C.) where a limitations defense was raised and many of the above responses thereto were discussed, the various legal theories are inter-related and intertwined. Based on the case law as discussed above and the factual situation in this case, I conclude that the appropriate limitation period is the six years provided for in the Federal Statute, but that the limitation period cannot operate here to deny the claims of the class members. Further, the various equitable limitations raised by the Crown are not applicable on the facts of this case.

Summary Judgment

38     The Crown had argued that a trial would be required to deal with conflicting evidence. This submission was based on the Crown view that individual assessments should take place and that provincial limitations Acts and the equitable doctrine of laches were applicable. The above findings vitiate those arguments. Class counsel based its claim for liability on the Crown documents and for the purposes of an aggregate assessment, is prepared to accept the Crown figures as to the total, as well as the annual amounts of principal held by the government on account of the class. Both sides engaged experts to prepare calculations of the results of investment of those funds in various ways, and neither side questions the arithmetic calculations in the reports produced by those experts. Neither is there any question as to the credibility of the experts. This is a class proceeding, where the court is assisted by the specific authority under sections 23 and 24 of the Class Proceedings Act, to admit statistical information and governmental records, as well as to do an aggregate assessment. The issue to be decided here is given the background factual situation and the various investment options available, what option or mix of options would appropriately satisfy the legal and equitable obligation on the Crown, which had volunteered to act as a fiduciary. In my view, in this situation the requirements of Dawson v. Rexcraft Storage & Warehouse Inc., (1998), 26 C.P.C. (4th) 1 (C.A.) and Aguonie v. Galion Solid Waste Material Inc., (1998), 38 O.R. (3d) 161 (C.A.) have been met.

39     The Crown argued that in view of the voluminous evidence before the court on the motion, and the issues of law raised, it is inappropriate to deal with this matter under Rule 20. In support thereof reference was made to Chippewa's of Sarnia Band v. Canada (Attorney General (2000), 195 D.L.R. (4th) 135 (C.A.). Yet at para. 35 of that decision, the Court of Appeal noted that,

"Apart from the expert witnesses, there are no living witnesses who could give relevant evidence. Thus, if the action were to proceed to trial, the trial judge would be in no better position to deal with the issues than the motions judge, unless one were to accept Ontario's late submission that the trial judge would have the advantage of seeing and hearing the expert witnesses testify. In our opinion, absolutely nothing would be gained by sending this matter to trial."

I find that language to be exactly applicable here. I am satisfied that there is no genuine issue requiring a trial in connection with this aggregate assessment.

Tax Gross Up

40     In para. 6 of the Notice of Motion, class counsel had sought the calculation and award of an amount, in addition to damages, as a gross up on account of income tax that might be payable in relation to the damages. At the commencement of the argument before me, Mr. Colautti, on behalf of the class, advised that the claim for a tax gross up was not being pressed. The withdrawal of that claim was gladly accepted.

The Principal Amount

41     The original position of class counsel was that the class was prepared to accept the figures in the schedules and appendices of the Public Accounts of Canada for each year commencing in 1920, through and including 1991 as constituting the principal amounts that had not been invested. However, the Crown had filed, in response to this motion, an affidavit, lengthy report, and many appendices thereto of Nickolas Martin Hodson, a Chartered Accountant and a partner in the firm of Ernst & Young, who with many members of his firm had carried out an exhaustive study of the availability records as well as the public accounts and other sources in an effort to quantify the amount of veterans money under administration by the D.V.A. in each year, and the total. The report alone, dealing mainly with the methodology, is 67 pages long, and his affidavit, report, and the appendices thereto make up all of Volume 7 through 13 of the motion record of the Crown. The summation of his investigations is shown at pgs. 1588 and 1589 in Volume 8 of the motion record. It shows, in Column H, (Schedule 3) the amounts under administration rising from $743,299 in 1920 to a high of $75,555,793 in 1985 and standing at $52,178,427 in 1990.

42     Mr. Hodson and his firm used a combination of "top down" and "bottom up" calculations and investigations to arrive at the amounts reported. His investigations led him to believe that neither the public accounts nor the individual records provided a complete picture, but examined together, as he and his firm have done, they, in his words, "represent our best estimate of the outstanding unpaid balances of veterans whose affairs have been administered by the Crown on which interest was not paid, based on the scope of our review".

