Q.B.G. No. 956 of A.D. 2006
IN THE COURT OF QUEEN'S BENCH
JUDICIAL CENTRE OF REGINA
HER MAJESTY THE QUEEN, ATTORNEY GENERAL OF
CANADA, GOVERNMENT OF CANADA, and the MINISTER
OF NATIONAL DEFENCE,
- and -
THE DOW CHEMICAL COMPANY and
Brought under The Class Actions Act.
PLAINTIFF'S BRIEF OF LAW
(March 30th, 2009)
MERCHANT LAW GROUP LLP
#100-2401 Saskatchewan Drive
E.F. Anthony Merchant, Q.C.
Telephone: (306) 3
Facsimile: (306) 522-3299,
Solicitor for the Plaintiffs.
ma= r i almoilmo •
I. SYNOPTICALLY 1
II. FACTS 3
(1) toxic area 3
(2) public awareness 4
(3) procedural history 6
III. ARGUMENT 7
(1) cause of action 13
(a) authentic and genuine 13
(b) nominate actions 14
(i) toxic battery 14
(ii) derivative claims 18
(iii) Honour of the Crown 18
(iv) negligence 19
(v) occupier's liability 30
(vi) statutory defences 33
(2) identifiable class 34
(a) two or more 37
(b) purpose 38
(c) stated objective criteria 39
(3) common issues 48
#1 Did the Defendants use unreasonable amounts of 2,4-D, 2,4,5-T, or
picloram at CFB Gagetown? 51
#2 If the answer to #1 is "yes, did the Defendants owe and breach
duties to class members in their use of 2,4-D, 2,4,5-T, or picloram at
CFB Gagetown. If so, how and when? 53
#3 If the answer to #1 is "yes", in what amounts, in what parts, and at
what times were 2,4-D, 2,4,5-T, or picloram present or bioavailable at
CFB Gagetown? 57
#4 If the answers to "#1" and "#2" area(a) What parts of CFB
Gagetown constituted an unusual or unreasonable danger of causing
adverse health effects in humans ("Toxic Areas"); (b) When?; and (c)
Ought the Defendants to have known about or reasonably foreseen the
creation of the Toxic Areas? 58
#5 Can class members recover the costs of testing for dioxin and
hexachlorobenzene poisoning and genetic mutation on an aggregate
basis? If so, how much should be awarded? 60
#6 Is an award of exemplary and punitive damages appropriate under all
of the circumstances? How much? How should it be distributed? . .. 61
(4) preferable procedure ..................................................... 64
(a) "fair, efifcient and manageable" 65
(b) "other reasonably available means" 76
(5) representative plaintiff 81
(a) fair and adequate representation 81
(b) workable method 85
(i) advancing 85
(ii) notifying 88
(A) cost 88
(B) method 94
(c) conflict on the common issues 96
(6) multi-jurisdictional relief . . 97
IV. RELIEF . ... 98
Schedule "A": Table of Authorities
Schedule "B": Summary of FactFinders' Reports
Schedule "C": Tables of Class Deifnitions and Common Issues
Schedule "D": Table of Potential Settlement Subclasses
Schedule "E": Draft Certiifcation Order and Opt-Out Form
Schedule "G": Draft Order Respecting Notice and Notice of Certification
TABLE OF CITED EVIDENCE
affidavit m/d/y cite party pages
1. Tina Dimitriou 11/17/08 AOTD#1 GOVT 2160
2 Tina Dimitriou
. 11/17/08 AOTD#2 GOVT 1555 I
Lynn Severt 12/01/08 AOLSV RP 11
Liesa Spottek 12/01/08 AOLS#1 RP 668
5 Danny Thibideau
. 12/01/08 AODT RP 7
6. Steve Weild 12/01/08 AOSW RP 4
7 Robin Cardillo
. 12/15/08 AORC DOW 33 1
Liesa Spottek #2 12/17/08 AOLS#2 RP 269
9. Philip D. Buchanan 01/14/09 AOPB RP 11
10. L. Wayne Dwernychuk 01/14/09 AOWD RP 113
11. Kenneth Robert Dobbie 01/15/09 AOKD RP 1294
12. Kerry Eaton 01/15/09 AOKE RP 35
13. Frank Brooks 01/15/09 AOFB RP 11
14. John Cosgrove 01/15/09 AOJC RP 13
15. Grant Payne 01/15/09 AOGP RP 214
16. Cross-Examination 03/06/09 CEGP GOVT 137
17. Edward P. Ring, Sr. 01/15/09 AOER RP 11
18. Cross-Examination 03/05/09 CEER GOVT 157
19. Aroosha Sadaghianloo 01/15/09 AOAS RP 4
20 Meg Sears 01/15/09 AOMS RP 2005 1I
21. Cross-Examination 11/24/08 CEMS TP 229
22. Dritan Levanaj 01/23/09 AODL GOVT 5348 I
23. Peter William Worona 01/28/09 AOPW GOVT 6
affidavit m/d/y cite party pages
24. David E C Cole 01/29/09 AODC GOVT 64
25 Dr. John P. Giesy Ph. D. 01/29/09 AOJG TP 292
2 Jules E. Harris, M.D.
6 . 01/29/09 AOJH TP 74
2 Anthony R. Scialli, MD.
7 . 01/29/09 AOAS TP 70
2 David .Brusick, Ph. D.
8 01/30/09 AODB#1 TP 52
2 Dr. .
9 Philip S. Guzelian 01/31/09 AOPG TP 158
3 0 Jack S. Mandel
Dr. . 01/31/09 AOJM TP 1292
Timothy Russell Rose
. 02/02/09 AOTR GOVT 62
3 Affidavit of David Brusick, Ph. D.
2 . 02/04/09 AODB#2 TP 2
Affidavit ofL iesa Spottek #3
. 02/10/09 AOLSP#3 RP 436
CANADA ) QB. No. 956 of 2006
PROVINCE OF SASKATCHEWAN )
COURT OF QUEEN'S BENCH FOR SASKATCHEWAN,
JUDICIAL CENTRE OF REGINA
HER MAJESTY THE QUEEN, ATTORNEY GENERAL OF
CANADA, GOVERNMENT OF CANADA. and the
MINISTER OF NATIONAL DEFENCE,
THE DOW CHEMICAL COMPANY and
Brought under The Class Actions Act.
BRIEF OF LAW
(dated March 30ht, 2009)
1. Plaintiff applies for certification pursuant to s. 6.1(1) of The Class Actions Act,
S.S. 2001, c. C-12.01, as am. ("The CAA"). It is respectfully submitted that this
Honourable Court should certify a multi jurisdictional opt-out class action.
(a) Plaintiff advances an authentic and genuine cause of action. He asserts:
• Between 1956 and 2004, at Canadian Forces Base Gagetown ("CFB
Gagetown"). Defendants used or permitted others to use, by way of aerial and
ground application, chemicals containing 2,4-D, 2,4,5-T', and picloram2.
' The Amended Statement of Claim ("ASOC") pleads that the 2,4-D and 2,4,5-T contained 2,3,7,8-
tetrachlorodibenzo-p-Dioxin ("TCDD"). TCDD is formed when 2,4-D and 2,4,5-T are made. TCDD is a
Page 2 of 98
2,4-D and 2,4,5-T contained 2,3 ,7,8-tetrachlorodibenzo-p-Dioxin ("TCDD").
Picloram contained hexachlorobenzene ("HCB"). HCB and TCDD cause, or
increase the risk of causing, fatal diseases in those exposed to areas in which
they are used.
Due to Defendants' chronic use of 2,4-D, 2,4-5-T and picloram at CFB
Gagetown, it became toxic. After Defendants invited or ordered civilians and
domestic and foreign military onto CFB Gagetown, class members were
exposed to unreasonably high levels of HCB and TCDD. Those exposed now
carry HCB and TCDD within them in their blood.
Class members became sick. Some died. Others will get sick. They fear
cancer. Their very beings have mutated. They suffered genetic damage that
they will pass on to their children and their children's children. CFB Gagetown
is a tragedy with long term consequences for those exposed and their families.
(b) There are numerous claimants with widespread colourable claims for various
forms of relief. Crawford, can directly notify them of the class action.
(c) The record indicates shared factual and legal issues respecting what Defendants
knew, did, and failed to do at CFB Gagetown. Their resolution would materially
advance the liability and remedial aspects of each claim.
(d) Neither the Fact-Finders' process, individual actions, pensions, or ex gratia
payments are preferable to a class action. The Class seeks aggregate medical
monitoring costs that can be efifciently pursued only by way of a class action.
Personal injury individual issues from claims of manifest disease can fairly and
known human carcinogen. It binds with a protein in cells, at the aryl hydrocarbon receptor ("AhR") and then
can cause endocrine, immune and neurological harms, including cancer, diabetes, and endometriosis. As it
binds the AhR most strongly, TCDD is the most toxic dioxin. [AOMS: ¶28, 47, 50, 67-68, 70, 83]
2 The ASOC says that all volumes of the picloram used at CFB Gagetown contained hexachlorobenzene
("HCB"). HCB is immunotoxic, affecting immunoglobulins, neutrophils and T-cells in the skin, liver, and
lung. HCB exposure is associated with soft tissue sarcoma and thyroid cancer. [AOMS: ¶58-60, 76-79]
Page 3 of 98
manageably be resolved using various procedural tools in The CAA.
(e) Each of Frank Brooks, Kenneth Dobbie, and Grant Payne could fairly and
adequately represent the class without conlfict on the common issues.
(0 Certification is appropriate here for the reasons it was in Ring v. Canada
(Attorney General) (Aug. 1 st ) 2007 NLTD 146, 268 Nlfd. & P.E.1.R. 204.
(1) toxic area
In 1952, after they removed local residents and expropriated their ancestral
faints, Defendants opened CFB Gagetown in the woody marshes of Canada's
Appalachian Region. IAOKE: 117]
3. The land was not suitable for the military exercises Defendants expected to
perform – driving large tanks, exploding bombs, and hosting large military
manoeuvres. There were too many trees, and they were hard to clear. Beginning in
1953, Defendants employed various mechanical and non-mechanical means of
clearance. They were effective, but laborious. Defendants wanted to short cut the
ecological forces that held root in the region. IAOKE: 117(a); CEGP:11299]
In 1956, they began using chemical means of defoliation. They sprayed 2,4-D
and 2,4,5-T, phenoxy herbicides which, depending on their proportionate levels, are
known as "Agent Orange"3 and "Agent Purple". They later used combinations of
2,4-D and picloram ("Agent White"). IAOKD: Ex. B.1182, 229, 236; AOMS: 1142, 121].
Agent Orange describes a broad array of chemicals. Of mixtures of 2,4-D and 2,4,5-T, Frumkin H,
"Agent Orange and Cancer: an Overview for Clinicians," CA Cancer J Clin. 2003;53: 245-255 at 245,
stated: ("Each formulation was shipped in a chemical drum marked with an identifying colored stripe. The
most widely used mixture contained equal parts of 2,4-D and 2,4,5-T. Because the herbicide came in drums
with orange stripes, it was called Agent Orange. Today, Agent Orange is used to refer generally to all the
phenoxy herbicides sprayed at the time.").
Page 4 of 98
5. The chemical defoliants were toxic; extremely toxic. Exposure to even small
amounts is associated with birth defects and latent cancers. They were not reasonably
intended for high volume, long term defoliation anywhere, particularly where humans
frequented. Defendants knew that. Nevertheless:
(a) They continued to host domestic and foreign military units. They directed
military exercises in areas that had been repeatedly soaked with chemicals.
(b) They continued to permit military families to enter onto the base in a
recreational capacity. They hosted the Boy Scouts. "Army Brats" had "great
games of war", oblivious to the latent exposure and how it would fundamentally
alter their well-beings in decades to come. [AOLSV: '23; AOMS: 1116, 34-35, 37].
(2) public awareness
In the 1970's, those exposed to CFB Gagetown became concerned about the
health risks from exposure to the base. Politicians raised the issue in Parliament and
provincial legislatures, including in Saskatchewan and New Brunswick. In the early
1980's, concerned citizens demanded access to CFB Gagetown to conduct testing and
health studies. Defendants responded.
(a) Through various public conferences and a presentation to the New Brunswick
Cabinet, Defendants denied any health risks. In 1985, Major Rushton told
provincial ministers that the "spraying program poses no threat to the animal and
human population of CFB Gagetown, nor to its neighbouring communities" and
that "nothing on, under or below the surface of base Gagetown poses any threat to
its current population, nor to the citizens of surrounding communities."
(b) In 1985, Defendants claimed to have done thorough testing. They denied
having contributed to adversely affecting the health of CFB Gagetown residents.
They assured that the defoliaants posed "no threat to the...human population of
CFB Gagetown or to neighbouring communities." [AOKD: Ex. C, ¶10, 12]
Page 5 of 98
7. The words did not match reality. Neighbouring communities had higher
incidence of illness. In Burton, many families were sick. Holden Street was locally
known as "cancer row"
, because most residents there had died from, or were being
treated for, cancer. But Defendants continued to deny any risks. Indeed, they denied
using Agent Orange at all. They informed the House of Commons that "Agent
Orange" was never used in Canada. 1A0GP: 11102-104, 106-116-22; AOSW: 3].
8. In June of 2005, Louise Elliot, a journalist from the CBC, revealed that
Defendants in fact permitted use of Agents Orange and Purple at CFB Gagetown.
The Department of Veterans Affairs ("DVA") awarded Gloria Sellar, widow of a
Brigadier General who was at CFB Gagetown, a dependent's pension because of her
husband's exposure to Agent Orange at CFB Gagetown and subsequent death from
Chronic Lymphocytic Leukemia. AOKD: Ex. B,11222, 275; Ex. C, 1113]]
9. Defendants again responded. On June 23', they called a town hall meeting at
the Oromocto Theatre. Karen Ellis afifrmed that Agents Orange and Purple had
indeed been used at CFB Gagetown, but it was the Americans who were permitted to
do so. And it was only two barrels. On two small strips. In just two years. And it
was safe, she said – it "evaporates in air". [AOKD: Ex. B,411229; Ex. C, 1113. 16; CEGP: 11216]
10. Amongst those at the Theatre was Kenneth Dobbie, a former "Army Brat" who
battled a lifetime of debilitating illness after handling defoliated brush at CFB
Gagetown. Mr. Dobbie had obtained documents from Access to Information which
indicated that, over 29 years between 1956 and 1984, Defendants repeatedly sprayed
over 6,000 barrels of 2,4-D, 2,4,5-T, and picloram – over 3.3 million kilograms and
liters of it – on over 181,000 acres. And it was deadly. It killed his father and is
slowly killing him. [AOKD: Ex. B,11134; Ex. C, 1114, 18]
Page 6 of 98
11 Defendants reacted. Though they previously conducted "soil and liqui d"
testing and health studies at CFB Gagetown in the 1980's which they used to deny any
"environmental hazard", they initiated a broad Fact-Finders' Project, posing questions
that paralleled those stated in Mr. Dobbie's class action in the Federal Court of
Canada ("FCC"). 4 [AOKD: Ex. A,11168-201; Ex. C, IJE20-59: AOMS: 12-14]
(3) procedural history
On July 12th, 2005, Mr. Dobbie sued Defendants in the FCC. On December
29th, 2005, he applied for certification. On March 13th, 2006, after addding The Dow
Chemical Company ("Dow") and Pharmacia Corporation ("Pharmacia"), as Third
Parties, Defendants applied for a stay. On May 3', 2006, Kelen J. stayed the FCC
[AOKD: Ex. A,115-32; Ex. C, ¶2; AOLS#1: 16, AOTD#1, 13, 8-9, 28]
13. From July 12 th, 2005, arising from the Defendants' wrongful use of Agent
Orange at CFB Gagetown, two counsel groups, Merchant Law Group LLP ("MLG")
and a consortium led by Barry Spalding ("Spalding Counsel Group") filed 11 claims
throughout Canada. MLG plaintiffs filed and advanced in several provinces.
(a) First, Ward moved in Manitoba:
Using materials from the FCC, he applied for a national opt-out certiifcation
in the MBQB. Saskatchewan had not yet enacted opt-out legislation.
Defendants filed a jurisdictional motion. On September 22', 2006, Scurfield
J. dismissed it. Defendants appealed.
13 months later, the MBCA dismissed the appeal. They did not interfere with
Scurfield J.'s finding that New Brunswick was not a more appropriate forum.
4A table summarizing the Fact-Finders' task report titles and objectives is at Schedule "B".
Page 7 of 98
(b) Cuncurrently, Williams moved in Newfoundland & Labrador:
On June 23', 2006, MLG filed Williams. Mr. Justice Barry scheduled
certification. He gave "carriage" to MLG.
On August 1', 2007, Barry J., certified, but stayed, "pending further
submissions on the effect of the New Brunswick Class Proceedings Act". 4'/2
months later, after a contested motion, he lifted the stay.
9 1 /2 months later, Dow and Phaimacia obtained leave to appeal.
(c) In New Brunswick, on June 14 ht, 2006, the Spalding Counsel Group ifled
Bryson. MLG ifled Hunter. On June 28 th, 2007, the Spalding Counsel Group
applied for carriage. It was adjourned. MLG and the Spalding Group agreed to
co-operate. Between December 8 ht and 12th of 2008, McNally J. presided over a
contested certification hearing. [AORC: 114]
(d) In Saskatchewan, on June 12th, 2006, Plaintiff ifled the within action. On April
2008, national opt-out legislation came into force here. Plaintiff now applies
for a national opt-out multi jurisdictional certification order.
[AOLS#1:1 17, 10; AOTD#1,113-6, 11-23. 29, 32, 34, 40-42, 45, 47, 51-53, 65]
14. A court shall certify an action as a class action if satisifed that the pleadings
disclose a cause of action, there is an identiifable class, the claims of the class
members raise common issues, a class action would be the preferable procedure, and
there is a willing and worthy representative, without a conflict on the common issues,
and who has a plan for advancing and notifying class members of the action.'
5 S. 6 of The Class Actions Act, S.S. 2001, c. C-I2.01, as am.
Page 8 of 98
15. Whether a multi-jurisdictional class action would preferably advance some or
all of the claims or common issues, shall be based upon objectives' and factors'.
Courts' and academics 9 have overwhelmingly recognized the beneifts of national
classes. They are best for the class, defendants, and the judiciary because of the
achieved economy and avoidance of disparate dispositions.
16. Class actions statutes should be generously construed. Certification is a "low
threshold". Courts should avoid a restrictive approach. A Designated Judge screens,
not scrutinizes. Whether a class action should proceed is guided by a "liberal and
The "objectives" in s. 6(3)(a) include: (i) ensuring due consideration to the interests of all of the parties
in each of the relevant jurisdictions; (ii) ensuring that the ends of justice are served, (iii) avoiding, where
possible, the risk of irreconcilable judgments, (iv) promoting judicial economy.
The "factors" in s. 6(3)(b) include: (i) the alleged basis of liability, including the applicable laws; (ii) the
stage each of the actions has reached; (iii) the plan for the multi juirsdictional class action, including the
viability of the plan and the capacity and resources for advancing the action on behalf of the proposed class;
(iv) the location of the representatives plaintiffs and class members in the various actions, including the
ability of representative plaintiffs to participate in the actions and to represent the interests of the class
members; and (v) the location of evidence and witnesses.
Millgate Financial Corp. v. BF Realty Holdings Ltd. (Aug. 16ht, 1994), 15 B.L.R. (2d) 212; Nantais v.
Telectronics Proprietary (Canada) Ltd. (Aug. 29ht, 1995), 40 C.P.C. (3d) 245; Nantais v Telectronics
Proprietary (Canada) Ltd. (Oct. 4th, 1995), 40 C.P.C. (3d) 263 (Ont. Gen. Div.); Carom v. Bre-X Minerals
Ltd. (Feb. 11th, 1999), 43 O.R. (3d) 441, 30 C.P.C. (4ht) 133; Robertson v. Thomson Corp. (Feb. 11 1999),
30 C.P.C. (4th) 182; Robertson v Thomson Corp. (March 30ht, 1999), 43 C.P.C. (4th) 166 (Ont. Gen. Div.);
Wilson v. Servier Canada Inc. (Sept. 13ht, 2000), 49 C.P.C. (4ht) 233 and (Nov. 21', 2000), 52 O.R. (3d) 20
and (May 1", 2001), 11 C.P.C. (5 ht) 374 and (Dec. 1 7ht), 2001 CarswellOnt 8049 (Ont. Sup. Ct.);
McCutcheon v. Cash Store Inc. (May 10`h, 2006), 27 C.P.C. (6th) 293.
Ward Branch and Christopher Rhone, "Chaos or Consistency? The National Class Action Dilemma" (Jan.
2004), 1 Canadian Class Action Review 3; Craig Jones, "The Case for the National Class" (Jan., 2004), 1
Canadian Class Action Review 29; F. Paul Morrison, Eric Gertner, and Hovsep Afarian, -The Rise and
Possible Demise of the National Class in Canada" (Jan., 2004), I Canadian Class Action Review 67; Fiona
Hickman, "National Competing Class Proceeding: Carriage Motions, Anti-Suit Injunctions, Judicial Co-
operation, and Other Options" (Dec., 2004), 1 Canadian Class Action Review 367; Craig Jones and Angela
Baxter, "Fumbling Toward Efficacy: Interjurisdictional Class Actions after Currie v. McDonald 's" (July,
2006), 3 Canadian Class Action Review 405; Celeste Poltak, "Ontario and Her Sisters: Should Full Faith
and Credit Apply to the National Class?" (July, 2006) in 3 Canadian Class Action Review 437.
Page 9 of 98
lfexible" approach which weighs various factors, only one of which is fairness to
defendants. Courts should balance fairness and efifciency'°
17. A court must certify if the criteria are met. It may, even if they are not:
(a) A judge may adjourn to get more affidavits or to amend pleadings, or dismiss
the motion and grant leave to reapply on a different evidentiary record"
(b) On a multi-jurisdictional class action application, the Court is given broad
discretionary powers to make any appropriate order.
(c) A judge may (not must) decertify if ss. 6(1) ceases to be satisifed. In contrast
to Alberta's legislation', under The CAA, a judge has a residual discretion to
certify and refuse to decertify if all criteria are not or cease to be present.
(d) A Designated Judge may periodically vary the order as the action proceeds.
(e) The class and common issues may change if the parties or court learns more. "
18. The CAA and case law recognize a profound difference between class and
ordinary proceedings. In an ordinary action, the clients selected the lawyer, are all
fully informed about the proceedings, are able to take legal action against their lawyer
for significant miscues, and are bound by the actions of their lawyer. In class
proceedings, many who may ultimately become clients of appointed counsel, do not
10 Western Canadian Shopping Centres Inc. v. Dutton  2 S.C.R. 5341123-4 44 46 51; Hollick u
Toronto (City) (Oct. 18ht),  3 S.C.R. 158,1114-5; Hoffman v. Monsanto Canada Inc., 2007 SKCA
47, ¶49, 50, 53, 58.
Taub v. Manufacturers Life Insurance Co (Jan. 27ht, 1999), 42 O.R. (3d) 576 (General Division) [Div.
Ct.], 111; Markson v. MBNA Canada Bank (2004), 71 O.R. (3d) 741 and 2007 ONCA 334, 850. R. (3d) 301.
Class Proceedings Act, S.A. 2003, c. C-16.5.
Campbell v. Flexwatt Corp. (Nov. 7ht, 1997), 98 B.C.A.C. 22, ¶25; The CAA, ss. 6(1), 6.1(1), 7(1), 12(1);
Cassano v. Toronto Dominion Bank (March 9th, 2005), 9 C.PC. (6ht) 291, (Ont. Sup. Ct.), ¶43.
Page 10 of 98
even know about the proceedings. But their rights could be lost. Hence, where a
court believes there may be an actionable /is, on behalf of the class, if properly
developed, the action will not be dismissed based on deficiencies of the evidentiary
record. Indeed, many cases have shown judges indicating that an amendment to a
claim needs to be taken or some step to bring the potential action to the judgment seat
must be undertaken. In many jurisdictions, once an action is launched with the
intention of seeking certification, that action may not be discontinued without court
permission. The courts guard against members of the class having their rights lost and
guard against class members being knocked from the judgment seat where it is
believed that there could be an appropriately actionable /is. Even where certification
is refused, judges may indicate the needed changes and give leave to reapply.
19. On the issues of national class jurisdiction and application of the certification
criteria, this class action is analogous to previously certified products l iability'',
institutional abuse' s , and environmental' class actions. Even those that are not
14 See Schedule "A" for full citations – certified decisions are highlighted in blue with greater intensity
for higher level courts. This class action has a strong products ilability underpinning. Such are
particularly appropriate to class action treatment. As stated in Wheadon v. Bayer Inc., supra, ¶144:
("Canadian courts and legislators have endorsed the effectiveness of class action legislation in dealing with
product liability suits because such cases typically involve a central allegation as to whether a product was
defective or caused harm. The cost of marshalling the expert evidence needed to prove this allegation at
trial can be prohibitive for individual plaintiffs. In such a case only by combining claims within a class
proceeding will claimants have a fighting chance against a large corporate defendant.")
Cloud v. Canada (Oct. 9 th),  O.T.C. 767 (Ont. Sup. Ct.), certification dismissed and appeal
dismissed in (June 23', 2003), 65 O.R. (3d) 492 (Ont. Div. Ct.), but certification allowed in (Dec. 3', 2004),
73 O.R. (3d) 401, (Ont. C.A.) and leave certiifcation denied in (May 12th),  S.C.C.A. No. 50. L.(T.)
v. Alberta (Director of Child Welfare) (Feb. 8th), 2006 ABQB 104, 58 Alta. L.R. (4th) 23, certification was
denied with leave to reply and was allowed (Feb. 19th), 2008 ABQB 114, with reasons on notice of
certiifcation and the appointment of representative plaintiffs for the non-resident subclass at (Feb. 26ht), 2009
ABQB 96. Richard v. British Columbia (March 17ht), 2005 BCSC 372 and (Feb. 9', 2008), 2008 BCSC
254,  B.C.J. No. 341. Burnley v. British Columbia (Oct. 30th), 65 B.C.L.R. (3d) 382, 25 C.P.C. (4th)
186, (B.C.S.C.) [In Chambers] certification dismissed but appeal allowed in (Nov. 26th, 1999), 1999 BCCA
689, 180 D.L.R. (4th) 639, leave to appeal given in (Sept. 28th),  S.C.C.A. No. 20, but appeal dismissed
Page 11 of 98
certified for various reasons frequently give rise to common issues, appropriate class
definitions, and causes of action, that this Court may adapt.° A table of previously
accepted class deifnitions and common issues from these cases is Schedule "C".
20. To achieve certiifcation in an environmental case, a drug case, a tax liability
case. it is unnecessary for plaintiffs to come forward with expert evidence. At the
certification stage a court does not weigh the validity of expert testimony and decide.
But in the process of preliminary screening, if the court is satisfied that in part the
in (June 13th),  S.C.J. No. 39 with reasons in (Oct. 18'h), 2001 SCC 69,  3 S.C.R. 184, and
decertification motion dismissed in (Feb. 11ht with corrigendum on March 6th), 2003 BCSC 234, 12 B.C.L.R.
