Case Name:

Authorson (Litigation guardian of) v. Canada (Attorney

 General)

Between

Joseph Patrick Authorson, plaintiff, and

The Attorney General of Canada, defendant

[2003] O.J. No. 5240

69 O.R. (3d) 106

235 D.L.R. (4th) 506

[2003] O.T.C. 1108

38 C.C.P.B. 219

43 C.P.C. (5th) 307

127 A.C.W.S. (3d) 894

2003 CarswellOnt 5245

Court File No. 99-GD-45963

 Ontario Superior Court of Justice

Brockenshire J.

Heard: October 3 and 6, 2003.

 Judgment: December 22, 2003.

(73 paras.)

Interest -- Interest as damages (prejudgment interest) -- Torts -- Crown, claims against -- Practice -- Judgments and orders -- Reservation of judgment.

Application by the plaintiff class for an order requiring delivery of judgment on an outstanding motion to determine quantum of damages. The class action was commenced on behalf of veterans whose pensions and allowances were administered on their behalf by the Department of Veterans Affairs. The plaintiffs claimed that the Department failed to invest their funds, thus entitling them to damages. The Superior Court found that the Crown was liable for breach of fiduciary duty, and that s. 5.1(4) of the Department of Veterans Affairs Act was inoperative to bar the plaintiffs' claims, as it conflicted with the Canadian Bill of Rights. The Court of Appeal upheld the judgment, but the Supreme Court of Canada found that s. 5.1(4) was not inconsistent with the Bill of Rights. Because of the Supreme Court of Canada appeal, a decision on the motion regarding quantum had not been delivered. The plaintiffs argued that s. 5.1(4) was not broad enough to bar all claims for equitable relief flowing from the original determination of breach of fiduciary duty, which was not overruled. They also argued that the Crown was estopped from raising the argument that it was not bound to pay compensation as a result of its failure to invest.

HELD: Application allowed. Section 5.1(4) barred any claim for damages relating to, or on account of interest on monies held or administered by the Department. The "interest" referred to in s. 5.1(4) meant 90 per cent of the rate payable on Treasury Bills, and before that, when the postal deposit rate was in effect, meant the postal deposit rate. Res judicata, issue estoppel or record estoppel did not apply to the Crown or the plaintiffs. The current issue was different from the one previously argued, as the issue had now become the interpretation of the Supreme Court of Canada's finding that s. 5.1(4) was not inoperative, and the effect of that finding on the liability judgment already obtained. The plaintiffs' application was not an abuse of process or a collateral attack on the judgment of the Supreme Court of Canada. That judgment did not have the effect of bringing the action to an end. The effect of s. 5.1(4) was to call for a deduction from the damages as assessed, of an amount on account of "interest" as referred to in s. 5.1(4). The reasons for judgment on the quantum motion were to be completed in accordance with the findings in the Supreme Court of Canada proceedings.

Statutes, Regulations and Rules Cited:

Canadian Bill of Rights, ss. 1(a), 2(e).

Constitution Act, 1867.

Department of Veterans Affairs Act, ss. 5, 5.1, 5.1(2)(b), 5.1(4).

Financial Administration Act, s. 21(2).

Interpretation Act, R.S.C. 1985, c. I.21, ss. 12, 35.

Counsel:

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

John Spencer, William Knights, Christine Mohr, Cynthia Kollar, and Rosalyn Mounsey, for the respondent.

1 BROCKENSHIRE J.:-- This is a most unusual motion for judgment. In para. 83 of its factum, the Crown characterizes the plaintiff's motion as asking "... this court to overrule itself, the Ontario Court of Appeal and the Supreme Court of Canada ..." Class counsel, in their notice of motion, characterizes it as simply asking that judgment issue on an outstanding quantum motion, for damages to which the class is still entitled. Obviously this diversity in views requires some background explanation, and decisions on several issues raised.

Background

2     This is a class action commenced on behalf of veterans whose pensions and allowances were administered on their behalf by the Department of Veterans Affairs, claiming that the D.V.A. had failed to invest their funds, thus entitling them to claim damages. A sub-class in the action was composed of the estates of veterans who had died while their pensions and allowances were under administration, whose funds had been kept by the Government and not paid to their estates. With the agreement of counsel for the class and the Crown, the many issues were divided up to be dealt with under four headings: liability for failure to invest, liability for failure to pay out re deceased veterans, the assessment of damages for the failure to invest or pay interest and the assessment of damages re the failure to pay out principal to the estates of deceased veterans. I delivered a judgment and reasons therefore on the issue of liability for failure to invest or pay interest on October 11, 2000. That decision was appealed to the Court of Appeal and was upheld in its order and reasons dated March 13, 2002. The Crown appealed that decision to the Supreme Court of Canada. In the meantime, the issue of the quantum of damages on the failure to invest or pay interest issue was argued before me on March 3, 4, 5, 6, & 7, 2003. That decision was reserved. Afterwards, the issue of liability re the estates of deceased veterans was argued before me and I found there was no liability on the Crown on that issue. That decision, to my knowledge, has not been appealed. The Supreme Court of Canada delivered its decision on July 17, 2003, making a finding in favour of the position put before it by the Crown. Because of the appeal to, and the decision of the Supreme Court of Canada, I refrained from delivering a decision, or reasons therefore, on the motion re quantum, and this motion asks that I now do so.

3     It is very important to note that although the original appeal to the Supreme Court of Canada was on all issues, the Crown subsequently limited its position to a constitutional question relating to the Bill of Rights, and the decision of that court was restricted to that one issue.

