Disabled Veterans' Lawyers Announce Appeal to Supreme Court of Canada



    Lawyers Respond to July 2007 Ontario Court of Appeal Judgment in $5.2 B
    Lawsuit

    TORONTO, Nov. 8 /CNW/ - Lawyers representing thousands of disabled
veterans in a $5.2 B class action lawsuit brought against the federal
government in 1999, announced today that they are seeking leave to appeal to
the Supreme Court of Canada.
    This announcement comes further to a decision rendered July 4, 2007 by
the Ontario Court of Appeal. The Ontario Court of Appeal decision ruled in
favor of the federal government on an appeal following a 2005 decision by
Ontario Superior Court Justice John H. Brockenshire.
    That 2005 decision quantified the damages owing by the federal government
($5.2 B) to thousands of disabled veterans who, since their class action
lawsuit was certified in 1999, have been seeking redress from the federal
government for years of failure to properly administer their funds. These were
veterans who were injured in the service of their country and were deemed, by
the government, incapable of managing their money as a result of their
disability. Veterans in the Class include those from the First World War
onwards.

    In announcing that they are seeking leave to appeal, the lawyers outlined
their arguments for how the lawsuit meets the test for a hearing before the
country's highest court. These include:

    
    -   This is a national class action brought on behalf of a class of
        10,000 disabled veterans and their dependants. The class consists of
        living and deceased veterans who were deemed incapable, as result of
        individual determinations of incapacity, to manage their own affairs.
        Class members reside, or have resided in every province. The issues
        of law raised in this case concern the application and interpretation
        of Federal statutes and important principles of the law of equity to
        Federal institutions and governments.
    -   The July 4, 2007 decision of the Court of Appeal sought to be
        appealed cannot be reconciled with the 2002 decision of the Court of
        Appeal (which ruled in the veterans' favor) which made final and
        binding determinations concerning the nature of the Crown's fiduciary
        duties to class members. Those determinations including the 4
        declarations contained in the original judgment were not disturbed by
        the earlier decision of this court. The panel of the Court of Appeal
        of the 2007 decision simply ignored the former decision and its
        implications.
    -   The July 4, 2007 decision of the Court of Appeal effectively imposed
        limitations on the extent of the fiduciary duties assumed by the
        Crown towards Class members. By contrast, the earlier decision of a
        different panel of the 2002 Court of Appeal decision held that the
        Crown owed each disabled veteran in the class a fiduciary duty and
        that, in discharging such duty, it must act for the benefit of the
        veteran in managing his funds because the veteran is incapable of
        doing so himself.
    -   The July 4, 2007 analysis with respect to whether or not the lawsuit
        should be allowed to continue was fundamentally flawed. While the
        Crown argued that the 5.1(4) of the Veterans Affairs Act was intended
        to eliminate the claim, it was for the Court to determine whether it
        was a complete bar to the action. That question was never raised by
        the Crown at the Supreme Court of Canada. The question was the
        Crown's to ask - not the plaintiff's. The Crown sought a
        determination at the Supreme Court that the action was barred. The
        Plaintiff sought a determination that S. 5.1(4) was of no force and
        effect. The Plaintiff lost. The Crown did not win. The Supreme Court
        made the determination that the Bill of Rights was not operable. That
        is all that was decided. The Crown failed to ask the right question
        of the Supreme Court on its own assumption that S. 5.1(4) barred the
        action in its entirety. The Crown was mistaken. The serious error in
        the July 4, 2007 decision is to visit the Crown's error upon the
        Class in an equitable breach of fiduciary duty claim. This is unjust
        and clearly wrong.
    

    "We are seeking leave to appeal to the Supreme Court of Canada on the
basis that the Government of Canada, over a period of nearly 90 years, failed
to exercise its fiduciary responsibility. By 1986, the Auditor General of
Canada recognized that the $83 M which had accumulated in the Consolidated
Revenue Fund represented a liability because the government was not investing
the funds as is legally required. This negligence was unjust and illegal, and
the government - since the first Supreme Court of Canada hearing in this case
in 2003 - does not dispute this fact," said the legal team.
    "In return for their tremendous acts of sacrifice, their federal
government put the veterans' monies in the consolidated revenue fund - the
government's bank account. This money lowered the cost of the government's
borrowing and it had full access to the veterans' funds. This lawsuit seeks to
return to the veterans what was taken from them, as a means of compensating
them for their losses," the lawyers noted.
    The members of the legal team are David Greenaway and Ray Colautti,
Partners at the Windsor Ontario firm of Raphael Partners LLP and London,
Ontario lawyer Peter Sengbusch.
    Addressing another central aspect of the case the lawyers said:
"Certainly on the basis of the Canadian Charter of Rights and Freedoms, the
Government of Canada passed legislation in 1990 that discriminated against
these veterans on the basis of their disabilities. We will argue that the
Ontario Court of Appeal ruling (July 2007) which dismissed the Charter
argument, deprived these disabled veterans of the opportunity to argue that
they are protected by the fundamental law of this country. They fought for our
rights and freedoms, and have been denied an opportunity to challenge a law
that fundamentally discriminated against them."

    About the Lawsuit

    In 2003 the Supreme Court of Canada ruled that the federal government can
pass a law limiting its own liability, and ruled against the veterans who
argued that passage of the 1990 legislation removed their right to property
and thus contravened the Canadian Bill of Rights. Despite the government's
victory, the lawsuit continued on the basis that Justice Brockenshire ruled
the veterans could pursue damages in the case based on the government's
failure to act as a proper trustee. While it does not contest that it failed
to act as a trustee, the federal government appealed that decision by Justice
Brockenshire, and thus the damages awarded.





For further information:

For further information: Eleanor McMahon, Public Relations Raphael
Partners LLP, (519) 966-1300 Ext. 560 or Cell: (647) 201-2820 (For information
or copies of the veterans' lawyers memorandum of argument go to
www.veteransinterest.org)

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