Ring et al. v. Canada (Attorney General) et al., (2007) 268 Nfld. & P.E.I.R. 204 (NLTD)

• Judge: Barry, J.
• Court: Supreme Court of Newfoundland and Labrador (Canada)
• Case Date: August 01, 2007
• Jurisdiction: Newfoundland and Labrador
• Citations: (2007), 268 Nfld. & P.E.I.R. 204 (NLTD)

Ring v. Can. (A.G.) (2007), 268 Nfld. & P.E.I.R. 204 (NLTD);

    813 A.P.R. 204

MLB headnote and full text

Temp. Cite: [2007] Nfld. & P.E.I.R. TBEd. AU.004

Edward Ring, Sr. and Mary Williams (plaintiffs) v. Attorney General of Canada and the Minister of National Defence (defendants) and Dow Chemical Company and Pharmacia Corporation (third parties)

(200601T2880 CP; 2007 NLTD 146)

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

Newfoundland and Labrador Supreme Court

Trial Division

Barry, J.

August 1, 2007.

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, 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".

Crown - Topic 1643

Torts by and against Crown - Actions against Crown - Defences - Bars or exclusions - Receipt of compensation from consolidated revenue fund or Crown agency - 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 sought certification of the action as a class proceeding - The class was to include all those present at the base between 1956 and the present - The Crown asserted that the plaintiff Ring was estopped from the bringing the action (and could not be included in any class certified in the action) where his application for a pension under the Pensions Act had been refused because his illness neither arose out of nor was directly connected with his service at the base (Crown Liability and Proceedings Act, s. 9; Government Employees Compensation Act, s. 12) - The same applied to any other plaintiff who was denied a disability pension on that basis - The Newfoundland and Labrador Supreme Court, Trial Division, rejected the assertion - It was not plain and obvious that Ring's pension was payable - Nor was it plain and obvious that, if it was payable, that the pension was "in respect of" facts on which the present action was founded - Nor was it plain and obvious that Ring's claim was bound to fail by reason of the mandatory stay imposed by s. 111(2) of the Pensions Act - As for the claims relating to the occurrence of lymphomas, the plaintiffs' allegations included those relating to exposure to toxic herbicides while hunting and fishing - The court was not satisfied that issue estoppel applied in those circumstances where a pension relating to injury which occurred during military service had been sought and refused - See paragraphs 108 to 118.

Crown - Topic 2803

Crown immunity - Immunity under federal legislation - 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 class was to include all those present at the base between 1956 and the present - The Crown asserted that the claims against it were barred where "all things done or not done" at CFB Gagetown were "for the purpose ... of training or maintaining the efficiency of, the Canadian Forces" (Crown Liability and Proceedings Act, s. 8 ) - The Crown asserted even if s. 8 was interpreted restrictively so that it did not bar actions for negligent military activity, it supported the position that the consequences of policy or management decisions on how best to maintain the efficiency of the Canadian Forces could not be made the subject of a claim - The Newfoundland and Labrador Supreme Court, Trial Division, stated that even if the decision to use herbicides at CFB Gagetown was a policy decision, decisions regarding the type of herbicide, the manner and frequency of application, and so forth, might be operational decisions which would have to be implemented in a non-negligent manner - The Crown failed to establish that the plaintiffs' claim should be barred by s. 8 - Accordingly, s. 8 did not prevent certification - See paragraphs 106 and 107.

Crown - Topic 4084

Actions by and against Crown in right of Canada - Defences - Bars or exclusions - Receipt of compensation from consolidated revenue fund - [See Crown - Topic 1643 ].

