Brooks v. Canada (Attorney General) et al., (2009) 347 Sask.R. 158 (QB)

• Jurisdiction: Saskatchewan
• Judge: Zarzeczny, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Citation: (2009), 347 Sask.R. 158 (QB),2009 SKQB 509
• Date: 29 December 2009

Brooks v. Can. (A.G.) (2009), 347 Sask.R. 158 (QB)

MLB headnote and full text

Temp. Cite: [2010] Sask.R. TBEd. JA.012

Frank Brooks (plaintiff/applicant) v. Her Majesty the Queen, Attorney General of Canada, Government of Canada, and the Minister of National Defence (defendants/respondents) and The Dow Chemical Company and Pharmacia Corporation (third parties/respondents)

(2006 Q.B. No. 956; 2009 SKQB 509)

Indexed As: Brooks v. Canada (Attorney General) et al.

Saskatchewan Court of Queen's Bench

Judicial Centre of Regina

Zarzeczny, J.

December 29, 2009.

Summary:

Brooks applied to certify a multi-jurisdictional class action in Saskatchewan, claiming damages for injuries alleged to have been caused by the testing and application of herbicides at a Canadian Forces base at Gagetown, New Brunswick. The defendants and the third parties (the applicants) applied to stay the proceedings as an abuse of process on the basis that substantially similar proceedings claiming similar relief for similar claims had been commenced against the applicants in seven other provinces and in the Federal Court.

The Saskatchewan Court of Queen's Bench, in a decision reported at (2009), 329 Sask.R. 176, dismissed the applications. Brooks' certification application proceeded.

The Saskatchewan Court of Queen's Bench dismissed the application.

Damages - Topic 531

Limits of compensatory damages - Remoteness - Torts - Recoverable damages - Purely economic loss - [See first Practice - Topic 209.3 ].

Practice - Topic 209.1

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Members of class - General - Brooks applied to certify a multi-jurisdictional class action in Saskatchewan, claiming damages for injuries alleged to have been caused by the testing and application of herbicides at a Canadian Forces base at Gagetown, New Brunswick - The proposed class included "All individuals who were at CFB Gagetown between 1956 and the expiry of the Opt-Out Period and their parents, siblings and descendants ..." - The Saskatchewan Court of Queen's Bench dismissed the application on the basis that the action failed to establish an identifiable class as required by s. 6(1)(b) of the Class Actions Act - The court noted that the time period covered was in excess of 50 years and included "all individuals" who were at the base in that period and their descendants - There had to be a rational connection between the proposed class and the proposed causes of action and common issues - However, here, an almost inexhaustible list of differences between the class members arose, representing individual issues and considerations that completely overwhelmed any common issues and the value of their determination in advancing the claims of potential class members - Because the time frame was so great and the issues of duty, breach and damages had so many individual factors impacting on the proposed class members (i.e., dose, exposure, duration of exposure, personal medical histories, etc.), it was not possible to identify what issues two or more persons in the proposed class would have in common - The proposed class was "overly broad to the point of being virtually all-inclusive of anyone who ever set foot or drove on CFB Gagetown at any time during the last 50 plus years" - Nor was it possible for the court to direct amendments to the class definition - See paragraphs 116 to 148.

Practice - Topic 209.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Certification - Considerations (incl. when class action appropriate) - Brooks applied to certify a multi-jurisdictional class action in Saskatchewan, claiming damages for injuries alleged to have been caused by the testing and application of herbicides at a Canadian Forces base at Gagetown, New Brunswick - At issue on the hearing of the certification application was whether the pleadings disclosed a cause of action - The Saskatchewan Court of Queen's Bench concluded that, except for the claim for estimated costs for medical monitoring and decontamination, which were pure economic losses, the claim presented an authentic cause of action - There was a plausible basis for supposing that the defendants could be liable to the proposed class members - The claim contained the elements, both factual and legal, that were necessary to establish a pleading of negligence - The pleadings alleged a duty of care to military service personnel generally and, in particular, to those deployed to CFB Gagetown, and a duty of care to members of the public who were either invited to use or acquiesced in the use of CFB Gagetown property - Whether labeled in negligence or occupier's liability, the pleadings alleged that the defendants breached that duty of care by the use of chemical defoliants, allegedly knowing that the chemicals contained toxicants that would create an unusual or general danger to persons coming into contact with alleged toxic areas - Proximity and reasonable foreseeability were addressed, although not with the degree of specificity expected - Further, regarding Brooks and his grandchildren, there was a claim that the defendants' actions resulted in or caused them damage and contributed to or caused their "problems" or "conditions" - The claim for future expenses for medical monitoring and decontamination was prohibited in that it was for an indeterminate amount for an indeterminate time to an indeterminate class - See paragraphs 76 to 115.

