Case Name:

Authorson (Litigation Administrator of) v. Canada (Attorney

 General)

Joseph Patrick Authorson, deceased, by his Litigation

Administrator, Peter Mountney and by his Litigation Guardian,

Lenore Majoros

v.

Attorney General of Canada

[2007] S.C.C.A. No. 472

[2007] C.S.C.R. no 472

File No.: 32262

 Supreme Court of Canada

Record created: September 26, 2007.

 Record updated: January 17, 2008.

Appeal From:

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO

Status:

Application for leave to appeal dismissed with costs (without reasons) January 17, 2008.

Catchwords:

Charter of Rights -- Pensions -- Veterans' pensions and allowances -- Fiduciary duty -- Crown -- Limitation of actions -- Government administering pensions and other benefits for war veterans and failing to invest funds or pay interest -- Legislation barring claim to interest for the period prior to 1990 -- Whether legislation violates s. 15 of Canadian Charter of Rights and Freedoms -- Whether Supreme Court of Canada's decision ended action, notwithstanding absence of any order dismissing action -- Whether Crown prevented from relying on limitation period defence by reason of doctrine of equitable fraud -- Department of Veterans Affairs Act, R.S.C. 1985, c. V-1. s. 5.1(4).

Case Summary:

In 1999, a class action was certified on behalf of a large number of disabled World War I and II veterans whose pensions and allowances had been administered by the Department of Veterans Affairs. The representative plaintiff, Joseph Authorson, claimed that the Crown breached its fiduciary duty to him and to other veterans by failing to invest or pay interest on pension funds administered by the Crown for their benefit. The Crown argued that the action was barred by s. 5.1(4) of the Department of Veterans Affairs Act, R.S.C. 1985, c. V-1, as am. 1990, c. 43 ("DVA Act"), which provides that no claim shall lie "for or on account of interest" on monies held by the Department of Veterans Affairs prior to 1990.

The motion judge granted summary judgment in favour of the Class on the liability issue in 2000, declaring that the Crown had breached its fiduciary duty by failing to invest or pay interest on the funds, and that the statutory bar in s. 5.1(4) of the DVA Act was inoperative because it conflicted with the Canadian Bill of Rights, S.C. 1960, c. 44. The Ontario Court of Appeal affirmed that decision. The Supreme Court of Canada found that s. 5.1(4) was valid legislation that was not inconsistent with the Bill of Rights. The Class moved before the motion judge for judgment on damages. The Class argued that the motion judge's initial declaration that the Crown had breached its fiduciary duty had not been disturbed, and that the reach of both s. 5.1(4) and the Supreme Court's decision were limited to "interest" as distinct from damages for failure to invest.

Counsel:

Raymond G. Colautti (Raphael Partners), for the motion.

John C. Spencer (A.G. of Canada), contra.

Chronology:

1. Application for leave to appeal:

FILED: September 26, 2007. S.C.C. Bulletin, 2007,

 p. 1428.

 SUBMITTED TO THE COURT: December 3, 2007. S.C.C.

 Bulletin, 2007, p. 1767.

 DISMISSED WITH COSTS: January 17, 2008 (without reasons).

 S.C.C. Bulletin, 2008, p. 51.

 Before: Binnie, LeBel and Deschamps JJ.

The motion to file a memorandum of argument exceeding 20 pages is granted. The application for leave to appeal is dismissed with costs.

Procedural History:

Judgment at first instance: Motion to quash dismissed; motion that judgment be delivered on damages granted. Ontario Superior Court of Justice, Brockenshire J., December 22, 2003.

Judgment at first instance: First decision on damages. Ontario Superior Court of Justice, Brockenshire J., December 22, 2003.

Judgment at first instance: Motion for summary judgment

 assessment of damages for breach of fiduciary duty

 allowed.

 Ontario Superior Court of Justice, Brockenshire J.,

 December 31, 2004.

Judgment at first instance: Authority to take judicial notice

 confirmed.

 Ontario Superior Court of Justice, Brockenshire J.,

 December 29, 2005.

Judgment at first instance: Damages for Crown's breach of

 fiduciary duty assessed at $4.6 billion.

 Ontario Superior Court of Justice, Brockenshire J.,

 December 29, 2005.

Judgment on appeal: Appeal allowed and cross-appeal dismissed. Court of Appeal for Ontario, Moldaver, Sharpe and Blair JJ.A., July 4, 2007.

 Neutral citation: 2007 ONCA 501; [2007] O.J. No. 2603.

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