Limitation of Actions - Topic 15

General principles - Discoverability rule - Application of - The plaintiffs, Ring and Williams, 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 sought certification of the action as a class proceeding - The class was to include all those present at the base between 1956 and the present - The Crown asserted that because Ring was diagnosed with cancer in 1995 and Williams was diagnosed with diabetes in 1975, neither of them had a judiciable claim unless they could rely on the discoverability principle to postpone the running of the limitation period - The Crown asserted that anyone whose claims depended on the application of the discoverability principle should not be included in the class, because membership was contingent on each of those potential members establishing, on an individual basis, that the limitation period should be postponed - The Newfoundland and Labrador Supreme Court, Trial Division, stated that the statement of claim alleged that the full facts disclosing a cause of action were not known until 2005 - For certification purposes, the court had to accept this as true and, on the basis of the discoverability principle, the limitation period for all class member ran from 2005 - Accordingly, the Crown's objections were not valid - See paragraphs 122 and 123.

Limitation of Actions - Topic 9305

Postponement or suspension of statute - General - Discoverability rule - [See Limitation of Actions - Topic 15 ].

Practice - Topic 209.1

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Members of class - General - [See Limitation of Actions - Topic 15 ].

Practice - Topic 209.1

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Members of class - General - On an application for certification of an action as a class proceeding, the Newfoundland and Labrador Supreme Court, Trial Division, stated that a class must not be defined so as to be overly inclusive, that was, the class should not include persons who did not have a claim or who did not have an interest in the resolution of the common issues - There had to be a rational connection between the class definition and the proposed common issues - See paragraph 125.

Practice - Topic 209.1

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Members of class - General - The plaintiffs, Ring and Williams, 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 plaintiffs proposed three alternative class definitions: (i) all individuals who were at CFB Gagetown between 1956 and the present; (ii) all individuals who were at CFB Gagetown between 1956 and the present and were subsequently diagnosed with a malignant lymphoma; or (iii) all individuals who were at CFB Gagetown between 1956 and the present and were subsequently diagnosed with Non-Hodgkin's Lymphoma, Chronic Lymphotic Leukemia, Soft-Tissue Sarcoma or Hodgkin's Disease - The third party chemical manufactures objected to the class as being both over-inclusive and under-inclusive - It was also asserted that, with respect to the second and third proposed class, the plaintiffs had not demonstrated that were two or more persons in the resident Newfoundland class - The Newfoundland and Labrador Supreme Court, Trial Division, rejected the assertions - The entire thrust of the statement of claim was that individuals were unknowingly exposed to toxic chemicals - The plaintiffs now sought the cost of medical testing to determine whether they had absorbed a dangerous dose of chemicals into their systems - Although the plaintiffs might have an uphill battle to establish entitlement to this novel category of relief, the court was not prepared to say that they were not entitled to seek it as a class - The manufacturers' concern about the breadth of the first class definition could be met by adding to the definition "and who claim they were exposed to dangerous levels of dioxin or HCB while on the Base" - There was then a rational relationship between the stated, objective criteria of the class and the common issues - A proposed common issue sought a determination of the minimum amount of dioxin and HCB that could cause a malignant lymphoma - All class members had a claim for the cost of testing - Each might have the same concern about whether they were at risk of developing cancers with long latency periods and what precautionary steps they could take if a risk was determined early - See 124 to 127.

Practice - Topic 209.1

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Members of class - General - 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 for all individuals who were at CFB Gagetown between 1956 and the present - The third party chemical manufacturers asserted that the plaintiffs' proposal to define the class on geographic terms was arbitrary since it included some people who were in the geographic area but were unaffected by the alleged contamination and excluded people who were on adjacent property and might have been affected - The Newfoundland and Labrador Supreme Court, Trial Division, stated that it was not satisfied that the geographic class definition was inappropriate where the plaintiffs were seeking to determine by medical testing who might have been affected by the alleged contamination within the geographic area - The exclusion of people on adjacent properties, who might also have been affected, should not invalidate the class definition - See paragraph 128.