Practice - Topic 209.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Certification - Considerations (incl. when class action appropriate) - Brooks applied to certify a multi-jurisdictional class action in Saskatchewan, claiming damages for injuries alleged to have been caused by the testing and application of herbicides at a Canadian Forces base at Gagetown, New Brunswick - The proposed class included "All individuals who were at CFB Gagetown between 1956 and the expiry of the Opt-Out Period and their parents, siblings and descendants ..." - The Saskatchewan Court of Queen's Bench dismissed the application on the basis that, due to the range and diversity of claims and circumstances that might be asserted by members of the proposed class, none of the proposed common issues, except for issue vii, raised common issues to the class members' claims as required by s. 6(1)(c) of the Class Actions Act - Issues i, iii and iv went to establishing whether or not the chemicals complained of were used at CFB Gagetown over the relevant 50 year period and when, where and in what quantities - These issues were so general that their determination would provide little or no help to advance the claims of the proposed class members - Even if it could be established that parts of CFB Gagetown created a danger of causing "adverse health effects" to members of the proposed class, the individual questions of causation would turn on so many factors that the individual issues would overwhelm the proposed common issues - Issue v and vi were prohibited claims for pure (prospective) economic loss related to future possible expenses for medical monitoring and decontamination - Regarding issue vii, a claim for exemplary and punitive damages, it appeared that the court had favoured certification of such issues in appropriate cases - It was fair to infer that the exemplary or punitive damages claimed were not specific to any one or a group of the class members, but to the members of the class as a whole - See paragraphs 149 to 170.

Practice - Topic 209.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Certification - Considerations (incl. when class action appropriate) - Brooks applied to certify a multi-jurisdictional class action in Saskatchewan, claiming damages for injuries alleged to have been caused by the testing and application of herbicides at a Canadian Forces base at Gagetown, New Brunswick - The proposed class included "All individuals who were at CFB Gagetown between 1956 and the expiry of the Opt-Out Period and their parents, siblings and descendants ..." - At issue on the hearing of the certification application was whether a class action was the preferable procedure as required by s. 6(1)(d) of the Class Actions Act - The Saskatchewan Court of Queen's Bench concluded that the proposed class action was not a "fair, efficient and manageable method of advancing the claims of the proposed class members or preferable to other procedures ..." - The common issues proposed were negligible in relation to the potential individual issues - Even after the determination of the proposed common issues, an extensive and very considerable individual inquiry of each class member and his or her circumstances in relation to the action would still be required - Very little, if any, judicial economy would be achieved - Nor was access to justice a factor where the individual claimants would always have to confront the complex elements of proof of their own individual circumstances and claims - Finally, because the government had already responded sincerely to the concerns raised, behaviour modification was not a compelling argument in favour of certification - See paragraphs 171 to 179.

Practice - Topic 209.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Certification - Considerations (incl. when class action appropriate) - Brooks applied to certify a multi-jurisdictional class action in Saskatchewan, claiming damages for injuries alleged to have been caused by the testing and application of herbicides at a Canadian Forces base at Gagetown, New Brunswick - The proposed class included "All individuals who were at CFB Gagetown between 1956 and the expiry of the Opt-Out Period and their parents, siblings and descendants ..." - The Saskatchewan Court of Queen's Bench indicated that, had it certified the class action, which it did not, it would have certified it as a multi-jurisdictional class action - A similar, although considerably narrower, action had been certified in Newfoundland, but the certification was under appeal - An application to certify an action in New Brunswick had been dismissed - Guided by the objectives stated in s. 6(3)(a) of the Class Actions Act, the court was satisfied that the Brooks action met the objectives - The interests of all of the parties in each of the relevant jurisdictions would be given due consideration by virtue of their automatic inclusion as members of any certified class unless they elected to opt out, which they would be free to do - The representative plaintiffs were diversely located geographically and were representative of military and civilian class members alike - See paragraphs 195 to 207.