4     My judgment of October 11, 2000, issued pursuant to para. 109 of my reasons for decisions, took the form of five declarations, as follows:

(1) This court declares that the class members had a property interest in their pensions and allowances paid to and administered by the Department of Veterans Affairs.

(2) This court declares that the Crown was a fiduciary to the class members during the time that the class members' funds were being paid to and administered by the Department of Veterans Affairs.

(3) This court declares that the Crown breached its duty as fiduciary by failing to invest or pay interest on the funds under administration.

(4) This court declares that s. 9 of the Crown Liability and Proceedings Act does not bar or exempt the claims of the class members.

(5) This court declares that s. 5.1(4) of the Department of Veterans Affairs Act does not bar or exempt the claims of the class members as it is inoperative as against them by reason of its conflict with both s. 1(a) and s. 2(e) of the Canadian Bill of Rights.

5     The crown appeal to the Court of Appeal asked that my judgment be set aside. The order of the Court of appeal simply dismissed the appeal. The appeal taken to the Supreme Court of Canada was from that dismissal. However, as set out in paragraphs 23 to 26 of the Crown factum, upon obtaining leave for the appeal to the Supreme Court of Canada, the Crown obtained approval from the Chief Justice of Canada to place three constitutional questions before the Court - is s. 5.1(4) of the Department of Veterans Affairs Act inconsistent with s. 1(a) of the Canadian Bill of Rights? With s. 2(e)? And if the answer to either one or two is in the affirmative, is s. 5.1(4) thereby inoperable? The reasons for decision and the resulting judgment of the Supreme Court of Canada dealt only with those three questions, finding that s. 5.1(4) was not inconsistent with either s. 1(a) or s. 2(e) of the Canadian Bill of Rights and that it was unnecessary to answer the third question.

6     Before proceeding in this way, the panel of the Supreme Court of Canada had some questions and concerns, which can be found in the transcript of the submissions. Mr. Garton, counsel for the Crown confirmed to the court that the Crown was not challenging the first four declarations because, in his view a finding against the fifth one would cut out the basis for the other four or at least block the other four. As the Crown points out, Mr. Colautti, at the end of his argument, in response to a question from Mr. Justice Binnie, indicated that he was asking that the first four declarations be kept in place even if the Crown succeeded in its argument because they were not directly under appeal, but then added "if the Crown succeeds ... then, of course, these veterans get nothing." The essence of the argument before me on behalf of the class is that both counsel were wrong when they commented on the anticipated result of a finding in favour of the Crown on the constitutional question.

7     It is, I think important to know that although the claim on behalf of the class members was always, from the initial statement of claim through to my judgment, that the Crown failed to "invest or pay interest". Nevertheless, throughout the proceedings, the references to the claim were often shortened to speak of interest only. Indeed I, in one statement I well remember, referred to the main claim as one for interest and the estates claim as one for principal. I note that even in the decision of Major J. in the Supreme Court of Canada, the reference is sometimes to interest, as in para. 7, 8, and elsewhere, and in other places the reference is to investing or paying interest, as in para. 22, 26 and perhaps elsewhere. I can think of several reasons for this. One is the natural tendency to abbreviate. Another at least at the Supreme Court of Canada level, was the Crown's acknowledgement that it had had an ongoing fiduciary obligation to pay interest. Another, at least on the Crown's part, would be that the Crown position throughout has been that, because of statutory and constitutional constraints, the Crown had no ability to pay anything but interest. Another may be an interesting side effect of bifurcation of the case, in that throughout the extensive arguments on liability, no real thought was given to the quantum of damages, and it was not until the motion to assess damages, was argued before me that any real discussion took place as to the possible make-up of damages, including interest on a variety of financial instruments, compound interest, dividends and capital gains.

Section 5.1(4) of the Department of Veterans Affairs Act

8     This subsection introduced to Parliament and immediately passed on November 8, 1990 (just prior to Memorial Day) was part of an omnibus Bill amending the Veterans Affairs Act. Hansard for the day contains the description by the Minister of the benefits in other sections of the Bill but no mention of this particular subsection. The exact wording of the subsection is as follows:

"No claim shall be made after this subsection comes into force for or on account of interest on monies held or administered by the Minister during any period prior to January 1, 1990, pursuant to ss. 41(1) of the Pension Act, ss. 15(2) of the War Veterans Allowance Act, or any regulation made under s. 5 of this Act."

9     The references to statutory sections and regulations cover the ways in which a veteran's pension and allowance monies could come under administration by the Crown. What exactly was meant by "interest" in that section was the subject of considerable argument before me on this motion.

The Pleadings

10     The pleadings had shaped the argument before me, and my resulting previous decision. That shaping of the issues being litigated appears to have continued before the Court of Appeal.

11     The statement of claim sought in para. 1(c)

"Damages for breach of fiduciary duty and/or breach of trust equivalent to the difference between the accumulated principal amount ... and the amount which could have been realized if the plaintiff's administered monies had been invested",

And in para. 1(d),

"A declaration that the defendant holds in trust for the plaintiff an amount equivalent to the difference between the accumulated principal amount ... and the amount which could have been realized if the plaintiff's administered monies had been invested".

In para. 1(e) the claim was for,

"An order requiring the D.V.A. or alternatively (the Crown) to disgorge and/or to make restitution to the plaintiff on account of the profits, proceeds and income that it or she reaped as a result of the use and benefit of the plaintiff's administered monies."

In para. 17 of the Statement of Claim, the allegation was that,

"... The D.V.A. failed to invest the plaintiff's administered monies with the result that the plaintiff realized no return whatsoever on the accumulated principal."