Practice - Topic 209.1

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Members of class - General - 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 for all individuals who were at CFB Gagetown between 1956 and the present - The third party chemical manufacturers objected to the class as being both over-inclusive and under-inclusive given the proposed common issues and the evidence filed by the plaintiffs - The Newfoundland and Labrador Supreme Court, Trial Division, rejected the assertion - The statement of claim asserted that a reasonably foreseeable consequence of the release of chemicals was causing individuals exposed to fear the possibility of this occurring and to incur economic loss, including the cost of testing for dioxin and HCB poisoning - The plaintiffs asserted that the spraying of chemicals materially contributed to the risk of causing lymphoid cancers and that, therefore, anybody who might have been unknowingly exposed because of their presence on the Base were entitled to be tested to determine whether they had a dangerous level of dioxin or HCB in their systems - There was a rational connection between the proposed class definition and the proposed common issues - The fact different circumstances existed among different class members did not preclude certification - See paragraph 129.

Practice - Topic 209.1

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Members of class - General - The plaintiffs asserted that the federal Crown, from 1956 to 2004, by spraying CFB Gagetown base 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 for all individuals who were at CFB Gagetown between 1956 and the present - The third party chemical companies questioned whether the plaintiffs had provided sufficient evidence to establish that there was an identifiable class of two or more persons in Newfoundland as required by the Class Actions Act - The Newfoundland and Labrador Supreme Court, Trial Division, noted that the affidavit of one of the plaintiffs stated that there were three "class members" who had been diagnosed with Non-Hodgkin's Lymphoma residing in Newfoundland - This was sufficient to provide the "basis in fact" for the class - The court rejected an assertion that at the certification stage the plaintiffs had to prove on a balance of probabilities the existence of a class - However, if they had to, the plaintiff's uncontradicted affidavit met the requirement - See paragraph 130.

Practice - Topic 209.1

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Members of class - General - 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 for all individuals who were at CFB Gagetown between 1956 and the present - The third party chemical companies asserted that there were only three class members in Newfoundland who had been allegedly diagnosed with a malignant lymphoma and this was not enough to justify certification of a class proceeding - The Newfoundland and Labrador Supreme Court, Trial Division, rejected the assertion - Affidavit evidence indicated that there were 18 class members who reported having been diagnosed with Non-Hodgkin's Lymphoma and six with Hodgkin's Disease - There was a financial advantage to the Newfoundland residents to pool resources with non-residents to pursue their claims - Certification would promote improved access to justice - See paragraph 131.

Practice - Topic 209.1

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Members of class - General - The plaintiffs asserted that the federal Crown, from 1956 to 2004, by spraying CFB Gagetown base 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 for all individuals who were at CFB Gagetown between 1956 and the present - The plaintiffs also provided two alternative class definitions - A third party chemical company asserted that the class definitions had the flaw of depending on the case outcome in that it was impossible for a person to know if he or she was a member of the proposed classes unless it was determined that a "toxic area" existed - The Newfoundland and Labrador Supreme Court, Trial Division, addressed this concern by amending the first proposed class definition 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." - See paragraph 133.

Practice - Topic 209.1

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Members of class - General - 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 for all individuals who were at CFB Gagetown between 1956 and the present - The third party chemical manufacturers asserted that there was an unacceptable conflict of interest because the case had such a variety of alleged contaminants and diseases and some would have an interest in alleging that a certain chemical caused a specific disease while others would have an interest in a different chemical - The Newfoundland and Labrador Supreme Court, Trial Division, rejected the assertion - If this became a problem, it could be remedied through the creation of sub-classes - The court also rejected an assertion that the plaintiff Ring had a potential conflict of interest as a senior officer in the Canadian military who might have had responsibility for supervising some of the members of the class - There was no evidence that Ring's own actions contributed to the government's alleged negligence as against other class members - See paragraph 161.

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) - [See seventh, eighth and ninth Practice - Topic 209.1 ].

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 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 for all individuals who were at CFB Gagetown between 1956 and the present - The third party chemical companies objected on the basis that the plaintiffs had not put forward any proposed representative plaintiff for the non-resident class as required by the Class Actions Act and class action rule - The Newfoundland and Labrador Supreme Court, Trial Division, stated that this should not bar certification if the other requirements were met - This was something which the plaintiffs should be granted leave to rectify - See paragraph 132.