(4') 121. White v. Canada (Attorney General) (Aug. 6 ), 2002 BCSC 1164, 4 B.C.L.R. (4 ) 161 [In
Chambers], resolving the cause of action component of certification in favour of the class but leave to appeal
given in (Dec. 4ht), 2002 BCCA 709, but appeal dismissed in (Jan. 15ht), 2003 BCCA 53, and certification
given on (Jan. 23"), 2004 BCSC 99, 24 B.C.L.R. (4ht) 347.
Ludwig v. 1099029 Ontario Ltd. (Nov. 3', 2004), 4 C.P.C. (6`h) 251 (Patterson J.), whether leave to appeal
needed addressed in (June 21'), 2005 CarswellOnt 10062 (B.A. Rady J.), overturned Per Curiam (Nov.
15ht), 2005 CarswellOnt 10066 and Per Curiam opinion that leave to appeal was required affirmed in (April
13`h), 41 C.P.C. (6th) 247, 2007 ONCA 266 (K. Feldman J.A.). Pearson v. Inco Ltd. (July 15ht, 2002), 33
C.P.C. (5ht) 264 (Ont. Sup. Ct.) (Nordheimer J.), certification dismissed and appeal dismissed in (Feb. 6 ht,
2004), 183 O.A.C. 168 (MacKenzie J.), but leave to appeal granted in (Sept. 171h), 2004 CarswellOnt 3859
(Ont. C.A.) and appeal allowed in (Nov. 18 th, 2005), 78 O.R. (3d) 641 (Rosenberg J.A.) and leave to
appeal dismissed in (June 29th),  S.C.C.A. No. 1. Rose v. Pettle (Feb. 26ht, 2004), 43 C.P.C. (5th) 183
(Cullity J.); Sauer v. Canada (Minister of Agriculture) (Sept. 3', 2008), 169 A.C.W.S. (3d) 27 (Ont. Sup.
J.). Windsor v. Canadian Pacific Railway (May 17th), 2006 ABQB 348,  8 W.W.R. 672 (Rooke J.),
appealed dismissed in (Sept. 25th), 2007 ABCA 294,  12 W.W.R. 5 (Per Curiam).
Hoffman v. Monsanto Canada Inc. (May 11 `h), 2005 SKQB 225, leave to appeal granted in (Aug. 29th),
2005 SKCA 1 05, but appeal dismissed in (May Td), 2007 SKCA 47, and leave to appeal dismissed in (Dec.
13ht), 2007 CarswellSask 725 (SCC). Hollick v. Metropolitan Toronto (Municipality) (March 30ht,
1998), 18 C.P.C. (4th) 394 was certiifed but was oveturned in (Dec. 17ht, 1998), 31 C.P.C. (4th) 64, 42 O.R.
(3d) 473 (O'Leary J.), and upheld in (Dec. 15ht, 1999), 46 O.R. (3d) 257 (Carthy J.A.), and leave to appeal
was given in (Sept. 21' , 2000),  S.C.C.A. No. 41 but the appeal was dismissed in (Oct. 18th, 2001),
 3 S.C.R. 158. 2001 SCC 68 (McLachlin C.J.C.). Lavier v. MyTravel Canada Holidays Inc. (July
10ht, 2008), 59 C.P.C. (6th) 57 (Ont. Sup. Ct.) (Perell J.), but the case is concurrently under appeal.
MacDonald v. Dufferin-Peel Catholic District School Board (Nov. rd, 2000), 20 C.P.C. (5ht) 345 (Ont.
S.C.J.) (Jenkins J.). Paron v. Alberta (Minister ofE nvironmental Protection) (May 19th), 2006 ABQB 375,
 9 W.W.R. 450 (Topolniski J.). Taub v. Manufacturers Life Insurance Co. (May 13ht 1998), 40 O.R.
(3d) 379 (Gen. Div.) (Sharpe J.), leave to appeal dismissed with leave to reapply for certification on a
different evidentiary record in (Jan. 27'h, 1999), 42 O.R. (3d) 576 (General Division) [Div. Ct.].
Page 12 of 98
case may turn on a battle of the experts, then that is a case which ought to be certified.
The expense and judicial economy of having those kinds of questions answered by
one judge, on behalf of all members of the class and potentially ending proceedings
to the beneift of defendants with effect on a large number of class members, is very
much appropriately given to certiifcation and class proceedings access to justice.
21. A plaintiff's certification onus is low. It is minimum and evidentiary'' not
ultimate' 9. While plaintiffs have only an evidentiary burden, defendants have a duty to fully
disclose. At all stages of a class action, class members are not before the Court. After
certification, a representative guards their interests. Before certiifcation, Courts do. As it
affects class members, a certification hearing is in a sense ex parte. So parties must disclose
all known facts and authorities that could benefit class members !'
" At ¶122-26 of Hollick (Oct. 18th, 2001), McLachlin C.J.C. required a representative only to show "some
basis in fact" for each criteria.
Dickson J. explained the difference between evidentiary and ultimate burderns in R v Schwartz,
119881 2 SCR 443, ¶38: ("The party who has the persuasive burden is required to persuade the trier of fact,
to convince the trier of fact that a certain set of facts existed. Failure to persuade means that the party loses.
The party with an evidential burden is not required to convince the trier of fact of anything, only to point out
evidence which suggests that certain facts existed. The phrase "onus of proof' should be restricted to the
persuasive burden, since an issue can be put into play without being proven. The phrases "burden of going
forward" and "burden of adducing evidence" should not be used, as they imply that the party is required to
produce his or her own evidence on an issue.").
In McCarthy v. Canadian Red Cross Society (2001), 8 C.P.C. (5th) 349 (Ont.S.C.J.), Winkler J. (now
C.J.O.), ¶21: ("...a class proceeding by its very nature involves the issuance of orders or judgments that
affect persons who are not before the Court. These absent class members are dependent on the Court to
protect their interests. In order to do so, the Court must have all of the available information that has some
bearing on the issues, whether favourable or unfavourable to the moving party. It is the obligation of counsel
to provide that information in a manner that is consonant with the duty to make full and frank disclosure.
Moreover, that information must be provided in a manner that is not misleading or even potentially
misleading.") On the duty of full disclosure, Rule 334.15(5)(a) of the Federal Courts Rules, SOR/2007-
301, s. 7, for example, requires each affiant to swear that they know of no material facts not disclosed in their
Page 13 of 98
22. Here, there is no question as to whether the Plaintiff has met his minimum
evidentiary burden. This is the largest ever Saskatchewan certification record. There
are over 16,000 pages. But Defendants have failed to discharge their McCarthy v.
Canadian Red Cross Society, supra, obligation. The Defendants have failed to file
any affidavit of substance on this motion. [AOLS43: 118]
23. Further, they failed to disclose the documents they gave to Plaintiff's counsel
in Newfoundland and Labrador. Indeed, they sought and obtained an order (leave to
appeal will be sought) precluding their use here, despite Madam Justice Smith's clear
request in Hoffman v. Monsanto Canada Inc., 2003 SKQB 174, 233 Sask. R. 112 for
"an indication of the nature of the evidence that may be relevant to both the claim and
the defence with respect to both the common and individual issues " . The Court
should draw an adverse inference against them where appropriate.
(1) cause of action
(a) authentic and genuine
24. "Pleadings disclose a cause of action" in s. 6(1)(a) means that a plaintiff has
shown "a plausible basis in principle and presumed fact for supposing the Defendants
could be held liable. " A court may examine the pleadings as they stand or may be
amended. To deny an amendment, there must be "no scintilla of a cause of action".22
21 Hoffman v. Monsanto Canada Inc., 2003 SKQB 174, 233 Sask. R. 112, Smith J. (now J.A.), ¶43, 46:
("...the desirability of providing, on the certification motion, as complete a picture as possible of the proposed
action, including the scope of the issues raised both in the claim and in defence, has generally been viewed
by the courts as helpful in determining whether class action proceeding is the preferable procedure....These
authorities support the view that, on a certification application, the Court will be assisted by as full a picture
as possible of the nature and scope of the proposed litigation, including an indication of the nature of the
evidence that may be relevant to both the claim and the defence with respect to both the common and the
Hoffman, 150-54; Larden v. Canada, 145 F.T.R. 140, ¶26; White v. Canada (Attorney General), 2002
Page 14 of 98
25. As may be amended is an important concept. Numerous judges, including
Courts of Appeal and the Supreme Court of Canada, indicate that certification would
issue based on amendments which the court has indicated would be appropriate.
26. The ASOC establishes (for 6(1)(a) purposes) that, arising from Defendants'
use of 2,4-D, 2,4,5-T, and picloram at CFB Gagetown from 1956 to the present,
there are claims grounded in battery, derivative legislation, Honour of the Crown,
negligence, and occupier's liability, seeking compensatory, aggravated, and punitive
damages for various heads of harm.
27. The ASOC is very similar to the Fresh Third Amended Statement of Claim in
the Newfoundland Action, on which Barry J. found a cause of action and on which
Thompson J. dismissed a motion to strike. This pleading has survived several attacks.
[AOLS#1: Ex. L; ASOC]
(b) nominate actions
28. In addition to being "apparently genuine or authentic" and to have previously
been determined to show a cause of action, the facts that are or could on amendment
be pled fit within traditional nominate causes of action.
(i) toxic battery23
29. Plaintiff has an apparently authentic cause of action for involuntary 2 4
See Christopher J. I'vleAuliffe, Resurrecting an Old Cause ofA ction for a NewWrong: Battery as a Toxic
Tort, 20 B.C. Envtl. Aff. L. Rev. 265, 289 (1993) and Lynda M. Collins and Heather McLeod-Kilmurray,
Toxic battery: A Tort For Our Time? (2008), 16 Tort L. Rev. 131 ("Toxic battery: A Tort For Our Time?").
24 On involun tary exper ime ntat ion, see:
Lynda M. Collins, Strange Bedfellows? The Precautionary
Principle and Toxic Tort: A Tort Paradigm for the 21St Century (2005), 25 Env. L. Rep. 10361 ("Strange
Bedfellows") at 10369 and Toxic battery: A Tort For Our Time? at 135-138.
Page 15 of 98
environmental exposure or "toxic battery":
(a) Battery 'is a harmful or offensive intentional contact with another:
Any direct or indirect contact outside the de minimus range may be a battery.
The contact may be by way of an intermediary object, such as a chemical.
Any contact beyond ordinary societal contact is harmful or offensive. 26
See Strange Bedfellows at 10368: ("A prima facie case for battery exists where the plaintiff can
demonstrate that the defendant intentionally subjected her to a harmful or offensive touching. A battery may
occur even where the plaintiff is not aware that the contact has occurred. Significantly, the plaintiff in a
battery action need not prove causation of physical harm or illness, "[s]ince the essence of the plaintiffs
grievance consists in the offense to the dignity involved in the unpermitted and intentional invasion of the
inviolability of his person and not in any physical harm done to his body." The defendant need not directly
touch the plaintiff in order for a battery to occur. "All that is necessary is that the actor intend to cause the
other, directly or indirectly, to come in contact with a foreign substance in a manner which the other will
" The element of intent is established where a plaintiff can show that the
reasonably regard as offensive.
defendant intended to cause the offensive touching of the plaintiff or a third person or knew that the
touching was substantially certain to result from his or her conduct. Express or implied consent is a defense but
such consent is only effective if the consenting person understands "the nature and quality of the invasion
intended by the conduct." Battery is singularly well equipped to address toxic wrongdoing. The absence of
any physical (as opposed to legal) injury requirement prevents plaintiffs from being hamstrung by the
frequently impossible task of establishing causation of harm in the face of intractable uncertainty. The
intention requirement for battery should be easily met in most cases of known emissions since the science
of contaminant fate and transport has clearly demonstrated that the emission of a persistent substance virtually
anywhere on earth is substantially certain to result in human exposure somewhere. Finally, given the stakes
involved and the law's traditional respect for personal autonomy, implied consent to touching by potentially
harmful chemicals should rarely be found.") See Toxic battery: A Tort For Our Time? at 132-133.
On harmful or offensive touching, see Quote Lynda M. Collins and Heather McLeod-Kilmurray,
Toxic battery: A Tort For Our Time? at 142-143: ("The present authors would argue that a chemical
exposure is harmful or offensive for the purposes of toxic battery when anyone of the following criteria is
met: • when the exposure causes illness/injury; • when the exposure materially increases risk of illness/injury;
when the chemical at issue is hazardous (even if a material increase in risk cannot be proven); and • when
the chemical at issue has been inadequately tested such that the exposure constitutes experimentation. Where
a plaintiff can prove that the defendant's chemical substance caused her or his illness or injury (as when a
plaintiff is knowingly subjected to arsenic in drinking water and develops clear signs of arsenic
poisoning), the clement of harmful or offensive contact is unproblematic. However. because of the
uncertainty associated with the substances and maladies at issue in toxic torts, very often the most that a
plaintiff can show is that the defendant materially contributed to the plaintiffs risk of developing a particular
illnes (or illnesses). Whether or not the plaintiff has actually suffered injury within the area of risk to which she
was exposed, such exposures clearly constitute a harmful or offensive contact. A touching that has the
potential to cause serious illness or death is, by definition, non-trivial. Again. it would be highly anomalous
for battery to provide protection against (for example) the Cutting of a person's hair while allowing persons to
subject others to contact entailing a material risk of serious illness.").
Page 16 of 98
Professors Collins and McLeod-Kilmurray point out that a chemical exposure
is "harmful or offensive" if it caused or materially increased the risk of injury,
or the chemical at issue is hazardous or has been inadequately tested such that
exposure is in reality an experimentation. '
• A defendant may have the requisite intent without desiring a "harmful or
offensive" contact with a plaintiff. Defendants are imputed to intend any
consequences that are substantially certain to result from their conduct. If a
defendant intends to commit a battery against one person but unintentionally
makes contact with another, the battery is complete under the doctrine of
(b) Plaintiffs may sue in battery though they knew not of the contact at the time.
(c) To recover in battery, a plaintiff need not prove that the contact caused harm.
In toxic battery, they need not prove that the chemical caused a disease. Plaintiffs
can recover upon establishing involuntary chemical exposure. Proving result is not
a part of battery.
(d) Remedies' in battery include nominal, compensatory, and punitive damages.
Because battery is an intentional tort, both special and consequential damages are
available, even where the damage was not foreseeable.
(e) In MacDonald v. Sebastien (Sept. 23',1997), 81 N.S.R. (2d) 189, 43 D.L.R. (4th) 636,
Burchell J. awarded damages to a military family after the defendant failed to
Toxic battery: A Tort For Our Time?, at 142.
Strange Bedfellows, at 10369: ("Remedies for battery include nominal, compensatory, and punitive
damages, and because battery is an intentional tort, both special and consequential damages are available,
even where the damages were not foreseeable. For all of the reasons discussed above, it may be difficult or
impossible for plaintiffs who are already ill to prove that their health problems were caused by the
defendant's chemical. However, Christopher J. McAuliffe suggests that while compensatory damages may
be difficult to prove, evidence of egregious conduct on the part of defendants, and/or serious health damage
on the part of plaintiffs, may lead juries to couple nominal damages with substantial punitive damages
Page 17 of 98
disclose dangerous levels of arsenic in water supplied to premises he leased to
them. Burchell J. found that the arsenic level was " an obvious danger to the health
and safety of the tenants". Burchell J. accepted that "because the defendant
apparently kept silent...his conduct amounted to a deliberate act of battery. ". He
awarded punitive damages because "the defendant's non-disclosure of a serious
toxic risk...manifests a shocking disregard for the health and safety of the
MacDonald family which included a number of very young children. " '
(f) In Werlein v. U.S., 746 F.Supp. 887 (D.Minn. 1990), District Judge Renner
permitted a cause of action in battery to advance in a class action claiming damages
for the increased risk of disease, emotional distress, and medical monitoring, where
various an army ammunition plant allowed discharges of trichloroethylene
("TCE") into the local water supply. A defendant sought summary judgment. The
court held that, for summary judgment motion purposes, there was sufifcient
evidence that defendant knew its conduct was substantially certain to cause an
offensive or harmful contact given that it "disposed of highly toxic substances into
sandy ground directly above a regional aquifer" and that the battery action could
See also Guilden v. Crown Zellerbach Corporation (Nov. 24'",1989), 890 F.2d 195 (9`b Cir. 1989), pp.
196-97: ("A jury could conclude that coming into contact with PCBs at a strength 500 times Environmental
Protection Agency standards-sufifcient to produce a body level of PCBs six-to-ten times higher than normal
and to trigger serious health concerns- constituted an injury. ... Under Oregon law, a jury could conclude
that the intention to injure-in this case, to expose Gulden and Steele to toxic levels of PCB-was deliberate
where the employer had an opportunity to weigh the consequences and to make a conscious choice among
possible courses of action. ... Here, a jury could conclude that Crown Zellerbach made a conscious choice
to injure Gulden and Steele based on the following factors: (1) Crown Zellerbach ordered Gulden's and
Steele's contact with toxic levels of PCBs without any protective clothing; (2) Crown Zellerbach ordered that
contact to continue not for just a short period but for a period of ifve days; (3) during this five-day period,
Crown Zellerbach knew that Gulden's and Steele's clothing was soaked with PCBs; (4) Crown Zellerbach
had been warned that the concentration of PCBs greatly exceeded levels authorized by the Environmental
Protection Agency standards; and (5) Crown Zellerbach assigned the task of cleanup to two temporary
workers unfamiliar with such work rather than contracting with specialists as it had in the past.").
Page 18 of 98
30. Here, Plaintiff pled or could plead facts sufficient to ground a claim for toxic
battery. He was exposed to Agent Orange. That caused or materially increased the
risk of causing illness. That is "harmful or offensive. " Class members may recover
if they show that it was substantially certain that the discharge of Agent Orange would
result in an indirect "hannful or offensive contact" with those reasonably expected to
be in the discharge zone. Though Defendants intended that officers and men would
he exposed to Toxic Areas, under the doctrine of transferred intent, civilians who were
there may similarly recover.
(ii) derivative claims
31. 1155 of the ASOC claims on behalf of relatives under survival of actions and
fatal accidents legislation. Each gives a cause of action. ' Plaintiff asserts that a
single choice of law may apply to all claims, but has alternatively pled each statute.
(iii) honour of the crown
32. 1149-51 of the ASOC pleads the Honour of the Crown, and, in particular, the
"duty to care for soldiers injured or wounded in training or in battle when acting under
orders in Her Majesty's Forces. " Plaintiff asserts that the power to unconditionally
command men in war or in peace carries the concomitant liability to remediate harm
done to those who obeyed commands, whether lawful or not, and to their families.
3° The survival of actions statutes include: Survival ofA ctions Act, R.S.A. 2000, c. S-27, ss. 2, 5(1), 5(2);
The Survival of Actions Act, S.S. 1990, c. S-66.1, ss. 3 and 6(1)-(3); Trustee Act, R.S.O. 1990, c. T.23, s.
38(1); Survival ofA ctions Act, R.S.N.S. 1989, c. 453, ss. 2(1)-(2) and 4; Survival of Actions Act, R.S.N.B.
1973, c. S-18, ss. 2 and 5(1)-(2); Survival ofA ctions Act, R.S.P.E.1. 1988, c. S-11; ss. 2 and 5; Survival of
Actions Act R.S.N.L. 1990, c. S-32, ss. 2 and 4. The fatal injuries statutes include: Family Compensation
Act, R.S.B.C. 1996, c. 126, ss. 2 and 3(8)-(9); ss. 1, 2, and 3(1) of the Fatal Accidents Act, R.S.A. 2000, c.
F-8; The Fatal Accidents Act, R.S.S. 1978, c. F-11, ss. 2, 3(1), and 4(1)-(3); Family Law Act, R.S.O. 1990,
c. F. 3, ss. 61(1)-(2); Fatal Accidents Act, R.S.N.B. 1973, c. F-7, ss. 1-3; Fatal Injuries Act, R.S.N.S. 1989,
c. 163, ss. 2-3 and 5; Fatal Accidents Act, R.S.P.E.I. 1988, c. F-5, ss. 1-2, 6; Fatal Accidents Act, R.S.N.L.
1990, c. F-6, ss. 2-4.
Page 19 of 98
(a) Command of the Canadian Forces can only be exercised to protect the
sovereign, state, and Canadians, and not to abuse or harm ofifcers and men. It
must not be exercised to harm soldiers entrusted in the care and command of those
in authoritative positions within the Canadian Forces.
(b) Command was exercised under a Crown prerogative to grant commissions to
commanding officers. All command was a trust charging the officer to "carefully
and diligently" discharge duties to superiors and subordinates.
(c) The Defendants assured members that their Regiment, the Armed Services, and
the DVA, would see that they and their families would be cared for if a service
related injury or death arose.
33. In Mustapha v. Culligan of Canada Ltd., 2008 SCC 27,  2 S.C.R. 1 14,
McLachlin C.J.C. outlined the elements of an action in negligence:
elements and issues a negligence analysis
element issue rule
3-6 duty of • "...whether the defendant • The Arms test, including
care owed the plaintiff a duty of proximity and stage 2 policy
care" considerations, will not be
• "whether this considered unless the plaintiff
relationship is so close that asserts a novel duty of care
the one may reasonably be rather than an established or
said to owe the other a duty analogous duty'.
to take care not to injure
3.7 standard ... w h e t h e r t h e • "A defendant's conduct is
of care defendants' behaviour negligent if it creates an
breached the standard of unreasonable risk of harm."
Page 20 of 98
elements and issues a negligence analysis
3, 8 damage • "Did the Plaintiff Sustain ...a plaintiff who suffers
Damage?" personal injury will be found to
have suffered damage. Damage
for purposes of this inquiry
includes psychological injury."'
3, 11, causation ... " w h e t h e r t h e • factual: (no standard given in
13-14 defendant's breach caused Mustapha)
the plaintiff's harm in fact
and law" • legal: 'whether personal injury
was foreseeable as a real riskt to
a person of ordinary fortitude'
t Difficulty in identifying the "degree of probability" required comes from interpreting
McLachlin C.J.C.'s intent at $13.32
34. The Supreme Court of Canada has elaborated on each of these elements:
(a) duty: In several recent decisions, the SCC has considered duty of care ". In
' At ¶5 of Mustpaha, McLachlin C.J.C. said: ("In many cases, the relationship between the plaintiff and
the defendant is of a type which has already been judicially recognized as giving rise to a duty of care. In
such cases, precedent determines the question of duty of care and it is unnecessary to undertake a full-fledged
duty of care analysis. As stated by A. M. Linden and B. Feldthusen, categories of relationships that have
been recognized and relationships analogous to such pre-established categories need not be tested by the
Anns formula..."). Previous or recognized categorized are considered in: CNR. v. Norsk Pacific Steamship
Co. (MeLachlin J.), ¶12, 21-22, 25, 33, 42-49, 66, 70-71; CNR. v. Norsk Pacific Steamship Co. (Stevenson
J.), ¶89, 91-94, 96, 103, 108; C.N.R. v. Norsk Pacific Steamship Co. (La Forest J.), ¶131, 160, 161, 200, 202,
203; Winnipeg Condo Corp., 11121; D 'Amato v. Badger, ¶25, 30, 41-43; Bow Valley Husky (McLachlin J.),
¶48, 50; Bow Valley Husky (Iacobucci J.), ¶113; Martel Building Ltd., ¶38, 39, 44, 45; Cooper v. Hobart,
¶21, 23, 31, 36, 39, 41; Design Services Ltd., ¶2, 3, 22, 27, 31-35, 40-45, 66, 67.
At ¶13 of Mustapha, McLachlin C.J.C. wrote: ("Much has been written on how probable or likely a
harm needs to be in order to be considered reasonably foreseeable. The parties raise the question of whether
a reasonably foreseeable harm is one whose occurrence is probable or merely possible. In my view, these
terms are misleading. Any halm which has actually occurred is "possible"; it is therefore clear that
possibility alone does not provide a meaningful standard for the application ofreasonable foreseeability. The
degree of probability that would satisfy the reasonable foreseeability requirement was described in The
Wagon Mound (No. 2) as a "real risk", i.e. "one which would occur to the mind of a reasonable man in the
position of the defendant ... and which he would not brush aside as far-fetched" (Overseas Tankship (U.K.)
Ltd. v. Miller Steamship Co. Pty.,  A.C. 617, at p. 643).").
Riviow Marine Ltd. v. Washington Iron Works,  S.C.R. 1189; Nielson v. Kamloops (City), 
2 S.C.R. 2; B.D.C. Ltd. v. Hofstrand Farms Ltd.,  1 S.C.R. 228; Canadian National Railway Co. v.
Page 21 of 98
Cooper v. Hobart, 2001 SCC 79,  3. S.C.R. 537, McLachlin C.J.C. afifrmed
that, although a rigid test is unnecessary, the two stage A nn.s34 test. which assesses
Stage 1 proximity and the absence of Stage 2 residual policy considerations, is a
useful analytical framework. At Stage 1, Courts may ask:
Is the asserted duty analogous to a previously recognized duty of care?
If not, should the court recognize a new duty of care having regard to
foreseeability, proximity factors and inter panes policy considerations.
If the answer to the first is "no ", and the second "yes, and if a defendant pleads
and establishes an evidentiary basis at trial's for overriding policy considerations36
outside of the relationship between the parties, a Canadian court can nevertheless
Norsk Paciifc Steamship Co.,  1 S.C.R. 1021; Winnipeg Condominium Corporation No. 36 v. Bird
Construction Co., 1 S.C.R. 85; D'Amato v. Badger,  2 S.C.R. 1071; Hercules Managements
Ltd. v. Ernst & Young,  2 S.C.R. 165; Bow Valley Husky (Bermuda) Ltd. v. Saint John Shipbuilding
Ltd..  3 S.C.R. 1210; Martel Building Ltd. v. R., 2000 SCC 60,  2 S.C.R. 860; Cooper v.
Hobart,  3 S.C.R. 537; Edwards v. Law Society of Upper Canada,  3 S.C.R. 562; Odhavji
Estate v. Woodhouse,  3 S.C.R. 263; and Childs v. Desormeaux,  1 S.C.R. 643.
Anns v. Merton London Borough Council,  A.C. 728
The reasonable cause of action analysis under s. 6(1)(a) of The CAA, is determined solely on the
pleading. An evidentiary basis is required with respect to policy considerations at the second stage of
the Anns test. in Childs v. Desormeaux, ¶13: ("The plaintiff bears the ultimate legal burden of establishing
a valid cause of action, and hence a duty of care: Odhavji Estate. However, once the plaintiff establishes a
prima facie duty of care, the evidentiary burden of showing countervailing policy considerations shifts to
the defendant, following the general rule that the party asserting a point should be required to establish it.").
The pleading, with respect to negligence, only need contain sufficient facts to support a finding of
proximity at stage one Anns. Morever, those facts as pled need not establish that a duty of care does
exist, only that there is a possibility, on the plain and obvious standard, that a duty of care may be
established on a full evidentiary record at trial: Hunt v. T&N plc,[19901 2 S.C.R. 959, ¶33.