In para. 26, the allegation was that,

"The D.V.A. breached its duties as trustee, or alternatively as fiduciary, by having:

(a) Failed to invest the plaintiff's administered monies so as to yield a reasonable return to the plaintiff,

(d) Derived, or alternatively allowed the Crown to derive, the use and benefit of the plaintiff's administered monies at the expense of the plaintiff,

(e) Converted to its use the profits, proceeds and income that it reaped when it enjoyed the use and benefit of the plaintiff's pension monies,

(l) Profited or alternatively permitted the Crown to profit from the plaintiff's administered monies.

12     The statement of defence by the Crown denied that there was a trust or fiduciary relationship, alleged that it fully complied with its statutory duty to administer the pension monies, and pleaded that,

"Claims by Veterans of Canada's Armed Forces for or on account of interest on monies held or administered by the Crown during any period prior to January 1, 1990 ... have been barred by statute. The defendant pleads and relies upon ss. 5.1(4) ...".

13     In its reply, class counsel alleged in para. 5 that,

"Subsection 5.1(4) ... is unconstitutional", and then goes on to particularize sections in the Charter and the Bill of Rights.

14     There was no suggestion in the pleadings that s. 5.1(4), in speaking only of interest, was limited to only one of alternate potential claims for damages, or to only part of the damages that might follow from a finding of breach of fiduciary obligation.

15     The structure in the pleadings - a claim for damages, the defence of s. 5.1(4) and the reply of the Bill of Rights was followed in the argument before me. In Part VII of my reasons for decisions released October 11, 2000, in para. 43 of that decision, I said, as had been submitted to me by counsel, that, "the foregoing subsection is on its face an absolute bar to this action."

16     In para. 44, I responded to a passing reference in argument to the apparent retroactivity of the subsection and in para. 45 raised a supposition of my own as to how this subsection would fit within the fiduciary obligation of the Crown but then finished by saying,

"However that was not specifically pleaded nor was it specifically argued before me. What was argued was whether the subsection could be attacked under the Charter or the Bill of Rights."

In the following paragraphs I dealt with bits of constitutional evidence put before me in an effort to show some sinister or improper motivation on the part of the Crown bureaucracy. I found all of that was not of much assistance, but noted that the minister in introducing the omnibus bill had said nothing about this subsection and concluded in para. 66 that no evidence whatever had been put before me of a proper policy reason for the introduction of this limitation and concluded by finding that,

"The purpose of this section is to try to do what it says it is going to do and no more - to prevent claims being made for or on account of interest on monies held or administered by the minister during any period before January 1, 1990."

I then dealt with the specific issues pleaded and argued, ending by finding, as is summarized in Part XI that, per para. 105,

"... the Crown breached its obligations by taking in and using those funds as if they were the Crowns, by failing to invest the funds, and by failing to pay interest on the funds it held."

I also found, in para. 106,

"... that s. 5.1(4) of the Department of Veterans Affairs Act, which would appear to bar this action, cannot do so because it offends the Bill of Rights, by infringing the right to the enjoyment of property, the right not to be deprived of property except by due process of law, and the right to a fair hearing in accordance with the principles of fundamental justice."

17     The Court of Appeal upheld the findings made. Only the finding that s. 5.1(4) was inoperative because of the Bill of Rights was argued before the Supreme Court of Canada, which found that the subsection was not inoperative but was in full force and effect and expropriated the interest claims of the class members.

18     It was not until the assessment of damages motion in March of this year, that I or counsel turned our minds to the difference, if any, between interest and damages, and the interesting development in the courts of the ideas of a plaintiff having to make an election as to whether to claim damages or interest, and of using interest as a convenient substitute for damages.

19     On the quantum motion the evidence of Dr. Charette, an economist, was relied on by the class. Dr. Charette approached the problem by calculating what, in his view, reasonably prudent persons would have done to invest and manage the funds over the period in question, with one calculation producing a figure of $3,235,300,000; and also calculating the savings to the Crown through its breach of trust on the assumption that the Crown thereby saved on borrowing costs, by having the veterans funds available without cost, with one calculation of this producing a figure of $1,545,400,000. Class counsel argued on the present motion that these amounts are not interest, but are a calculation of loss of investment to the veterans, and alternately, gains or savings to the Crown, with the loss to the veterans being based on the investment return on various types and classes of securities.

20     Further, class counsel argued that the concept of expressing damages for breach of fiduciary duty by a trustee as interest was explained by Lord Chancellor Brougham in Docker v. Somers (1834) 2 MY & K 655, at pp. 663-667, to be based on the difficulty of calculating the actual loss, leading to the adoption of an interest figure as a convenience; but he said the plaintiff should have the option of claiming interest, or the actual loss. This was followed in Ontario, in Landman v. Crooks (1854) 4 Gr. 353, at 357 and at 362-363, with the option of claiming either interest or actual loss being that of the claimants.

The Motion to Quash

21     In addition to responding to this motion on behalf of the class, the Crown brought a motion to quash it. The basis of the motion to quash was want of jurisdiction of this court.

22     In the normal course of litigation, once a motions court or trial court has delivered a judgment and the matter is appealed, the motion or trial court has no further jurisdiction in the matter unless the appellate court should send the matter back. However, this was not ordinary litigation. I had delivered a judgment restricted to liability only. The assessment of damages arising from that liability was to be dealt with separately.

