Ring v. Can. (A.G.), (2010) 297 Nfld. & P.E.I.R. 86 (NLCA)

• Judge: Cameron, Welsh and White, JJ.A.
• Court: Court of Appeal (Newfoundland)
• Case Date: March 22, 2010
• Jurisdiction: Newfoundland and Labrador
• Citations: (2010), 297 Nfld. & P.E.I.R. 86 (NLCA);2010 NLCA 20

Ring v. Can. (A.G.) (2010), 297 Nfld. & P.E.I.R. 86 (NLCA);

    918 A.P.R. 86

MLB headnote and full text

Temp. Cite: [2010] Nfld. & P.E.I.R. TBEd. MR.035

The Dow Chemical Company (appellant) v. Edward Ring, Sr. and Mary Williams (first respondent) and Attorney General of Canada and the Minister of National Defence (second respondent) and Pharmacia Corporation (third respondent)

(07/64)

Pharmacia Corporation (appellant) v. Edward Ring, Sr. and Mary Williams (first respondent) and Attorney General of Canada and the Minister of National Defence (second respondent) and The Dow Chemical Company (third respondent)

(07/65)

The Attorney General of Canada and the Minister of National Defence (appellant) v. Edward Ring, Sr. and Mary Williams (first respondent) and The Dow Chemical Company and Pharmacia Corporation (second respondents)

(07/66; 2010 NLCA 20)

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

Newfoundland and Labrador Supreme Court

Court of Appeal

Cameron, Welsh and White, JJ.A.

March 22, 2010.

Summary:

The plaintiffs asserted that the federal Crown, from 1956 to 2004, by spraying CFB Gagetown, in New Brunswick, with herbicides containing toxic chemicals, created an unreasonable risk of the plaintiffs and others at the base developing malignant lymphomas. The plaintiffs applied for certification of the action as a class proceeding. The class was to include all those present at CFB Gagetown between 1956 and the present. As of March 23, 2007, the plaintiffs stated that they had been contacted by 1715 individuals, 35 from Newfoundland and Labrador, of whom 37 had been diagnosed with Leukemia, 345 with a form of cancer (two with soft tissue sarcoma, nine with multiple melanoma and six with lymph node related cancer), 18 with Non-Hodgkin's Lymphoma and six with Hodgkin's Disease. The Crown joined the manufacturers of some of the chemicals as third parties.

The Newfoundland and Labrador Supreme Court, Trial Division, in a decision reported at 268 Nfld. & P.E.I.R. 204; 813 A.P.R. 204, certified the action, but stayed the order pending further submissions on the effect of the proclamation of the New Brunswick Class Proceedings Act. The class definition was to read: "All individuals who were at CFB Gagetown between 1956 and the present and who claim they were exposed to dangerous levels of dioxin or HCB while on the Base". The federal Crown and the manufacturers appealed.

The Newfoundland and Labrador Court of Appeal allowed the appeals and set aside the order certifying a class action.

Equity - Topic 3993

Fiduciary or confidential relationships - Practice - Pleadings - [See Practice - Topic 209.9 ].

Evidence - Topic 1504

Hearsay rule - General principles and definitions - What constitutes hearsay - The plaintiffs asserted that the federal Crown, from 1956 to 2004, by spraying CFB Gagetown with herbicides containing toxic chemicals, created an unreasonable risk of the plaintiffs and others at the base developing malignant lymphomas - The plaintiffs sought certification of the action as a class proceeding - The defendants and third party manufacturers objected to the qualifications of the plaintiff's expert witness (Sears) in the fields of toxicology oncology and epidemiology - The applications judge agreed with the objections, but admitted Sears' affidavit on the basis that she had sufficient qualifications to act as a bibliographer and identify literature dealing with the association between chemicals and malignant lymphomas - The defendants and third parties asserted that the application judge, having ruled that Sears could not provide opinion evidence in the areas of toxicology, oncology or epidemiology, erred by proceeding to consider Sears' opinions in those areas of specialty on the basis that she was acting as a bibliographer - The Newfoundland and Labrador Court of Appeal agreed - As a bibliographer, Sears could state that there were texts or published papers on a subject - All such papers and texts remained inadmissible hearsay in the absence of the author of the work or an expert in the proper field who was prepared to adopt the work as authoritative and in accord with his or her opinion - If there was a conflict among authors on the subject, it was not the type of "scientific fact" about which judicial notice could be taken - It followed that scientific opinion had to be presented to the court through the appropriate expert either in oral evidence or, in some circumstances, in an affidavit - A judge could not make findings on the basis of published scientific treatises discovered on the research of the judge or a bibliographer - To permit the use of material discovered in that way would undermine the law respecting expert evidence - It was an error to admit Sears' affidavit for the purpose of proof of the content of published texts or papers discussed by her - See paragraphs 20 to 26.