Stage 2 policy considerations have included: the effect of recognizing a duty of care on other legal
obligations, the legal system, and society more generally; the law already provides a remedy; to recognize
a duty of care would raise the spectre of liability to an indeterminate class of people, for an indeterminate
amount, for an indeterminate time; and with respect to government actors, policy is the prerogative of the
elected legislature, it would be inappropriate for courts to impose liability for the consequences of a
particular policy decision, and it is inappropriate for courts to second-guess elected legislators on policy
matters, keeping in mind that a government actor may be liable in negligence for the manner in which it
executes or carries out the policy.
Page 22 of 98
negate (but not at certiifcation as seen hereafter) the scope of the defendant's duty
or a plaintiff's permissible recovery at Stage 2 Anns . However, a plaintiff need not
plead facts going thereto.'
(b) breach: A defendant must comply with the standard of care of the reasonable
man. In assessing what was reasonable, a Court may consider the probability and
potential severity of injury, the cost of risk avoidance, and social utility. Breach
of statutory and regulatory law is prima facie evidence of negligence. Regulatory
compliance, however, is not a defence. '
(c) harm caused: "Damage" refers to the head of loss for which compensation is
awarded. "Damages" means the amount of money that a tortfeasor must pay for
inlficting various types of damage. Damages compensates all of the heads of
damage and various expenses that were suffered because of tortious conduct.
Purely economic loss is not less worthy 39of protection in Canada. A traditional
Cooper v. Hobart, ¶24-25, 37-39; Exploits Valley Air Services Ltd. v. College of the North Atlantic
(Board of Governors), 2005 NLCA 54, ¶45; Law Society ofNewfoundland and Labrador v. 755165 Ontario
Inc., 2006 NLCA 60, ¶22; Childs v. Desormeaux, ¶13; Chace v. Crane Canada Inc., (1997), 101 B.C.A.C.
32, ¶20, 27; Eaton v. HMS Financial Inc., 2008 ABQB 631,11232-33, 237.
Saskatchewan Wheat Pool v. Canada,  1 S.C.R. 205,1[17; Arland v. Taylor,  O.R. 131,1[29-
Consideration of whether economic loss is less worthy of protection is found in: Rivtow (Ritchie J.),
¶48;C.N.R. v. Norsk Pacific Steamship Co. (McLachlin J.), ¶ 11 and (Stevenson J.) ¶99 ; D 'Amato v. Badger,
¶17; Bow Valley Husky, (McLachlin J.), ¶43; Martel Building Ltd., ¶37, 63. Lord Denning in Candler v.
Crane, Christmas & Co. 119511 2 K.B. 164, at pp. 178-9: ("The second submission of Mr. Foster was that
a duty to take care only arose where the result of a failure to take care will cause physical damage to persons
or property ... I must say, however, that I cannot accept this as a valid distinction. I can understand that in
some cases of financial loss there may not be a sufficiently proximate relationship to give rise to a duty of
care; but, if once that duty exists, I cannot think that liability depends on the nature of the damage.").
McLachlin J. in C.N.R. v. Norsk Pacific Steamship Co., ¶99: ("Some argue that there is a fundamental
distinction between physical damage (personal and property damage) and pure economic loss and that the
latter is less worthy of protection. Professor Feldthusen has attempted to make this argument in Economic
Negligence, supra, at pp. 8-14, but I am left unconvinced. Although I am prepared to recognize that a human
being is more important than property and lost expectations of profit, I fail to see how property and economic
losses can be distinguished.").
Page 23 of 98
bar' against recovery is not part of our law. Post-Arms ,purely economic loss
ranks equally with property damage and personal injury. 41
35. This case is analogous to situations where a duty of care has previously been
recognized.' Canadian courts have found that an occupier owes a duty of care to
invitees. ' Some legislatures have subsumed the law of occupiers within the tort of
negligence. Tort law recognizes the various for ms of sought relief:
(a) personal injury: Permitting the plaintiffs to seek damages for actual
manifested personal injury is uncontroversial. This is a category where the
defendants' acts forseeably caused haiut to the plaintiff. The bulk of
post-Kamloops SCC duty of care expansion has focussed on new categories of
purely economic loss.
° The traditional exclusionary rule was considered in: Rivtow (Ritchie J.) ¶46 51 55; CNR. y Norsk
Pacific Steamship Co. (McLachlin J.), ¶10, 21, 23, 32, 33, 39, 50, 54, 57, 64; CNR. v. Norsk Pacific
Steamship Co. (Stevenson J.), ¶81-88, 96, 101-103, 106, 107, 118; CNR. v. Norsk Paciifc Steamship Co. (La
Forest J.),11131,1 158, 161, 174-77, 179-84, 189, 190, 194, 205, 206, 219, 224, 225, 326, 332, 335, 338;
Winnipeg Condo Corp., ¶28, 31; D 'Amato v. Badger, ¶14, 15, 39; Bow Valley Husky, (McLachlin J.), ¶44;
Martel Building Ltd., ¶36, 37, 40, 41, 44.
Odhavji Estate, ¶44; Karas v. Rowlett,  S.C.R. 1, p. l 0; Cahoon v. Franks,  S.C.R. 455;
Vile v. Von Wendt (1979), 103 D.L.R. (3d) 356 (Ont. Div. Ct.), ¶13, 16.
The duties, as outlined at IP° of the ASOC include: the duty of an occupier to an invitee; the duty to guard
against reasonably forseeable personal injury; misfeasance in public ofifce; duty to warn of the risk of
danger; the duty to inspect real property without negligence; the positive duty to act where a defendant
attracts and invites persons to an inherent and obvious risk that he or she has created or controls; the duty
owed by contractors to subsequent purchasers for the reasonable costs of repaiirng defects that are dangerous
to the health of occupants; paternalistic relationships of supervision and control; the duty of defendants who
exercise a public function that includes implied responsibilities to the public at large.
Gallant v. Roman Catholic Episcopal Corp. for Labrador, 2001 NFCA 22: ("An occupier's duty of care
to a lawful visitor to his or her premises is to take such care as in all the circumstances is reasonable to see
that the visitor will be reasonably safe in using the premises for the purposes for which he or she is invited
or permitted by the occupier to be there or is permitted by law to be there.").
Page 24 of 98
(b) medical surveillance: Canadian and American courts have permitted medical
monitoring to be pursued.
In Ayers v. Jackson Tp., 106 N.J. 557, 525 A.2d 287, 76 A.L.R. 4 ht 571, Stein
J. formulated the following rule:
Accordingly, we hold that the cost of medical surveillance is a compensable item of
damages where the proofs demonstrate, through reliable expert testimony predicated
upon the signiifcance and extent of exposure to chemicals, the toxicity of the chemicals,
the seriousness of the diseases for which individuals are at risk, the relative increase in
the chance of onset of disease in those exposed, and the value of early diagnosis, that
such surveillance to monitor the effect of exposure to toxic chemicals is reasonable and
necessary. ...the medical surveillance claim seeks reimbursement for the specific dollar
costs of periodic examinations that are medically necessary notwithstanding the fact that
the extent of plaintiffs' impaired health is unquantified."
If the existing categories do not apply, and assuming this relief is economic
44 See also Askey v. Occidental Chemical Corp., 477 N.Y.S.2d 242, N.Y.A.D. 4 Dept., (1984): ("...a
plaintiff has a cause of action immediately upon exposure to a foreign substance and can recover all damages
which he can show resulted or "would result therefrom", even though at the time the action is commenced
no serious damage to the plaintiff has developed. The theory of liability grows out of the invasion of the
body by the foreign substance, with the assumption being that the substance acts immediately upon the body
setting in motion the forces which eventually result in disease. ... In order to recover for apprehended
consequences not presently manifest there must be such a degree of probability of their occurrence as to
amount to a reasonable certainty that they will result If a plaintiff seeks future medical expenses as an
element of consequential damage, he must establish with a degree of reasonable medical certainty through
expert testimony that such expenses will be incurred. ... In light of the foregoing, it would appear that
under the proof offered here persons exposed to toxic chemicals emanating from the landfill have an
increased risk of invisible genetic damage and a present cause of action for their injury, and may recover all
"reasonably anticipated" consequential damages. The future expense of medical monitoring, could be a
recoverable damage provided that plaintiffs can establish with a reasonable degree of medical certainty
"reasonably anticipated" to be incurred by reason of their exposure. There is no
that such expenditures are
doubt that such a remedy would permit the early detection and treatment of maladies and that as a matter of
public policy the tort-feasor should bear its cost.") and In Hagerty v. L & L Marine Services, Inc., 788
F.2d 315, the United States Court of Appeals for the Fifth Circuit: ("In addition to any damages for
mental distress, Hagerty correctly asserts that he is entitled to recover for the continuing expense of his
periodic checkups. A plaintiff ordinarily may recover reasonable medical expenses, past and future, which
he incurs as a result of a demonstrated injury. ... Moreover, under the "avoidable consequences rule," he
is required to submit to treatment that is medically advisable; failure to do so may bar future recovery for a
condition he could thereby have alleviated or avoided. ... Hagerty testified that he undergoes the checkups
at the advice of his physician to ensure early detection and treatment of a possible cancerous condition. We
agree that the reasonable cost of those checkups may be included in a damage award to the extent that, in the
past, they were medically advisable and, in the future, will probably remain so.").
Page 25 of 98
loss, a trial judge could be persuaded to create a new category of recoverable
loss from 'exposure to areas of unreasonable toxicity'.
The claim is authentic. Risk of injury is real and substantial. A defendant
may take reasonable care to avoid creating the risk. Absent such reasonable
care, the Plaintiffs can take reasonably inexpensive means to mitigate or reduce
the real and substantial risk. Existing precedent permits recovery for this type
of remedy knowing of increased risk matters. Just as a doctor might investigate
increased risk of heart failure or glaucoma and take corrective action, so too
here, health can be largely restored for those with conditions caused by body
burdens of toxic chemicals.
Plaintiff's sought relief is analogous to the costs of repairing defects and
' The policy, based on
putting a building back into a non-dangerous state.
Laskin J. dissent in Rivtow', is even more compelling where the real and
substantial risk is of personal injury. The Bird Construction category extends
to recovery of the cost of repairing dangerous chattels. It should a fortiori
apply to the cost of detection and detoxification.
45 Winnipeg Condo. Corp., 1143: ("Where negligence is established and such defects manifest themselves
before any damage to persons or property occurs, they should, in my view, be liable for the reasonable cost
of repairing the defects and putting the building back into a non-dangerous state.").
In Rivtow, Laskin J. (dissenting), ¶61,64: ("Should it then be any less liable for the direct economic loss
to the appellant resulting from the faulty crane merely because the likelihood of physical harm, either by way
of personal injury to a third person or property damage to the appellant, was averted by the withdrawal of
the crane from service so that it could be repaired? ... It seems to me that the rationale of manufacturers'
liability for negligence should equally support such recovery in the case where, as here, there is a threat of
physical harm and the plaintiff is in the class of those who are foreseeably so threatened: see Fleming, Law
of Torts, 4th ed., 1971, pp. 164-5, 444-5.") Laskin J.'s dissent in Rivtow was considered in: C.N.R. v.
Norsk Pacific Steamship Co. (MeLachiin J.), ¶29, 67, (Stevenson J.), ¶94-97, (La Forest J.), ¶188, 192, 197.
Page 26 of 98
(c) fear of cancer: The claim has an air of reality.'
There is precedent for recovery. Potter v. Firestone Tire & Rubber Co., 6
Ca1.4th 965, 863 P.2d 79548 is authority that those who do not yet manifest
illness may presently recover damages for fear of cancer from toxic exposure.
Pearson v. Inco Ltd. (Dec. 14th, 2001), 42 C.E.L.R. (N.S.) 273 (Ont. Sup. Ct.)
is authority that those who have not yet manifested disease can with "worry and
concern" ride the claims of those who have. '
Mustapha increased defendants' scope of liability. Before Mustapha, some
courts doubted that mental injury was compensable personal injury, and were
split on whether stress, worry, and anxiety were compensable. Mustapha says
they are, if reasonably foreseeable to the "person of ordinary fortitude" and if
they rise above ordinary societal levels.
9 • "psychological disturbance that • "psychological upset'
rises to the level of personal • upset, disgust, anxiety, agitation or
injuyr" other mental states that fall short of
Mr. Thibodeau received a medical opinion that his cancer will return. Given the defoliant related illnesses
in his family, Mr. Wield fears contracting cancer related to his exposure. [AODT: 1124-25; AOSW:1120].
In Potter v. Firestone Tire & Rubber Co., 863 P.2d 795: ("To summarize, we hold with respect to
negligent infliction of emotional distress claims arising out of exposure to carcinogens and/or other toxic
substances: Unless an express exception to this general rule is recognized: in the absence of a present
physical injury or illness, damages for fear of cancer may be recovered only if the plaintiff pleads and proves
that (1) as a result of the defendant's negligent breach of a duty owed to the plaintiff, the plaintiff is exposed
to a toxic substance which threatens cancer; and (2) the plaintiffs fear stems from a knowledge, corroborated
by reliable medical or scientific opinion, that it is more likely than not that the plaintiff will develop the
cancer in the future due to the toxic exposure.").
Pearson v. Theo Ltd. (Dec. 14ht, 2001), 42 C.E.L.R. (N.S.) 273 (Ont. Sup. Ct.) (Nordheimer J.). ¶11:
("The difficulty here is that we are dealing with a proposed class action. It is possible in any class action that
some members of the class will have sustained damage, that others will only sustain damage at a point of
time in the future and still others may not sustain any physical damage but may have the worry and concern
that they will and therefore have mental damage claims. I consider therefore in the context of a proposed
class action, it is peonissible to allege the prospect of future loss by members of the proposed class as long
as it is also pleaded that some members of the proposed class have already suffered actual loss.").
Page 27 of 98
compensable non-eompensable i
"serious trauma or illness" injury"
"serious and prolonged and rise • "the ordinary annoyances, anxieties
above the ordinayr annoyances, and fears that people living in society
anxieties and fears that people routinely, if sometimes reluctantly,
living in society routinely, if accept
sometimes reluctantly, accept" "minor and transient upsets"
In Bywater, class member reactions were assessed at the common issues trial.
Here. Plaintiff can retain experts and introduce an appropriate factual
underpinning based on class member testimony. At this stage, the Court should
not predict what the s. 16(1) judge will find. Whether the class can
collectively claim relief on an aggregate basis will here be a battle of experts.
A "person of ordinary fortitude" is an objective standard that can be measured
through expert testimony without hearing from all class members.' A factor
against recovery in Mustapha was that the plaintiff had a chance to introduce
expert evidence as to how a "person of ordinary fortitude" would react.
5' Forexample, on one hand, in Donoghue, where the plaintiff found a snail in a root beer float, she could
pursue her claim for nervous shock. On the other hand, in Mustapha, where the plaintiff found l 'A lfies in
his water, after a full trial, ultimate recovery was denied. Recovery would seem more likely in Mustapaha
than in Donoghue -- ordinary people eat snails everyday, but not flies. Collectively, these cases recognize
that courts will give plaintiffs their "day in court" to prove their case.
5'In Anderson v. Wilson (1999), 44 O.R. (3d) 673 (C.A.): ("In addition, the nature of the overall claim
lends itself to aggregate treatment because individual reactions to the notices would likely be similar in each
case - fear of a serious infection and anxiety during the waiting period for a test result. If evidence from
patients to support such reactions to the notices is necessary, it would probably sufifce to hear from a few
typical claimants.") Donald J.A. adopted Anderson v. Wilson, supra in Fakhri v. Wild Oats Markets
Canada, Inc., 2004 BCCA 549, 34 B.C.L.R. (4ht) 201 and continued at 1116: ("The appellant argues that
in order to prove mental shock, each individual claimant will have to establish a diagnosis of a recognized
psychiatric illness. With respect, I do not think it can be said with finality that only psychiatric disorders are
compensable when the facts of the present case are considered. ... Here the claimants were directly affected
by the announcement that they were at risk of having contracted HAV. They suffered a physical disturbance
when immunized due to the alleged carelessness of the appellant. I do not presume to decide these matters,
I simply raise them to indicate that it is by no means certain that the claimants will be put to individual proof
of psychiatric illness.").
Page 28 of 98
• Mustapha in other ways supports certification. It reminds Courts that legal
causation (remoteness) is an element of a tort action. Given the objective
"person of ordinary fortitude", Mustapha gives rise to a new common issue that
does not require evidence from all class members. Reasonable foresight is the
same at both the duty of care and legal causation stages. There is added
economy and benefit to establishing what the Plaintiffs currently propose as
common issues #3 and #5.
36. The Anns analysis should therefore go no further at this stage.
37. Even if a new duty had to be established at trial, it could be. Several proximity
factors are present: The ASOC pleads various statutory and non-statutory proximity
factors including foreseeable harm, reasonable expectations and reliance,
representations, undertakings, control, and creation and invitation to an area of risk.
38. With respect to the second stage of the Anns analysis:
(a) Defendants have an onus to establish residual policy considerations. That can
be done with an evidentiary record at trial, but not on the pleadings. 52
52 In Childs v. Desormeaux, ¶13: ("The plaintiff bears the ultimate legal burden of establishing a valid
cause of action, and hence a duty of care: Odhavji. However, once the plaintiff establishes a prima facie duty
of care, the evidentiary burden of showing countervailing policy considerations shifts to the defendant,
following the general rule that the party asserting a point should be required to establish it."). Exploits
Valley Air Services Ltd., ¶45: ("As well, it could be argued that for cases where the expansion of negligence
law is at issue and the Anns/Cooper test must be applied, it is preferable to await the presentation of the
plaintiff's case because, as discussed above, the determination of duty of care requires an evidentiary base.").
Law Society ofNewfoundland and Labrador v. 755165 Ontario Inc., 2006 NLCA 60, 260 Nfld. & P.E.I.R.
222, ¶22: (".... Like the Trial Division judge, I believe that the issue of whether there is a duty of care in
this case would benefit from an analysis by the Trial Judge who would have all of the facts and any evidence
the defendant wished to submit on the second part of the Anns test, if that were necessary."). In Haskett v.
Equifax Canada Inc. (2003), 63 O.R. (3d) 577 (Ont. C.A.), ¶52: (" ... A court should be reluctant to
dismiss a claim as disclosing no reasonable cause of action based on policy reasons at the motion stage
before there is a record on which a court can analyze the strengths and weaknesses of the policy
Page 29 of 98
Here, 1156 of the ASOC says Defendants bear an evidentiary burden of
showing policy considerations. Plaintiff need not plead their absence.
Plaintiff has a right to prove his case and fully answer any Stage 2 Anns
concerns that Defendants may plead and with evidence genuinely put into issue
in an unspeculative manner. For example, the Court cannot at this stage fairly
assess whether descendant claims are too remote, until it finds as fact what
Defendants knew about inter-generational health risks. Plaintiff proposes that
type of fact finding as part of common issue 112.
Plaintiff should not now be burdened with combing the case reports through
time and geography. "Apparently authentic or genuine" is a low threshold.
Hofstrand and Bow Valley Husky involved full trials before Courts undertook
detailed duty of care analysis. The C.N.R. v. Norsk Pacific Steamship Co. trial
lasted 11/4 months. There were 40 days of discovery before the defendant
moved for summary judgement in Hercules Management Ltd. "
(b) Stage 2 will rarely be considered because the duty of care in the pleadings will
usually fall within established and analogous categories of recovery. '
" La Forest J. described the evidentiary basis in Hercules Management Ltd., ¶4: ("After a series of
amendments to the initial statement of claim, over 40 days of discovery, and numerous pre-trial conferences
and case management sessions, the respondents brought a motion for summary judgment in the Manitoba
Court of Queen's Bench seeking to have the plaintiffs' claims dismissed. The grounds for the motion were
(a) that there was no contract between the plaintiffs and the respondents; (b) that the respondents did not owe
the individual plaintiffs any duty of care in totr; and (c) that the claims asserted by the plaintiffs could onl y
properly be brought by the corporations themselves and not by the shareholders individually.").
" In Cooper v. Hobart, ¶39: ("The second step of Anns generally arises only in cases where the duty of care
asserted does not fall within a recognized category of recovery. Where it does, we may be satisfied that there
are no overriding policy considerations that would negative the duty of care. In this sense, I agree with the
Privy Council in Yuen Kun Y eu that the second stage of Anns will seldom arise and that questions of liability
will be determined primarily by reference to established and analogous categories of recovery.").
Page 30 of 98
(c) In Newfoundland, the Attorney General of Canada pled that the decision to
open CFB Gagetown was a policy decision, but acknowledges that the decision to
use chemical defoliants was an operation decision. jAOLS#1: Ex. L 1771, 78, 88]
39. The second element of an action in negligence is breach of duty. At 1158-7l of
the ASOC, Plaintiff asserts that Defendants owed and breached an elevated duty:
(a) Plaintiff frames the operational breach as breach of a duty to take reasonable
care to keep a non-toxic work and recreational environment and to take reasonable
precautions to negate or mitigate incidental toxicity.
(b) When they began using defoliants at CFB Gagetown, Defendants knew that
2,4-D, 2,4,5-T, and picloram were inherently dangerous and could cause disease.
They affirmatively breached the duty by creating a training area that posed an
unreasonable risk of causing injury in those who entered therein.
(v) occupier's liability
40. The ASOC sustains an authentic claim in occupier's liability:
(a) In Indermaur v. Dames (1866), L.R. 1 C.P. 274 55, Willes J. affirmed that a
visitor of an occupier's land is "entitled to expect that the occupier shall on his part
use reasonable care to prevent damage from unusual danger which he knows or
ought to know"
(b) S. 3(b)(ii) of the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50,
s. 23 imposes liability on "the Crown" for damages for which, if it were a person,
it would be liable as a result of a breach of duty attaching to property occupation.
' Indermaur v. Dames (1866), L.R. 1 C.P. 274: ("What then is the duty imposed by law on the owner of
these premises? the occupier shall on his part use reasonable care to prevent damage from unusual
danger which he knows or ought to know.").
Page 31 of 98
(c) In Dumoulin v. Ontario, 50 C.P.C. (5 ht ) 392, 71 O.R. (3d) 556. Culliyt J.
pe _ iinitted a claim in occupier's liability to advance. The plaintiffs asserted that the
class was exposed to toxic substances in a courthouse. The government was
alleged to have owned the premises. The wrongdoing alleged included:
allowing the building to be in a condition in which noxious substances
proliferated, when they knew it would result from construction;
failing to properly inspect and maintain the building to prevent such
failing to take remedial steps to remove the noxious substances; and
failing to warn those whoe entered the courthouse and to take reasonable steps
to ensure their safety.
The government moved to strike the claim vis a vis the existence of s. 2(2)(b) of
the Proceedings Against the Crown Act, R.S.O. 1990, c. P. 27 56. Cullity J. held that
the s. 2(2)(b) would not justify striking a claim framed in occupier's liability even
if applied to a case in negligence.
(d) Indermaur v. Dames does not require the existence of a duty of care and, in
particular, the absence of Stage 2 policy considerations. Anyway, Canadian courts
have recognized the duty of care between an occupier and an invitee as a
previously recognized category of proximity. If, for any reason, proximity were
found not to exist or Stage 2 Anns considerations prevailed after the full
evidentiary record were established, the majority of the class would still advance
a claim in occupier's liability.
56The Proceedings Against the Crown Act, R.S.O. 1990, c. P. 27 provided: ("2(2): Nothing in this Act...
(b) subjects the Crown to a proceeding under this Act in respect of a cause of action that is enforceable
against a corporation or other agency of the Crown;....").
Page 32 of 98
41. Here, the ASOC pleads that Defendants occupied CFB Gagetown and that
Brooks was an invitee who used reasonable care for his own safety. On the basis of
Indermaur v. Dames, each class member could succeed if they establish that CFB
Gaetown, or areas upon which they entered, constituted an "unusual danger" which
was "more or less hidden" and that Defendants did not use reasonable care to prevent
harm from dangers of which they knew. Each of these elements is pled.
42. Statutory law will not critically affect certifying this cause of action:
(a) Choice of law will here be " thonry", but New Brunswick law may apply to this
claim if the court applies the "place of acting" theory and trial evidence indicates
that the acts occurred in New Brunswick rather than Ontario, notwithstanding that
the operation decision to use Agent Orange may have been directed from Ontario
and the actual spraying occurred on federal land and is affected by federal Military
Law, and if the court decides not to apply the "place of halm" theory.' But
Plaintiff may sue in the Saskatchewan Court of Queen's Bench whether New
Brunswick law applies or not.
(b) S. 2(1) of the Law Reform Act, S.N.B. 1993, c. L-1.2 ("LRA") abolished the law
of occupier's liability in New Brunswick, but only with respect to causes of action
that occurred after its proclamation on June I', 1994. Claims after that period may
be dete _ imined under the law of negligence with limited subclassing, if required.
Tolofson v. Jensen, [19941 3 S.C.R. 1022, ¶43: ("From the general principle that a state has exclusive
jurisdiction within its own territories and that other states must under principles of comity respect the
exercise of its jurisdiction within its own territory, it seems axiomatic to me that, at least as a general rule,
the law to be applied in torts is the law of the place where the activity occurred, i.e., the lex loci delicti.
There are situations, of course, notably where an act occurs in one place but the consequences are directly
felt elsewhere, when the issue of where the tort takes place itself raises thorny issues. In such a case, it
may well be that the consequences would be held to constitute the wrong. Difficulties may also arise where
the wrong directly arises out of some transnational or interprovincial activityThere territorial
considerations may become muted; they may conflict and other considerations may play a determining
Page 33 of 98
(c) Brooks pled that his claim arose before the LRA came in play. New Brunswick
trial level decisions before the LRA came into force consistently applied Inderrnaur
v. Dames.' Since the LRA does not retroactively affect vested litigation rights, so
his claim survives.
(vi) statutory defences
A plaintiff need not anticipate potential defences. At 118] of the A SOC,
Plaintiff asserts that ss. 8 and 9 of the Crown Liability and Proceedings Act, R.S.C.
1985, c. C-50 and the Pension Act, R.S.C. 1985. c. 22 (2nd Supp.), s. 28; 2000, c. 34,
s. 42 do not apply, retroactively operate, or affect vested litigation rights acquired
between 1940 and 1976. Defendants had not pled that any of these apply. A contrary
pleading could give rise to a common issue. °
Corcoran v. Ward,(1990), 108 N.B.R. (2d) 279; Savoie v. K-Mart Canada Ltd.,(1990), 110 N.B.R. (2d)
388; Francis v. IPCF Properties Inc., (1993), 136 N.B.R. (2d) 215; Stephens V. Fanjoy, (1995), 167
N.B.R. (2d) 198; and Wilkins v. Ryder, (1995), 165 N.B.R. (2d) 43; (1995).