43     In his report, Mr. Hodgon cites a number of reasons for the difficulty in achieving complete accuracy. One deals with unpaid principal retained by the Crown on the death of a veteran. Although he included an estimate of this in his calculations for interest due, he left out the principal because the government practice had been to charge such amounts back against the accounts for payment out to veterans in previous years, so that the numbers, in effect disappeared from the system. The class members are veterans or deceased veterans in Canada. A sampling done in 1961 showed that approximately 2% of the funds shown in the public accounts were for out of country veterans. A 2% deduction was made in all balances across the board to account for persons not in Canada. He found that Treatment Allowances, while recorded in individual file and ledger records, were not shown in the public accounts until 1979. There was evidence that interest was paid on some administered accounts, particularly up to 1969. After 1989 all veterans' accounts were credited with interest and the balances of all those accounts were excluded from the base. Up to 1928 it appeared that substantially all of the balances recorded in the public accounts and departmental annual reports were credited with interest. Ernst & Young did not examine the files of all of the veterans but they did review the file information relating to some 6,000 of them from what they believed to be the total population of administered veterans over the 82-year period being between 25 and 30 thousand. It was found that prior to 1979 treatment allowances were not actually funded but a record was kept in the individual's file of the amount due to him. These "memo accounts" were not reflected in the Public Accounts at all. The same apparently applied to war veterans allowances. As of 1986, 478 dormant accounts were found, worth approximately 10 million and seemed to be composed largely of accounts of deceased veterans.

44     Despite these admitted potential sources of error, Mr. Hodson puts forth the figures developed as the best reasonable estimate available. Crown counsel puts the Hodson report forward on that basis and class counsel has accepted the numbers produced in the Hodson report as its basis for the calculation of damages. Based upon their acceptance by all counsel, my detailed reading of the Hodson report and my exposure to the difficulties in obtaining accurate figures in previous motions and case conferences in this action, I too am quite prepared to accept the Hodson figures as the best estimate available of the principal amounts of the outstanding balances of numbers of the class.

Crown Views Re Investment

45     The Crown relies primarily on the opinion of Mr. Ronald W. Scott as to the type of investments and resulting returns appropriate in relation to the accounts of the class members. Mr. Scott is a retired partner and continuing associate with Ernst & Young. He is also a chartered business valuator. His C.V. indicates a long and distinguished career, dealing extensively, as it says in areas where cost of capital and rate of return are important factors, relating primarily to Canadian Public Utilities. However, it does not show any extensive experience in advising either individuals or corporations in acting as trustees for individuals or groups. His affidavit, C.V. and extensive report is found at Tab 7, in Volume 6 of the Crown motion record. His conclusions were brought forward in the calculations done by Mr. Hodson and his group.

46     His conclusion is that the measure of appropriate compensation would be the interest rates derived from Privy Council orders on interest to be allowed on various kinds of funds held by the Government up until 1969 and thereafter interest equivalent to 90% of the 90 day T-Bill rate.

47     In para. 1.2 of his report he states the underlying premise for his opinion and recommendation is that he should be looking to what the Government would have done if it had realized at the time that it should be paying interest on these accounts. He therefore looked to what the Government had done with other funds held by it, as well as the developments in the financial markets and developments in the theory and practice of investment and funds management over the last 80 or so years. All of that led him to conclude that the 90% of T-Bill rate is most likely what the Government would have paid. As a comparator he looked to what was being done by provincial Public Trustees who were managing funds of people in insane asylums under provincial legislation and regulations regarding such funds.

48     In Mr. Scott's opinion the upper "limit of defenceability" for compensation would be the yields on the over 10 year Canada bonds, less a 10% reduction to allow for the cost of administration. As he puts it in para. 1.3 of his report:

"Since we do not believe those rates would in fact have been used historically to provide compensation on veterans balances across the period that the issue exists, use of these rates to resolve the matter would amount to providing the veterans with something more than financial compensation on their funds. We do not believe such a premium can be justified in terms of the capital markets or savings/investments perspective on the compensation issue on which this report is based. Use of such rates would accordingly involve something beyond financial considerations and this analysis provides no basis for making such an award. It is accordingly tendered as a limiting consideration on the basis of our review primarily to indicate that an interest rate basis for any compensation structure is the only one that makes sense for the kinds of funds involved in this case over the 80 plus years of the claim.

49     He goes on to say that if any consideration was given to using bond rates, his recommendation would be to use the "fiction" of average annual yields, rather than bringing into the calculation what would happen if trading in the bond market was factored in. His recommendation was that all changes in capital value be left out of the equation.