Evidence - Topic 2266

Special modes of proof - Judicial notice - Particular matters - Books, newspapers, articles, studies, etc. - [See Evidence - Topic 1504 ].

Evidence - Topic 7000.5

Opinion evidence - Expert evidence - General - Nature and scope of - [See Evidence - Topic 1504 ].

Evidence - Topic 7014

Opinion evidence - Expert evidence - General - Textbooks, treatises and literature - [See Evidence - Topic 1504 ].

Practice - Topic 209.1

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Members of class - General - The Newfoundland and Labrador Court of Appeal stated that the objective of the Class Actions Act was to limit the class to those who had a claim or an interest in the resolution of the common issues - In deciding if a class definition stated objective criteria, the courts have sometimes asked whether the criteria were subjective - It was not intended that the class be limited to those who would be ultimately successful - A purpose of class actions was to deal with all potential claims at the same time so that defendants proceed with the knowledge that all potential claims were resolved and all potential claimants were bound by the result, including those that might fail - See paragraphs 60 to 62.

Practice - Topic 209.1

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Members of class - General - The Newfoundland and Labrador Court of Appeal reviewed the distinction between the "merits based" and the "claims based" tests for determining whether a class definition constituted an identifiable class - The general rule was that criteria should not depend on the litigation's outcome - A criterion which offended that rule would be a merits based test where one would not be able to determine the class membership until the action's outcome - The court agreed with the following approach: "what emerges from this review is a requirement for careful scrutiny of the facts and circumstances of a particular case prior to deciding: (1) whether a particular class definition is too broad to satisfy the requirement that it be rationally connected to the causes of action and common issues identified in the case; (2) that a merits based definition will necessarily lead to circularity or otherwise be objectionable; and (3) whether a claims based class definition sufficiently meets the requirements of objectivity and certainty, in light of the established purposes of class definition." - This was not a question of form - See paragraphs 67 to 71.

Practice - Topic 209.1

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Members of class - General - Plaintiffs asserted that the federal Crown, from 1956 to 2004, by spraying CFB Gagetown, in New Brunswick, with herbicides containing toxic chemicals, created an unreasonable risk of the plaintiffs and others at the base developing malignant lymphomas - The plaintiffs applied for certification of the action as a class proceeding - The class was to include all those present at CFB Gagetown between 1956 and the present - The applications judge certified the action, but limited the class members to those who claimed that they were exposed rather than those who were exposed - The Newfoundland and Labrador Court of Appeal stated that the limiter imposed by the applications judge did not address the problem of elimination of persons who had no claims - There were no objective criteria to enable one to assess whether any of the approximately 400,000 people were properly part of the class - There was also difficulty in determining who was bound by the decision - Those who were bound included anyone who might claim in the future - The limiter did not narrow the class - The class as defined by the applications judge was unnecessarily broad - See paragraphs 60 to 77.

Practice - Topic 209.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Certification - Considerations (incl. when class action appropriate) - The Newfoundland and Labrador Court of Appeal stated that the Class Actions Act required that the claims of the class members raise a common issue, whether or not the common issue was the dominant issue - An issue was common only where its resolution was necessary to the resolution of each class member's claim - It was not common unless the issue was a substantial ingredient of each class member's claim - However, it was unnecessary that common issues predominate over non-common issues (s. 5(1)(c)) or that the resolution of the common issues be determinative of each class member's claim or that all members benefit from the resolution thereof to the same extent - The Supreme Court of Canada in Western Canadian Shopping Centres Inc. et al. v. Dutton et al. provided that commonality was to be approached purposively - The underlying question was whether allowing the suit to proceed as a class action would avoid duplication of fact-finding or legal analysis - With regard to the common issues, success for one class member had to mean success for all - Determining whether the common issues justified a class action might require the court to examine the significance of the common issues in relation to individual issues - The fact that there were numerous individual issues to be determined in addition to the common issues did not undermine the commonality conclusion, but it was a matter to be considered in the assessment of whether a class action would be the preferable procedure - See paragraphs 78 to 82.