23     The Newfoundland Court of Appeal discussed this sort of issue in McLean v. Badejo et al. (1996), 138 D.L.R. (4th) 541. In that case, on consent the issues of liability and damages were bifurcated. A trial was held on liability, one defendant was found liable and the action was dismissed as against the others, with costs. A formal judgment was drafted and taken out. Subsequently, at the assessment for damages, the plaintiff, facing the claims for costs of the discharged defendants, asked the trial judge for a Bullock order, making the defendant found liable also liable to indemnify the plaintiff against the costs claims of the other defendants. The trial judge agreed and made that order. That order was appealed. Cameron J. for the court, noted that the general rule is that a final decision of a court cannot be reopened once the formal judgment has been entered, except when there was a slip in drawing it up, or where there was an error in expressing the manifest intention of the court. At pg. 547 she defines functus officio as meaning, literally, having discharged his duty. As an example, she says,

"If a court was required to answer four questions, but determined only three, clearly he would not have done something he was required to do. The judge would not be functus officio, at least in respect of the fourth question."

In the case before me, I was, broadly speaking, faced with four questions - two on liability, and two on damages. I have to date answered the two questions on liability and the answer on the second of those questions negated the damage issue under it. However, I still have a fourth question - the assessment of damages under the first liability issue, and this motion asks that I complete my answer to that question.

24     My decision after the summary judgment motion on liability took the form of five declarations. The third declaration was that the Crown breached its duty as fiduciary by failing to invest or pay interest on the funds under administration. My judgment was appealed to the Court of Appeal, which upheld all five declarations. The Crown appealed to the Supreme Court of Canada, but elected to appeal only the fifth declaration, that s. 5.1(4) of the Department of Veterans Affairs Act did not bar or exempt the claims of the class members as it is inoperative as against them by reason of its conflict with both s. 1(a) and s. 2(e) of the Canadian Bill of Rights. In the Supreme Court of Canada, Mr. Justice Binnie sought clarification from both counsel as to what was to happen with the other four declarations and was told they were to stand and continue.

25     The issues that were argued before me on this motion had not been argued before in any court, and the court at first instance is in my opinion, the appropriate place for that argument. The Crown had suggested that class counsel should go back to the Supreme Court of Canada. I would not venture to speak on behalf of that court, but I am well aware that while the Supreme Court of Canada rules include a provision for seeking a re-hearing, they do not provide for the parties obtaining decisions outside of the ambit of their appeal, and I am aware that in the Crown appeal in this case, only the constitutional issue of the effect of the Bill of Rights was placed and argued before the Supreme Court of Canada. Further, the Supreme Court of Canada has repeatedly indicated that issues to be argued before it should come up to it with a full record developed, in the courts below it.

26     The Crown has seized upon the remark of Mr. Colautti, in response to a question from Mr. Justice Binnie, that if the Crown succeeds on its appeal "then of course these veterans get nothing." I do not take that remark as a considered admission against the interest of the class members. That was an off-hand statement by counsel, who had just completed oral argument on the constitutional question of the applicability of the Bill of Rights, during which, incidentally, as both counsel had done throughout this litigation, he referred to the claim of the class members as one for interest. The issue of the interpretation of s. 5.1(4) and its effect on the damage claim of the class members had not been researched and argued, and no considered position on that issue had ever been put forth by class counsel. The interests of justice would not be served if a chance remark such as this could be taken to forever bar the rights of the class members to have the issue fully heard and adjudicated upon by the courts. I do not accept that an unfortunate remark by counsel can remove the jurisdiction of this court.

27     In the same way, the Crown proposes to rely upon my comment at the end of para. 43 of my decision of October 11, 2000, where I said, "the foregoing subsection is on its face an absolute bar to this action". I see that in para.106 of that decision I said that the section "which would appear to bar this action, cannot do so because it offends the Bill of Rights ..." These are not, and on their face are obviously not, findings of fact or law binding upon the parties. They are comments made in the context of the argument put before me.

28     It is trite that the effective action of the court is its judgment. The reasons are explanatory of it. Here the relevant provisions in the judgment were the declarations that the Crown breached its duty as fiduciary by failing to invest or pay interest on the funds under administration, and that s. 5.1(4) does not bar or exempt the claims of the class members as it is inoperative as against them by reason of its conflict with both s. 1(a) and s. 2(e) of the Canadian Bill of Rights.

29     The latter declaration was overruled by the Supreme Court of Canada, but the former declaration still stands, and stands as the basis for the completion of the assessment of damages.

30     I dismiss the motion to quash.

The Issues

31     The class counsel defines the issues on this motion as follows:

(1) Whether s. 5.1(4) of the Department of Veterans Affairs Act is wide enough to bar all claims for equitable relief, which extend from the final and conclusive judgment of this court that the defendant is liable for breach of its fiduciary duty to invest funds in its possession for the benefit of class members.

(2) Is the Crown now estopped by issue estoppel, record estoppel and res judicata from raising the argument that it is not bound to pay damages, disgorge profits, or otherwise pay compensation as a result of its failure to invest?

The Crown raises three issues as follows:

(a) Is the plaintiff estopped from seeking the relief requested in its motion?

(b) Is the plaintiff's motion to this court an abuse of process and a collateral attack on the Supreme Court of Canada decision?

(c) Can the plaintiff's claim for relief succeed on the merits in light of s. 5.1(4)?

I shall proceed to deal with these issues, commencing with the issue that is common to both, whether s. 5.1(4) is wide enough to completely bar the claims of the class members.