Practice - Topic 209.4

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Certification - Appointment or replacement of representative plaintiff - Brooks applied to certify a multi-jurisdictional class action in Saskatchewan, claiming damages for injuries alleged to have been caused by the testing and application of herbicides at a Canadian Forces base at Gagetown, New Brunswick - The proposed class included "All individuals who were at CFB Gagetown between 1956 and the expiry of the Opt-Out Period and their parents, siblings and descendants ..." - At issue on the hearing of the certification application was the designation of a representative plaintiff, as required by s. 6(1)(e) of the Class Actions Act - The Saskatchewan Court of Queen's Bench held that, because none of the proposed representative plaintiffs had presented a litigation plan that met the minimum requirements of s. 6(1)(e)(ii), they had not met the requirement for designation as a representative plaintiff - While the proposed representative plaintiffs all met the criteria established by s. 6(1)(e)() and s. 6(1)(e)(iii), the "plan for the class action", as set out in Brooks' affidavit, was little more than a very bare and modest outline of major steps anticipated to be taken in any litigation, whether class action or otherwise - The plan was not responsive to how the common issues would be advanced or proven - No plan of action was proposed to identify the nature and extent of the "adverse health effects" that were claimed - The identification of the "derivative claim" class members other than through the notice provisions and any plan that might exist to obtain their involvement or engagement in the action was not explained - No plan was presented that might identify an expedient way to proceed with the litigation of the common issues, should they have been certified, in any meaningful or effective way - See paragraphs 180 to 194.

Practice - Topic 209.7

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Certification - Evidence and proof - Brooks applied to certify a multi-jurisdictional class action in Saskatchewan, claiming damages for injuries alleged to have been caused by the testing and application of herbicides at a Canadian Forces base at Gagetown, New Brunswick - At issue on the hearing of the certification application was the defendants' application to strike some portions or all of certain affidavits filed in support of the application - The Saskatchewan Court of Queen's Bench concluded that a generous approach should be taken to the determination of relevance and admissibility issues, particularly where, as here, the claim raised complex multi-disciplinary factual and causation issues - However, the court noted its disapproval of the methodology adopted by counsel for Brooks whereby each of the deponents attached a copy of an affidavit previously sworn in another (although related) CFB Gagetown proceeding and adopted its contents for this action - While this was convenient to the plaintiff, it brought forward many irrelevant materials and information - The court determined which portions of each impugned affidavit were inadmissible - See paragraphs 36 to 51.

Practice - Topic 209.7

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Certification - Evidence and proof - Brooks applied to certify a multi-jurisdictional class action in Saskatchewan, claiming damages for injuries alleged to have been caused by the testing and application of herbicides at a Canadian Forces base at Gagetown, New Brunswick - At issue on the hearing of the certification application was the defendants' application to strike some portions or all of the affidavit of Dr. Sears, filed in support of the application - The Saskatchewan Court of Queen's Bench admitted the Sears affidavit, not as an expert opinion, but as an attempt to identify some of the information that might assist Brooks in future attempts to convince the court that the claim had an arguable foundation in science and medicine - The affidavit referred to and relied on numerous studies, publications and sources dealing with the nature of the chemicals used at CFB Gagetown - To suggest that individual affidavits could be filed on behalf of each or even a representative number of the report and study authors referred to in the affidavit would be a monumental and financially prohibitive task - A bibliographer, such as Sears appeared in part to be, might represent a necessary approach to addressing the otherwise practical unavailability of this kind of evidence in this kind of proceeding - See paragraphs 52 to 62.

Practice - Topic 209.22

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Members of class - Non-resident class members (incl. jurisdiction) - [See fourth Practice - Topic 209.3 ].

Practice - Topic 3666

Evidence - Affidavits - Striking out - Irrelevant or improper matters - [See first Practice - Topic 209.7 ].

Cases Noticed:

Dobbie et al. v. Canada (Attorney General) et al. (2006), 291 F.T.R. 271 (F.C.), refd to. [para. 22].

Ring et al. v. Canada (Attorney General) et al. (2007), 268 Nfld. & P.E.I.R. 204; 813 A.P.R. 204; 2007 NLTD 146, refd to. [para. 22].