Hunt v. I & N plc, 119901 2 S.C.R. 959 (Wilson J.), ¶24: ("Neither the length and complexity of the
issues of law and fact that might have to be addressed nor the potential for the defendant to present a strong
defence should prevent a plaintiff from proceeding with his or her case."). As stated by Lord Pearson in
Drummond-Jackson v. British Medical Association, 119701 1 All E.R. 1094 (C.A.): ("It is not permissible
to anticipate the defence or defences – possibly some very strong ones which the defendants may plead and
be able to prove at the trial, nor anything which the plaintiff may plead in reply and seek to rely on at the
In Sauer v. Canada (Attorney General) (2008), 169 A.C.W.S. (3d) 27, at ¶38, 41, 53, and 54, the
following was found to be a common issue: ("Does section 9 of the Crown Liability and Proceedings Act
bar the Class Members' claims against the federal government of Canada?").
Page 34 of 98
(2) identifiable class
44. S. 6(1)(b) calls for an identiifable class of two or more persons. '
(a) Only two are required, but the number of class members may be a common
issue. ' Names of all class members need not now or ever be known. It needs to
be an identifiable class – not a number of individuals who are identified as being
in the class.
(b) The purpose of a deifnition is to determine who should be notiifed that, unless
they opt-out, they have a potential claim, will be bound by a s. 27 order" ,and are
entitled to share in granted relief. " The goal of s. 6(1)(b) is who to notify, not how.
Dutton, ¶38, 52; Hollick (Oct. 18t , 2001), Sorotski v. CNH Global N. V., 2007 SKCA 104, 304 Sask.
R. 83, ¶40; L.T. v. Alberta (Feb. 8'. 2006), ¶62-68.
' Bywater v. Toronto Transit Commission (June 15"), 2001 CarswellOnt 2174 (Ont. Sup. Ct.) (Ground
J.), ¶6: ("Accordingly, in my view, the issues upon which findings of fact may be made at this trial are as
follows: 1. The number of passengers on eastbound train #52 when it entered Donlands station, the number
of passengers on westbound train #76 when it arrived at Greenwood station and the number of passengers
who exited the Donlands station via the tunnel to Pape station.").
SS. 27 and 28(1) of The CAA state: ("27 An order made respecting a judgment on common issues of a
class or subclass must.... 28(1) A judgment on common issues of a class or subclass binds every member
of the class or subclass, as the case may be, who has not opted out of the class action, but only to the extent
that the judgment determines common issues that: (a) are set out in the certiifcation order; (b) relate to claims
described in the certiifcation order; and (c) relate to relief sought by the class or subclass as stated in the
Bywater v. Toronto Transit Commission (Dec. 2",1998), 27 C.P.C. (4[6)172, (Gen. Div.) (Winkler J.),
¶10: ("The purpose of the class definition is threefold: a) it identifies those persons who have a potential
claim for relief against the defendant; b) it defines the parameters of the lawsuit so as to identify those
persons who are bound by its result; and lastly, c) it describes who is entitled to notice pursuant to the Act.
Thus for the mutual beneift of the plaintiff and the defendant the class deifnition ought not to be unduly
narrow nor unduly broad.").
Page 35 of 98
A s. 10(1) order 65 is distinct from a s. 21(3) order" Ss. 21(4) 6 7 , 22(1) 6 8 , and
25( 069 arenot part of s. 6(1)(b). Content and means of giving notice are not part
of s. 10(1) orders. '
(c) The definition should pelinit objective claims to membership. It should
contain "stated, objective criteria" by which members can self-identify and:
which is rationally connected to the common issues; and
which does not depend on the litigation outcome ("merits" criteria is not
fatal, has been adversely considered, and can with "claims limiters" be met).
(d) "Cause of action" is not part of "identifiable class". Class members do not
have to establish that the defendants harmed them as a prerequisite to membership.
Indeed, almost every acceptable class definition will include those who will not
ultimately have a successful claim against any defendant ?' Plaintiffs do not now
6510(1): ("A certification order must..").
66 S. 21(3): ("The court shall make an order setting out when and by what means notice is to be given...").
' S. 21(4): ("The court may order that notice be given by...").
68 S. 22(1): ("Unless the court orders otherwise, notice pursuant to this Part must: (a) describe
69 S.25(1): ("A notice pursuant to this Part must be approved by the court before it is given.").
7°In McCutcheon v. Cash Store Inc. (May 1016, 2006), 80 O.R. (3d) 644 (Ont. Sup. Ct.), Cullity J. at
1159: ("The issues relating to adequate representation and notice are likewise not considered to bear only on
the circumstances in which a court might properly decline to exercise a jurisdiction that has been found to
exist. ... The appropriate notice to be given to class members is usually considered if and when the
requirements for certification have been found to be satisfied.").
' I In Heward v. Eli Lilly & Co. (2007), 39 C.P.C. (6 11)) 153,1168, 69: (" ... Counsel submitted that all other
members of the class — including persons who suffered from such illnesses prior to taking the drug — will
have no claim against the defendants and that "an overly-broad class is one that includes members who have
no claim ". In my opinion this submission is itself overly-broad and is not supported by the authorities. ...
I rejected a similar submission in Ragoonanan v. Imperial Tobacco Inc., (2005), 78 O.R. (3d) 98 (S.C.J.).
I will not repeat what I said in that case except to emphasize that (1) whenever, because of the existence of
individual issues, a judgment on the common issues in favour of the plaintiffs will not determine a
defendant's liability, it will always be possible — and invariably likely — that an acceptable class will include
persons who will not have valid claims...") In Sorotski, supra, ¶44: ("Counsel for Case nonetheless
Page 36 of 98
have to prove that all claimants probably suffered harm.
(e) An underinclusive class is pet _ missible. There is no perfect class. '
(f) Although primarily a question ofpreferability, that different circumstances exist
amongst different class members does not prelude certification. The SCC certified
Dutton notwithstanding a long list of "differentialities" 73
45. In Heward v. Eli Lilly & Co.(Feb. 6 th, 2007), 39 C.P.C. (6th) 153 (Ont. Sup.
Ct.), Cullity J. emphasized the supremecy of the certification order vis a vis the usual
suggested that the class identification in the Statement of Claim was deifcient because, in Case's opinion,
the cracking, shredding and fraying of the tracks is essentially cosmetic and a plaintiff would need to prove
some sort of loss to bring himself or herself within the class. In my view, this objection confuses the issue
of whether the class is identifiable, within the meaning of s. 6(b), with the issue of whether any particular
class member will ultimately be in a position to establish an entitlement to damages. This is significant
because the Act does not require a class to be identiifed in such a way that every class member will, by
definition, be entitled to damages if the common issues are resolved against the defendant."). In Tiboni v.
Merck Frosst Canada Ltd. (2008), 295 D.L.R. (4th)32, ¶78: ("For essentially the same reasons as those
provided by Winkler J. in Attis, I cannot accept the submission of Merck's counsel that the plaintiffs have
the burden of establishing by evidence that all members of the class are likely to have causes of action against
the defendants, if this means that all will probably have suffered harm. In any class action involving claims
in tort for personal injury, or economic loss, it is possible that the claims of some class members will be
unsuccessful. This is virtually ordained by the authorities that preclude merits-based class definitions. As
the Chief Justice recognised in Hollick, a minimum evidential basis must be provided for the existence of
class members' claims that raise common issues, but this falls far short of the proposition that the plaintiffs
must establish on a balance of probabilities that all class members have claims that are likely to succeed,
or that they have suffered harm. In Hollick, the court found that the necessary minimum evidentiary burden
had been discharged when the plaintiff provided evidence that complaints of harm had been received from
950 of the approximately 30,000 members of the putative class.").
Windsor (Sept. 25", 2007), ¶24: ("While it is desirable to have as many of the potential claimants in the
class as possible, the law does not require perfection, so long as the class is identiifable").
In Dutton, ¶54: ("The defendants' contention that there are multiple classes of plaintiffs is
unconvincing. No doubt, differences exist. Different investors invested at different times, in different
jurisdictions, on the basis of different offering memoranda, through different agents, in different series of
debentures, and learned about the underlying events through different disclosure documents. Some
investors may possess rescissionary rights that others do not. The fact remains, however, that the investors
raise essentially the same claims requiring resolution of the same facts. While it may eventually emerge that
different subgroups of investors have different rights against the defendants, this possibility does not
necessarily defeat the investors' right to proceed as a class. If material differences emerge, the court can
deal with them when the time comes.").
Page 37 of 98
practice of proposing various changes to the class definition before, at, and after
certification – from the pleadings stage to the entry of the order. ' A deifnition may
even change on appeal or during the post-certiifcation case management process.
Here, the Amended Notice of Motion for Certification proposes:
All individuals who were at CFB Gagetown between 1956 and the expiry of the Opt-Out
Period and their parents, siblings, and descendants, except those who:
(a) reside in a province where another Court has issued Another Certiifcation Order and
have not opted out in the time and mariner described therein; and
(b) do not reside in a province where another Court has issued Another Certification
Order but opt-in in the time and manner described therein.
46. This currently proposed definition satisifes s. 6(1)(b) of The CAA.
(a) two or more
47. There is an evidentiary basis that two or more persons meet the criteria.
(a) In the class period, 445,255 were exposed to CFB Gagetown. [AOKE: 11231
(b) The ex gratia payment inappropriately only dealt with parts of two years of the
proposed class period and proposed highly restrictive criteria for minimal payment.
The program was ludicrous and, moreover, though the ex gratia payment program
was only designed for 4,500 (because half had already died by the arbitrary
February 6 th, 2006 death date), the Fact Finder's Report indicates that, in the
summers of 1966 and 1967, at least 7000 in the Regular Forces were stationed, 358
civilians were employed, and 806 family members were housed at CFB Gagetown.
AOKD: Ex. C, 122]
(c) By Dec. 1', 2008, 3,077 had contacted or retained MLG from across Canada.
'4 In Heward v. Eli Lilly & Co.(Feb. 6th, 2007), Civility J., at ¶11: ("The task of defining the class
appropriately is often a lfuid exercise in fine tuning. Where, as is usually the case, a definition is contained
in the pleading, it is quite commonly not identical to that proposed in the notice of motion to certify the
proceeding. The latter will often be disputed by defendant's counsel at the hearing, and the exact description
of the class will remain uncertain until the successful conclusion of the motion when, pursuant to section 8
of the CPA, the class definition is to be included in the order of the court. It is that definition, and not any
different definition, or description, in the pleadings, that will be applicable as the proceedings continue.").
Page 38 of 98
(d) Kenneth Dobbie described various class members who died from TCDD
associated diseases. AOKD: Ex. A. 1133-44]
(e) The class includes derivative family claimants.
Military Children, or "aimy brats", as numerous as those who served in a
military capacity, were exposed in a recreational capacity. [AOLSV: 122-23]
Ellis Charles McLaughlin died from Multiple Myeloma. So did his son
Walter. Ellis' daughter, and Walter' sister, Lynn, expects to have multiple
sclerosis. Other siblings, Eric, Doris, and Patricia, have skin cancer and
fertility problems. Ellis' granddaughter and Eric's daughter, has Reye's
Syndrome, a rare but fatal disease. [AOLSV: 113-13, 17, 18]
Steve Weild, a Regina resident and employee of the U of R, had a defoliant
related illness as did a grandparent, parent, and child. [AOSW:157, 10-11, 14-19].
48. Given that the class is comprised of those who were at CFB Gagetown and
their relatives and descendants, Pharmacia is incorrect at ¶7 of its Brief of Law to say
that the proposed class is 445,255. It is bigger. Crawford acknowledges that. But the
size of the class is significantly reduced by the number of class member deaths and
where applicable survival of actions legislation does not extend the suit. Each day,
class members die. [AOKE: 1123-24]
49. The purpose of a definition – to identify those entitled to notice and to be
informed of the right to opt-out of a potential claim – would be satisfied by the criteria
proposed. Though the criteria are to allow members to self-identify, Defendants can
objectively verify most of those who were at CFB Gagetown due to the reliable
military records it kept. Class members who see the published notice can determine
whether they were at CFB Gagetown or related to one who was.
Page 39 of 98
50. Though the purpose of the criteria is to determine who gets notice, adequacy
of notice is not part of the test. Plaintiff applies under s. 21(3) for an order approving
a s. 21(1) notice containing s. 22(1) contents that meets the s. 25(1) standard. Other
cases have done that post-certification. Here, Plaintiff proposes that Defendants give
notice. From their pensions and ex gratia dealings with class members, they have
contact information for many class members.
(c) stated objective criteria
51 The proposed criteria bears a rational relationship to the claims and common
issues. Plaintiff asserts that everyone who was at CFB Gagetown was subjected to
an unreasonable risk, and that exposure can cause genetic harm to descendants. They
all therefore have a 'colourable claim' for medical monitoring and testing.
52. A claimant who was at CFB Gagetown for one day has the same claim of he
who was there each year. Both assert that any presence for any time put them at an
unreasonable risk of developing cancers with long latency periods. Descendants share
the fact that each is related to someone who was present at CFB Gagetown and may
therefore have a statutory right to relief, depending on applicable law as determined
at the individual issues stage.
53. The criteria need not be limited by limitations.
75 Here, they have not been. If they later
(a) Limitations must be pled in a defence.
are, Plaintiff intends to rely on discoverability.
75 Limitation periods must be pled and proved. They may not be dealt with on a motion to strike unless a
plaintiff consents to a disposition in that manner. A limitation is a defence, either to be raised as a stated case
or at trial: HMG Music Canada Inc. v. Vogiatzakis (1996). 67 C.P.R. (3d) 27, ¶33; Harris v. Canada
(Attorney General), 2004 FC 1051, 34 C.P.R. (4') 367, ¶6, Hasenfratz v. Canada, 2001 SKQB 381, ¶2,
Halushka v. Canada (Attorney General), 2003 ABCA 262, 111.
Page 40 of 98
(b) Limitation periods are substantive law. Assuming that the tort occurred in New
Brunswick, New Brunswick law applies and a 6 year limitation govenrs '. If the
causes of action, having arisen on a federal military base, did not arise in a
province, the Crown Liability and Proceedings Act, R.S. , 1985, c. C-50, s. 32;
1990, c. 8, s. 31 also provides for a 6 year limitation. '
(c) Some individuals expect to develop a defoliant related cancer with a long
latency period, but have not yet shown symptoms. Their cause of action has not
fully arisen for all legally compensable damage. At present, they can enjoy any
relief to which they are now entitled and later claim for future manifested disease.
(d) 180 of the ASOC pleads that the "facts disclosing a cause of action against the
Defendants were not known until 2005. " A conclusive limitations detemtination
cannot be made at certiifcation because determining whether an individuals' claim
will succeed is a merits issue."
(e) Whether limitations bar recovery by class members can be determined by way
of an individual issues inquiry.' It may also be a common issue. '
76 S. 9 of the Limitation of Actions Act, R.S.N.B. 1973, c. L-8.
77 Crown Liability and Proceedings Act, R.S., 1985, c. C-50: ("32. Except as otherwise provided in this Act
or in any other Act of Parliament, 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 six years after the cause of action arose.").
78Ring v. Canada (Attorney General) (Aug. 1st), 2007 NLTD 146, ¶123: (". .If a limitation defence is
pursued, this will be tested at trial. For the purposes of certification, I must accept as true the allegations set
out in paragraphs 81 to 84 and, on the basis of the discoverability principle, the limitation period for all class
members would run from 2005.").
79 In Cloud (Dec. 3rd, 2004), ¶61: ("As with other individual issues, the existence of limitations defences
does not negate a finding that there are common issues."). Windsor (May 17th, 2006), ¶93: ("The limitations
issues can be determined after the common trial...").
80 Pauschev. British Columbia Hydro & Power Authority (Oct. 24th), 2000 BCSC 1556, ¶38; Harrington
v. Dow Corning Corporation (Nov. 81h), 2000 BCCA 605, 1164; Brogaard v. Canada (Attorney General)
Page 41 of 98
54. The proposed class will include all those who were at CFB Gagetown or related
to someone who was, whether they were resident in Canada or not. Foreign military
units, including from the U.S.A. and England were also at the base. But the objective
criteria need not reference residency. IAOER: 1j29: [AOKE:',(22J
(a) The CAA does not require it. The Court may certify a multi-jurisdictional opt-
out class action without dividing the class based on residency.
(b) Jurisdiction simpliciter is not an express part of s. 6(1)(b). The Court should
not import jurisdiction simpliciter into "identifiable class" The CAA does not
confer territorial jurisdiction on this Honourable Court. The common law,
including Morguard and Hunt do.
(c) There is an inconsistency in Pharmacia 's position at ¶4 and 74 on the one hand
and ¶12 on the other. ' At ¶12, it rightfully acknowledges that jurisdiction is not
a part of s. 6(1). But its primary request, at ¶4 and 74, is that the class definition
exclude those who do not have a real and substantial connection to Saskatchewan.
At ¶4, unless Pharmacia is proposing that persons could unilaterally elect to
opt-out of the constitution, in acknowledging that parties may attorn to a
jurisdiction, it rightfully concedes that "real and substantial connection" is not
required in a case of attornment, on a constitutional basis or otherwise. In Muscutt
(2002), 60 O.R. (3d) 20, Sharpe 1.A. observed that attornment based jurisdiction
would ground jurisdiction without resort to "real and substantial connection" test.
(July 31"), 2002 BCSC 1149,11148.
Morguard Investments Ltd. v. De Savoye , 3 S.C.R. 1077; Hunt v. T & N plc, 4 S.C.R. 289.
At ¶4, 12, and 74, Pharmaica says: ("4. Pharmacia therefore seeks a direction from the court that any
class ultimately certified in this case will exclude non-residents of Saskatchewan unless they expressly attonr
to the jurisdiction of Saskatchewan as there is no real and substantial connection with the forum. 12. ...[s.
6(1)] criteria...do not address jurisdiction. 74. Pharmacia therefore seeks a direction from the court that any
class ultimately certiifed in this case will exclude non-residents of Saskatchewan unless they expressly attonr
to the jurisdiction of Saskatchewan....").
Page 42 of 98
(d) Even if jurisdiction simpliciter is an unwritten part of s. 6(1)(b), the
consequences of purporting to bind non-residents with a s. 27(1) judgment should
be considered after trial by another Court. "
(e) In Hollick v Metropolitan Toronto (Municipality) (Oct. 18th),  3 S.C.R.
158, 2001 SCC 68, McLachlin C.J.C. acknowledged that environmental pollution
can have consequences for citizens all over the country. In Morguard, La Forest
J. recognized a citizen's constitutional right to interprovincial mobility as
info -ming a more co-operative approach in Canadian judgment enforcement
proceedings. Here, determining residence for the purposes of class membership
would be futile and unnecessarily. Military families frequently moved from base
to base and province to province." Danny Thibideau, for example, resided in Nova
At ¶64 of Spar Aerospace Ltd. v. American Mobile Satellite Corp., 120021 4 S.C.R. 205, Le Bel J.
stated: ("...As this case concerns the initial assumption of jurisdiction by a court, it would be premature to
enter into any discussion of the application of the "real and substantial connection test" in respect of the
recognition and enforcement of interprovincial judgments. ") In the class actions context, at ¶79-80 of
Teletronics Proprietary (Canada) Ltd. (Aug. 29`b, 1995), 25 O.R. (3d) 331, Brokenshire J.: ("If,
indeed, class members outside of Ontario are free to sue despite a class judgment here, how are the
defendants any worse off than if the class was limited to residents of Ontario? Would the defendants, being
aware of the potential possible problem, be any worse off if non-resident class members should later argue
they were not bound by a decision than if those persons simply opted out now? Further, is this potential
possible problem really relevant to this action? It seems to me to be something to be resolved in another
action (by a non-resident class member) before another court in another jurisdiction.").
At ¶17, Lynn Severt described the interprovincial mobility of military families: ("Military families
are transferred from post to post throughout Canada. It is rare for them to spend more than a few years in
a single location. They often spend a few months or even a few weeks at a single posting. Other than at CFB
Gagetown, my family was posted to Regina, Saskatchewan, St. Hubert, Québec, and Downsview, Ontario,
where Dad retired."). Lynn Severt's surviving family members currently reside or previously resided
in Qu'Appelle, Vancouver, Winnipeg, Kingston, Arizona, England, and Germany. Not all of them
resided in New Brunswick, and those who did, resided there more than 40 years ago. The Affidavit
of Danny Thibodeau provides at ¶28-29: ("Almost everyone in my platoon has now died of cancer. ...
For the past ten years, I have been receiving these reports of cancer deaths of my comrades who were at CFB
Gagetown. They resided all over Canada when they died."). During Cross-examination, Grant Payne
described military interprovincial mobility as follows, at A166: ("The military are a transient population.
You join, you do three years, you go home. You do twenty years, you go home. You go to Germany for
three years, you come back and you go to Shiloh, Manitoba, you go to Gagetown.").
Page 43 of 98
Scotia for thirteen years until he was 60 years old, when he moved to Saskatoon
and where he was first became sick and was diagnosed with and treated for Non-
Hodgkin's Lymphoma. Provincial residence temporarily varied. Canadian
residence is a more secure basis for determining residence throughout the class
period. International residence is constant. fAODT:116-8, 13-14].
(f) Residence for The CAA should be seen with the Court's national jurisdiction.
Legislative power is territorially limited. ' But Canadian superior courts, though
provincially created, are federally constituted. In some ways, their territorial
jurisdiction is federal. " In national opt-out class actions, there are no non-
residents. All Canadian class members are 'in the jurisdiction'. In this Honourable
Court, "Canada" is before "Province of Saskatchewan" in the style of cause.
(g) Alternatively, including non-residents in the class is best considered as an
exercise of a court's attornment-based jurisdiction, and not what Sharpe J.A. in
Muscutt labeled "assumed jurisdiction". Attornment-based jurisdiction does not
depend on there being a "real and substantial connection" between the forum and
non-residents. At 1174, Pharmacia asks that the class definition permit express
attornment by non-residents. ' In national opt-out class actions, Plaintiff asserts
that non-residents attonr by failing to opt-out after receiving notice. Non Residents
accept or adopt Saskatchewan in one circumstance by the positive step of choosing
Pharmacia address "territoriality" in its Brief of Law at: , 19, 20, 33, 73.
" As stated by Estey J. at pp. 34-35 of Aetna Financial Services v. Feigelman, 119851 1 S.C.R. 2: ("An
initial question, therefore, must be answered, namely, what is meant by "jurisdiction" in a federal context?
It at least means the jurisdiction of the Manitoba court. ... In the Canadian federal system, the appellant is
not a foreigner, nor even a non-resident in the ordinary sense of the word. It is capable of 'residing'
throughout Canada and did so in Manitoba. ...
In some ways, 'jurisdiction' extends to the national
boundaries, or, in any case, beyond the provincial boundary of Manitoba.").
The last paragraph of Pharmacia's Brief of Law, 1174 provides: ("74. Pharmacia therefore seeks a
direction from the court that any class ultimately certified in this case will exclude non-residents of
Saskatchewan unless they expressly attorn to the jurisdiction of Saskatchewan....").
Page 44 of 98
to adopt and in the other circumstance by the positive step of choosing not to adopt.
The fact that they know that they are adopting by inaction depends upon adequate
notice, an issue not currently before this Court but within the control of this
Court. In a sense, there is no difference between the two forms of attorning within
(h) In this way, there is no unfairness to class members. Assuming jurisdiction
over non-resident defendants locks them to this jurisdiction. But non-resident,
unidentified class members can opt-out. " If a non-resident inadvertently attorns
by not opting-out, they can do nothing and later litigate whether they are bound by
a s. 27 order. " The same applies to the intenrational class. members. "
(i) This Honourable Court should beneifcially facilitate the attornment of non-
resident class members. ' The beneifts of national classes outweigh any illusory
Zuber J. in Nantais v. Telectronics Proprietary (Canada) Ltd. (Oct. 4th1995), 129 D.L.R. (e) 110,
¶12: ("It is clear that the Ontario legislature and the Ontario courts are not simply imposing jurisdiction
on non-residents. Those outside the jurisdiction who are included in the class are free to opt out in the
same manner as those inside Ontario may do.").
In Nantais (Oct. 4th, 1995), ¶13: ("Whether the result reached in Ontario court in a class proceeding will
bind members of the class in other provinces who remained passive and simply did not opt out remains to
be seen. The law of res judicata may have to adapt itself to the class proceeding concept.").
In Robertson v. Thomson Corp., 43 O.R. (3d) 161: ("The question is whether the Australian freelancer,
who did not opt out of this action, would be bound by the result elsewhere. That would be an issue for the
foreign court in which the Australian freelancer brought proceedings. In my view, the possibility that such
question might arise elsewhere with respect to an atypical class member cannot be sufficient to defeat this
claim from proceeding in Ontario.").
In Wilson v. Servier Canada Inc. (Nov. 21', 2000), 52 O.R. (3d) 20 (Ont. Div. Ct.), ¶10: ("... To
achieve the objectives of access to justice, judicial economy and behaviour modification, Canadian
consumers should have the option of litigation in one action in one jurisdiction, if the consumer so chooses.
The choice (which is available through the opt out provision) should be that of the consumer, particularly
when the defendants are not prejudiced by that choice.").
Harrington v. Dow Corning Corp. (1997), 29 B.C.L.R. (3d) 88 (K.C. Mackenzie J.), ¶19: ("The
common issue will not be made any more complicated by the inclusion of non-resident class members. The
Page 45 of 98
(j) Here, jurisdiction simpliciter comes from Defendants' provincial presence,
giving what Sharpe J.A. referred to as "presence based" jurisdiction.
(k) Alternatively, if "assumed jurisdiction" should govern this Court's national
class powers, and if this Court would accept a "persona] subjection" approach that
requires a "real and substantial connection" to the claims of each class member.
and if Defendants' Saskatchewan presence would be insufficient to reasonably
ground jurisdiction, the shared common issues are a "real and substantial
connection ".' This action began in the Federal Court of Canada as a single,
national opt-out class action. The Class did not become less cohesive during the
transition to the provincial superior court system.
(1) Other "real and substantial connections" are present, and should be assessed
having regard to the fact that the pan-Canadian element of this litigation informs
a more generous approach to the exercise of jurisdictioe
Plaintiff resides in Saskatchewan. At 1135, 49, 50, 59-60, 66-67, Pharmacia
should not equate class members with plaintiffs. There is only one plaintiff.
Juridical advantages are a connection. ' Here, national, no-costs, opt-out class
defendants may be deprived of the opportunity of trying that factual issue separately in several
jurisdictions but, if that is prejudicial, it is outweighed by the advantage to the class members of having a
single determination of a complex issue that can only be litigated at substantial cost.").
Harrington v. Dow Corning Corp. (1997), 29 B.C.L.R. (3d) 88 (BCSC), ¶4, 5, 12-15, 18-9, afifrmed 2000
BCCA 605; McCutcheon (May 10th, 2006), ¶29-57.
In Muscun v. Courcelles (2002), 60 O.R. (3d) 20 (Ont. C.A.), under the heading "7) Whether the case
is interprovincial or international in nature" at ¶95: ("The decisions in Morguard, Tolofson and Hunt
suggest that the assumption of jurisdiction is more easily justified in interprovincial cases than in
international cases. The jurisdictional standards developed in Morguard and Hunt were strongly influenced
by the need to adapt the rules of private international law to the demands of the Canadian federation.").
