Case Name:

Authorson v. Canada (Attorney General)

Between

Joseph Patrick Authorson, deceased, by his Litigation

Administrator, Peter Mountney, and by his Litigation Guardian,

Lenore Majoros, (plaintiff/respondent/moving party), and

The Attorney General of Canada,

(defendant/appellant/responding party)

[2004] O.J. No. 117

128 A.C.W.S. (3d) 209

Docket Nos. M30236 and C35254

Ontario Court of Appeal

Toronto, Ontario

O'Connor A.C.J.O., Weiler and Goudge JJ.A.

Heard: January 14, 2004.

Judgment: January 16, 2004.

(11 paras.)

Practice -- Appeals -- Restrictions on argument on appeal -- Issues or points not raised on application, at trial, in pleadings or in prior proceedings -- Hearing of appeal -- Rehearing, application for, jurisdiction.

Application by the respondent Authorson for an order reopening an appeal to allow for the disposition of Charter issues. In the previous order, the court found it was unnecessary to determine whether section 5.1(4) of the Department of Veterans Affairs Act contravened the Charter given that the appeal could be disposed of based on the Canadian Bill of Rights. The Crown appealed to the Supreme Court of Canada, which reversed the decision concerning the applicability of the Canadian Bill of Rights. The Supreme Court did not address the Charter issue. In the original application, Authorson sought declaratory relief pursuant to the Bill of Rights but not the Charter.

HELD: Application dismissed. In seeking to reopen the issue, Authorson was in effect seeking relief that he did not seek in the first instance. Authorson had an alternative route for raising the same issue before the court by appealing another decision made in the action and raising the Charter issue on that appeal.

Statutes, Regulations and Rules Cited:

Canadian Bill of Rights, R.S.C. 1985.

Canadian Charter of Rights and Freedoms, 1982, ss. 7, 15.

Department of Veterans Affairs Act, R.S.C. 1985, c. V-1, s. 5.1(4).

Counsel:

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

William A. Knights and Roslyn F. Mounsey, for the responding party.

The following judgment was delivered by

1 THE COURT (endorsement):-- The moving party ("the plaintiff") was certified by the Superior Court of Justice to act as a representative plaintiff in a class action concerning veterans' benefits. In reasons dated March 13, 2002, the Court of Appeal for Ontario determined that it was unnecessary to deal with whether s. 5.1(4) of the Department of Veterans Affairs Act, R.S.C. 1985, c. V-1 (the "DVA") contravenes ss. 7 and 15 of the Charter, given that the appeal could be disposed of based on the applicability of the Canadian Bill of Rights, R.S.C. 1985, App. III.

2 Section 5.1(4) reads as follows:

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

3 The Crown appealed the decision of this court to the Supreme Court of Canada. In a judgment released on July 17, 2003, the Supreme Court reversed this court's decision concerning the applicability of the Canadian Bill of Rights to s. 5.1(4) of the DVA. The Supreme Court did not address the Charter issue.

4 The plaintiff initially brought a motion to bring the outstanding Charter issue back before this court for adjudication. However, one of the members of the original panel, Justice Austin, has now retired. As a result, the plaintiff has moved for leave to re-argue the issue.

5 At the conclusion of the argument of the motion for leave, we advised counsel that the motion was dismissed with reasons to follow. These are those reasons.

6 In the proceeding that gave rise to this appeal, the plaintiff sought, inter alia, a declaration that s. 5.1(4) of the DVA violated the Bill of Rights. The plaintiff did not seek a declaration that the section violated the Charter. At the same time, the Crown moved for summary judgment to dismiss the plaintiff's action. In its motion, the Crown sought a determination of the question of law of whether s. 5.1(4) of the DVA violated ss. 7 or 15 of the Charter.

7 The declaration sought by the plaintiff was granted. The Crown's motion was dismissed but, in his reasons, the motion judge said that s. 5.1(4) did not violate the Charter.

8 The Crown appealed. In argument before this court, the plaintiff relied almost entirely on the argument that s. 5.1(4) of the DVA violated the Bill of Rights. The Charter issue was addressed only briefly. In view of its holding that s. 5.1(4) violated the Bill of Rights, this court found it unnecessary to decide whether s. 5.1(4) also violated the provisions of ss. 7 or 15 of the Charter.

9 We are not prepared to reopen this appeal to permit argument of the Charter issue for two reasons. First, in seeking to reopen the issue, the plaintiff is in effect now seeking relief, a declaration that s. 5.1(4) of the DVA breaches the Charter, that he did not seek in the first instance. Second, the plaintiff now has an alternative route for raising the same issue before this court. In December 2003, the class action motion judge ruled that as a result of the decision of the Supreme Court, the plaintiff's claim for damages must be reduced by the amount of his claim for interest. If the plaintiff chooses, he may appeal that decision and, in doing so, attempt to assert the Charter argument with respect to the claim for interest.

10 That said, we wish to emphasize that we are not opining on whether the assertion of the Charter argument is barred by the doctrine of res judicata. The issue of res judicata remains open and was not argued on the motion before us. The point we make is nothing more than that the plaintiff, if he chooses, will have the opportunity to argue the Charter issue before this court in the same manner as he would have had were we to have granted the motion to reopen the earlier appeal.

11 For the above reasons, the motion is dismissed. As indicated at the conclusion of argument, there will be no order as to costs.

O'CONNOR A.C.J.O.

WEILER J.A.

GOUDGE J.A.

cp/e/nc/qw/qlgkw