Practice - Topic 209.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Certification - Considerations (incl. when class action appropriate) - Plaintiffs asserted that the federal Crown, from 1956 to 2004, by spraying CFB Gagetown, in New Brunswick, with herbicides containing toxic chemicals, created an unreasonable risk of the plaintiffs and others at the base developing malignant lymphomas - The plaintiffs applied for certification of the action as a class proceeding - The applications judge certified the action, but limited the class members to those who claimed that they were exposed rather than those who were exposed - The Newfoundland and Labrador Court of Appeal allowed an appeal - The court concluded, inter alia, that none of the common issues were a common issue for each member of the class - Rather there was a series of issues common to the subclasses - With respect to the preferred procedure, in light of the time frame involved, the large number of people, the size of the base, and the different chemicals used, the proposed common issues were insignificant when compared to the large number of individual inquiries which would be required to resolve the claim - Judicial economy, if any, would be minimal - See paragraphs 78 to 107.

Practice - Topic 209.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Certification - Considerations (incl. when class action appropriate) - Plaintiffs asserted that the federal Crown, from 1956 to 2004, by spraying CFB Gagetown, in New Brunswick, with herbicides containing toxic chemicals, created an unreasonable risk of the plaintiffs and others at the base developing malignant lymphomas - The plaintiffs applied for certification of the action as a class proceeding - The applications judge certified the action, but limited the class members to those who claimed that they were exposed rather than those who were exposed - The Newfoundland and Labrador Court of Appeal, in allowing an appeal, stated that the provisions of the Pensions Act and the Crown Liability and Proceedings Act indicated that for three-fourths of the potential members of the class, there was legislation which (1) might provide an alternative remedy, under legislation which provided certain advantages to the applicant which would not be available in a legal action; (2) might require that a stay of any action be granted until the availability of the alternative remedy was determined; and (3) might prevent the court from exercising jurisdiction if the other remedy was granted in respect of the facts upon which the claim before the court was grounded - The legislation would not apply to all of the members of the proposed class - It was possible that the alternative procedure would be held to be the only one available to three-fourths of the members of the class - The legislation's impact was the complication caused by the inefficiency of having to have the determination made for such a large percentage of the class - This was not an issue that could be determined on a class wide basis - As to the preferred procedure, the court's determinations regarding the criteria for certification undermined the basis for the judge's decision - Additional factors, such as s. 9 of the Crown Liability and Proceedings Act would not support the judge's view of the action's manageability as a class action - See paragraphs 108 to 119.

Practice - Topic 209.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Certification - Considerations (incl. when class action appropriate) - Plaintiffs asserted that the federal Crown, from 1956 to 2004, by spraying CFB Gagetown, in New Brunswick, with herbicides containing toxic chemicals, created an unreasonable risk of the plaintiffs and others at the base developing malignant lymphomas - The plaintiffs applied for certification of the action as a class proceeding - The applications judge certified the action, but limited the class members to those who claimed that they were exposed rather than those who were exposed - The Crown and third party manufacturers appealed, asserting that the applications judge erred in concluding that there were proper representative plaintiffs in the absence of a proper litigation plan - The Newfoundland and Labrador Court of Appeal reviewed the role of the litigation plan and its contents - Some of the matters which ought to be addressed in a litigation plan were addressed in the affidavit of the plaintiff Ring - Ring's affidavit stated his plan for communication with class members at various stages of the litigations - This was a question of substance, not of form - There was a lack of specificity in Ring's plan as related to the individual issues which would have to be determined for members of the class, particularly those who had already been diagnosed with lymphoma - If this were the only problem with the criteria for certification, the court might order certification on the filing of certain information - That was not an option as the proposed class definition did not meet the requirements of law and no common issues had been identified, all of which undermined the applications judge's decision that a class action was the preferable procedure - See paragraphs 122 to 125.