Juridical advantage is generally considered at the jurisidiction simpliciter stage under Sharpe J.A.'s
"unfairness to the plaintiff in not assuming jurisdiction" factor. See Gleeson v. Brascan Corp., 2005
CarswellOnt 9981 (Sup. Ct.), ¶34-38; Gro-Bark (Ontario) Ltd. v. Diamond Z. Manufacturing,  O.T.C.
1026, ¶10 and Trizec Properties Inc. v. Citigroup Global Markets Inc.,  O.T.C. 129 (Sup. Ct.) ¶44.
Page 46 of 98
actions legislation is a significant advantage as is a judiciary able to deal
promptly with issues before it.
A significant numbers of class members were harmed here and received
medical treatment at local institutions and hospitals. Pharmacia's approach of
"where are the most class members" is mechanical. " At ¶8, 50, 54, Phaiinacia
falsely says that there are only "40" or "44" Saskatchewan class members.
Those were the numbers of individuals who contacted MLG with a
Saskatchewan mailing address as of December 1", 2008. The actual number
of Saskatchewan class members is multiples of 44, depending on when the
residence is to be determined. ' AOLS#1:14]
Witnesses, including their physicians, reside in Saskatchewan where their
medical records are. [AODT: ¶11-14, 17, 22; AOLSV: 1124-33; AOSW: ¶7, 15].
These arguments by Phaimacia, are the same arguments rejected in Ward by
the Manitoba Court of Appeal.
(m) Pharmacia ignores Plaintiff's right to choose the forum. "
(n) A158-59, Pharmacia wrongly tries to elevate residence of class members from
a factor to a requirement, though they rightfully acknowledge that personal
subjection is not an acceptable approach.
(o) Pharmacia's attempts to introduce a mechanical arithmetic "numbers game"
as to where most class members reside should be seen as an improper attempt to
In Morguard, LaForest J. disapproved of a mechanical counting approach at ¶59: ("...the assumption
of, and the discretion not to exercise jurisdiction must ultimately be guided by the requirements of order and
fairness, not a mechanical counting of contacts or connections.").
" Residence anytime during the class period will produce more Saskatchewan "residents" than residence
at the time of the certification order. With interprovincial mobility, residence is temporarily arbitrary, and
therefore indicative of the unsuitability of including reference to residence in the class deifnition.
In Avenue Properties Ltd. v. First City Development Corp., 7 B.C.L.R. (2d) 45, McLachlin J.A., as she
then was, recognized the plaintiff's right to choose the forum as limited only by hardship to defendants.
Page 47 of 98
introduce forum non conveneniens comparisons into jurisdiction simpliciteur. If
Phannacia's standard were adopted, provinces could rarely assume national
jurisdiction because no province has most class members.
(p) At 1;64 and 65, Pharmacia proposes the same "place of acting" theory of
jurisdiction that Defendants posed in Manitoba and Newfoundland and which
Justices Scurfield and Barry soundly rejected." (AoLs#1: 15. Ex. A-D]
55. Cause of action is not part of identiifable class. So no exclusion based on s
9 of the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50 ("CLAP Act"),
the Pension Act, nor the Government Employees Compensation Act, R.S.C. 1985, c.
6-5 need be made, particularly when s. 9 of the CLAP Act can give rise to a common
issue. ' Many, such as Edward Ring Sr., have already gone through the entire
appeals process. Of the 28 who submitted CFB Gagetown chemical related claims
to Workplace Health, Safety, and Compensation Commission, only one was allowed.
Ten were expressly denied. Clearly, Defendants will not pay from the Consolidated
Revenue Fund to those claimants. [AGES: 1117-21: AOPW: 'IP, 7, 10-12].
56. 'Variations in provincial statutory laws will not materially impact the suitability
of a national opt-out certification order in this case:
(a) This is not a case like McNaughton Automotive Ltd. v. Co-Operators General
Insurance Co. (2003), 66 O.R. (3d) 112 (Sup. Ct.), where the plaintiffs' cause was
informed by statutes which significantly varied from province to province.
" in Ward v. Attorney General of Canada, 2006 MBQB 212, 1113,1 4-15, 18-19: ("The solution proposed
by Canada in this case is superficially simple. It argues that jurisdiction simpliciter should not be established
in a national class action of this type, without proof that the negligent acts or omissions were committed
within the boundary of the province selected..").
°° In Sauer (Sept. 3rd, 2008), ¶39-42, Lax J. certified a common issue: ("1. Does section 9 of the Crown
Liability and Proceedings Act bar the Class Members' claims against the federal government of Canada?")
Page 48 of 98
(b) Here, the action is infomred by one body of common and equitable law created
by the SCC as the "apex " of the common Canadian judiciary. Underlying
substantive law is therefore not ultimately susceptible to provincial variation.
(c) Any class members materially affected by differences in statutory claims
advanced can be managed through effective subclassing or appropriately
(3) common issues
57. Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46,  2
S.C.R. 534, which refers to "commonality", is the common law test for provinces
without comprehensive class actions legislation, and should be read with caution
when interpreting s. 6(1)(c) of The CAA. 2°
58. S. 2 of The CAA defines "common issue" as "common but not necessarily
identical issues of fact" or "common but not necessarily identical issues of law that
arise from common but not necessarily identical facts". A common issue' is:
In Nantais (Aug. 29th, 1995), Brockenshire J., ¶14, 15: ("On a more practical level it is argued that a
court attempting to try this class proceeding will face a multiplicity of laws from all of the provinces
which may confuse the matter. This argument in my view is largely speculative. I am not aware of any
difference in the law respecting product liability or negligence in the common law provinces and I have not
beenthere is any real difference between the common law on this matter and the law in the Province of
Quebec. ... If it is shown that the law of another province is so substantially different as to make the trial
with respect to class members from that province very difficult, the class can be redefined.").
102The Dutton requirements, built upon the Korte criteria, must be read with great care when applied to
statutory class actions. For example, the statement at ¶39 that "Determining whether the common issues
justify a class action may require the court to examine the significance of the common issues in relation to
individual issues" is part of the preferable procedure analysis in provinces that have defined common issues.
The CAA, s. 2, 6(1)(c), 7(2); Caputo v. Imperial Tobacco Ltd. (1997), 34 O.R. (3d) 314, ¶20; Cloud
(Dec. 3 ' , 2004), ¶54-5; Dutton, ¶39-40, 52; Hollick (Oct. 2001), ¶18-21; Rumley (Oct. 18'h, 2001),
¶25-34; Sorotski, ¶56-7.
Page 49 of 98
(a) an issue, in the sense that it is in dispute.' An 'issue of fact' is "an allegation
of an ultimate fact made by one of the parties to the controversy which is denied
by the other".'° Evidence relevant to the merits may be considered at the
certiifcation stage to identify issues, but not resolve them.
(b) common, in the sense that each claimant is interested in resolving it.
Resolving the common issue must be 'necessary' to resolving each claim.
The issue should be a substantial ingredient of claims, but need not
predominate'' over individual issues. Courts should not enumerate individual
issues at this stage. The test is whether there is at least one common issue,
regardless of how many individual issues would remain if the common issue
were resolved in favour of class members.
Collectively resolving an issue should avoid duplicative fact finding or legal
59. The role of class action statements of claim should not be overemphasized.
(a) Common issues come from the certification record, even if not currently
104 See for example, Pearson v. lnco Ltd. (Nov. 1816, 2005) (Rosenberg J.A.), 952, 59: ("The appellant
was only required to plead the facts upon which he relies, not the evidence, such as the 2000 announcement
by the Ministry. There is no question that there is a conflict in the evidence about whether the 2000 MOE
announcement did have an effect on property values. Inco says that its superior expert evidence shows that
there is no connection. That is an issue for trial. ... In this case, the appellant has produced evidence that
property values in the defined area have declined after the 2000 MOE announcement. That is sufficient to
show that the class is not unnecessarily broad. While Inc() disputes the value of the appellant's evidence, and
has provided evidence to show that property values have not declined and indeed have kept pace with
property values in other parts of the Niagara region, that factual dispute is a matter for trial. It is not to be
resolved at the certiifcation stage where all that is required is some showing of a relationship between the
proposed class and the common issues. -).
' People v. Pantages, 212 Cal. 237 at 267.
1°6 Predominance is a preferability factor in some statutes but not in The CAA: ("Class Proceedings
Act, .S.B.C. 1996, c. 50, c. 65; Class Proceedings Act, S.A. 2003, c. C-16.5; Class Proceedings Act, N.B
2006, c. C-5.15; Class Proceedings Act, S.N.S. 2007, c. 28, Class Actions Act, S.N.L. 200], c. C-I8.1").
Page 50 of 98
supported by parallel assertions in the statement of claim. Judges determine
common issues, not pleadings by the plaintiff which in many instances may have
been prepared a long time prior to the certification decision of a court.
(b) S. 28(1) of hTe CAA binds class members on common issues set out in the
certification order, and not on what a named plaintiff pled.
(c) Relevance at discovery and trial will be informed by the certification order, not
the statement of claim. '
60. Common issues, like class deifnitions, may evolve towards and at
certiifcation. ' Judges may frame their own. " They may also certify broad general
In Pearson (Feb. 25th, 2009), ¶40: ("The terms of the order are of paramount importance as, among other
things, they set the parameters within which the relevance and admissibility of evidence at the trial will be
In Markson v. MBNA Canada Bank (July 28", 2004), 71 O.R. (3d) 741 (Sup. Ct.), Cullity J., ¶44:
("It is a typical feature of class proceedings that common issues proposed originally by the plaintiff undergo
revision as the hearing of the certification motion approaches and during the hearing itself. Quite often
revisions are made in response to criticisms in the factum of defendant's counsel, or at the hearing. Although
this is unfortunate in that it confronts defendant's counsel with a moving target, it appears to be an
inescapable aspect of the process Three more were added in the factum of plaintiffs counsel. Five
additional proposed issues were contained in a supplementary motion record served on the defendant on the
afternoon of June 21, 2004 for the purpose of the hearing set down for June 24. The foimulation of the
common issues was further revised and the number increased to 12 during the adjourned hearing on June
28."). In Ludwig (Nov. 3", 2004), ¶34: ("The plaintiff originally indicated that the first common issue to
be — "what was the cause of the fire?" but at the hearing changed this to be "who is liable for the ifre". I
agree that this change is appropriate because this action is not to be a public inquiry as to what caused the
ifre and, in fact, the issue is who is liable for the fire.").
° Windsor (May 17th, 2006), ¶108: ("I find that the eight proposed issues, however, in order to be properly
prosecuted as common issues in the sense that they advance the claims of all of the putative class members,
must be amended as follows (I have restated here the Plaintiffs' proposed common issues, and my
amendments thereto and comments thereon are italicized)"). As another example, in Markson v. MBNA
Canada Bank (July 28", 2004), 71 O.R. (3d) 741 (Ont. Sup. Ct.), ¶60, Cullity J. reframed four common
issues. On appeal in Markson v. MBNA Canada Bank (May 21"), 2007 ONCA 334, 85 O.R. (3d) 321,
(Ont. C.A.), ¶57 Rosenberg J.A. found five others.
Page 51 of 98
inquiries, and provide particulars before or during the common issues trial. 'I '
61 Here, liability is broadly in issue. Speciifcally, the ASOC and evidence
support the following common issues for the following reasons
#1 Did the Defendants use unreasonable amounts of 2,4-D, 2,4,S-T, or pieloram
at CFB Gagetown?
62. There are two issues here. This first, an issue of fact, is whether Defendants
used the said defoliants. When answered, the second, an issue of law and fact, is
whether those amounts were "unreasonable"
(a) issue: There is an evidentiary basis that the parties have conlficting positions
on the answers to these questions:
• Defendants publicly admitted to using defoliants. But that is not court
binding." They have not admitted that the amounts were "unreasonable"
H ° Chace v. Crane Canada Inc. (Dec. 22", 1997), 44 B.C.L.R. (3d) 264, (BCCA), ¶19: ("...If there is a
need for the common issue to be more precisely defined, that need can be addressed by the requirement of
particulars or a redeifnition of the question, again as discovery proceeds and counsel refine their knowledge
of the issues that divide them."). Bywater (Dec. 2", 1998), ¶16: ("Evidence of the circumstances
surrounding the ifre, the general background of the events on August 6, 1997, including the evacuation of
the affected portion of the subway system, the composition of the smoke, the manner in which TTC staff
reacted to the emergency, and other evidence of general application to all the individual claims is relevant
and indeed essential for a determination of individual damage claims. It is expedient, and in the interests of
judicial economy, that this evidence and any consequent findings be dealt with as common issues of fact..")
At the trial of the common issues, the following particularized common issues were additionally given
in Bywater (July 156, 2001), ¶6: ("...2. The extent to which the smoke from the fire iflled the platfoim,
mezzanine and street levels of the two stations and filled the tunnel west of the Donlands station. 3. The time
period during which the totality of passengers were exposed to heavy smoke at each of the Donlands and
Greenwood stations. 4. The extent to which the passengers were in a state of panic or fearing for their lives
during their exposure to the heavy smoke. 5. Whether the ventilation systems in the two stations were on
exhaust mode at the relevant times and the effect of this on the spread of the smoke through the stations and
Bywater (Dec. 2", 1998), ¶13-14: ("Here, the defendant admits liability for the cause of the fire. ...
...an admission of liability in the air does not advance the litigation or bind the defendant in respect of the
members of the proposed class. Without a certification order from this court no public statement by the
defendant, and no admission in its defence to the nominal plaintiff, binds the defendant in respect of the
Page 52 of 98
They put that in issue in Newfoundland. [AOGP: 115-17: AOLS#1: 1113, Ex. L]
Substantial research showing significant correlations between cancers and
exposure to 2,4-D and 2,4,5-T. Exposure is associated with a risk of
lymphomas, leukemias, respiratory cancers, and prostate cancer. And the risk
in epidemiological studies is underestimated. [AOMS: 1f30, 46, 89]
The U.S. Veterans' Affairs and chemical companies published misleading
reports as to the health effects of exposure to Agent Orange which erroneously
downplay or deny a connection between dioxin and diseases. [AOWD: ¶8]
Exposure and doses at CFB Gagetown were above the norm of the day and
would significantly contribute to class member sickness. Compounding that
is the following. First, higher amounts of defoliants were needed to kill flora
at Gagetown than in typical agricultural and industrial scenarios. Second,
higher doses are associated with a higher risk. [AOMS: ¶19, 43, 98, 125]
There is strong precedent for this common issue." 2 At 1119 of Hollick,
McLachlin C.J.C. found a common issue based merely on showing "that the
respondent emitted pollutants into the air"
This claim's core is that CFB Gagetown posed an unreasonably toxic risk. To
individually prevail, each class member would need a finding that Defendants
used defoliants at CFB Gagetown. Class members will succeed only if they
establish the amounts and use were unreasonable.
members of the proposed class. Therefore the admission simpliciter does not resolve the common
of liability as it relates to the class members nor does it bind the defendant to them.").
Pearson (Nov. 18th 2005), ¶64, 66: ("Is Inco the source of the elevated levels of nickel found on class
members' lands? Did nickel contamination (from atmospheric deposition or fill) in the Rodney Street Area
originate from Inco?"). In Windsor (May 17th, 2006), ¶108: ("If so, did the common polluting substances
escape from the Defendant's property?").
Page 53 of 98
No class member will have to give evidence on this question.
- As to use , the focus at trial will be on Defendants' choice and use of
products they claim to have acquired from the Third Parties.
- To establish "unreasonable" , Plaintiff will introduce opinion evidence
based on existing literature demonstrating risk, and opinion evidence that
that risk is underestimated. [AOMS: 1196-97]
Health effects of phenoxy herbicides are examined together in scientiifc
literature. The US IOM identified health conditions associated with exposure
to he same chemicals in this action. Veterans Affairs acknowledged the
association. Even chronic low doses may have adverse biological effects in
addition to those associated with acute high doses. Those repeatedly exposed
to defoliated areas could be at equal or greater risk than those directly exposed
on one occasion. Whether they were at CFB Gagetown for a day or more, all
are interested in the smallest amount of defoliant use that can cause risk. That
evidence can be introduced once on behalf of the class and thereby avoid
divergent findings in a judiciously efifcient mariner. AOMS: 193-96. 122-123]
#2 If the answer to #1 is "yes", did the Defendants owe and breach duties to class
members in their use of 2,4-D, 2,4,5-T, or picloram at CFB Gagetown. If so, how
63. The "duties owed" aspect of this question is an issue of law that arises from
common facts. The "duties breached" component is a question of fact that depends
on the application of a common legal standard. Each aspect of #2 is common:
(a) issue: Defendants have not conceded the existence and breach of the duties as
pled. But there is an evidentiary conflict between what Plaintiff pleads and what
Defendants imply in their certiifcation record:
'1167-71 of the ASOC asserts that when the Camp opened, Defendants
Page 54 of 98
economically and effectively cleared foliage with non-chemical means'"
Defendants occupied other bases which did not need clearing and which
were more suitable for the training that was conducted at CFB Gagetown.
Though they used chemical means, human labour was anyway required.
Mr. Dobbie, for example, cleared sprayed brush by hand. The defoliants
were also ineffective. They did not defoliate all species. fAOMS119, 56].
Defendants unnecessarily sprayed defoliants into recreational and military
training areas. Defendants could have used safer techniques to eliminate or
reduce the soil absorption rates. Toxic areas resulted and remained because
Defendants did not employ due care.
The Statement of Defence in Newfoundland says that:
Non-chemical means were "time consuming" and left "stubble which
injured soldiers". To date, Defendants have not shown that men were so
injured. Plaintiff asserts that thousands more were unnecessarily injured as
a result of chemical defoliation. Fatal diseases with long latency periods are
a far greater harm than minor tubble" related injuries, whatever they may
be, and a Saskatchewan judge could take judicial notice of minimal to non-
existent injuries related to "stubble" [AOLS#1: Ex. L. 11,31-32]
- Defendants complied with regulatory "standards of the day". Plaintiff
asserts, and case law says, that regulatory compliance can not, by itself,
relieve Defendants of common law tort liability. [AOLS#1: Ex. L1171]
- Defendants explicitly deny a duty of care AOLS#1: Ex. L 185]
Jacques Whitford's report says that defoliants were used to save costs. But
reasonable men would account for long latency diseases that Defendants thrust
"3 The non-chemical means included human labour, chainsaws, axes, tractor towed equipment, and
bulldozers. In 1965, land clearance experiments were done at Camp Petersville including with a huge
machine, a bulldozer, and defoliation. [AOES:145--46; AOGP: 1174-78, 80-83]
Page 55 of 98
on involuntary tort victims. [AOKD: Ex. C, 113 1 ( 1 )1
In the 1970s. medical and scientific literature focused on health effects
associated with 2,4-D and 2,4,5-T. By the 1970s, toxicology studies, even
those authored by industry, showed carcinogenecity ofTCDD. Yet, defendants
used 2,4-D until 2005. [AOMS: 1185-86]
The issues at trial will relate to the use of inherently dangerous chemical
products in huge quantities on property known to be used by military personnel
who would breath dust, lay in mud, hide in trees, and crawl in dirt.
Whether Defendants owed and breached duties of care is a classic common
issue.'" Plaintiff pled that the standard of care did not materially evolve
between 1956 and 2004. But a potentially varying standard of care over the
114 Ludwig (Nov. 3rd, 2004), IT6, 34-35, 37-38, and 68: ("Were the defendants or any one of them
negligent and, if so, how and why?"). Pearson v. Inca Ltd. (Nov. 186, 2005), ¶64, 66: ("Did Inco owe a
duty of care to the class to prevent the ongoing discharge of nickel and, if so, what duty was owed? What
was the appropriate standard of care that Inco had to meet with respect to preventing the ongoing discharge
of nickel? Did Inca breach the standard of care...? Did the ongoing discharge of nickel by Inca amount to a
public nuisance? Did the ongoing discharge of nickel by lnco amount to a trespass? Is lnco strictly liable
to the class for the ongoing discharge of nickel as a result of a failure to prevent the escape of a dangerous
substance (Rylands v. Fletcher)?") In Rose v. Pettle, 43 C.P.C. (56)183,41133,35: ("Whether the defendants
owed a duty of care to the class members to maintain infection control practices... Whether the defendants
breached the standard of care for maintenance of infection control practices."). In Sauer v. Canada
(Attorney General) (2008), 169 A.C.W.S. (3d) 27, ¶38, 41, 53-54: ("Were the defendants negligent and if
so when and how?"). Windsor (May l7', 2006), ¶108: ("If so, does the Defendant owe the class at large
a duty of care to prevent the escape of the polluting substances? Did the Defendant breach its duty of care
to the class at large? If there are common polluting substances present and/or affecting the class members'
properties, is the Defendant liable in strict liability (Rylands) for the escape and subsequent pollution of
the class members' properties with the common polluting substances? If there are common polluting substances
present and/or affecting the class members' properties, is the Defendant liable in nuisance for the escape and
subsequent pollution of the class members' properties with the common polluting substances? If there are
common polluting substances present and/or affecting the class members' properties, is the presence of the
common polluting substances on the class members' properties a trespass? If there are common polluting
substances present and/or affecting the class members' properties, was the Defendant negligent in respect
of the escape and subsequent pollution of the class members' properties with the common polluting
Page 56 of 98
class period is not an obstacle to certification' Though the answer may be
nuanced, the question is common.
No member can establish liability without determining duty and breach.
Success would materially advance each claim to the s. 29(1) stage.
Each claimant is interested in what Defendants knew and when. Assessing
Defendants' knowledge will signiifcantly advance foreseeability, known
danger, and punitive damages inquiries. Plaintiff can advance all claims by
establishing what Defendants knew, or should have known, about 2,4-D's
carcinogenecity when they used it in 1956. Each claimant would benefit from
finding that widespread intense chemical defoliation was never reasonable at
CFB Gagetown given known land uses and likely exposure scenarios.
Issues related to assessing the standard of care including availability of
alternative methods and knowledge of defoliant toxicity, and whether the spray
program should have occurred is a common inquiry regardless of which class
period year is examined.
- Records that General Ring, Sr. referred to about who was where and when
can be used to assess foreseeability of harm on a class wide basis.
- There are variations in class member exposure scenarios to CFB
Gagetown. But, ifrst, "common issues of law" call for similar, not identical
facts. Second, "differentialities" are not properly considered at the common
issues stage.''' Each class member was exposed.
Ils Hollick (Oct.
le, 2001), ¶32: ("That the standard of care may have varied over the relevant time period
simply means that the court may find it necessary to provide a nuanced answer to the common question
In my view the Class Proceedings Act provides the court with ample lfexibility to deal with limited
differentiation amongst the class members as and if such differentiation becomes evident.").
In Rumley (Oct. le, 2001), ¶33: ("...it is in fact quite likely that there will be relevant differences
between the class members.... For the reasons stated above, however, I agree with Mackenzie J.A. that these
differences are not insti _ lmountable. In any event I question the extent to which differences between the class
Page 57 of 98
- Standard can be objectively determined without class member
involvement. Whether some will have been at CFB Gagetown at different
times doing different things is immaterial in this analysis.
Counsel will locate and advance numerous authorities on the underlying
theories of ilability in battery, negligence, and Honour of the Crown. Gathering
and presenting authorities once will avoid multiple legal analysis.
#3 lithe answer to #1 is "yes", in what amounts, in what parts, and at what times
were 2,4-D, 2,4,5-T, or picloram present or bioavailable at CFB Gagetown?
64. These three factual issues, derived primarily from the action in negligence,
concern "how much?", "where?" and "when?":
(a) issue: There is an evidentiary basis for the existence of this disputed issue.
Dioxins used at CFB Gagetown are environmentally persistent. Defoliants used
at the start of the class period will later have residual soil effects. (AOMS: 148-491
There is precedent for this common issue in an environmental class action.
Each claimant needs to establish that the toxic substances were bio-available.
Dose is an individual issue. But identifying areas of potential exposure will
significantly advance claims and, at the ss. 29 or 31/35 stage, allow each class
member to prove exposure and dose.
Expert opinion will assess the historical contamination at particular times on
a balance of probabilities. #3 will signiifcantly contribute to the factual
underpinning of opinions that can later be used at the individual issues stage in
members should be taken into account at this stage. In my view the question at the commonality stage
is, at least under the British Columbia Class Proceedings Act, quite narrow.").
Windsor, ¶108: ("Are there certain common polluting substances within the deifned area in Ogden that
are: (a) present in the class members' properties; or (b) affecting the class members' properties; or (c) both
(a) and (b)?").
Page 58 of 98
combination with known time periods when particular individuals were
exposed to particular areas. Using testimony and reliable military record
corroboration, each class member will be able to nuance the answer at the
individual issues stage to determine dose.
If class members had individual trials, the courts would repeatedly have to
assess whether the same areas were unreasonable toxic environments. Each
class member would introduce the same evidence to so establish. A common
trial will avoid duplicative fact finding and evidence presentation.
#41f the answers to "#1" and "#2" are "": (a) What parts of CFB Gagetown
constituted an unusual or unreasonable danger of causing adverse health effects
in humans ("Toxic Areas"); (b) When?; and (c) Ought the Defendants to have
known about or reasonably foreseen the creation of the Toxic Areas?
65. This issue, arising primarily from the claim in occupier's liability, is a common
question of law. It asks "where?" and "when?".
(a) issue: The Defendants have not admitted that any area posed an unreasonable
risk for the purposes of occupier's liability analysis. There is an evidentiary basis
that the presence of unusually toxic areas will be in dispute:
In cross-examination, Grant Payne described several areas that were green one
day, and dead and brown the next. ''8 [COGP: ¶113-16]
Fact Finders indicated that soil samples at CFB Gagetown were excessively
contaminated. Dioxin and HCB was detected at above regulatory levels. Soil
is more contaminated than vegetation. Though the studies were flawed and the
risk underestimated, even the Fact-Finders' tasks show significant past and
continuing contamination. [AOMS: 1,1107. 114, 117, 126-27]
118 At A136, Grant Payne said: ("For example, the area of Summer Hill, which is adjacent to Headline Hill,
Worthington Tank Park, these were beautiful areas and all of a sudden, the conifers seemed to be doing all
right, but the deciduous, the hard woods, are dead. The grass is dead, the bushes are dead. It's not a natural
Page 59 of 98
After the report's release, given that the reported levels were 50, 75, and 143
times above safe levels as set by the Council of Ministers of the Environment,
the Base Commander closed several areas. 1A01(D: Ex. C,1136]
Based on current soil samples, unusually high levels of 2,4,5-T were present.
As they degrade, chemicals may become more toxic. IAOMS: 111 9-201
In the Newfoundland Statement of Defence. Defendants denied that
members were exposed to sources of unusual danger on account of TCDD and
1-1CB contamination.' ' 9 IAOLSO: Ex. L.1165, 77, 107]
The. broad, background questions asked in Bywater are a precedent for #4.
In Bywater, Winkler J. (now C.J.O.) posed background fact finding respecting
the composition of thick smoke at different geographical locations at different
times within a single institutional structure.
Establishing an "unusual danger" is a substantial ingredient in an occupier's
liability analysis. Identifying historically toxic areas is manageable, given the
ifnite number of toxic areas plead, and the limited number of years in the class
period. A finding that at least one area was dangerous will materially advance
or resolve each claim.