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 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 for all individuals who were at CFB Gagetown between 1956 and the present - The first of five proposed common issues addressed whether the alleged "toxic areas" at CFB Gagetown constituted an unusual or unreasonable danger of causing a malignant lymphoma - That issue had to be decided before issues two through five could be resolved - The third party chemical companies asserted that whether any particular class member's disease or condition was caused by their specific exposure was an inherently individualistic inquiry which required separate individual adjudications - The third parties viewed the first proposed common issue as an attempt to frame a generic causation question and asserted that it was incapable of any focus or proper determination at trial - The Newfoundland and Labrador Supreme Court, Trial Division, rejected the assertions - Proving the claims would be complex and expensive and the plaintiffs were entitled to the benefits of a class action to ensure access to justice by a pooling of resources - Certification would also promote judicial economy - Although individual hearings would probably be required, the hearings would be considerably shortened if the proposed first common issue was successfully resolved - The second proposed common issue followed logically from the successful resolution of the first issue and its resolution would advance the claims of all plaintiffs - The third, fourth and fifth common issues could potentially be resolved without individual hearings - All five issues met the test of commonality - See paragraphs 134 to 155.

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 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 for all individuals who were at CFB Gagetown between 1956 and the present - The Crown and the third party chemical manufacturers asserted that a class action was not the preferable procedure under s. 5(2) of the Class Proceedings Act where it would not significantly advance the action - The Newfoundland and Labrador Supreme Court, Trial Division, rejected the assertion - Although the individual issues might require a large number of individual trials, where the class consists of tens of thousands of people, access to justice would be promoted and judicial economy achieved by having the common issues resolved at a single hearing - There might still be questions relating to both general causation and specific causation which remained - But it would be less costly and more efficient to have resolved in one trial the question of whether there was an association between dioxin and HCB and certain diseases and whether there were areas of toxicity created by the spraying at CFB Gagetown which might have caused medical problems for the plaintiffs - See paragraphs 156 to 159.

Practice - Topic 209.4

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Certification - Appointment of representative plaintiff - [See second Practice - Topic 209.3 ].

Practice - Topic 209.7

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Certification - Evidence and proof - [See Crown - Topic 2803 and sixth Practice - Topic 209.1 ].

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 Supreme Court, Trial Division, stated that the evidentiary threshold for class certification was low - Courts should avoid imposing excessive technical requirements on plaintiffs and should give class proceedings legislation a large and liberal interpretation to ensure that policy goals were realized - Class certification was not a trial or a summary judgment motion but rather a procedural motion which concerned a form of an action, not its merits - Contentious factual and legal issues between the parties could not be resolved on a certification motion - The question was not whether the claim was likely to succeed, but whether the suit was appropriately prosecuted as a class action - Plaintiffs seeking certification, while not obliged to establish the merits of their action, had to pass the evidentiary threshold of showing some basis in fact to support the certification order - See paragraphs 72 to 74.

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 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 sought certification of the action as a class proceeding - The class was to include all those present at the base between 1956 and the present - The third party chemical manufacturers asserted that the plaintiffs' claim lacked commonality among their proposed class members because the chain of causation allegedly connecting the Crown's and the manufacturers' emission of the herbicides to the proposed class members alleged injuries required an inherently individual analysis and was subject to enormous variation from one member to the next - The manufacturers asserted that if there was any common issue it would not significantly advance the action - Further the plaintiffs' "toxic areas" proposal and the evidence produced by the plaintiffs ignored the role of exposure and dose in the toxicological assessment and the necessity of the plaintiffs to consider the dose of a specific chemical in relation to a particular disease - The Newfoundland and Labrador Supreme Court, Trial Division, referred to an affidavit filed on behalf of a legal assistant with the plaintiffs' counsel, confirming that 1715 individuals (35 of whom resided in Newfoundland and Labrador) had contacted the plaintiffs' counsel to report that they were at the base and were concerned that they or a member of their family had suffered harm as a result of exposure to chemicals on the base - That affidavit, coupled with the affidavits of the plaintiffs' expert and potential class members who noted the existence of reasonably authoritative publications identifying the risk of lymphomas developing following exposure to dioxin and hexachlorobenzene, was sufficient to establish a basis in fact for the claim - See paragraphs 75 to 82.