50     In his view, the great number of small accounts for veterans could be looked at like a month-to-month deposit type of account such as a chequing account in a bank, where only nominal or minimal compensation, if any, would be expected. The larger accounts, which have built up through the years he looked at as akin to savings accounts and noted that for years the Government of Canada had been in the business of operating such accounts in the Post Office Savings Bank, where the interest rates on deposits were set from time to time by Order in Council. He postulates therefore, using those rates up until 1970 when the Post Office Savings Bank System was abolished, and thereafter using the T-Bill rate less 10%. The primary justification for the latter is that that is the rate authorized by the Government when it started to pay interest on veterans accounts in 1990.

51     Applying those rates to the amounts which Mr. Hodson found were held on account of the veterans through the years resulted in a figure put forth on behalf of the Crown of $656,816,757.

52     The problem I see with Mr. Scott's report is in its fundamental premises. He is looking to what the Government would have been prepared to have paid if it realized it should have paid anything, rather that what a fiduciary should have paid. Similarly he is looking to what the Government would have done about investing, if it had thought about it, rather than what it should have done in its position as a fiduciary. In so doing, he overlooks the findings made by me as the original motions judge and much more importantly by the Court of Appeal. The Court of Appeal, in upholding the finding that the Crown owed a fiduciary obligation, summarized in para. 73 of its decision various findings.

53     Paragraph 73(d) says,

"In setting up this obligation the legislative provisions make no distinction between the Crown as administrator and a private citizen as administrator. Both must administer the veteran's pension for his benefit."

In para. 73(e), in discussing the legislative authority given to the Pension Commission to appoint the D.V.A. as an administrator, the Court of Appeal says in part,

"Because it does not touch the question in issue here, this administrative law structure does not insulate the Crown from the application of the fiduciary principal."

And in para. 73(h), the Court of Appeal summed up the obligation of the Crown as follows:

"When it is directed to administer a veteran's pension the essential nature of the task undertaken by the Crown is clear. It must act for the benefit of the veteran in managing his funds because the veteran is incapable of doing so himself. This is quintessentially the kind of act, whether done by the Crown or citizen, which courts have regulated using the law of fiduciary duty. This task simply cannot be said to be a governmental action or obligation to be regulated by Parliament or perhaps by public law. As administrator, the Crown must respond to only one imperative, that is to act for the benefit of the veteran. This is demanded by the legislation. The Crown as administrator cannot be moved by other policy considerations. It is not choosing between public policy alternatives and cannot be said to be discharging a governmental function or public duty. Rather, it is undertaking a precisely defined duty to a particular veteran, as the result of an individualized determination of incapacity. The essential nature of the task undertaken by the Crown as administrator is thus indicative of a private right, enforceable by the veteran, as opposed to the performance of a public duty of the Crown."

54     Quite simply, the Crown through the D.V.A., allowed itself to become the administrator for a number of individual veterans, without any statutory or regulatory provisions limiting or governing that obligation. The legislation permitting the appointment of the D.V.A. was the same legislation permitting the appointment of an individual to act as administrator, and when the D.V.A. was appointed, it assumed a private rather than a public obligation. The Government could have, but did not, create a statutory and regulatory framework for the obligations it was assuming. Because the Crown stepped outside of its usual position and obligations, and outside of its statutory and regulatory safeguards, in undertaking these administrations, it is now pointless to look to the practices of the Government in other situations. As the Court of Appeal said, in the part of its decision not appealed by the Crown, "as administrator, the Crown must respond to only one imperative, that is to act for the benefit of the veteran."

55     The question before me is therefore not what the Crown would have done in other situations, or what kind of interest it was prepared to pay in connection with its governmental obligations, but rather what it was obliged to do in its particular situation under the law of fiduciary duty.

56     For the same reason, I find the expert reports of Messrs. King, Miller, Salie, and Murray, contained in the motion record of the Crown, which deal with various aspects of governmental practice and procedure, interesting, but largely irrelevant to the issues before me.

The Class Position Re Investment

57     Class counsel relies upon the expert evidence of Michael F. Charette. Dr. Charette is an associate professor of economics at the University of Windsor. He has served as the head of that department. He has a doctorate, masters and bachelor degrees, all in economics. He has taught economics at the University of Windsor since 1975 (except for a term as visiting scholar at Cambridge University), but also spent over a year on a secondment to the Government of Canada as a senior economic analyst. He has testified as an expert witness in the fields of economics and the quantification of economic losses in a number of trials in Ontario.