Because of the overlap with issues #1, 2, and 3, the evidence here will
similarly focus on Defendants' conduct and objective environmental states.
Class member evidence will be unnecessary. Individual knowledge of an
unusual danger is immaterial in an occupier's liability analysis.' 2°
I' At1177 of the Statement of Defendant in Newfoundland: ("Nowhere on the Base or its environs has
the Crown at any time applied herbicides in a manner or in quantities which would create a situation of
unusual or unreasonable danger for the health of persons occupying or traversing the subject lands...").
Stuart v. Can. (1988), 61 Alta. L.R. (2d) 81, ¶33: ("The test to be applied...is whether or not the danger
is one usually found in carrying out the activity for which the invitee came onto the property. It is an
objective test and the actual knowledge of the plaintiff is not relevant for this determination.").
Page 60 of 98
That finding could be economically applied to the claims of each class
member at the individual issues stage. Determining the same questions
through the same witnesses would be a waste of Court time and could lead to
#5 Can class members recover the costs of testing for dioxin and
hexachlorobenzene poisoning and genetic mutation on an aggregate basis? If so,
how much should be awarded?
66. #5 is comprised of an issue of law followed by one of fact.
(a) issue: There is an evidentiary basis to indicate Defendants' resistance to paying
for this remedy:
This is a developing legal area. A fuller evidentiary record will help examine
the circumstances under which Canadian courts should grant this remedy.
Where the law is developing, a trial record is critical.
HCB and TCDD bio-accumulate by collecting in tissue and liver. They may
be detected in blood decades after an exposure. AOMS: 1121, 31-33, 66, 74, 120]
Exposure to even low concentrations of 2,4-D can cause genetic change and
thereby adversely affect cell-cycle control, stress response, DNA repair, and
immune function. 2,4-D is associated with genetic damage that precedes
lymphoma. [AOMS: 122, 38, 39, 44].
Provincial health care plans do not cover all laboratory testing for pollutants
and ensuing biochemical abnormalities, or treatments aimed at reducing
underlying toxic chemicals and their effects. [AOMS: 1101]
As demonstrated from the affidavit of David Brusick, Ph. D., the Third Parties
will take the position on the merits that TCDD and HCB are not "genotoxic"
Plaintiff will establish they are. [ AODB#2 : 13]
(b) common: Whether a defendant should implement and pay for medical
Page 61 of 98
monitoring and testing is a typical common issue in cases of toxic exposure. '
Finding that exposure poses an unreasonable risk of having a dose that causes
disease will signiifcantly advance the claim. The more types of disease that can
result, the more dangerous the toxic areas, and the more likely a Court would
award this relief. Each class member will have to establish the availability of this
relief. But they will not have to give evidence as a pre-requisitie to recovery.
#6 Is an award of exemplary and punitive damages appropriate under all of the
circumstances? How much? How should it be distributed?
67. #6 is a common issue of law in that it involves application of a common legal
standard to answers given to common questions of fact:
(a) issue: Defendants have not admitted any facts Plaintiff relies on:
-1178 of the ASOC pleads that, in an independent actionable wrong, Defendants
lied about the contamination and health risks. Defendants have put the same
assertions of fact into issue in Newfoundland. fAOLS#1: Ex. L'
At a March 27ht, 1985 meeting, Defendants' authorized representative stated:
...we have not contributed in any way to adversely affecting the environment nor the
health of the residents in this area. ... It poses no threat to the animal and human
population of the base nor to our neighbouring communities.
In the 1980s, Col. Hurley said that dioxin was never used and that the
121 Wilson v. Servier Canada Inc. (Sept. 136, 2000), 50 O.R. (3d) 219 (Ont. Sup. Ct.), ¶107: ("whether
class members are entitled to special damages for medical costs incurred in the screening, diagnosis and
treatment of diseases related to Ponderal and Redux"). Knowles v. Wyeth-Ayerst Canada Inc. (May le,
2001), 16 C.P.C. (51h) 330 (Ont. Sup. Ct.), ¶11, 13: ("Whether class members are entitled to special
damages for medical costs incurred in the screening, diagnosis and treatment of diseases related to
Pondimin."). Heward (Feb. 6'h, 200'7) (Ont. Sup. Ct.), ¶77, 82, 86, 91-93, 98,101: (""Are class members
entitled to special damages for medical costs incurred in the screening, diagnosis and treatment of diseases
related to Zyprexa? Should the defendants be required to implement a medical monitoring regime and, if
so, what should that regime comprise and how should it be established?"). In Anderson v. St Jude Medical
Inc. (Sept. 16m, 2003), 67 O.R. (3d) 136 (Ont. Sup. Ct.), ¶63: ("Should the defendants be required to
implement a medical monitoring regime and, if so, what should that regime comprise and how should it be
Page 62 of 98
chemicals that were sprayed could safely be gargled. He said "there has been
no hayniful concentration of dioxin used during testing on the base.
¶76-77 of the ASOC says Defendants actively concealed health risks
associated with CFB Gagetown for political reasons. Plaintiff asserts that the
June 23', 2005 public conference at the Base Gagetown Theatre and the Fact-
Finders' tasks including the Guernsey study, were part of that.
After Ms. Severt's father insisted he was exposed to Agent Orange at CFB
Gagetown, she contacted the Department ofNational Defence ("DND"). DND
denied it was ever used. After writing a series of letters, a DND doctor told
her "Agent Orange has never been used or sprayed at Camp Gagetown." She
called the DVA in Regina, and Mr. Robins assured her it was not used at CFB
Punitive damages is likely the most frequently certified common issue
Assessment may be in two steps.'
Chace v. Crane Canada Inc. (1997), 14 C.P.C. (4`)197; Rumley (Oct. 18th, 2001); Fakhri v. Wild Oats
Markets Canada, Inc., 2004 BCCA 549. Ludwig (Nov. 3", 2004), ¶6, 34-35, 37-38, 68: ("Should one or
more of the defendants pay punitive damages to the Class Members and, if so, why, in what amount and to
whom?"). Pearson (Nov. 18th, 2005), ¶64, 66: ("Did the defendants' breach of conduct justify an award of
punitive damages to the class, and if so, what amount of punitive damages is appropriate?").
Ludwig (Nov. 3"', 2004), ¶36-37: ("The third common issue proposed is "should one or more the
defendants pay punitive damages to the Class Members and, if so, why and what amount and to whom"
Punitive damages have been included as common issues in previous cases.... The defence objects to this
issue based on Whiten v. Pilot Insurance Co.,  1 S.C.R. 595 (S.C.C.) that has established that punitive
damages must serve a rational purpose. This test applies to both the question of whether an award of punitive
damages should be made at all as well as to the question of its quantum. Therefore, an award of punitive
damages would be rational and legally justifiable "if, but only if' all other penalties and awards, including
compensatory awards are not sufifcient to adequately achieve the objectives for which punitive damages are
awarded, namely, retribution, deterrence and denunciation and that liability for punitive damages would only
be determined atfer individual issues are resolved. I agree that the punitive damage issue would only arise
once the liability and quantum has been established but, in my opinion, it is appropriate at this stage to
include punitive damages as a common issue subject to Whitten as noted above.") In Fakhri v. Wild Oats
Markets Canada, Inc., supra, Donald J.A., ¶23: ("... Moreover, as was mentioned in Sylvan Lake, supra,
Page 63 of 98
Punitive damages are sometimes the bulk of a tort law judgment. Here, if
Plaintiff succeeds in battery, it will be. Answering this question is therefore at
the heart of what may be a very large award.
All class members share an interest in an assessment of the legal
consequences of the Defendant's conduct. Each has to establish that
Defendants' conduct is deserving of rebuke as a pre-requisite to recovery of
this remedy. None of the class members can prevail without so showing.
Punitive damages analysis can focus solely on Defendants' acts, words, and
thoughts. Inquiry into individual circumstances is unnecessary.
A trial of Defendants' conduct will also advance the resolution of the standard
of care and occupier's liability issues. ' If class members can establish the
above common facts, the Court can pertain' a single legal analysis on behalf
of all, and determine an appropriate amount which Plaintiff will seek to
distribute as an aggregate monetary award.
there are two stages in deciding a punitive damage claim: the first is an assessment of the appellant's
behaviour to ascertain whether it is deserving of a punitive response; and the second is an examination of
the effect of the appellant's behaviour on the individual class members. The first aspect is a common issue
here and I think the case can be advanced in a just way by deciding this preliminary question in a general
way.") In Boulanger v. Johnson & Johnson Corp. (2007) 40 C.P.C. (6'") 170,1148: ("The defendants assert
that it would be unfair to determine the entitlement to and quantum of punitive damages at a common issues
trial before compensatory damages have been assessed, since punitive damages require a finding of
compensatory damages. It is the defendants' position that if punitive damages are to be certiifed as a
common issue, it should be certiifed for a second common issues trial that would follow the individual
issues trial. The representative plaintiff concedes that it may be appropriate to assess the quantum of punitive
damages following an assessment of compensatory damages, but that a prima .facie entitlement to punitive
damages can be certified as a common issue for the first common issues trial. I accept the submission of the
representative plaintiff in this regard....").
These economical benefits were noted in Burnley, 113 4 : ("As noted above, Mackenzie I.A. certified as
common not only the standard-of-care issue but also the punitive damages issues. Here, too, I agree with his
reasoning. In this case resolving the primary common issue – whether JHS breached a duty of care or
fiduciary duty to the complainants – will require the court to assess the knowledge and conduct of those in
charge of JHS over a long period of time. This is exactly the kind of fact-finding that will be necessary to
determine whether punitive damages are justified: see, e.g., Endean, supra, at para. 48 ("An award of
punitive damages is founded on the conduct of the defendant, unrelated to its effect on the plaintiff.").
Page 64 of 98
(4) preferable procedure
68. At the preferability stage, a court should ask:
(a) considering the common issues in context, that a class action may be certified
where there are substantial individual issues, and that complexity is common in
aggregate litigation'', whether a class action would be a "fair, efifcient, and
manageable method" of advancing the claims; and
(b) whether a class proceeding would be preferable to other reasonably available
means of advancing claims: actions, test cases, consolidation, etc.
69. The OLRC referred to "Access to Courts", "Judicial Economy" , and
"Behaviour Modiifcation" as "beneifts" and "advantages". But they are not an
express part of any legislation. In common law class actions, Dutton described them
as "advantages". Rurnley did not refer to them at all. In Hollick v. Toronto (City),
2001 SCC 68,  3 S.C.R. 158 the SCC assessed Ontario's preferability test
through the "lens of these advantages — but on counsel's agreement.' 27
70. Addressing the above two preferability components, however, necessarily
involves addressing the "three advantages". Concerns of access to justice, behaviour
modification, and judicial economy, therefore, factor into the following submissions.
125 Windsor (May 17', 2006), ¶131: ("Class proceedings are not intended to solve all the efficiency
problems encountered in complex litigation, nor could they solve them even if they were so intended. What
they can do is assist the parties and the Courts by shortening the process, even if only for hours or days
over the course of a lawsuit. It is an obvious inference that if the common issues can be determined once,
instead of many times, then judicial economy will be sevred.").
Hollick (Oct. 18ht ,2001), ¶27, 37 ("non-enumerated preferability regime"); Rumley (Oct. 18`', 2001), 1135
41 ("enumerated preferability regime"); Pearson (Nov. 18ht, 2005), ¶67(1), (3), and (4); Markson (May 2nd,
2007), ¶69; Cassano (Nov. 14', 2007), ¶55-56; De Wolf ¶47-50.
7 Ontario. Law Reform Commission. Report on Class Actions. Toronto: Ministry of the Attorney General,
1982, p. 117-40; Dutton, ¶27-9; Hollick,1115; Markson (May 2nd, 2007), ¶69-70; Pearson (Nov. 18ht, 2005),
¶67(2); Sorotski, ¶70; Wilson, ¶124-6.
Page 65 of 98
(a) "fair, efficient and manageable"
71 The CAA contemplates substantial litigation after common issues are resolved.
With a bifurcated approach, all issues will be resolved. Various statutory procedures
will manage any individual issues that may remain
(a) Individual issues may be determined before common issues.
(b) Class members may participate on court approved terms.
(c) S. 31 provides for an aggregate monetary award when the class claims
monetary relief, remaining issues relate to how much a defendant should pay, and
that amount can be determined without individual proof (having regard to the
statistical evidence provisions). Plaintiffs need not show it would be available, just
"a reasonable likelihood" that they could satisfy the preconditions if successful on
common issues. " If it would be too costly or complicated to identify precise
class member shares"°, individual damages issues may be resolved by distirbuting
average or proportionate shares.
(d)To most inexpensively and expeditiously resolve individual issues, a court may
dispense with unnecessary, and use special, procedural steps.
(e) To achieve efifciency, class actions impact fairness.
The CAA, s. 9,13, 17, 29, 30, 31(1), 34(1), 35(1), 37; Dutton, ¶43; Wilson, ¶1 13. In Sauer (Sept. 3rd,
2008), Lax J., ¶64: ("In my view, the direction from the Ontario Court of Appeal since Cloud, and in
particular in the recent cases of Markson and Cassano, is that the court should strive to find ways to use the
powerful tools of the CPA to meet the preferability requirement.").
In Markson (May 2", 2007), 1148, Rosenberg J.A.: ("Section 24(3) provides, in part, that, "In deciding
whether to make an order under subsection (2), the court shall consider whether it would be impractical or
inefifcient to identify the class members entitled to share in the award". The subsection therefore
contemplates that an aggregate award will be appropriate notwithstanding that identifying the individual
Class Members entitled to damages and determining the amount cannot be done except on a case-by-case
basis, which may be impractical or inefficient. Condition (b) must be interpreted accordingly. In my view,
condition (b) is satisfied where potential liability can be established on a class-wide basis, but entitlement
to monetary relief may depend on individual assessments. Or, in the words of s. 24(1)(b), where the only
questions of fact or law that remain to be determined concern assessment of monetary relief.").
Markson (May 2nd, 2007), ¶5, 44, 48; Cassano (Nov. 14ht, 2007), ¶39-54, 60, 66-68.
Page 66 of 98
72. The legislature intended to proportionately limit defendants' normal procedural
rights. The CAA is intended to streamline common and individual issues resolution,
through case management. ' Defendants exaggerate complexity, and underestimate
legislative tools. '3 2
73. At certification hearings, defendants generally attack causation in multiple
ways. They typically submit that alternate potential causes will make it impossible
' In Taylor v. Canada (Minister of Health), 285 D.L.R. (4') 296: ("... a class proceeding appears to be
the preferable procedure for resolving the claims. The litigation will be complex, dealing as it must with
individual issues of causation prior to a final resolution of any person's claim. Nevertheless, there are access
to justice, efficiency and management advantages to having the common issues heard and determined at a
single trial. Since individual issues [may] have to be decided prior to any finding of liability for damages,
there is no inherent unfairness to either the plaintiff nor the defendants as a result of a class proceeding.
Finally, given the complexity of the litigation, and the number of potential claims, the provisions of the CPA
provide the necessary superior case management tools, when compared to those available through either
individual proceedings or an ad hoc case management regime under the normal Rules of Civil Procedure.").
In Cassanno (Nov. 14ht, 2007), ¶62, 64, 66: ("What is sometimes overlooked in the focus on the common
issues at the certification stage is that the CPA includes provisions permitting the use of modiifed procedures
for conducting individual assessments of damages. The thrust of these provisions is to ensure that the court
has the means to conduct cost-effective and timely determinations of individual issues following the common
issues trial. As a result, the fact that damages may not be amenable to aggregate assessment at the conclusion
of a common issues trial is not fatal to certification of a class proceeding. ... Therefore, what is called for
in addressing the preferable procedure requirement is to look not just at the common issues trial, but at the
other procedural options for conducting the class action litigation pursuant to the CPA. In this regard, I note
that s. 25 of the CPA confers broad jurisdiction on the common issues trial judge to fashion procedures to
be followed where, among other things, damages cannot be assessed in the aggregate. This section deals
specifically with individual participation in a class proceeding following a favourable determination on the
common issues. Under its various subsections, the common issues trial judge has, inter alia, the authority
to: direct a further trial (s. 25(1)(a)); appoint "one or more persons to conduct a reference" (s. 25(1 )(b));
and give directions on the procedures to be followed (s. 25(2)). The broad jurisdiction of the common
judge is amplified by s. 25(3), which provides that. ... if the individual approach to assessing damages is
deemed to be appropriate, the assessment should still be straightforward and cost-effective. Given my
rejection of the need for extensive inquiries of each cardholder as contemplated by the motion judge, in the
event that there is a finding favourable to the class members on the breach of contract issue, all that
remains is a relatively straightforward accounting exercise that can be accomplished either by the class
members providing their credit card statements or by the defendant producing its records to show the
amount of any charges and the individuals to whom any amounts owing should be paid.").
Page 67 of 98
to collectively determine any issue which could support the defendant's liability to
any class member. They facetiously advance that certification would create thousands
of trials that would take hundreds of years to try. In reality:
(a) Certifying a class action does not require all class members to "step up to the
plate" and prove their claim. There would only ever be trials of those who come
forward after s. 23(1) notice goes out and s. 29 claims are made within the time
permitted by s. 29(4) and if the court determines that trials or class member
participation is an appropriate means of resolving individual issues.
(b) Some class actions may not raise individual issues. If a s. 16(3) judge held that
Defendants were not negligent, none would arise. Analysis based on plaintiffs
losing is germane.
74. Here, Defendants' experts have primarily addressed potential "alternate
causes" of "alternate diseases". But Plaintiff proposes that, as in other toxic tort class
actions, causation and injury be established as an individual issue. These trials will
be manageable because of the nature of legal causation.
(a) The Third Party afifdavits go to scientific causation. Dr. Mandel expressly
acknowledges that. '" Scientific causation differs from tort law factual causation.
Causation is a legal question.134 It need not be proven with the laboratory certainty
Affidavit ofD r. Jack S. Mandel, sworn January 3151, 2009, at ¶9: ("In this affidavit, I provide scientific
information relevant to the case at hand, speciifcally regarding the science of epidemiology that I believe will
be helpful to the court in its deliberations. I mention subjects of a legal nature only to provide the background
and context for the scientific principles and issues I discuss. Thus, my intent is to address these issues from
an epidemiological/scientiifc perspective and not from a legal perspective.").
In Snell v. Farrell, ¶30, 35: ("I am of the opinion that the dissatisfaction with the traditional approach
to causation stems to a large extent from its too rigid application by the courts in many cases. Causation
need not be determined by scientific precision. ... It is not therefore essential that the medical experts provide
a ifrm opinion supporting the plaintiffs theory of causation. Medical experts ordinarily determine causation
in terms of certainties whereas a lesser standard is demanded by the law.").
Page 68 of 98
that the Third Party affiants explain.' In a Courtroom, causation may be
inferred' in the absence of scientific proof.'
(b) Legal onus differ from academic scientific standards.
But-for legal causation need be established only on a balance of probabilities.
Plaintiff need not prove causation to the scientiifc degree the Third Party
affiants employ when attacking the work of other scientists.
Here, the but-for test" is unlikely to apply because of the scientiifc
uncertainty described by the Third Party affiants' In Hanke v Resudiee,
 1 S.C.R. 333 McLachlin C.J.C. set a framework for what will become
In Athey v. Leonati,  3 S.C.R. 458, ¶16: ("In Snell v. Farell, supra, this Court recently
confirmed that the plaintiff must prove that the defendant's tortious conduct caused or contributed to the
plaintiffs injury. The causation test is not to be applied too rigidly. Causation need not be detelinined by
scientific precision; as Lord Salmon stated in Alphacell Ltd. v. Woodward,  2 All E.R. 475 at 490
as was quoted by Sopinka J. at p. 328, it is "essentially a practical question of fact which can best be
answered by ordinary common sense ". Although the burden of proof remains with the plaintiff, in some
circumstances an inference of causation may be drawn from the evidence without positive scientific proof.").
136 Inference of causation was considered in: Athey v. Leonati (Major J), ¶16, 46; Snell v. Farrell (Sopinka
J), ¶22-25, 31, 33-34, 38; Walker Estate v. York-Finch General Hospital (Major J.) ¶98; Fairchild v.
Glenhaven Funeral Services Ltd. (Lord Bingham) ¶ 21, 34, (Lord Nicholls) ¶44-45, (Lord Hutton) ¶91, 94
97, 99-109, 111; Barker v. Corus (Lord Scott), ¶52; Bonnington Castings Ltd.v. Wardlaw (Lord Tucker),
p.623, (Lord Keith) p. 624; Wilsher v. Essex Area Health Authority (Lord Bridge) pp. 1087, 1089-1091.
In Snell v. Farrell, ¶34: ("The legal or ultimate burden remains with the plaintiff, but in the absence of
evidence to the contrary adduced by the defendant, an inference of causation may be drawn although positive
or scientific proof of causation has not been adduced.").
The 'but for' test was considered in: Athey v. Leonati (Major J.) ¶14-15, 20, 41; "Janke v. Resurfice
Corp. (McLachlin, C.J.C.) 114, 18-19, 21-29; Snell v. Farrell (Sopinka J .)115; Walker Estate v. York-Finch
General Hospital (Maj or J.) ¶87-88, 97; Fairchild v. Glenhaven Funeral Services Ltd. (Lord Bingham), 110,
(Lord Nicholls) ¶37, 41, 43, (Lord Rodger) ¶129; Barker v. Corus (Lord Scott) ¶51, (Lord Rodger) ¶72,
(Lord Walker) ¶ I 04. In Snell v. Farrell (Sopinka J): ¶16: ("The challenge to the traditional approach has
manifested itself in cases dealing with non-traumatic injuries such as man-made diseases resulting from the
widespread diffusion of chemical products.").
See Strange Bedfellows at 10362, 10366, 10368, 10370. At 10362: ("At its most fundamental, the
phenomenon of scientific uncertainty in the realm of ecology can be summed up as follows: despite our best
efforts, we do not now _ and may never—fully understand how nature works, and, in particular, how new
human-made synthetic chemicals interact with and affect natural systems, including the human body.").
Page 69 of 98
an expanding exceptional categories approach to "bright line but-for"."' Here,
'172 of the ASOC specifically pleads a "but-for" exception. "'
• A lesser standard of causal onus may be resorted to in a proper case. Based
on the principle in McGhee v National Coal Board  1 W.L.R. 1
In Bunke v. Resurfice, 120071 1 S.C.R. 333, ¶25: ("First, it must be impossible for the plaintiff to
prove that the defendant's negligence caused the plaintiffs injury using the "but for" test. The impossibility
must to factors that are outside of the plaintiffs control; for example, current limits of scientific knowledge.
... In those exceptional cases where these two requirements are satisifed, liability may be imposed, even
though the "but for" test is not satisfied, because it would offend basic notions of fainress and justice to deny
liability by applying a "but for" approach.") McGhee: ("The pursuer has after all, only to satisfy the court
of a probability, not to demonstrate an irrefragable chain of causation, which in a case of dermatitis, in the
present state of medical knowledge, he could probably never do.") Lord Kilbrandon, pp.10-11 in McGhee:
("I think that the approach by the courts below confuses the balance of probability test with the nature of
causation. Moreover, it would mean that in the present state of medical knowledge and in circumstances
such as these (which are by no means uncommon) an employer would be permitted by the law to disregard
with impunity his duty to take reasonable care for the safety of his employees.").
ASOC, ¶72-73: ("Brooks' problems were caused or materially contributed to by the Defendants' use of
2,4-D, 2,4,5-T, and picloram at CFB Gagetown: (a) But for the Defendants' negligent acts and omissions
as set out herein, his injuries would not have occurred. Nor would Hope's and Faith's. Altenratively, the
Defendants' acts and omissions as set out herein materially contributed to their injuries: (i) the current limits
of scientiifc knowledge make it impossible for Brooks to prove that the Defendants' negligence caused their
injuries using the "but for" test; (ii) the Defendants clearly breached duties owed to Brooks, Hope, and Faith,
thereby exposing them to unreasonable risks of the type of harm they suffer from; (iii) their injuries fall
within the ambit of the risk created by the Defendants' breach; and (iv) It would offend basic notions of
fairness and justice to deny liability by applying a "but for" approach. HCB and TCDD in the Chemicals
caused, materially contributed to, or materially contributed to the risk of causing Brooks' prostate cancer,
Hope's cerebral palsy, and Faith's hemangioma.").
'42 Lord Nicholls of Birkenhead described McGhee's case in Fairchild v Glenhaven Funeral Services
Ltd (t/a GH Dovener & Son), 12002] UKHL 22, 1200213 All E.R. 305, ¶44-45: ("I should comment briefly
on the much discussed case of McGhee v National Coal Board 11973] 1 WLR 1. As I understand it, the
decision of your Lordships' House is an example of the application of the approach discussed above. In the
circumstances of that case the House departed from the usual threshold "but for" test of causal connection
and treated a lesser degree of causal connection as sufficient. The novelty in the decision lay in the adoption
of this approach in this country and, further, in the type of claim to which this approach was applied: there,
as with the present appeals, the field of industrial disease_ Given the medical evidence in McGhee, it was
not open to the House, however robustly inclined, to draw an inference that the employer's negligence had
in fact caused or materially contributed to the onset of the dermatitis in the sense that, but for that negligence,
the dermatitis would not have occurred. Instead, a less stringent causal connection was regarded as
sufficient. It was enough that the employer had materially increased the risk of harm to the employee.... In
an area of the law already aflficted with linguistic ambiguity! myself would not describe this process of legal
reasoning as a "legal inference" or an "inference of causation". This phraseology tends to obscure the fact
Page 70 of 98
plaintiffs can sometimes succeed by demonstrating that a toxic substance
materially increased the risk of halm, and not the harm itself.'
• Onus may even be reversed in proper cases.'" Defendants have known about
this problem at CFB Gagetown for many years. Class members, decades later,
may be irreparably hindered in their ability to prove causation on a traditional
burden of proof. It is submitted that, once Plaintiff introduces some evidence
to support causation between exposure and illness, which is within his power
to produce, Defendants should have to rebut the inference of causation.
that when applying the principle described above the court is not, by a process of inference, concluding
that the ordinary "but for" standard of causation is satisifed. Instead, the court is applying a different and
less stringent test. It were best if this were recognised openly.") McGhee was also considered in: Athey
v. Leonati (Major, J.)1113, 15, 18, 52; Snell v. Farrell (Sopinka J) ¶12-13, 15, 20, 23-25, 27, 29, 37- 38,
43; Walker Estate v. York-Finch General Hospital (Major J.) ¶99; Fairchild v. Glenhaven Funeral Services
Ltd.; Barker v. Corus;Wilsher v. Essex Area Health Authority (Lord Bridge).