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 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 sought certification of the action as a class proceeding - The class was to include all those present at the base between 1956 and the present - The Crown asserted that the pleadings did not disclose a cause of action against the Crown because the plaintiffs had not shown that a Crown servant owed a duty of care to the plaintiffs (the second stage of the test set out in Anns v. Merton London Borough Council (H.L.)) - The Crown asserted that policy factors negated the existence of a prima facie duty where it sprayed chemicals as part of an annual brush control program - The Newfoundland and Labrador Supreme Court, Trial Division, stated that it did not have all the evidence required to determine whether the Crown's decision to spray amounted to a policy decision or an operational decision - Information was also lacking on the manner in which the Crown applied the herbicides at various times - The plaintiffs sought to establish that the advancing state of scientific knowledge had arrived at the stage where they could establish that the spraying of certain herbicides in a particular manner created an unreasonable risk to the health of individuals who frequented the area sprayed - The plaintiffs required a trial to properly present their evidence on that point - Further, where the plaintiffs claimed a novel remedy (medical surveillance and testing) it was preferable to await the presentation of their case to decide the second stage of the Anns test - See paragraphs 84 to 104.

Torts - Topic 76

Negligence - Duty of care - General principles - [See fourth Practice - Topic 209.7 ].

Cases Noticed:

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. 69].

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. 72].

Carom et al. v. Bre-X Minerals Ltd. et al. (2000), 138 O.A.C. 55; 51 O.R.(3d) 236 (C.A.), leave to appeal denied (2001), 283 N.R. 399; 157 O.A.C. 399 (S.C.C.), refd to. [para. 72].

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. 74].

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

Pearson v. Inco Ltd. et al., [2002] O.T.C. 515; 33 C.P.C.(5th) 264 (Sup. Ct.), affd. (2004), 183 O.A.C. 168 (Div. Ct), revd. (2005), 205 O.A.C. 30; 78 O.R.(3d) 641 (C.A.), refd to. [para. 78].

Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.), refd to. [para. 87].

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. 87].

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

Edwards et al. v. Law Society of Upper Canada et al., [2001] 3 S.C.R. 562; 277 N.R. 145; 153 O.A.C. 388, refd to. [para. 87].

Operation Dismantle Inc. et al. v. Canada et al., [1985] 1 S.C.R. 441; 59 N.R. 1, refd to. [para. 88].

Childs v. Desormeaux et al., [2006] 1 S.C.R. 643; 347 N.R. 328; 210 O.A.C. 315; 2006 SCC 18, refd to. [para. 90].

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. 91].

Eliopoulos et al. v. Ontario (Minister of Health and Long-Term Care) (2006), 217 O.A.C. 69; 82 O.R.(3d) 321 (C.A.), dist. [para. 92].

Brown v. British Columbia (Minister of Transportation and Highways), [1994] 1 S.C.R. 420; 164 N.R. 161; 42 B.C.A.C. 1; 67 W.A.C. 1, refd to. [para. 93].

Swinamer v. Nova Scotia (Attorney General) et al., [1994] 1 S.C.R. 445; 163 N.R. 291; 129 N.S.R.(2d) 321; 362 A.P.R. 321, refd to. [para. 94].

A.L. et al. v. Ontario (Minister of Community and Social Services) (2006), 218 O.A.C. 150 (C.A.), refd to. [para. 99].

Wuttunee et al. v. Merck Frosst Canada Ltd. et al. (2007), 291 Sask.R. 161; 2007 SKQB 29, dist. [para. 101].

Ayers v. Jackson Tp. (1987), 106 N.J. 557, refd to. [para. 102].