58     Dr. Charette prepared an affidavit and a lengthy report containing a number of calculations based upon the figures contained in the Government public accounts. That material, and considerable material as to the public accounts themselves, as well as materials from the earlier motion for summary judgment on liability constituted the original evidence in support of class counsel's motion for an aggregate assessment of damages. When the Crown served its responding materials, including the new Hodgon Report on September 16, 2002, which class counsel accepted as more accurate than the public accounts, Dr. Charette prepared a new affidavit sworn October 7, 2002, with a new report appended thereto based on the Hodson figures.

59     In both the original and the new report, Dr. Charette provided a number of calculations of the earnings that would have been generated if the funds being held were invested in a number of different ways - from T-Bills through various types of equity investments. He then leaves it to the Court to pick and chose among them, or among combinations of them.

60     His rationale for this approach is expressed in s. 2 of his report where he says that there are issues involved which are to a lesser or greater degree, beyond the scope of the expertise of an economist/accountant. He lists them as, (paraphrased),

(1) Were there special characteristics of the fiduciary relationship between the Government of Canada and the plaintiffs which imply that criteria which would normally apply to a trustee, such as "prudent man" or "best effort" are not applicable in this case? If so, then what determines the applicable rate of return?

(2) What type of damages are being assessed? Is the assessment of damages to be based on an estimate of the loss to the plaintiffs, or on an estimate of the gain to the Crown?

(3) If the assessment is to be made on a "prudent man" basis, then how would a Court find that the funds should have been invested in order to fulfill the fiduciary duty?

61     Because he sees these as issues to be resolved by the Court, he felt he could most usefully help in the process by providing a range of estimates of accrued earnings. He does opine, however, that if the portfolio investment approach is chosen, in view of the development over the 82 years in question of financial markets, and of the practice of trustees, it is highly unlikely that any given set of portfolio assumptions would hold over the entire period.

62     At p. 11 of his report he considers the various types of return, which indicates that the T-Bill rate and the Government of Canada long-term bond rate are the things to be looked at if the Court should decide that the damages are to be measured by the gain to the Crown. He points to provincial government bonds, corporate bonds, and various types of equity investments as things that would not be considered if the measure of damages was the gain to the Crown. Even if the measure was solely the loss suffered by the class, he opines that "during the earlier portion of the period" an investment portfolio would have been made up of a mix short and long-term debt and only during the latter portion would it have included equity investments.

63     In all of his calculations Dr. Charette has applied compound interest with the compounding to be annually.

64     The only mention of capital gains that I see in Dr. Charette's report is on p. B2 where the methodology for determining the yield to maturity of 10-year bonds is discussed. The method used was to assume that an investor bought a bond at par at the beginning of each month and sold the same bond one month later at a price determined by end of month interest rates. To this capital gain or loss was added 1/12 of the yield promised at the beginning of the month. This series of calculations was then totaled up to give a yield to maturity. Although the method of calculating the rates of returns on equities is not described in the report, from Schedule 3, it appears obvious that what was done as of April 1st in each year was to take the percentage increase or decrease in value of a particular index from the previous year and add to it an average yield for the index (back to 1934 - before that, a flat 2% was used).

65     My conclusion is that Dr. Charette's approach is useful and provides to the Court a wealth of information that is outside of the sphere of common knowledge which is necessary to understand the problems and work towards an answer. Dr. Charette has indicated that once the "underlying legal issues" have been answered, he would be prepared to prepare an Addendum to his report to quantify the particular type or types of investments that the Court regards as appropriate. In my view that assistance and more, will be required before an exact dollar amount can be arrived at. First however, there are two issues that in my mind require clarification, and perhaps further submission for the assistance of the Court.

Compound Interest

66     The first of these is compounding. Class counsels factum and casebooks, prepared in February of 2001, contained a number of English and Canadian cases, detailing how the Courts had wrestled with the concept of compound interest. All of this was overtaken by the Supreme Court of Canada decision in Bank of America Canada v Mutual Trust Co. [2002] 2 S.C.R. 601 a decision dated December 11, 2002 by Major J. for the full Court. In the decision, he speaks of the existing authority of Courts to award compound interest in equity cases, and the apparent historical difficulty with doing the same in cases based on the common law. At para. 44 he says:

"Compound interest is no longer commonly thought to be, in the language quoted in Costello, [1997] A.J. No. 888 at pp. 492-93 usurious or to involve prohibitively complex calculations. Compound interest is now commonplace. Mortgages are calculated using compound interest, as are most other loans, including such worthy endeavours as student loans. The growth of a company or a country's gross domestic product over a period of years is often stated in terms of an annually compounded rate. The bank rate, which garners much attention as an indicator of the health and direction of the economy, is a compound interest rate. It is for reasons such as these that the common law now incorporates the economic reality of compound interest. The restrictions of the past should not be used today to separate the legal system from the world at large."