Creation/material increase of risk theory was considered in: Hanke v. Resta:lice Corp. (McLachlin
C.J.C.) 1125, 27, 28 (sort of); Snell v. Farrell (Sopinka J) ¶21, 22, 27; Walker Estate v. York-Finch General
Hospital (Major J.) ¶99; St- Jean v. Mercier (Gonthier J .)¶107 , 111, 116; Fairchild v. Glenhaven Funeral
Services Ltd. (Lord Bingham), ¶15, 20, 31, (Lord Hoffmann) ¶47, 67, 73, (Lord Hutton) ¶86, 109, 111, 116,
(Lord Rodger) ¶133, 163, 170; Barker v. Corus (Lord Hoffman) ¶31-36, (Lord Scott) ¶52-53, 59, 61, (Lord
Rodger) ¶67, 70, 73-83; McGhee v. National Coal Board (Lord Reid) p. 4, (Lord Wilberforce) p. 5-7, (Lord
Simon) p.9, (Lord Kilbrandon) p. 10-11, (Lord Salmon) p. 12; Wilsher v. Essex Area Health Authority (Lord
Bridge) pp. 1083, 1086-1087. See also Strange Bedfellows at 10366.
' Reversal of burden of proof was considered in: Snell v. Farrell (Sopinka J) ¶21, 24-25, 27, 31, 33, 37;
Walker Estate v. York-Finch General Hospital (Major J.) ¶99; St- Jean v. Mercier (Gonthier J.) ¶107, 111,
116; Fairchild v. Glenhaven Funeral Services Ltd. (Lord Hoffmann) ¶65, (Lord Hutton) ¶90, 110, (Lord
Rodger) 11131, 162. Cook v. Lewis (Rand J.) ¶8, 15, (Locke J., dissenting)1164; Bonnington Castings Ltd. v.
Wardlaw (Lord Tucker) p. 623, (Lord Keith) p. 623, Wilsher v. Essex Area Health Authority (Lord
Bridge) pp. 1082, 1084-1087, 1089. See also Strange Bedfellows at 10365, 10369-10372 and at 10371: ("A
tort system based on the ecological paradigm would reverse the burden of proof on causation. More
specifically, tort should reverse the burden on generic causation when plaintiffs can prove that a defendant
conducted inadequate testing of its product before releasing it into the environment (including the market).
While a plaintiff should still have to lead evidence of specific causation, including evidence of exposure, she
should not be required to prove that the substance at issue was capable of causing the kind of injury she
sustained when the defendant's own conduct (or inaction) has placed such proof beyond her reach.").
Page 71 of 98
(c) The phrases "common sense "' and "robust and pragmatic approach" promote
a flexible legal approach to causation that contrasts with the "certainty" demanded
by the reputable experts hired by Dow and Monsanto.
(d) Causation is a matter of policy, not science. "' Here, a policy based, non-
scientific approach to causation, could lead to a finding of causation based merely
on Defendants' outrageous conduct, the fact that the breached duty was intended
to guard Plaintiff against caused the type of haini that resulted, Plaintiff needs
compensation, and the public sense of fairness would be hurt by excluding liability
based solely on science's inability to meet the mark of laboratory scientists.
(e) The "robust and pragmatic" approach to causation negates concenrs posed by
the variety of potential alternate causes. On a review of Athey v. Leonati,[ 1996]
3 S.C.R. 458, certain propositions emerge that have application:
Causation may be established where a defendant's negligence "materially
contributed" to the occurrence of the injury. A contributing factor is material
if it falls outside the de minimis range. As long as defendants are part of the
cause of an injury, they are liable, even though their act alone was not enough
to create the injury.
A plaintiff need not establish that defendant's negligence was the sole cause
of the injury. There will frequently be a myriad of other background events
145 Common sense/policy (or don't need scientific proof/precision): Athey v. Leonati (Major, J.)116; Snell
v. Farrell (Sopinka J)117, 25, 30, 35-38, 45; Walker Estate v. York-Finch General Hospital (Major J.) ¶86;
Fairchild v. Glenhaven Funeral Services Ltd. (Lord Bingham) ¶ 10-13, 15, 20-21, 31-35, (Lord Nicholls)
137, 41-45, (Lord lloffmann)156, 60-63, (Lord Hutton) ¶82-83, 86, 100, 113-114, (Lord Rodger) ¶142, 150,
155, 168-170: Cook v. Lewis (Rand J.) ¶8, 15, 13; Barker v ,Corps (Lord Hoffman) ¶1, 40-42, (Lord Scott)
¶52, 57, (Lord Rodger) ¶99, (Lord Walker) 1 04; McGhee v. National Coal Board (Lord Reid) pp. 4-5, (Lord
Wilberforce) p. 6, (Lord Kilbrandon) pp. 10-11, (Lord Salmon) p. 12, Wilsher v. Essex Area Health
Authority (Lord Bridge) pp. 1088-1089.
In Fairchild v. Glenhaven Funeral Services Ltd., Lord Nicholls viewed causation, at ¶36, as a question
of "instinctive notions of what justice requires and fainress demands".
Page 72 of 98
which were necessary preconditions to the injury occurring.
• There is no basis to reduce liability because of the existence of other
preconditions. Defendants remain liable for all injuries caused or contributed
to by their negligence.' If defendants' conduct is found to be a cause of
injury, the presence of non-tortious contributing causes will not reduce
liability. They are liable even when causal factors for which they are not
responsible helped cause the harm.
(0 Here, there will be no basis to reduce the scope of each class member's recovery
because they may each have been exposed to other non-tortious causes. If the
exposure at CFB Gagetown contributed, even 5% to an illness, class members can
recover 100% of damages. All the background levels of dioxin in Canada would
not prevent recovery from the Defendants.
(g) Therefore, the various divergent experiences of each class member, wherever
they resided before or after they were at CFB Gagetown does not have any legal
147 Athey v. Leonati,¶112-20: ("If the defendant's conduct is found to be a cause of the injury, the presence
of other non-tortious contributing causes does not reduce the extent of the defendant's liability.... Causation
is established where the plaintiff proves to the civil standard on a balance of probabilities that the defendant
caused or contributed to the injury The general, but not conclusive, test for causation is the "but for"
test, which requires the plaintiff to show that the injury would not have occurred but for the negligence of
the defendant The "but for" test is unworkable in some circumstances, so the courts have recognized
that causation is established where the defendant's negligence "materially contributed" to the occurrence of
the injury A contributing factor is material if it falls outside the de minimis range The causation
test is not to be applied too rigidly. Causation need not be determined by scientiifc precision... Although
the burden of proof remains with the plaintiff, in some circumstances an inference of causation may be drawn
from the evidence without positive scientific proof. ... It is not now necessary, nor has it ever been, for the
plaintiff to establish that the defendant's negligence was the sole cause of the injury. There will frequently
be a myriad of other background events which were necessary preconditions to the injury occurring. ... As
long as a defendant is part of the cause of an injury, the defendant is liable, even though his act alone was
not enough to create the injury. There is no basis for a reduction of liability because of the existence of other
preconditions: defendants remain liable for all injuries caused or contributed to by their negligence. ... The
law does not excuse a defendant from liability merely because other causal factors for which he is not
responsible also helped produce the harm If the law permitted apportionment between tortious causes
and non-tortious causes, a plaintiff could recover 100 per cent of his or her loss only when the defendant's
negligence was the sole cause of the injuries. Since most events are the result of a complex set of causes,
there will frequently be non-tortious causes contributing to the injury.").
Page 73 of 98
effect on the commonality of their claim. Their strong common interest in
establishing dangerous areas at CFB Gagetown justify a class action.
75. Plaintiff proposes to manageably establish the existence of "Toxic Areas
(a) Defendants has shown the manageability of identifying what they call "Areas
of Potential Environmental Concenr" and which Plaintiff frames herein as "Toxic
Areas". Jacques Whitford tested the areas for toxicity, thereby demonstrating that
it can be manageably be done and within a few short months.
(b) MLG retained Hatfield Consultants Ltd. ("Hatifeld") to design and implement
a more effective and reliable testing program similar to that which enabled Hatfield
to identify "Hot Spots" in Vietnam. In collaboration with AXYS, which can detect
HCB and TCDD levels in animal, soil, vegetation, and water samples, Hatfield can
employ its equipment and expertise to sample and measure soil contamination at
CFB Gagetown. "Toxic Areas" can be identiifed in a systematic way based on the
maps attached as Schedules to the ASOC or altenratively, on the "coded map"
numbered areas. Hatfield could produce a Rule 284D expert report for use at the
trial of common issues. 1AOWD: Ex. 1, ¶3-5.7, 11, (Ex. B)]
76. Existing and reliable military documents can objectively verify class
membership, and resolve or significantly advance common and individual issues.
(a) Defendants have documents that show which units were in which areas at
which times. '" [ROES: 124, 27-28, 31, 33-44, 47-50; AOGP: 1133-40; CEER: 1191-97]
(b) Records are reliable, given tight military control over class member mobility:
• A Personnel Group kept track of who was coming and going in and out of the
14' They include After Action Reports, Base Training and Operations Groups applications, request forms,
and spreadsheets, Range Control daily reports and training sheets, coded maps, unit nominal rolls, and
reserve unit pay sheets.
Page 74 of 98
Training Area. The area was tightly controlled. [AOES: '1151; AOGP:162]
Base Training and Operations carefully controlled who entered the base,
when, why, and the activities they perfoimed. [AOES: '1126-34]
Range Control enforced land use allocations. [AOES: '1135-40]
(c) In resolving individual issues, special evidentiary rules under The CAA and the
principled approach to hearsay may reasonably pe iinit using these documents:
to help resolve common issues such as what Defendants knew about who was
where when they used Agent Orange; and
to deter ____ mine or corroborate the existence of class members at precise
geographical locations at precise times.
(d) As in all class actions, there are "differentialities". Injury and causation for
personal injury claimants may have to be litigated following resolution of the
common issues, if decided in the class's favour. But individual issues are
manageable given Defendants' documents as to who was where and when.
(e) Class member medical records, stored in Ottawa, will contribute to the
manageability of common and individual issues resolution. [AOES: 1152].
77. Plaintiff has a plan to efficiently advance the medical monitoring claims:
(a) Plaintiff claims reasonable costs of testing for genetic damage. For a
reasonable fee' those who have been in contact with 2,4-D, 2,4,5,-T, or picloram
can be tested for HCB and TCDD related chromosomal abno _______ iinalities.
Medical Genetics Centre ("GeneCare") can provide:
genetic laboratory testing and analysis of human blood and bone marrow to
test for chromosomal abnormalities; and
prenatal testing of pregnant women who may be at risk of delivering babies
149 S e e [AOAS: 114, E x . 1].
Page 75 of 98
with birth defects for fetal chromosomal abnormalities'
Tests would include Fluorescent in situ hybridizations ("FISH") analysis, a
chromosome analysis that can detect common oncology-related translocations,
deletions and amplifications when lymphomas and related cancers are suspected.
Reasonable costs of testing awards may be bifurcated depending on whether class
members have shown symptoms of illness or not. Although what the reasonable
costs would include will be determined at trial, Plaintiff seeks:
chromosome analysis to define the type of cancer and monitor remission. '
reasonable costs for both symptomatic and asymptomatic class members to
attend to a laboratory sampling site. [AOPB: 111, 3, 5-8, 11-18, 20-21]
(b) Plaintiff claims reasonable costs of testing for HCB and TCDD poisoning.
AXYS Analytical Services Ltd. ("AXYS"), a large, experienced m, Canadian
laboratory, can perform high quality low picogram to low nangram dioxins and
furan analysis of human blood and tissue using GC/HRMS, LC/MS/MS,
GC/LRMS, and GC/ECD instrumentation and associated techniques. AXYS can
detect dioxin levels in those exposed to Toxic Areas. [AOJC: 1)2-6, 8, 11, 16, 24, 27]
' This relief is particularly suitable in this case where, on behalf of the class, Plaintiff claims damages for
the increased costs of raising a disabled child and the loss of opportunity to have an abortion. Detecting birth
defects could give class members the opportunity to have an abortion. Their claim would then be a few
thousand dollars as opposed to the approximately 5200,000 plus that they could otherwise claim.
Detecting early remission can help identify appropriate treatment protocols and in predicting prognosis.
GeneCare could identify abnormal cells in the bone marrow or peripheral blood after treatment but before
clinical symptoms reappear in order to re-implement treatment sooner.
Patients can send their blood and/or bone marrow samples to the GeneCare laboratory or may
alternatively go to the GeneCare laboratory and have samples drawn on site. Asymptomatic patients can
have blood drawn, a least invasive technique.
AXYS has previously performed human serum analysis for PCB and Perfluorinated Compound Bisphenol
A, Perfluorinated Compounds, Mono Phthalate Esters, PBDEs, PCBs, Dioxins/furans detection in
American legal actions and for various American and Canadian state and provincial governments.
Page 76 of 98
(b) "other reasonably available means"
78. The Fact Finder's Project is not preferable:
(a) The results are not legally binding.
(b) It does not compensate class members.
(c) The tasks were designed so that they water down the probability of finding
chemicals or discerning significant risks. Many exposure scenarios were not
assessed. Signiifcant research was minimized, and ifndings were obscured.
(d) The Jacques Whitford Ltd. study was an exploratory investigation, not an
extensive testing. It did not test water, soil, and animal samples that would be most
likely to establish the presence of chemicals of concenr.
The animal and plant testing was faulty. Fish muscle was analyzed rather than
the fatty under layer of the skin where pollutants collect.
Curcurbitaceae accumulate TCDD better than the lfora that was tested.
(e) The Guenrsey study was offensively deceptive and unhelpful.
Because they reside all over Canada, most class members were excluded.
Only a small fraction lived within the Guenrsey study area.
Those who are not class members were included in the test group. Everyone
in Fredericton was included, whether they were at CFB Gagetown or not.
Admiral E.R. Zumwalt, Jr. described how the U.S. Department of Veterans'
Affairs employed a similar deceptive "dilution effect" in including healthy
Veterans who were not exposed to Agent Orange in health studies.
(f) The Dillon Consulting Limited study assessed only present day risk, not past
toxicity of defoliated areas, which is the subject of the class action.
(g) As a result, class members should in fairness present their own testing and
independent verification in a legally binding way. [AOKD: 1154-55:
AOMS: 1118, 107, 105-06, 112-13; AOWD: Ex. 1, 117-10; CEGP: ¶166, 171-72, 176, 181]
Page 77 of 98
79. Individual actions would not be preferable:
(a) Individual actions are less practical and efficient than a class action.
Actions asserting small damages on behalf of each class member are
particularly suited to aggregate treatment.'54 Here, except for personal injury
claimants, damages are small. The reliefsought for medical monitoring — about
$2,000 — makes an individual action prohibitive.
The costs of experts and environmental testing make individual actions
unrealistic. Dioxin studies are expensive. The costs of conducting an
independent environmental assessment program at CFB Gagetown will only be
justified ifthe class can potentially claim an aggregate monetary award at trial's
end. It would be economically inefifcient for claimants to sue on their own.
In a class action, there are economies of scale. All could recover and
Defendants would then pay for harms caused. 1
[AOWD: Ex. 1, 117]
Aggregate savings beneift Defendants. Each AXYS test is $950, but would
be $750 if more than 200 are made. Defendants would therefore pay less if
claimants succeeded as a class rather than one by one. [AOJC:1126]
(b) Success in individual actions would have little deterrent effect. Behavioural
modification may inform preferability analysis and is particularly pertinent in
environmental class actions analysis.155 Certification will alert potential defendants
'54 In Frey v. BCE lnc. 2006 SKQB 328 (Gerein J.), at ¶70: ("In this case, there is the potential for there
to be more than 12 million plaintiffs with each claiming something like $500.00. To suggest that each should
pursue an individual action is to ignore reality. The cost to each litigant would militate against such a course.
In addition, the courts across Canada, let alone in Saskatchewan solely, could never accommodate such a
plethora of actions. It follows that individual actions are not realistic."). See also: Bodnar v. Cash Store
Inc. (Aug. 20), 2005 BCSC 1228, ¶62, appeal dismissed in (May 25th), 2006 BCCA 260; Markson v.
MBNA Canada Bank, 2007 ONCA 334, ¶72; Cassano v. Toronto Dominion Bank (Nov. le. 2007), ¶57.)
,s5Strange Bedfellows at 10362: ("Significantly, tort does not suffer from the inconsistencies and variations
in enforcement that accompany statutory regimes. Rather than relying on bureaucracies that can be
"captured" by regulated industries,
eviscerated through budget cuts, manipulated for political ends, or
environmental tort is enforced by a stable, highly motivated, and well resourced plaintiffs' bar. Free from
Page 78 of 98
that they will face a class action if they shrug their duties and fail to promptly
notify others of unreasonably toxic risks.
(c) A class action would not be unfair to class members. They would not be put
into a passive role. None will prevail without showing both general and individual
causation. Each will have significant involvement to establish their ultimate claim
to compensation. Those who want complete control can opt-out.
(d) Many class members are in ongoing relationships with DND and DVA. They
may be discouraged from suing in their own names. A class action would allow
their participation while preserving their ongoing relationship. A class action
would also help overcome the "don't challenge authority" military mentality under
which some class member operate.
(e) Because there are common issues, a class action is the most economical, even
if there are many individual issues. '
80. Agent Orange class actions were filed in most Canadian provinces. The
cognizance of developments elsewhere enhances manageability. However, this class
action is preferable to the NB and NF Actions:
(a) Primarily, it is national opt-out, whereas NB and NF are opt-in.
(b) The relief sought here is broader.
the political constraints that limit government action, tort also has a greater ability to attach ifnancial
consequences to environmental wrongdoing that are substantial enough to seriously impact corporate profit
margins. In effect, tort damage awards force corporate actors to internalize the environmental costs of their
behavior. Thus, more than its statutory sibling, tort has the potential to actually change the economic
equation _ making it cheaper to protect than to pollute the environment:).
In Windsor (May 17'1', 2006), ¶132: ("The Plaintiffs argued that "... the only alternative [to a class
proceeding] would be a multitude of individual actions." It makes much more sense and would be more
efficient, the Plaintiffs argued, to adjudicate the common issues, and determine the multitude of individual
issues within the framework of a single proceeding. I agree. This is the classic argument in favour of
Page 79 of 98
(c) Location of evidence is neutral. With a common Canadian transportation
system and videoconferencing technology, there will be no hardship to witnesses
in testifying in one court or another. Any documentary evidence can be sent by
CD-ROM or DVD through the common Canadian postal system to either court.
(d) Because class members are those who attended a federal institution and now
internationally reside, each superior court can equally exercise jurisdiction.
(e) This action proposes more suitable and manageable common issues to which
the evidence would be better utilized.
(f) This Court should certify, and if New Brunswick subsequently decides to
certify, this Court could amend the deifnition, if necessary.' Here, the deifnition
excludes those who are in the NB and NF actions, so that will be unnecessary.
81. Pensions are not an adequate alternative to a class action.
(a) Pension Act, R.S.C. 1985, c. P-6 pensions are capped. They do not provide full
compensation. But if claimants are unable to advance a class action, they will be
at the mercy of DVA's absent largesse.
(b) The pension application process is awkward and unfair.
Electronic applications are not possible. DVA documents are tough to
complete. Application forms are leading and there is not a lot of room in the
boxes to effectively present a claim. If incorrectly done, they are not processed.
If they are processed, DVA turns everybody down the ifrst try.
Appeals are discouraging. The VRAB has no military or legal training.
Decisions are inconsistent. Many had greater exposure than General Saar,
1S7 In Nantais, supra (Oct. 4t°,1995), ¶15: ("It is also argued that other class proceedings may be certified
in other provinces relating to the matter which is the subject of this class proceeding. Additionally, if a
class is certified in another province, that group can be deleted from the Ontario class.").
Page 80 of 98
who received an Agent Orange pension. Precedents not binding.
(c) In 2005, Defendants admitted to using Agent Orange. But the DVA denied
most pension applications and dismissed appeals. Pensions are chronically denied.
Few, if any, are granted. Without conducting a trial, DVA determined that only
those who at CFB Gagetown in 1966-67 and had Agent Orange on their skin could
have suffered disease as a result of exposure. They ignore residual risk in the soil.
(d) Pensions are not available for recreational activity. They are available to a
fraction of class members. [AODT: ¶30-34 1, AOES: ¶18; AOGP: ¶19, 21-22, 58,
137, 139, 140, 143-44; AOKD: Ex:B, ¶386. 388-89, 391-92; AOLSV: ¶45]
82. The ex gratia payment process is unacceptable.
(a) Applicants have to prove their case without documentary disclosure.
(b) Like the Suffield ex gratia payments, criteria are narrow and arbitrary. Few
received it. Those who did received a paltry $20,000 for what may in some cases
be million dollar claims.
(c) Though Non-Hodgkins' Lymphoma and Multiple Myeloma have lengthy
latency periods, payment is denied to those not diagnosed by April 1 st 2009.
(d) Results are arbitrary, inconsistent, and unjust. Some received payment, but
only atfer repeated applications. Lynn Severt's father died before the arbitrary
February 6ht, 2006 "death date". A few days before he died, DND approved her
brother's payment, but since he letf no wife or children, Defendants paid no one.
Survival of actions legislation would prevent those bizarre results.
(e) Payments are made without admission. Class members want wrongdoing
acknowledged.'" [AOER: ¶22; AOGP: 1160-66, 171-74; AOKD: Ex. C, 168; AOLSV: 146-47]
158As described by Danny Thibodeau at ¶36 of his affidavit: ("I see the ex gratia payment as the
government saying "we're not really responsible, but just in case we are, here is $20,000". To that I "if
say, you think you did wrong, then you pay for all the harm you caused.").
Page 81 of 98
(5) representative plaintiff
(a) fair and adequate representation
83. Adequate representation can come from any interest in the litigation outcome.
A representative need not be "typical" of the class, nor the "best" possible
representative. '" That different claimants suffered different diseases is for
subsequent individualized damage hearings. It is not a n obsta cl e to the
representative's appointment. A representative need not have an understanding
beyond that of an ordinary client. He can have a general understanding of class
actions and the nature of the litigation in order to properly instruct counseff.'
84. Frank Brooks, Kenneth Dobbie, and Grant Payne are willing to represent the
class and has the capacity to provide fair representation. Their evidence favourably
compares with that accepted in previously certiifed toxic tort class actions.
85. Mr. Brooks is the Plaintiff. He resides in Saskatchewan.
(a) From 1967-70, Brooks was at CFB Gagetown with the esteemed Black Watch.
Exercises put him into contact with contaminated soil. In every part of CFB
Gagetown, he had harmful doses of HCB and TCDD. AOFB: ffi3, 8-9; ASOC: 9]
(b) He was exposed as a civilian. He ifshed, hunted, picked berries, and drank
water in a way that was unconnected to his military service. [AOFB: 01
1" In Larcade v. Ontario (Minister of Community & Social Services), 77 O.R. (3d) 422, ¶22: ("11 is
seldom the case that a representative plaintiff bears all of the characteristics of every potential member of
the class. The fact that other plaintiffs might have larger dollar claims or more extensive grievances than the
representative plaintiff, does not mean that the representative is necessarily in a position of conlfict.").
Frey v. Bell Mobility Inc., 2007 SKQB 328, ¶6-7; Momi v. Canada (Minister of Citizenship &
Immigration), 2006 FC 738,  2 F.C.R. 291, ¶75.
Dutton, ¶41; The Chippewas of Sarnia Band v. Attorney General of Canada, 29 O.R. (3d) 549, at p. 569.
Page 82 of 98
(c) When he enrolled in the Canadian Forces, he had a clean bill of health. After
he was exposed to CFB Gagetown, he began having health problems. He
developed lumps on his aims and chest. He still has them. [AOFB: 114; ASOC: 1118]
(d) In 1972, Brooks was diagnosed with a hardened prostate. In 1997, he had
prostate cancer. Receiving that diagnosis shocked him. No one in his family ever
had cancer. In 1998, Dr. Tarangar performed a radical prostatectomy. Brooks paid
for his medication out of his pocket. [AOFB: 415-17; ASOC: '1122, 23]
(e) He is scared because Dr. Trangar monitors his cancer, which reliable medical
opinion says will more than likely return. He also fears secondary cancer. After
a colonoscopy, he had pre-cancerous bowel polyps, which Dr. Kanthan removed.
Brooks has frequent 'follow-ups' to detect for likely recurrence. [ASOC: 128]
(f) Brooks has a personal interest to effectively act for descendant claimants. He
has two granddaughters suitably named Hope and Faith.. Faith was born with a
birth defect. Hope suffers from cerebral palsy. [AOFB: 121; [ASOC: 1130]
(g) He had responsible employment including as a farmer, mechanic, SIAST
teacher, and as an occupational health & safety officer in a managerial position.
He enforces legislation and regulations and supervises officers. [AOFB: 114-7]
(h) He instructed counsel to proceed in Saskatchewan due to the national opt-out
legislation here. He knows class action steps, his responsibilities, and the ifduciary
role he will play. He knows the common issues and researched medical issues
underlying them. [AOFB: 1126-29, 30-31, 34]
86. Mr. Dobbie resides in Ontario and is a model representative plaintiff:
(a) He has a strong claim. Between 1959-62 and 1965-73, he was exposed to CFB
Gagetown in almost every way – as a civilian, military child, military father, Boy
Scout, swimmer, hunter, fisher, hiker, biker, and employee. As part of the Canada
Youth Works Program, he cleared freshly defoliated brush and trees. He saw
Page 83 of 98
defoliated areas and saw planes spray.
(b) Within months of his exposure to defoliated brush, he became sick with Agent
Orange related illness, and has been ever since. He chronicled them at 11180.
(c) He had an important role in the genesis of this litigation. He corresponded with
Gloria Sellar, whose pension ignited the renewed interest in Agent Orange use at
CFB Gagetown. He collaborated with Louise Elliot of the CBC to bring the issues
in this litigation to light after 20 years of governmental inaction.
(d) He has a public presence as a result of his 100 interviews in newspapers and
radio stations. He appeared in over 40 televised local, national, and international
news and documentary programs including BBC World at Six and Ted Koppel's
Nightline. His Macleans magazine interview was published in 2007.
(e) Class members looked to him to obtain his views on litigation issues. They
trusted him with important evidence about the magnitude of Defendants'
wrongdoing. They corresponded with him through e-mail, telephone, and mail.
They shared their concerns and gave him thanks for advancing their interests.
(f) He wrote letters to Members of Parliament and to the Cabinet. He testified
before the Standing Committee of National Defence and the DVA.
(g) He has legal experience and has dealt with lawyers before. He knows how
class actions work. He informed himself on the legal issues in this class action and
reviewed key intenrational legal precedents. He knows the evidentiary sources
upon which Plaintiff intends to advance claims. He reviewed Court documents
associated with this litigation. He contacted witnesses on this motion.
(h) He frequently consulted with and instructed MLG. He helped draft the Federal
Court statement of claim on which this action is based. He helped form the
litigation plan. He understands national "opt-in" and "opt-out" legislation. After
the Federal Court action was stayed, he instructed MLG on how to proceed.
(i) Though he is currently a named plaintiff in the Ontario action, he is prepared to
Page 84 of 98
discontinue that action if appointed as a representative plaintiff here.