The Scope of S. 5.1(4)

32     To start with, the judgment of the Supreme Court of Canada makes it absolutely clear that s. 5.1(4) is valid legislation, having an expropriative effect. That decision is binding on me, and upon all other courts in Canada except the Supreme Court of Canada itself. Section 5.1(4) bars any claim for interest on monies held or administered by the minister before January 1, 1990, which is the subject of this action. Over and above barring a direct claim for interest, I accept the logic of the Crown's argument, in paragraphs 95 thru 99 inclusive of its factum, that the words "on account of" have to be given meaning, and the obvious and logical meaning is any claim for damages relating to, or on account of that interest. Class counsel in paragraphs 43 thru 56 both inclusive of its factum raises arguments that damages are not expressly, clearly or unambiguously addressed in s. 5.1(4), that a failure to invest is not "interest", and even that damages in this case might be calculated by measuring the drop in the purchasing value of dollars over the passage of time. That may be true, but as was demonstrated in the arguments on the damages motion, all of the calculations of damages in a case such as this inevitably turn, at least in part, on the application of interest rates. My conclusion is that so long as the damages or other equitable relief could fairly be said to include interest, as that word was intended to be understood in s. 5.1(4), they would be caught by the words "on account of interest" and be barred, to the extent of such inclusion.

33     The critical issue is what does the word "interest" mean in s. 5.1(4)? In Bell ExpressVu Ltd. Partnership v. Rex (2002), 212 D.L.R. (4th) 1 S.C.C. the court at para. 26 cited the principle in Dreidger, On the Construction of Statutes as the preferred approach to statutory interpretation and quoted from p. 87 of the Second Edition as follows:

"Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense, harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament."

In para. 27 of the same decision, Iacaboucci J. quotes from Professor John Willis, who in an article had said, "words, like people, take their colour from their surroundings".

34     The word "interest" is not defined in the Interpretation Act, Ch. I.21, R.S.C. 1985, s. 35.

35     The many Government documents filed by class counsel showed that for many years, and particularly after adverse comments from the auditor general, the bureaucracy had been pondering how to dispose of "the problem". However that problem, as was illustrated in part from the documents filed, and more clearly by the repeated detailed arguments put forth by Crown counsel in this case, and the affidavits of the experts for the Crown filed on the assessment of damages, was seen by the bureaucracy as simply and entirely a failure to pay interest. In the world or "planet" as class counsel has referred to it, of the Government bureaucracy, it was seen as essential, if the D.V.A. was to administer Veterans funds, to put them into the Consolidated Revenue Fund. When there, as Mr. Spencer for the Crown has repeatedly and eloquently argued on many occasions, the only thing that could have been done was to pay interest at rates fixed by Order-in-Counsel under the Financial Administration Act. The bureaucracy could not conceive of having any authority to do anything else, or pay anything else. As was demonstrated during argument on the original liability motion, it was simply inconceivable to the bureaucracy that having undertaken a fiduciary obligation, they should change the rules relating to the Government banking system, or if that was impossible, bank elsewhere. In argument before me on the damages motions and on this motion, Crown counsel could see a faint possibility, outside of the recognized rules and procedures, whereby the Government might have possibly bought some of its own bonds as investments for the Veterans accounts, but those submissions were clearly put as speculation, and not as something that could be done as of right, or would be accepted. Clearly, the idea of any investment outside of the Government of Canada financial system was completely unthinkable.

36     What was acceptable to the bureaucracy, although not implemented for most of the 82-year period in question, was the paying of interest at the rate provided for by regulation. The evidence provided to me on the assessment of damages motion was that for many years the Government ran a system of savings accounts in its post offices, where money deposited by individuals received a low amount of interest on the account balances, somewhat similar to the interest allowed by chartered banks on simple savings accounts. That interest rate was looked at as the rate to be used if interest was to be paid on monies held in interest bearing accounts in the Consolidated Revenue Fund. When the post office banking system was closed down, the evidence I have was that the Government authorized as its rate of interest on monies in the Consolidated Revenue Fund on which it was to pay interest, a rate equivalent to 90 percent of the rate it paid on Treasury Bills. There were some indications that the 10% discount from the T-Bill rate was being looked at as an administrative fee, but the authoritative position put forward through the affidavits of Crown experts, was that the 90% of the T-Bill approach was adopted as being the equivalent of the interest rates being paid by the Chartered Banks on savings accounts. I presume those were the rates that were used years ago when interest was paid on some of the Veterans' accounts, and that those were the rates that were used in paying interest to the Veterans in the St. Anne De Bellevue. I have no evidence to the contrary.

37     It is against this broad background, and against the strictures imposed under the Constitution Act, 1867 and the Financial Administration Act, which together are said to limit the authority of the Federal Crown in dealing with money, and in particular in paying interest, that I have to consider the meaning of that word in s. 5.1(4).

38     Much closer to "home" as it were, is s. 5.1(2)(b). The whole of s. 5.1 was introduced as a new section, following s. 5 in the Department of Veterans Affairs Act on November 8, 1990. As previously mentioned, the Minister of Veterans Affairs, when he introduced the omnibus Bill containing among other things s. 5.1, said nothing about 5.1(4). But he did say,

"For decades Veterans Affairs has followed ordinary banking practices with regard to administered accounts. The assumption has been that the accounts were like chequing accounts. A service was received and the costs of this service were provided through waiving interest on the account.

Well times have changed. Financial institutions pay interest on virtually every type of account and Bill C-87 will permit Veterans Affairs to fall into line with modern practice. With the passage of this legislation, Veterans Affairs will pay interest on administered accounts effective January 1, 1990."