67     At para. 47, Major J. quotes an old and established English rule which juries should follow:

"... that amount which would have been received if the contract had been kept, is the measure of damages if the contract is broken."

68     In this case, the claim is equitable so that compound interest would apply in any event. Further, obviously in this case, if the Crown had done what it was suppose to have done, there would have been compounding, because for many years, the totality of the fund kept growing, simply because the amounts deposited monthly exceeded any withdrawals. If the fund had been invested, the proceeds of such investment would have similarly been added to the fund and been reinvested. I conclude there is no question but that compound interest should apply. The only question is how often the compounding should be done.

69     Dr. Charette concluded that there should be compound interest on all parts of the funds with the compounding to take place annually. Mr. Scott in his report, at pp. 18-20 discusses compounding at some length. His opinion is that,

"Where a good part of this period it would not have been common for interest to have been compounded more often than annually or perhaps semi-annually in cases where fixed rate bond or like instruments might be used as the reference interest rate."

70     He goes on to say that shorter period rates are derived in one way or another from annual rates, so for a fixed fund there should not be much difference. He also notes that since 1990, when the Government started paying some interest on the veterans' accounts, monthly compounding has been done, but it was not true compounding but rather the application of an annualized rate from the treasury bill auctions, rather than calculations of an actual effective monthly rate. I presume that the Government was capable of doing monthly compounding calculations for each veteran's account from the time that those accounts became computerized. On my recall, somewhere in the history of this action a date was indicated, after which all of the veterans' records were on computer. I do not have that date at the moment, but I am sure it is readily available.

71     My conclusion is that there should be annual compounding up until the time that the veterans' accounts records were computerized, and monthly compounding thereafter.

72     There may be an exemption to this. Mr. Hodson indicates in s. 9.5.6.1 of his report that the Veterans Treatment Regulations contain specific provision relating to the interest rate to be credited out of administered accounts and the frequency of compounding. He says that from 1928 to 1953 simple interest was prescribed. Mr. Scott and Mr. Hodson followed those regulations in their calculation of interest, simple or compounded. Mr. Charette felt that if the principal of those allowances was received by the D.V.A. as a fiduciary, the obligation to invest would take precedence over any provisions citing statutory rates. He accordingly has treated the balances of those allowances in the same way as the balances of the other types of funds in the veteran's accounts.

73     On my recall and from my notes, it appears that this particular issue was not argued before me, and it may well have to be.

Capital Gains

74     As is above noted, Mr. Scott left out any provision for capital gains on funds invested in bonds. Mr. Charette brought into account month to month fluctuations in the value of bonds simply as a way of calculating a more accurate annualized rate. Both experts seem to premise the acquisition of Government of Canada bonds from the treasury and the holding of them until maturity. However, I am aware, and feel the information is widely available, that in addition to what private investment managers are doing, there are all kinds of publicly traded mutual funds which deal in bonds, and of course also stocks, in which income is produced not simply by collecting interest, and with stock dividends, but also by advantageous purchases and sales. In fact in approximately one minute, I can have on my computer screen a list of 10 publicly traded Canadian Bond Funds, all with investment pools of $30,000,000 or less, which produced one year returns ranging from 11.1% to 6.3%, which is much better than the current bond interest rates. Part of this, no doubt, arises from falling interest rates, but I suspect part also arises from purchases and sales in the fund, both to move to securities likely to profit the most from the economic times, and to capture capital gains. I was not favoured with expert evidence from the managers of private or public funds as to the gains available on portfolios of stocks or bonds from cautious and conservative trading, nor did I have expert evidence from trust officers or managers of trust departments or pension or investment funds who are accustomed to acting in fiduciary capacities in relation to comparatively large estates or funds as to what is now, and has been in the past regarded as appropriate investment policy by fiduciaries in relation to trading with a views to capital gains. I believe I need this kind of information before this assessment is completed.