[AOKD: Ex. A: ¶76; Ex. B,12-4, 34-38, 46-48, 51-52, 65-66, 69, 92-93, 99, 100-03, 108, 132, 145
48, 151, 156-57, 171-72, 175, 180, 205, 207, 246, 265, 288-92, 326-27, 330-31. 332, 335, 343-44,
363-68, 382, 399-403, 410-15, 422, 424-25, 441, 445, 447-51; Ex. C, 114-5]
87. Mr. Payne, a New Brunswick resident, would well represent the class.
(a) He was in the Canadian Forces and is a class member. [AOGP: ¶3-8]
(b) CFB Gagetown was his home base. It was like his own backyard. . He was
exposed to each area. He knows the lfora and fauna. He can instruct counsel on
geographical matters. AOGP: ¶9-14, 41-45, 52-54, 64, 66, 121; CEGP: ¶120]
(c) During service, he accounted for those under his command and their families.
He knew them well. What their ranks were and what they did. He has a history of
helping veterans. Each week, he helps them fill out class action and Veterans'
Affairs foul's. [AOGP: ¶23-32, 97-101, 136, 176; CEGP: ¶171, 196-98]
(d) He has court experience. With the New Brunswick Highway Patrol, he drafted
informations and helped prepare ofifcers to testify. He himself testified in over 50
trials. He knows how class actions work and what his responsibilities are. He
understands the difference between "opt-in" and "opt out" legislation and that this
is a national class action. [AOGP: 118, 175, 177, 179-85; CEGP: ¶16]
(e) In service and as a hunter, fisherman, and skier, he observed defoliation and its
atfermath in speciifed areas. [AOGP: 1145-55, 57]
(f) He is motivated to advance descendant claims. Exposure made he and his
family sick. His twins were prematurely born. One has a rare white blood cell
disorder. The other died at six weeks. A fourth boy was prematurely born and now
has severe emphysema. Grant and his wife have Type 2 Diabetes, but other family
members do not.
[AOGP: ¶123, 124, 126-128, 130-35; CEGP: 11326].
(g) He was exposed to Toxic Areas. During a military exercise, he and his
comrades traveled the entire Enniskillen Road on foot. Along the way, they came
Page 85 of 98
into contact with defoliated areas. They hunted and ate animals. He drank,
showered, and cooked with lake and snow water. He was in areas of soggy wet
bush with a foul smell. 1A0GP:1119, 20, 59-61, 63-65, 83; CEGP: 178-79, 104-06, 109]
(h) He proved himself capable of getting aggregate relief. One time, he shot a big
bear which he and his comrades collectively shared.
(i) He kept apprised of litigation issues. He read the Fact-Finders' reports and Dr.
Sears' affidavit. He has a loyal relationship with MLG. [CEGP: 11172-73]
88. Although Bryson ifled for certification in New Brunswick, little is known
about he or Mr. Murrin other than what is in their short affidavits. Mssrs. Brooks,
Dobbie, and Payne would better represent class members. f AOLS#3: i10, Ex. "F"]
(14 workable method
89. The SCC did not state that a "litigation plan" was a "necessary condition" to
a class action. When other certification requirements are present, a just course may
be to allow counsel to file a revised plan which addresses court observed
deifciencies. ' A "litigation plan" is a court-supervised collaboration between
plaintiffs and defendants. ' A "litigation plan" may evolve as a case proceeds:
'2 A low standard was described by the Ontario Court of Appeal in Cloud (Dec. 3 rd, 2004),1195: ("I
do not agree that the appellants' certification motion should fail on this basis. The litigation plan produced
by the appellants is, like all litigation plans, something of a work in progress. It will undoubtedly have to
be amended, particularly in light of the issues found to warrant a common trial. Any shortcomings due to
its failure to provide for when limitations issues will be dealt with or how third party claims are to be
accommodated can be addressed under the supervision of the case management judge once the pleadings are
complete. Most importantly, nothing in the litigation plan exposes weaknesses in the case as framed that
undermine the conclusion that a class action is the preferable procedure.").
Cloud (Dec. 31'1, 2004)194-95; Dalhuisen (Guardian ad litem of) v. Maxim 's Bakery Ltd., 2002 BCSC
528, 124; Dutton, ¶41; Bellaire v. Independent Order of Foresters, 5 C.P.C. (6`11) 68, 154; Sorotski, 182.
Page 86 of 98
(a) The standard is "satisfactory", "adequate" , or "sufficient" for certification
purposes. A plaintiff need only present an "initial effort" to indicate that "some
level of attention has been given to how the action will progress" if certified.
(b) A "workable method" need not be contained within a single document. ' ' I t
is a "work in progress". "Workable" means lfexible.
(c) A court should not engage in "unwarranted speculation" or hold plaintiffs to a
standard that assumes foresight neither they nor the Court now possess. Counsel
should not engage in a "pointless exercise" of predicting how the litigation will
unfold or giving details for eventualities that may not arise. '
90. In Bellaire v. Independent Order of Foresters, 5 C.P.C. (6th) 68, Nordheimer
J. provided a recipe. He did not specify the amount of detail required for each
ingredient nor suggest they are equally important in each case. If not seen at
certification, the 'Bellaire factors' can subsequently be met at case conferences. '
91. In this brief, Plaintiff addressed Bellaire factors. Another feature of the plan
is bimonthly case management meetings. In advance, counsel will submit a joint
164 Pearson v. Inca Ltd. (Nov. 18th, 2005) (Rosenberg J.A.),1197: ("The motion judge was also not satisfied
with the litigation plan. In my view, the motion judge took an unreasonably rigid view by requiring that all
the details for the litigation be "within the four corners of the plan itself' (at para. 144). The elements of the
litigation plan, especially for litigating the narrower issues with which we are now concenred, can be found
in the litigation plan and in the afifdavit of Mr. Kaufmann. Obviously, it would be easier for the judge
hearing the certiifcation motion to have all the elements of the plan in one place, but it would not be
consistent with the generous approach required by the cases, especially Cloud, to defeat a motion for
certiifcation because there are two sources for the litigation plan.").
Bellaire ¶54; Bywater (Dec. 2' 1998)1133 and (Jan. 12 w) ¶1(2); Cloud (Dec 3' 2004) ¶95; Heward
(Feb. 6ht, 2007), ¶112, 120; Ludwig (Nov. 3", 2004), ¶58; Pearson, ¶97; Politzer v. 170498 Canada Inc.,
20 C.P.C. (6th) 288, ¶49; Sorotski, ¶81; Williams v. College Pension Board of Trustees, 2005 BCSC 788,
254 D.L.R. (4th) 536; Windsor (May 17i", 2006), ¶162.
Lewis v. Cantertrot Investments Ltd. (2006), 24 C.P.C. (6') 49, 114-18; Bellaire, 5 C.P.C. (6ht) 68, 19
C.C.L.I. (0) 35, ¶53; Heward (Feb. 6', 2007), 39 C.P.C. (6`h) 153, ¶123-124.
Page 87 of 98
report similar to that used in Newfoundland!' to outline the status of the proceedings
and indicate items to be considered by the case management judge, including:
(a) the status of parallel proceedings in other provinces;
(b) the status of oral and documentary discovery generally;
(c) completion of Plaintiff Profile Forms;
(d) Defendants' disclosure of military records regarding each class member
(including the military medical records stored in the Public Archives);
(e) resolution of disputed claims concenring privileged documents;
(f) scheduling of the common issues trials; and
(g) scheduling of individual quantum of damages trials.
92. MLG will communicate with class members by:
(a) providing court approved reporting letters. Fora reasonable cost, Crawford can
distribute the letters to known class members. Class members will be directed to
a website where they can access court documents.
(b) communications via Crawford's national post office box, (519) 578-7739 fax,
and cfbdefoliantCa),crawco.ca email. Class members can direct their inquires there.
(c) a internet website www.cfbgagetowndefoliantclassaction.ca, where Class
members can access court documents and court-approved FAQ's.
(d) a 1-877-507-7706 toll-free telephone number. [AOKE: 1156-58]
93. Plaintiff plans to settle with Defendant based on the following subclass
claimant breakdown attached as Schedule "D". Subclasses are not necessary in the
certification order, because there are no common issues unique to any subclass.
AOTD: Ex. III.
Page 88 of 98
94. A "four corners" litigation is unnecessary, but MLG, collaboratively working
with Defendants' counsel, can submit one for court approval.
95. Notice is intertwined with the class definition. Class definition identifies those
entitled to notice and relief and who will be bound by the judgment. The purpose of
notice is to inform class members that they are entitled to relief and will be bound
unless they opt out. The content, method, and cost of notice can be dealt with at a
case conference. '"
96. S. 21(1) presumes that a representative plaintiff will give certification notice.
S. 26(1) is neutral on who pays. Because it solicits opt-outs, and sees that a common
issues judgment will more likely bind more potential claimants, certiifcation benefits
defendants more than plaintiffs. If notice is not thorough, defendants may not have
the certainty of a full and final disposition.' 69
97. S. 21(1) presumes that a representative will give notice. The court may order
a defendant to give and pay for notice.
(a) No case is cited for the "normal order" referred to at ¶5 of Markle v. Toronto
(City), 42 C.C.P.B. 69 (Ont. Sup. Ct.). That approach is not supported by precedent
Dutton, ¶38-49; Wilson, ¶144; Heward, ¶125; McCutcheon (May 10th, 2006), ¶84.
The CAA, c.21 ss. 21-22, 26; Campbell v. Flexwatt Corp. (1996), 25 B.C.L.R. (3d) 329 (BCSC). ¶59;
Endean v Canadian Red Cross Society (1997), 36 B.C.L.R. (3d) 350 (BCSC), ¶70-71; Joncas v. Spruce
Falls Power & Paper Co. (1999), 45 C.P.C. (4th) 241 (Gen. Div), ¶15; Denis v. Bertrand & Frere
Construction Co.,  O.J. No. 1583 (Ont. S.C.J.), ¶9; Parsons v. McDonald's Restaurants of Canada
Ltd. (2005), 250 D.L.R. (4') 224, 74 O.R. (3d) 321 (Ont. C.A.), ¶30, 34-43; Boulanger v. Johnson &
Johnson Corp, 2007 CarswellOnt 4454, ¶4-5; Parsons v. Coast Capital Savings Credit Union (April 61h),
2006 BCSC 552, ¶162; Bartolome v. Mr. Payday Easy Loans Inc., 2008 BCSC 132, ¶61; Michael A.
Eizenga "Class Actions Law and Practice (Second Edition), Lexis NexisCanada Inc. (2008), §5.69-5.72.
Page 89 of 98
or a plain, unedited, reading of The CAA.
(b) On balance, courts more often order defendants to pay. Courts have invariably
required governmental defendants to pay.
(c) There is no principled distinction between "costs" and "no costs" jurisdictions.
At 1149 of Walls v Bayer Inc., 2007 MBQB 131,217 Man. R. (2d) 66, Maclnnes J.
reasoned that defendants cannot recover costs of notice in a "no costs" regime.
That goes both ways. If the representative now pays for notice and succeeds, s.
40(1) may preclude recovery from the wrongdoers. He has no retainer agreement
that would oblige MLG to foot disbursements as the plaintiff did in Walls.
(d)Because it solicits opt-outs, and sees that a favourable common issues judgment
is more likely to bind a greater number of class members, certification benefits
defendants more than plaintiffs.
(e) To burden plaintiffs would undermine the goals of class actions. '
(f) Where government is involved and the uncontradicted evidence is that
government, the Defendants, have records which will facilitate the best notice, but
Defendants have wrongfully chosen to remain silent and file no meaningful
evidence before the Court, the Court should draw two conclusions. First, it is in
the interests of all parties that notice is as complete as possible. Second, in fairness
to members of the Class, the Court should seek the means to accomplish notice on
a basis which is as complete as possible. Since the Defendants have chosen not to
assist the Court with any knowledge about their capacity to effect notice [pension
1° The CAA, ss. 21-26; Campbell v. Flexwatt Corp. (1996), 25 B.C.L.R. (3d) 329 (BCSC), '1159; Endean
v Canadian Red Cross Society (1997), 36 B.C.L.R. (3(1)350 (BCSC)170-71; Joncas v. Spruce Falls Power
& Paper Co (1999), 45 C.P.C. (4th) 241 (Gen. Div), 1115; Denis v. Bertrand & Frere Construction Co.,
 O.J. No. 1583 (Ont. S.C.J.), 119; Markle v. Toronto (City), 42 C.C.P.B. 69, (Ont. Sup. Ct.); Parsons
v. McDonald 's Restaurants of Canada Ltd. (2005), 250 D.L.R. (4ht) 224, 74 O.R. (3d) 321 (Ont. C.A.), 1130,
34-43; Boulanger v. Johnson & Johnson Corporation (2007), 40 C.P.C. (6ht) 170, 1156(6) and 2007
CarswellOnt 4454, 114-5; Bartolome v. Mr. Payday Easy Loans Inc., 2008 BCSC 132,1161; Michael A.
Eizenga "Class Actions Law and Practice (Second Edition), Lexis NexisCanada Inc. (2008), §5.69-5.72.
Page 90 of 98
records, claimant records, records of troops and families rotated by order of the
Defendants through CFB Gagetown, and other records] and bearing in mind the
huge imbalance between the Representative Plaintiff and the Defendants, to fund
and facilitate notice, this is a case more than others, where the Defendants should
be directed not only to fund notice but to take a very real part in effecting notice.
Where the Defendants have not cooperated by way of disclosing information to the
Court, an order that the Defendants pay for and take a part in notice is the only
way to receive the cooperation of the Defendants on this issue, which should have
been forth coming without the coercion of a court order.
98. At 111142-144 of Wilson v. Servier Canada Inc. (2000), 50 O.R. (3d) 219,
Cumming J. ordered defendants to pay the cost of notice where:
(a) They were responsible for marketing a drug in Canada.
(b) Health Canada issued a public advisory about the dangers of that drug.
(c) Medical literature raised health and safety concerns about it.
(d) There was no evidence that they took steps to notify affected individuals of the
health risks or undertook extensive research efforts to bring clarity to concerns
expressed in medical literature which led to the drug's withdrawal.
(e) The primary policy objective of class actions was access to justice. 171
99. Here, the notice program is estimated to be $463,387.90. Defendants should
bear the costs and share responsibility for distributing notice. Pursuant to ss. 25(2)
and 26(1), the Court should order that Defendants pay for the cost of notice where:
(a) The Honour of the Crown is invoked.
Wilson v. Servier Canada Inc. (2000), 50 O.R. (3d) 219, ¶42, leave to appeal refused in (2000), 143
O.A.C. 279 (Ont. Div. Ct.), ¶16, 18; The CAA, ss. 21-26.
Page 91 of 98
(b) As part of Fact Finding Task No. 1, it compiled a list of Canadian and foreign
military units and civilian employees who were at CFB Gagetown throughout the
class period. Currently, it knows of, or is able to contact, at least 115,000:
They keep a computerized database, the "Client Service Delivery Network",
which has contact information for claimants, and which they used to directly
mail information about the issues in this class action to class members.
Through the MS ACCESS database created from Factifnding Task No. 1, the
Defendant obtained at least 27,000 addresses, phone numbers, and e-mail
contacts for some, and addresses, cities, and postal codes for others.
With such resources, Defendants can provide persona] notice to known class
members. They have exponentially greater capacity to pay than Plaintiff and,
almost more importantly, full and complete notice, which is in the interests if the
administration of justice, the interests of the Class, and also the interests of the
Defendants, will best be accomplished if the Defendants are pressured by court
order to assist in accomplishing the ends of justice by forcing the Defendants to
take part in a notice program.
(c) They admitted using Agents Orange, Purple, and White at CFB Gagetown.
Since at least the early 1970's, medical literature raised health and safety concerns.
Defendants later withdrew using them. But it did not conduct comprehensive and
widespread research and notiifcation efforts until the class action brought heat in
2005. The Fact-Finders' reports contain admissions, including the following:
Over the past iffty years, Defendants applied defoliants "on a large scale
throughout the training area ". Many areas had repeated applications. A total
of 24 products containing "manufacturing impurities, "the most common of
which were dioxin and hexachlorobenzene", were used.
Concentrations of dioxins in soil samples taken from the 1966 and 1967
"Agent Orange" test plots as well as the Clones and Murphy bivouacs,
Page 92 of 98
Enniskillen Range, and four other sites exceeded soil quality guidelines.
Some class members may have experienced elevated exposures to dioxins,
elevated body burdens, and potentially unacceptable health risks.
There is sufficient evidence to support a positive association between
exposure to herbicides the Defendant used and Non-Hodgkin's Lymphoma.
(d) It has informally admitted liability, promised widespread compensation, but
provided politically motivated, nominal payments out of funds that should have gone
to equal and equitable distribution to all class members. Without court approval,
Defendants used funds towards settling the claims of only some class members and
correspondingly diminished funds available for equitable distribution amongst all
affected by the wrongful use of Agent Orange. It paid $20,000 to class members,
based on the use of Agent Orange in 1966/67, which it intends to deduct from
additional amounts anticipated to be paid as a settlement or court judgment.
(e) While Defendants now recognize wrongdoing, they historically denied risk.
In 1985, it briefed the New Brunswick Cabinet. It admitted knowledge of the
risks of dioxin since 1964 and the hazardous migration of picloram as a result
of its methods of applying Agent White. Yet, it denied specific dangers to class
In June of 2005, Defendants sent a team to the Base Gagetown Theatre to
downplay the extent of risk and wrongdoing. Following Mr. Dobbie's stand and
the filing of a class action, the Defendant began testing and analysis. On this
certiifcation application, it has not explained any basis to historically
acknowledge general health risks of dioxin while denying specific risks to class
members both before and atfer the investigation.
(f) When confronted with a class action, the Defendant undertook extensive research
and testing. But it publicly skirted wrongdoing. For 1966/67, it blamed Americans,
even though A-2004-00207 indicates invitation. It made misleading statements, even
Page 93 of 98
at the executive level. Prime Minister Martin said during Question Period in the
House of Commons, that Agent Orange was never used in Canada. The incumbent
executive promised compensation for those exposed between 1956 and 1984 (the
original class period).172
(g) It is government. The litigation engages public health issues over which it
assumed responsibility without statutory mandate.
(h) It unilaterally engaged in one-sided informational dissemination with the class.
Defendants actively solicited class members to encourage reporting of their
experiences at CFB Gagetown. It directed class members to its numerous phone
lines and institutions. but not the class action.
(i) They declined to file an affidavit as to how it could use the tools available to it,
and which it previously used to contact class members, to provide direct notice and
reduce or minimize cost, but maximize efficacy.
(j) The relief sought – the reasonable costs of aggregate medical monitoring – is
directed towards behavioural modiifcation in the prudent use of toxic defoliants.
[AOKD: Ex. C110-19, 21-25, 31, 34. 48, 51, 58, 60-64; AOKE: T9-12, 25-27]
100. Plaintiff therefore respectfully asserts that that "something else" referred to in
Walls, supra, although not a pre-requisite to requiring a government defendant to pay
costs of notice, is present in this case.
101 Lastly, on the issue of who pays, the Court is invited to think of the issue on a
societal converse basis. If, in a case of this nature, the Representative Plaintiff is
Prime Minister Harper said: ("...A Conservative government will stand up for full and fair
compensation to persons exposed to defoliant spraying during the period from 1956 to 1984. .._We will
disclose all information concerning the spraying to veterans and civilians, and will provide medical testing
to any person who may have been exposed...."). [AOKD: Ex. C, 1
Page 94 of 98
ordered to pay for the cost of notice, that has a number of affects. 1- As submitted, the
notice will not be as complete because the Defendants' databases and contact capacities
will not be utilized. 2- A chilling effect will impact upon representative plaintiffs and
potential class action counsel fearing similar costs awards which will result in future
minimal proposals for notice. If representative plaintiffs and law iflms apprehend that
they may be required to risk many hundreds of thousands of dollars to effect notice,
without knowing whether they will succeed at trial, representative plaintiffs with legal
advice will try to persuade courts in the future to accept minimal notice programs. 3-
Judges themselves will tend to reduce notice programs based upon a minimum standard
bearing in mind that representative plaintiffs have a minimal capacity to pay. 4- It will
become difficult to get representative plaintiffs, who, particularly in Saskatchewan, rely
upon this to be a no costs regime, but if representative plaintiffs are directed to pay for
huge notice programs a chilling effect will take hold impacting potential representative
plaintiffs and their counsel. 5- Cases will arise where representative plaintiffs lack the
ifnancial capacity or their counsel lack the financial capacity to comply with notice
programs. Judges may find that representative plaintiffs are in contempt of court for not
following notice directions or alternatively judges may have to include as a part of their
inquiry as to whether an individual is an adequate representative plaintiff, whether the
individual has a half a million dollars to spare for a notice program, or, worse still,
inquire into the solicitor/client relationship between the representative plaintiff and
proposed class counsel to determine if proposed class counsel have agreed to pay for
notice or to indemnify the representative plaintiff.
102. In determining when and how notice should be given, the Court may consider
any matter including the cost, nature of the relief sought, and the residence, number, and
size of claims of class members. The court may order that notice be given by any
Page 95 of 98
combination of means including advertising, mailing, posting, or publishing.'"
103. In Wilson v Servier Canada Inc., supra, the plaintiff proposed giving notice in
70 Canadian newspapers and 9 Canadian magazines. Cumming J. ordered notice sent
by mail to counsel for all known plaintiffs in Canada, published in a Saturday edition
of the Globe & Mail and National Post, and once in Readers' Digest, Chatelaine, and
Canadian Medical Association Journal, and in a press release to Canadian press outlets
via PR Newswire at the time of the initial publication in the paid media.'
104. Kerry Eaton of Crawford Class Action Services ("Crawford") is a qualiifed
expert with extensive experience. He designed a professional notice program
proposing, in combination with or as an alternative to, direct notice through
Defendants' mailing list, the following means:
(a) magazines including Esprit de Corps, Legion, Zoomer, and Macleans;
(b) medical journals including the CMA Journal, Dermatology Times of Canada,
Canadian Journals of Cardiology, Diabetes, and Neurological Sciences, and the
Chronicle of Cancer Therapy;
(c) newspapers including The Globe and Mail and The National Post, community
newspapers nearest the Canadian Army Bases and all major centers in each province,
and widely circulated British papers;
(d) press releases to PR Newswire and the Canadian General Media Network in both
English and French;
173 The CAA, s. 21-26.
Wilson v. Servier Canada Inc. (2000), 50 O.R. (3d) 219 1147-150.
Page 96 of 98
(e) outreach distribution to interested organizations, including the Regimental and
Battalion associations of units that served at Gagetown, Scouts Canada, AOAC,
American Legion, British Royal Legion, Veterans of Foreign Wars, and the Maine
and Vermont National Guards;
(f) internet advertising on major websites and battalion websites, such as the Queen's
Own Buffs and the Vermont and Maine National Guards;
(g) an Crawford designed informational kit with a cover letter, court documents, and
answers to frequently asked questions; and
(h) a toll-free telephone number which contains information about the certification
and class action litigation. [AOKE: ¶36, 37, 40-50, 55, 60}
105. The program is broader than those previously approved. This notice program is
more comprehensive than that in the Prepulsid litigation 15 and favourably compares
with that approved in the diet pills litigation' and the TTC smoke case "
(c) conflict on the common issues
106. The conlfict contemplated by s. 6(1)(e)(iii) is on the common issues. The time
to assess whether there is a conlfict is now and not in the future, where some potential,
but unrealized, conflict might arise. As the litigation progresses, if a representative's
175 publication in two medical journals and direct mail to specialists.
Chadha v Bayer Inc. (Sept. 29ht 1999) 43 C.P.C. (4th) 91 (Ont. Sup. Ct.) ¶1-4; Wilson v. Servier
Canada Inc. (Sept. 131h, 2000), 50 O.R. (3d) 219, ¶150; Hoy v. Medtronic Inc. supra, ¶4, 16; Vivendi
Universal Canada Inc. v. Jellinek (Sept. 15', 2006), 32 C.P.C. (6th) 254 (Ont. S.C.J.), ¶19; Boulanger v.
Johnson & Johnson Corporation (July 11th), 2007 CarswellOnt 4454,4115.
' In Bywater v. Toronto Transit Commission (Jan. 126, 1999), 30 C.P.C. (4th) 131, (Ont. Gen. Div.)
(Winkler J.), 11(3): ("The notice, as amended, shall be sent by mail to all claimants presently known to
either side. It shall be published in three Toronto daily newspapers and two ethnic newspapers on two
successive Saturdays or, alternatively, two other days at the plaintiffs option. Additionally, the notice shall
be posted in the three affected subway stations in a conspicuous place on the subway platform for a two week
period. The cost, placement and publication of the notices shall be the obligation of the defendant.")
Page 97 of 98
interests come into conlfict with those of the class, The CAA permits the Court to
substitute a representative or create subclasses with separate representation:78
107. If there is no evidence one way or the other, a Court may find that there is no
conlfict of interest. Effectually, there is a presumption against a conflict of interest
Here, there is no evidence that Mssrs. Brooks, Dobbie, or Payne have a conflict.
Brooks has expressly disavowed one. Like all class members, they want a finding that
Defendants owed and breached duties and must now pay damages. [AOFB: 1;36]
(6) multi-jurisdictional relief
108. In an application to certify a multi jurisdictional class action, the court may make
any appropriate order, including a national opt-out certification order. For reasons
outlined above, Plaintiff asserts that Saskatchewan is appropriate for this multi-
jurisdictional class action, and that there should be not be resident and non-resident
° The interests''ofthe parties and judicial economy are guiding objectives
under The CAA. They would be promoted by a single class action in this court.
'78Pearson, ¶99; Anderson v. Wilson, 122 O.A.C. 69, 175 D.L.R. (4th) 409, ¶39; Windsor (May 17', 2006),
¶164; Reward, ¶116. 118.
Ayrton v PRL Financial (Alta.) Ltd. 2005 ABQB 311  2 W.W.R. 536 ¶ 101; Parsons v. Coast
Capital Savings Credit Union (April 6th), 2006 BCSC 552, ¶64.
" S. 6.1 of The CAA
In McCutcheon (May 10th, 2006) (Ont. Sup. Ct.), Cullity J. compared fairness to the parties: ("In
my judgment, considerations of order and fairness militate in favour of extending the class to include persons
outside Ontario so as to make it unnecessary for a separate action to be commenced on behalf of claimants
in each of the other Canadian jurisdictions. It is, I believe, in the interest of class members to keep the
number of law suits to a minimum and I see no unfairness to defendants in permitting this to be done by
accepting a class that includes persons not resident in Ontario. The possibility that, if the class was restricted
to residents of the Province, separate lawsuits in each other province and territory might not be commenced
and that, in consequence, the defendants' exposure to liability would be more limited would not, in my
opinion, give rise to unfainress in any relevant sense.")
Pace 98 of 98
IV. R] LIEF
109. Plaintiff therefore prays orders:
(a) certifyi ng this action as a multi-jurisdictional class action (Schedule "E"); and
(b) approving the contents and means of giving, and requiring Defendants to
distribute and pay for the costs of, notice of certification (Schedule "F").
ALL OF WHICH IS RESP ' SUBMITTED this 30' da y of
MERCHANT LAW GROUP LLP
2401 Saskatchewan Drive
E.F. Anthony Merchant, Q.C.
Phone: (306) 359-7777
Facsimile: (306) 522-3299.
Counsel for the Plaintiff.