Practice - Topic 209.7

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Certification - Evidence and proof - The Newfoundland and Labrador Court of Appeal stated that the onus was on the applicant seeking a certification of a class action to establish the five criteria for certification set out in s. 5(1)(a) to s. 5(1)(e) of the Class Actions Act - All five criteria had to be met by the applicant - The standard applicable to the first criteria (that the pleadings disclose a cause of action) had a different standard of proof than the remaining four criteria - The test applied to an application to strike a pleading (the plain and obvious test) applied to the determination of the first criterion except, the onus was on the plaintiff applying for certification to show that the pleading was sufficient - For the remaining four criteria, the applicant had to meet only the evidentiary threshold of "some basis in fact" - See paragraphs 10 to 15 - This lesser standard of proof did not lessen the standard for admissibility of evidence - See paragraph 21.

Practice - Topic 209.7

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Certification - Evidence and proof - The plaintiffs asserted that the federal Crown, from 1956 to 2004, by spraying CFB Gagetown with herbicides containing toxic chemicals, created an unreasonable risk of the plaintiffs and others at the base developing malignant lymphomas - The plaintiffs sought certification of the action as a class proceeding - The federal Crown, in opposing the certification, adopted the findings of reports from a project established by the Department of National Defence to examine the use of herbicides at CFB Gagetown (referred to collectively as the Report) - Third party manufacturers adopted the findings for the purposes of argument on certification - Excerpts from the Report were reproduced in schedules attached to the certification statement of claim and it was referred to in affidavits filed by the plaintiffs - The applications, in certifying the action, took no exception to the Report's use nor to the limited nature of its use - The Crown and the manufacturers appealed - The appellants did not adopt the findings of the Report for purposes of the appeal - The Newfoundland and Labrador Court of Appeal stated that, having used the report in the above manner, it was not open to either party to challenge, on appeal, its used by the applications judge for the limited purpose of the applications for certification - See paragraphs 27 and 28.

Practice - Topic 209.9

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Appeals - The plaintiffs asserted that the federal Crown, from 1956 to 2004, by spraying a military base with herbicides containing toxic chemicals, created an unreasonable risk of the plaintiffs and others at the base developing malignant lymphomas - The plaintiffs obtained certification of the action as a class proceeding - The Crown and third party manufacturers appealed - The plaintiff Ring conceded that there was no specific reference to the existence of a fiduciary relationship in the pleadings and that no submissions were made in the hearing below on that basis - However, Ring maintained that the relationship between the Crown and its soldiers was of a fiduciary nature and that this could extend to their dependants and perhaps others - The Newfoundland and Labrador Court of Appeal stated that, assuming that the relationship was capable of being characterized as a power dependency relationship, that, of itself, did not materially assist Ring in advancing a claim based on the breach of a fiduciary duty - The certification statement of claim did not plead material facts upon which a court could find the existence of a fiduciary relationship - Ring's position on appeal could not be strengthened by reliance on a breach of a fiducial duty - No such claim was pleaded - He had to rely on the claims which were properly pleaded - See paragraphs 35 to 44.

Practice - Topic 210.1

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Procedure - General - The Newfoundland and Labrador Court of Appeal stated that "Generally a Statement of Defence is not required prior to the hearing of an application for certification. ... There have been exceptions where a judge with management of the case required a Statement of Defence be filed prior to the certification hearing but, in the absence of such an order, the absence of a Statement of Defence cannot be said to be a basis for the determination of the issues on appeal." - See paragraph 29.

Practice - Topic 210.5

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Procedure - Pre-certification matters (incl. pleadings) - The plaintiffs asserted that the federal Crown, from 1956 to 2004, by spraying a military base with herbicides containing toxic chemicals, created an unreasonable risk of the plaintiffs and others at the base developing malignant lymphomas - The plaintiffs obtained certification of the action as a class proceeding - The Crown and third party manufacturers appealed, asserting that the applications judge erred in his consideration of the following three points relevant to the question of whether there was a reasonable cause of action (Class Actions Act, s. 5(1)(a)) and/or the question of whether a class action was the preferable procedure (s. 5(1)(d)): (1) the effects of s. 9 of the Crown Liability and Proceedings Act and s. 111 of the Pension Act; (2) the application of limitation periods to the individual cases; and (3) the impact of varying duties of care and standards of care during the period covered by the statement of claim - The Newfoundland and Labrador Court of Appeal held that the three points were not properly part of a s. 5(1)(a) analysis - Rather, they should be considered under s. 5(1)(d) - Section 5(1)(a) had been interpreted to be a requirement that the pleadings meet the plain and obvious test - A court, therefore, looked only to the pleadings - If other material had to be referred to, s. 5(1)(a) was not the route - There was not, in the pleadings, sufficient information about the basis for the plaintiff Ring's application for a pension and the current status of the appeal to make a determination regarding jurisdiction on this basis - Given the period of time involved and questions of discoverability, the application of limitation periods would have to be determined on an individual basis for Ring (as it would for other members of the class) and would require reference to facts not pleaded - Consequently, compliance with s. 5(1)(a) could not be determined on that basis - The issue would be one for determination at a later stage - Similarly, the impact of varying duties and standards of care clearly should not be part of the s. 5(1)(a) analysis - That too required an extensive evidentiary basis before a decision could be made - See paragraphs 45 to 49.