75     To deal with the three underlying issues that Mr. Charette raised as being necessary before an assessment was completed, I would respond as follows:

(i) There are no special characteristics of the fiduciary relationship between the Crown and the class. That I believe was made obvious above, particularly in the quotes from the decision of the Court of Appeal in this case. The "prudent man" or "best effort" criteria are to apply;

(ii) Are damages to be measured as the loss to the plaintiffs or the gain to the Crown? Mr. Scott would characterize the gain to the Crown as the savings on T-Bill and long bond interest. His view is that absent the veterans' funds from the consolidated revenue fund, the Government would have to borrow in its usual way. I question that assumption. On my understanding, the "usual way" for the Government to raise money is through taxation, which of course costs the Government nothing. Further, I understood that at least in theory, all Government debt was suppose to be eventually retired from the proceeds of taxation. The case law which indicates that the gain to the defendant can be used as a measure of damages, seems to in practice use that approach only when the defendant's gain was obviously much more than the plaintiff's loss. In this case, in my view, the only viable measure for damages is the loss suffered by the class members.

(iii) How should a fiduciary, making a "good faith" or "prudent man" effort have invested the funds under consideration? In my view clearly not entirely in T-Bills and then deduct 10% from the minimal interest provided.

Conclusions To Date and Further Information Needed

76     I have concluded that an aggregate assessment is appropriate, that statutes of limitations and equitable limitations do not bar the entitlement of the class to an aggregate assessment of damages, that the summary judgment approach used is appropriate and that the figures produced by Mr. Hodson as to the annual amounts of principal constitute, as counsel agree, the best estimate available. I have concluded that compounding annually until records were computerized, and then monthly, is appropriate. I have concluded that the views put forth by the Crown on what the investment return on the principal should be are not acceptable as those views simply reflect what the Crown would have been inclined to do, rather than what it was in law obliged to do under the fiduciary obligation it had accepted.

77     Dr. Charette, in his affidavit, had indicated a number of questions he felt the court would have to answer before he could prepare further supplementary information. I have answered some of those questions, and have indicated that I too, need further information before the assessment process can be completed. It is obvious that we are dealing with very large numbers here, where a difference of say 1% which might not be material in an ordinary assessment of damages, could here have an effect of millions of dollars. I therefore feel, unless counsel specifically decide otherwise, that I should have available further information, either by way of affidavit evidence to be presented at a continuance of the existing motion, or if there is disagreement between experts, perhaps trials of these issues on viva voce evidence at such continuance if the resolution of such disagreement might be helped by the hearing of the testimony of the experts. The areas where I see a need for further information are the following:

(a) The issue of whether simple or compound interest is to be applied re treatment allowances from 1928 to 1953;

(b) The whole question of capital gains including what is and was, regarded as prudent in the investment industry, and then, if appropriate improving the yield of the fund by adding amounts for judicious conservative purchases and sales.

(c) The views of knowledgeable persons in the investment industry as to portfolio investing, and the makeup of such portfolios at different times through the history of this particular fund. I have noted that the Crown supplementary factum on the history of trustee investment in Canada indicates that through the entire period trustees could invest in provincial as well as federal bonds and also in high grade corporate bonds and debentures, and assume that through most if not all of the period investment in at least some common stocks was authorized.

(d) In addition to the views of fund managers, such as trust officers, investment dealers, advisors to pension funds etc., it would be most helpful if decisions of the courts on what was acceptable from time to time could be gathered and presented. I see that Widdifield on Executors and Trustees has gathered, in the section on investments, a number of decisions and articles on this subject.

(e) I will need some information on how the calculation and deduction of "interest" under the D.V.A. Act is to be handled, as well as how the crediting for "interest" paid on veterans' accounts before 1928 and to veterans such as those in St. Anne deBellevue Hospital is to be handled. I seek confirmation that the principal, and resulting interest re the "estates" claim, which I previously denied, has been "backed out" of the existing calculations.

(f) The calculations provided to date should be up-dated, to say December 31, 2003.

78     When I have this further evidence and information, and further submissions of counsel, I should be able to complete this assessment. I can only now indicate that, tentatively, it appears that the final figure, after the deduction of "interest" under the section of the D.V.A. Act upheld by the Supreme Court of Canada will exceed, and may very substantially exceed, one billion dollars.

79     This court also seeks the views of counsel on what is to be done once an amount has been ascertained. During submissions on the motion the Crown indicated that any amount fixed by the court should be held, together with the principal, by the Government of Canada. There may well be considerable merit to this suggestion provided it is coupled with provisions for appropriate investing of the fund, monitoring on behalf of the class, and provisions relating to moving on to the next steps - distribution to veterans and their heirs, and disposition of unclaimed amounts.

80     I would suggest a further case conference be held at an early date, to discuss what further evidence and information might be made available and to work out a schedule for bringing this matter to a final conclusion.

BROCKENSHIRE J.

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