Section 5.1(2)(b) provided for the paying of that interest, at a rate fixed per s. 21(2) of the Financial Administration Act. That would be the 90% of the T-Bill rate.

39     In my view, there is symmetry and logic to treating the interest referred to in s. 5.1(4) as the same as the interest referred to, and specifically defined, in s. 5.1(2)(b). Both use the same word. The definition in 5.1(2)(b) is the definition that had been recognized for years as defining the rate to be used where interest was paid on accounts in the consolidated revenue fund, and there is a logic, when the minister admitted that interest had not been paid before, but then said it was to start now, to conclude that the intent of Parliament was to foreclose any claims for retroactive interest, defined in the same way as it was now to be defined in the future.

40     Section 12 of the Interpretation Act, R.S.C. 1985, C. 1-21 provides that,

"Every enactment is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects."

However, there is a common law presumption that,

"A statute should not be given a construction that would impair existing rights as regards a person or property unless the language in which it is couched requires such a construction ..."

Gustavason Drilling (1964) Ltd. v. M.N.R. [1977] 1 S.C.R. 271 at 282. See also Morguard Properties Ltd. v. City of Winnipeg (1983), 3 D.L.R. (4th) 1 (S.C.C.) and Wells v. Newfoundland [1999] 3 S.C.R. 199. Although Iacobucci J. points out that these presumptions are to apply only where the language of the statute is not clear, it seems obvious that simply using the word interest, without any definition creates exactly the lack of clarity that would call the presumption into effect.

41     There is a further and much more focused presumption - "... that the legislature uses language carefully and consistently so that within a statute ... the same words have the same meaning ..." See Sullivan and Driedger on the Construction of Statutes (4th) Edition, pg. 162 and also R. v. Zeolkowski (1989), 61 D.L.R. (4th) 725 at 732 (S.C.C.) and Thompson v. Canada (Minister of Agriculture) (1992), 89 D.L.R. (4th) 218 at 243-44, S.C.C. In my view, in this situation where the Crown has not produced any evidence or argument to support a different meaning of "interest" in s. 5.1(4) from that defined in s. 5.1(2)(b), this presumption is conclusive of the issue.

42     My conclusion is that "interest" in s. 5.1(4) means what is defined in s. 5.1(2)(b), which in turn means a rate of 90% of the T-Bill rate back until the time that the postal deposit rate was in effect.

43     Before that, on the basis of the evidence of the Crown experts, the postal deposit rate was the accepted, and only, rate used to calculate interest to be paid on trust accounts in the consolidated revenue fund, and was the rate used in paying interest to some veterans. I cannot conceive of Parliament intending any other rate than that, in the years that the postal deposit rate was in fact the rate used by the bureaucracy. I therefore conclude that from the commencement of administrations of veterans pension and allowance funds, until the abolition of the postal deposit system, "interest" meant the postal deposit rate.

44     My further conclusion is this would mean that from any calculation of damages resulting from the failure to invest or pay interest, there would have to be deducted an amount, on account of interest calculated on the basis of this definition. For those veterans who received interest, the amount received would of course be deducted from a damage calculation.

Estoppel of the Crown

45     Class counsel argues that the Crown is estopped by issue estoppel, a record estoppel and res judicata. The basis for this, as is set out in paragraphs 62 through 64 inclusive of the class factum, is that when the original summary judgment motion re liability on the failure to invest issue was brought, the Crown brought a cross-motion for a judgment dismissing the plaintiff's action as it was "in whole or in part" barred by s. 5.1(4). The point of class counsel is that that motion was dismissed. Before the Court of Appeal the Crown asked that the judgment in favour of the class be set aside, and the Crown's motion be allowed dismissing the class action. That Crown appeal was dismissed.

46     The point being urged by class counsel is that having unsuccessfully argued for the dismissal of the class claims at the original motion stage, and in the Court of Appeal, without success at either level, it cannot again raise the issue.

47     I reject this argument. It is obvious that the Crown in bringing its cross-motion for dismissal, was simply adopting a perhaps overly cautious, "belt and suspenders" approach. At the original argument before me in September of 2000, the Crown motion was not independently argued at all. I mentioned it in the opening paragraph of my decision and at para. 108, when I dismissed the Crown motion, stating that the points of law raised by the Crown had been answered in the course of my reasons on the main motion. Obviously, the same situation existed before the Court of Appeal, because that court did not even mention the Crown motion until para. 134 where it said,

"Accordingly, we would dismiss the appeals from the dismissal of the appellant's motion for summary judgment and from the judgment in favour of the respondent."

48     Throughout these proceedings, from the original motion through to the Supreme Court of Canada, the position of the Crown has been that s. 5.1(4) was a complete bar to the claims of the class, and the position of the class was that s. 5.1(4) was inoperative because of the Bill of Rights. The Crown position was that the class was incorrect on that issue, and the Crown succeeded on that point. The class is now arguing that there are aspects to its claim that are not foreclosed by s. 5.1(4), and the Crown argument has been that s. 5.1(4), now strengthened by the Supreme Court of Canada ruling, acts as a bar to all aspects of the class claim.

49     While s. 5.1(4) is once again back before me, in my view it is here in relation to a new issue, or at least a separate and distinct aspect of the issues argued before. The arguments raised by class counsel before me now had not been raised before, and I do not find that res judicata, issue estoppel or a record estoppel can be raised now on behalf of the class to foreclose the Crown from responding to these new arguments.