Practice - Topic 210.5

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Procedure - Pre-certification matters (incl. pleadings) - The plaintiffs asserted that the federal Crown, from 1956 to 2004, by spraying a military base with herbicides containing toxic chemicals, created an unreasonable risk of the plaintiffs and others at the base developing malignant lymphomas - The parties approached the question of whether a cause of action was pleaded for an asymptomatic subclass on the basis that the plaintiffs were seeking recognition of a new category which would support a pure economic loss claim - The remedy sought was the cost of testing to determine whether there was evidence of the presence of certain chemicals in their bodies - In certifying the action as a class action, the applications judge concluded that the claim's novel aspect should not be determined until after the presentation of the plaintiffs' case so that the proper evidentiary basis would be available - The Newfoundland and Labrador Court of Appeal held that the applications judge erred in holding that the pleadings disclosed a cause of action for the subclass - The judge impliedly rejected the notion that the claim was for pure economic loss - He erred in finding that the members were claiming to have suffered an injury (absorption of toxic chemicals) - The subclass did not intend to prove that they had absorbed toxic chemicals as that might require them to have the very testing they were seeking as a remedy - Rather their position was that by proving that they had been in a "toxic area", they would be entitled to compensation - Assuming that the existence of toxic areas demonstrated a breach of a duty, the plaintiffs sought to proceed directly to compensation without proving either economic or physical injury - Damage (injury), an essential element in a negligence claim, was absent from the pleadings - Further, the risk of a future disease was not actionable absent a present injury - Also, the pleadings did not support the notion that the members of the subclass suffered any economic injury - See paragraphs 50 to 59.

Practice - Topic 1335

Pleadings - The issues - Issues to be raised must be pleaded (incl. time for) - [See Practice - Topic 209.9 ].

Practice - Topic 1458

Pleadings - Statement of claim - Necessity of claiming damages or relief - [See second Practice - Topic 210.5 ].

Practice - Topic 8800

Appeals - Duty of appellate court regarding findings of fact - The Newfoundland and Labrador Court of Appeal stated that "The standard of review applied by an appellate court depends upon the nature of the matter being reviewed. A pure question of law is reviewed on a standard of correctness and an appellate court is free to replace the opinion of the trial judge with its own. Findings of fact, on the other hand, cannot be reversed unless the trial judge has made a palpable and overriding error. A determination of whether a legal standard was met involves the application of a legal standard to a set of facts which is a question of mixed fact and law. A question of mixed fact and law is subject to a standard of palpable and overriding error unless it is clear that the trial judge made some extricable error in principle with respect to the characterization of the standard or its application, in which case the error may amount to an error in law and the applicable standard is correctness. These principles are well established" - See paragraph 6.

Practice - Topic 8800.1

Appeals - Duty of appellate court regarding findings of mixed law and fact by a trial judge - [See Practice - Topic 8800 ].

Practice - Topic 8800.2

Appeals - Duty of appellate court regarding findings of law - [See Practice - Topic 8800 ].

Cases Noticed:

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1, refd to. [para. 6].

H.P. Management Inc. v. Newfoundland and Labrador (Minister of Finance) et al. (2007), 270 Nfld. & P.E.I.R. 277; 822 A.P.R. 277; 2007 NLCA 65, refd to. [para. 8].

Davis et al. v. Canada (Attorney General) et al. (2008), 279 Nfld. & P.E.I.R. 1; 856 A.P.R. 1 (N.L.C.A.), refd to. [para. 8].

Soldier v. Canada (Attorney General) (2009), 236 Man.R.(2d) 107; 448 W.A.C. 107; 2009 MBCA 12, refd to. [paras. 9, 34].