Bryson et al. v. Canada (Attorney General) et al. (2009), 353 N.B.R.(2d) 1; 910 A.P.R. 1; 2009 NBQB 204 (T.D.), consd. [para. 22].

Ward v. Canada (Attorney General) et al. (2006), 207 Man.R.(2d) 311 (Q.B.), affd. (2007), 220 Man.R.(2d) 224; 407 W.A.C. 224 (C.A.), refd to. [para. 22].

Western Canadian Shopping Centres Inc. et al. v. Dutton et al., [2001] 2 S.C.R. 534; 272 N.R. 135; 286 A.R. 201; 253 W.A.C. 201; 2001 SCC 46, refd to. [para. 29].

Hollick v. Metropolitan Toronto (Municipality) et al., [2001] 3 S.C.R. 158; 277 N.R. 51; 153 O.A.C. 279; 2001 SCC 68, consd. [para. 30].

Hoffman et al. v. Monsanto Canada Inc. et al. (2004), 264 Sask.R. 1 (Q.B.), affd. (2007), 293 Sask.R. 89; 397 W.A.C. 89 (C.A.), refd to. [para. 32].

Wuttunee et al. v. Merck Frosst Canada Ltd. et al. (2008), 312 Sask.R. 265 (Q.B.), revd. [2009] 5 W.W.R. 228; 324 Sask.R. 210; 451 W.A.C. 210; 2009 SKCA 43, refd to. [para. 32].

Vioxx Case - see Wuttunee et al. v. Merck Frosst Canada Ltd. et al.

Hoffman et al. v. Monsanto Canada Inc. et al., [2004] 4 W.W.R. 632; 233 Sask.R. 112; 2003 SKQB 174, refd to. [para. 33].

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241, refd to. [para. 39].

White et al. v. Merck Frosst Canada et al., [2004] O.T.C. 168 (Sup. Ct.), refd to. [para. 40].

Sauer v. Canada (Attorney General) et al., [2008] O.T.C. Uned. 157 (Sup. Ct.), refd to. [para. 75].

Brooks et al. v. Canadian Pacific Railway Ltd. et al. (2007), 298 Sask.R. 64 (Q.B.), refd to. [para. 77].

Risorto et al. v. State Farm Mutual Automobile Insurance Co., [2007] O.T.C. Uned. S52 (Sup. Ct.), refd to. [para. 78].

Tottrup v. Lund et al., [2000] 9 W.W.R. 21; 255 A.R. 204; 220 W.A.C. 204; 2000 ABCA 121, refd to. [para. 81].

Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.), refd to. [para. 89].

Williams v. Mutual Life Assurance Co. of Canada et al., [2000] O.T.C. 751; 51 O.R.(3d) 54 (Sup. Ct.), refd to. [para. 139].

Rumley et al. v. British Columbia, [2001] 3 S.C.R. 184; 275 N.R. 342; 157 B.C.A.C. 1; 256 W.A.C. 1; 2001 SCC 69, refd to. [para. 164].

Caputo et al. v. Imperial Tobacco Ltd. et al., [2004] O.T.C. 112; 236 D.L.R.(4th) 348 (Sup. Ct.), refd to. [para. 185].

Phillips v. Nova Scotia (Commission of Inquiry in the Westray Mine Tragedy) - see Phillips et al. v. Richard, J.

Phillips et al. v. Richard, J., [1995] 2 S.C.R. 97; 180 N.R. 1; 141 N.S.R.(2d) 1; 403 A.P.R. 1, refd to. [para. 210].

Counsel:

E.F. Anthony Merchant, Q.C. and Casey Churko, for the plaintiff/applicant;

Mark R. Kindrachuk, Q.C., Michael Brannen, John C. Spencer, Cynthia Koller, William Knights, Roslyn Mounsey and Victor Paolone, for the defendant/respondents;

F. William Johnson, Q.C., Alan H. Mark, Michael Brown and Jennifer Teskey, for the third party/respondent, Dow Chemical Company;

Ivan G. Whitehall, Q.C., Peter N. Mantas and Peter Bergbusch, for the third party/respondent, Pharmacia Corporation.

This application was heard by Zarzeczny, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Regina, who delivered the following judgment on December 29, 2009.