Estoppel of the Class

50     The Crown argues that the class is estopped from bringing this motion, or claiming that it is still entitled to damages or partial damages by virtue of issue estoppel and cause of action estoppel. Middleton J.A. briefly and clearly discussed the two concepts in McIntosh v. Parent [1924] O.J. No. 59 (Ont. C.A.) also found at 55 O.L.R. 522. At para. 13 he says,

"When a question is litigated, the judgment of the court is a final determination as between the parties and their privies. Any right, question or fact distinctly put in issue and directly determined by a court of competent jurisdiction as a ground of recovery, or as an answer to a claim set up, cannot be retried in a subsequent suit between the same parties or their privies, though for a different cause of action. The right, question, or fact, once determined, must, as between them, be taken to be conclusively established so long as the judgment remains."

51     At para. 15 he discusses cause of action estoppel, saying,

"The other doctrine ... makes it obligatory upon a plaintiff asserting a cause of action to claim all his relief in respect thereto, and prevents any second attempt to invoke the aid of the courts for the same cause, for on his first recovery his entire cause of action has become merged in his judgment and is gone forever."

52     I have no difficulty with issue estoppel - the first concept that Middleton J.A. dealt with. In this action, the question of whether or not damages or partial damages could be recovered even if s. 5.1(4) was found to be valid and enforceable, was not raised in the pleadings or argued in any court until after the Supreme Court of Canada decision.

53     The Crown argues that once it raised the issue of the statutory bar, it was open to the class to argue both the applicability and the validity of that bar. Class counsel did not raise any argument as to the applicability of the bar, but only argued about its validity. The Crown says that in order to decide on whether the statutory bar was valid, the court necessarily had to decide the underlying issue that the bar was applicable. Further, the Crown argues that having failed to challenge the applicability of the statutory bar, the class must be taken to have conceded the issue. The Crown relies on Hoystead v. Taxation Commissioner, [1926] A.C. 155 at pp. 165-166 (P.C.). There the court said,

"In the opinion of their Lordships, it is settled, first, that the admission of a fact fundamental to the decision arrived at cannot be withdrawn and a fresh litigation started, with a view of obtaining another judgment upon a different assumption of fact; secondly, the same principle applies not only to an erroneous admission of a fundamental fact, but to an erroneous assumption as to the legal quality of that fact; .... Thirdly, the same principle - namely that of setting to rest rights of litigants, applies to the case where a point, fundamental to the decision, taken or assumed by the plaintiff and traversable by the defendant, has not been traversed. In that case also a defendant is bound by the judgment, although it may be true enough that subsequent light or ingenuity might suggest some traverse which had not been taken."

54     It is my view that firstly, modern pleading does not require that every point raised by one side be "traversed" by the other or taken to be admitted; second, that there was no express admission of the applicability of s. 5.1(4); and third, that the conclusion that the bar was completely applicable was not an essential pre-condition to an argument as to its validity.

55     In this case, as I previously indicated, there was never any question but that s. 5.1(4), if valid, would have an effect on the recovery by the class.

56     The point is, that the extent of the applicability of that section - the interpretation to be placed upon the word "interest" in that section - was never put in issue or argued, and the only finding on that issue is the one which I have just made.

57     I find that issue estoppel is not applicable in relation to this issue.

58     Cause of action estoppel raises different considerations. The seminal decision in this area is that of Henderson v. Henderson (1843) 2 HARE 100, where at 115 Wigram V.C. stated:

"... The court requires the parties to the litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, in which the parties, exercising reasonable diligence, might have brought forward at the time. ... It is plain that litigation would be interminable if such a rule did not prevail."

59     The leading Canadian case is Doering v. Grandview (Town) [1976] 2 S.C.R. 621. In that case Mr. Doering, a farmer, sued the town for damages to his land and crops from flooding in 1967 and 1968, allegedly due to a dam built by the town. That action was tried and dismissed. In 1973, 9 months later, he started a new action, claiming damages for 1969 through 1972 allegedly caused by the town keeping the river water artificially high behind the same dam, resulting in saturation of his soil. The Supreme Court, in a 5-4 decision upheld an order staying the second action. Pigeon J. in the dissenting decision, noted that Lord Maughan L.C., in New Brunswick Railway Co. v. British and French Trust Corporation [1939] A.C. 1, at pgs. 20-21 had accepted the general rule in Henderson v. Henderson (supra) but had specifically noted that Wigram V.C. had qualified the rule by the exception of special circumstances or special cases. He further expressed the view, on pg. 6, that "... when, as here, we are dealing with judge made law, I can see no reason for denying justice on account of technicalities, (c.f.) Ares v. Venner [1970] S.C.R. 608; Frank v. Alpert [1971] S.C.R. 637."

60     Ritchie J. in the majority judgment, restoring the staying order against the second action, quoted from several authorities, including Lord Denning in Fidelities Shipping Co. Ltd. v. V/O Exportchleb [1965] 2 All E.R. 4, where he said at pp. 8-9:

"The law, as I understand it is this, if one party brings an action against another for a particular cause and judgment is given on it, there is a strict rule of law that he cannot bring another action against the same party for the same cause. Transit in rem judicatam ... But within one cause of action, there may be several issues raised, which are necessary for the determination of the whole case. The rule then is that, once an issue has been raised and distinctly determined between the parties, then, as a general rule neither party can be allowed to fight that issue all over again. The same issue cannot be raised by either of them again in the same or subsequent proceedings except in special circumstances ... And within one issue, there may be several points available which go to aid one party or the other in his efforts to secure a determination of the issue in his favour. The rule then is that each party must use reasonable diligence to bring forward every point, which he thinks would help him. If he omits to raise any particular point, from negligence, inadvertence, or even accident (which would or might have decided the issue in his favour), he may find himself shut out from raising that point again, at any rate in any case where the self same issue arises in the same or subsequent proceedings. But this again is not an inflexible rule. It can be departed from in special circumstances."