Hollick v. Metropolitan Toronto (Municipality) et al., [2001] 3 S.C.R. 158; 277 N.R. 51; 153 O.A.C. 279, refd to. [para. 12].

Dumoulin v. Ontario et al., [2005] O.T.C. 797; 19 C.P.C.(6th) 234 (Sup. Ct.), refd to. [para. 12].

Murray v. Alberta (Minister of Health) et al. (2007), 445 A.R. 1; 2007 ABQB 231, refd to. [para. 12].

LeFrancois et al. v. Guidant Corp. et al., [2009] O.T.C. Uned. D88 (Sup. Ct.), refd to. [para. 13].

Bisaillon v. Concordia University, [2006] 1 S.C.R. 666; 348 N.R. 201, refd to. [para. 14].

Pardy et al. v. Bayer Inc. (2004), 237 Nfld. & P.E.I.R. 179; 703 A.P.R. 179; 2004 NLSCTD 72, refd to. [para. 17].

Wheadon v. Bayer Inc. - see Pardy et al. v. Bayer Inc.

Pardy et al. v. Bayer Inc. (2003), 230 Nfld. & P.E.I.R. 325; 682 A.P.R. 325; 2003 NLSCTD 130, agreed with [para. 21].

Risorto et al. v. State Farm Mutual Automobile Insurance Co., [2007] O.T.C. Uned. S52; 38 C.P.C.(6th) 373 (Sup. Ct.), refd to. [para. 21].

Ernewein et al. v. General Motors of Canada Ltd. et al. (2005), 218 B.C.A.C. 177; 359 W.A.C. 177 (C.A.), refd to. [para. 21].

Gibson v. Bassler (1989), 76 Nfld. & P.E.I.R. 262; 235 A.P.R. 262 (Nfld. T.D.), refd to. [para. 22, footnote 6].

Mangan v. Inco Ltd. (1996), 10 O.T.C. 231; 30 O.R.(3d) 90 (Gen. Div.), refd to. [para. 29].

Always Travel Inc. et al. v. Air Canada et al., [2003] F.T.R. Uned. 110 (T.D.), refd to. [para. 29].

Hoffman et al. v. Monsanto Canada Inc. et al. (2002), 227 Sask.R. 63; 287 W.A.C. 63; 2002 SKCA 120, refd to. [para. 29].

Alberta Municipal Retired Police Officers' Mutual Benefit Society v. Alberta et al., [2009] A.R. Uned. 109; 2009 ABQB 44, refd to. [para. 29].

Attis et al. v. Canada (Minister of Health) et al. (2008), 254 O.A.C. 91; 300 D.L.R.(4th) 415 (C.A.), refd to. [para. 34].

Walsh v. TRA Co. et al. (2007), 268 Nfld. & P.E.I.R. 111; 813 A.P.R. 111 (N.L.C.A.), refd to. [para. 34].

Perez v. Galambos et al., [2009] 3 S.C.R. 247; 394 N.R. 209; 276 B.C.A.C. 272; 468 W.A.C. 272; 2009 SCC 48, refd to. [para. 36].

Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.), refd to. [para. 41].

Nielsen v. Kamloops (City) and Hughes, [1984] 2 S.C.R. 2; 54 N.R. 1, refd to. [para. 41].

Cooper v. Registrar of Mortgage Brokers (B.C.) et al., [2001] 3 S.C.R. 537; 277 N.R. 113; 160 B.C.A.C. 268; 261 W.A.C. 268, refd to. [para. 41].

Cooper v. Hobart - see Cooper v. Registrar of Mortgage Brokers (B.C.) et al.

Childs v. Desormeaux et al. (2006), 347 N.R. 328; 210 O.A.C. 315; 2006 SCC 18, refd to. [para. 54].

755165 Ontario Inc. v. Parsons et al. (2006), 260 Nfld. & P.E.I.R. 222; 786 A.P.R. 222 (N.L.C.A.), refd to. [para. 55].

Law Society of Newfoundland and Labrador v. 755165 Ontario Inc. - see 755165 Ontario Inc. v. Parsons et al.

Johnston v. NEI International Combustion Ltd., [2007] UKHL 39; 375 N.R. 248, refd to. [para. 58].

Grieves v. FT Everard & Sons and others - see Johnston v. NEI International Combusion Ltd.

Cloud et al. v. Canada (Attorney General) et al. (2004), 192 O.A.C. 239; 73 O.R.(3d) 401 (C.A.), refd to. [para. 61].

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, refd to. [para. 61].

Bywater v. Toronto Transit Commission (1998), 83 O.T.C. 1; 27 C.P.C.(4th) 172 (Gen. Div.), refd to. [para. 61].

Attis et al. v. Canada (Minister of Health) et al., [2007] O.T.C. Uned. 770; 46 C.P.C.(6th) 129 (Sup. Ct.), refd to. [para. 62].

Frohlinger v. Nortel Networks Corp. et al., [2007] O.T.C. 85; 40 C.P.C.(6th) 62 (Sup. Ct.), refd to. [para. 64].

Rumley et al. v. British Columbia (2001), 275 N.R. 342; 157 B.C.A.C. 1; 256 W.A.C. 1; 2001 SCC 69, refd to. [para. 67].

Ragoonanan et al. v. Imperial Tobacco Canada Ltd. et al., [2005] O.T.C. 950; 78 O.R.(3d) 98 (Sup. Ct.), affd. (2008), 236 O.A.C. 199; 54 C.P.C.(6th) 167 (Div. Ct.), refd to. [para. 69].

Wuttunee et al. v. Merck Frosst Canada Ltd. et al. (2009), 324 Sask.R. 210; 451 W.A.C. 210; 2009 SKCA 43, leave to appeal refused (2009), 401  N.R. 399 (S.C.C.), agreed with [para. 71].

Bryson et al. v. Canada (Attorney General) et al. (2009), 353 N.B.R.(2d) 1; 910 A.P.R. 1; 2009 NBQB 204, refd to. [para. 75].

Ayers v. Jackson Tp. (1987), 106 N.J. 557, refd to. [para. 92, footnote 16].

Potter et al. v. Firestone Tire and Rubber Co. (1993), 6 Cal.4th 965, refd to. [para. 92, footnote 17].

Sarvanis v. Canada, [2002] 1 S.C.R. 921; 284 N.R. 263, refd to. [para. 111].

Frey et al. v. BCE Inc. et al. (2006), 282 Sask.R. 35; 2006 SKQB 331, refd to. [para. 114].

Carom et al. v. Bre-X Minerals Ltd. et al. (1999), 98 O.T.C. 1; 44 O.R.(3d) 173 (Sup. Ct.), refd to. [para. 122].

Bellaire v. Independent Order of Foresters (2004), 5 C.P.C.(6th) 68 (Ont. Sup. Ct.), refd to. [para. 123].

Authors and Works Noticed:

Bryant, Alan W., Lederman, Sidney N., and Fuerst, Michelle K., Sopinka, Lederman & Bryant: The Law of Evidence in Canada (3rd Ed. 2009), paras. 12.200 ff., 19.35 [para. 26].

Federal Judicial Center, Manual for Complex Litigation (3rd Ed. 1995), p. 217 [para. 61].

Fleming, John G., The Law of Torts (9th Ed. 1998), p. 216 [para. 52].

Horsman, Karen, and Morley, Gareth, Government Liability: Law and Practice (2007) (Looseleaf), para. 10:80:10 [para. 38].

Klar, Lewis N., Linden, Allan M., Cherniak, Earl A., and Kryworuk, Peter W., Remedies in Tort (1987) (Looseleaf), vol. 3, c. 18, para. 1 [para. 50, footnote 10].

Linden, Allen M., and Feldthusen, Bruce, Canadian Tort Law (8th Ed. 2006), p. 108 [para. 50, footnote 9].

Winkler, Warren K., and Strosberg, Harvey, Issues of Evidence in a Class Action, Law Society of Upper Canada Special Lectures (2003), generally [para. 123].

Counsel:

David Eaton, Q.C., Alan Mark, Michael Brown and Jennifer Teskey, for Dow Chemical Co.;

John Legge, Q.C., and Casey Churko, for Ring and Williams;

Catherine Coughlin, Peter Barber and Robert Drummond, for the Attorney General;

Ivan Whitehall, Q.C., Peter Mantas and Daniel Boone, for Pharmacia Corp.

This appeal was heard on September 23-26, 2009, by Cameron, Welsh and White, JJ.A., of the Newfoundland and Labrador Court of Appeal. On March 22, 2010, Cameron, J.A., delivered the following reasons for judgment for the court.