61     It is obvious to me, from the foregoing, that the "rule" is not as rigid as it appeared to be in 1843 in Henderson v. Henderson.

62     Simplistically, this is not a situation of a plaintiff suing, losing, and then starting another action on the same issue, alleging some new fact. Here, class counsel brought an action, alleging all the facts needed to succeed, and did succeed on the original motion, and on the appeal therefrom. The defence raised was the statutory bar, and the reply to that was the Bill of Rights argument. That reply succeeded on the original motion, and in the Court of Appeal. The Crown appealed only the Bill of Rights issue, explicitly leaving intact the declarations as to liability.

63     What is before me now is not a new cause of action, or new facts to support a claim of liability. The issue instead is the interpretation of the finding that the Bill of Rights did not nullify s. 5.1(4) and the effect of that finding on the judgment already obtained on the claim.

64     A new action and a new trial is not involved here. The original decision on liability arose on a motion for judgment, and the structure of the case called for a series of motions, all within one action.

65     The Crown now argues that the extent of the applicability of the statutory bar was an issue that should have been argued in the original motion, and that it cannot be raised now. In my view, that approach ignores the agreed structure of this litigation. The issues of liability were argued separate and apart from the assessment of damages. The issue of the validity of the statutory bar was clearly a liability issue, and the Bill of Rights reply went to that issue of liability. The question of the extent of the applicability of the statutory bar - its effect on a judgment for damages - is in my view, a quantum issue, that effects an ultimate decision on the assessment motion, but does not affect liability. Therefore, in my view, it would have been improper in this case, to introduce the question of the extent of the applicability of the statutory bar into the part of the case dealing with liability.

Abuse of Process and Collateral Attack

66     Mr. Knights, who argued this part of the motion for the Crown, frankly characterized abuse of process as a remedial catch-all. He cited Baziuk v. Dunwoody [1997] O.J. No. 2374, a decision of Platana J. In that case, Dunwoody had sued Baziuk under a guarantee. Baziuk filed a Statement of Defense but did not defend Dunwoody's motion for summary judgment for $35,000. However, later, (when collection efforts commenced) Baziuk sued Dunwoody for damages of $35,000 on the basis of an alleged breach of fiduciary relationship. It was admitted that if Baziuk had had counsel, the second action would have been a counter-claim in the first action. Platana J. concluded at Para. 19 that the court should not permit what amounts to a re-litigation of the issue initially in question between the parties and it would be an abuse of process to permit the plaintiff now to re-litigate that issue in the second action. He relied on the decision by Ground J. in Reddy v. Ottawa Flying Club, 11 C.P.C. (3d) 154 where he spoke of abuse of process as being:

"Somewhat similar to the doctrine of res judicata in that it also seeks to prevent a multiplicity of proceedings or the re-litigation of an issue determined in earlier proceedings or which might have been raised in earlier proceedings, but the party now raising the issue before the court chose not to do so."

67     In my view, the foregoing reasons already deal, in detail, with the component elements of abuse of process that could be argued to be applicable to this motion. I do not find this motion to be an abuse of process.

68     On the issue of collateral attack, the Crown relied on R. v. Wilson, [1983] 2 S.C.R. 594 (S.C.C.). In that case, a provincial court judge had, on the basis of the evidence of the investigating officer, without examining the packet, concluded that the authorization for a wiretap issued by a judge of the Court of Queens Bench of Manitoba had not been lawfully been made and ruled the wiretap evidence was inadmissible. The Manitoba Court of Appeal concluded that where a Superior Court of Record has granted an authorization, it cannot be collaterally attacked in any court and it cannot be attacked at all in an inferior court. The Supreme Court of Canada agreed with this, and defined a collateral attack as "an attack made in proceedings other than those whose specific object is the reversal, variation, or nullification of the order or judgment."

69     I of course agree with, and am bound by that statement. However, I do not perceive this motion as being a collateral attack upon the decision of the Supreme Court of Canada. The Supreme Court of Canada simply found that the Bill of Rights could not nullify s. 5.1(4). The Supreme Court of Canada was not asked to interpret s. 5.1(4) or to make an order or judgment as to the meaning of the word "interest" in that section. Neither was it asked to rule on the propriety of the finding of breach of fiduciary obligation by the Crown. In my view, the Crown has attempted to "read in" comments made by counsel to questions from the bench into the decision of the court. However those words do not appear in any order or judgment of the Supreme Court of Canada.

70     I do not find that this motion constitutes a collateral attack on the decision of the Supreme Court of Canada.

Conclusion

71     I conclude that the decision of the Supreme Court of Canada on the Bill of Rights issue in this action did not have the effect of bringing this action to an end, that class counsel were entitled to bring this motion and to continue with the action, and that the effect of s. 5.1(4) of the Department of Veterans Affairs Act the validity of which was upheld by the Supreme Court of Canada, is to call for a deduction from the damages as assessed, of an amount on account of "interest" as referred to in s. 5.1(4), and as interpreted in the foregoing reasons.

72     An order shall go as asked, for the completion of the Reasons for Judgment on the quantum motion, interrupted by the Supreme Court of Canada proceedings, and the issue of a judgment in accord therewith.

73     Counsel may address me on the issue of costs, on a date to be set, by me or the Trial Co-ordinator.

BROCKENSHIRE J.

cp/e/nc/qw/qlrme/qlbrl