Exploits Valley Air Services Ltd. v. Board of Governors of College of the North Atlantic (2005), 249 Nfld. & P.E.I.R. 282; 743 A.P.R. 282; 258 D.L.R.(4th) 66 (N.L.C.A.), refd to. [para. 102].

Robitaille v. R., [1981] 1 F.C. 90 (T.D.), refd to. [para. 107].

Formea Chemicals Ltd. v. Polymer Corp., [1967] 1 O.R. 546 (C.A.), affd. [1968] S.C.R. 754, refd to. [para. 107].

Danyluk v. Ainsworth Technologies Inc. et al., [2001] 2 S.C.R. 460; 272 N.R. 1; 149 O.A.C. 1, refd to. [para. 111].

Toronto (City) et al. v. Canadian Union of Public Employees, Local 79 et al., [2003] 3 S.C.R. 77; 311 N.R. 201; 179 O.A.C. 291, refd to. [para. 111].

Sarvanis v. Canada, [2002] 1 S.C.R. 921; 284 N.R. 263, refd to. [para. 112].

Gustar v. Wadden et al. (1994), 45 B.C.A.C. 55; 72 W.A.C. 55; 91 B.C.L.R.(2d) 86 (C.A.), refd to. [para. 113].

Elliott v. Canadian Forces Housing Agency Kingston et al., [2003] O.T.C. 616; [2003] CanLII 35396 (Sup. Ct.), refd to. [para. 113].

Horvath v. Thring et al., [2003] B.C.T.C. 1656; 20 B.C.L.R.(4th) 370 (S.C.), refd to. [para. 113].

Frey et al. v. BCE Inc. et al. (2006), 282 Sask.R. 35; 2006 SKQB 331, refd to. [para. 115].

Knight v. Imperial Tobacco Canada Ltd. et al. (2006), 225 B.C.A.C. 291; 371 W.A.C. 291; 2006 BCCA 235, refd to. [para. 122].

Mouhteros v. DeVry Canada Inc. (1998), 70 O.T.C. 138; 41 O.R.(3d) 63 (Gen. Div.), refd to. [para. 125].

Davis et al. v. Canada (Attorney General) et al. (2007), 263 Nfld. & P.E.I.R. 114; 798 A.P.R. 114; 2007 NLTD 25, refd to. [para. 125].

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. 125].

Potter v. Firestone Tire (1993), 6 C.4th 965 (Sup. Ct.), refd to. [para. 146].

Palmer et al. v. Nova Scotia Forest Industries (1983), 60 N.S.R.(2d) 271; 128 A.P.R. 271 (T.D.), refd to. [para. 147].

Agent Orange Products Liability Litigation MDL No. 381, Re (1987), 818 F.2d 145 (C.A., 2nd Cir.), refd to. [para. 147].

Isaacson and Stephenson v. Dow Chemicals (2004), 304 F. Supp.2d 404, refd to. [para. 147].

Martel Building Ltd. v. Canada, [2000] 2 S.C.R. 860; 262 N.R. 285, refd to. [para. 150].

Odhavji Estate et al. v. Woodhouse et al., [2003] 3 S.C.R. 263; 312 N.R. 305; 180 O.A.C. 201, refd to. [para. 150].

B.D. et al. v. Children's Aid Society of Halton Region et al. (2007), 365 N.R. 302; 227 O.A.C. 161; 2007 SCC 38, refd to. [para. 150].

Syl Apps Secure Treatment Centre v. B.D. - see B.D. et al. v. Children's Aid Society of Halton Region et al.

Abdool et al. v. Anaheim Management Ltd. et al. (1995), 78 O.A.C. 377; 21 O.R.(3d) 453 (Div. Ct.), refd to. [para. 152].

Anderson et al. v. Wilson et al. (1999), 122 O.A.C. 69; 44 O.R.(3d) 673 (C.A.), leave to appeal dismissed (2000), 258 N.R. 194; 138 O.A.C. 200 (S.C.C.), refd to. [para. 154].

Authors and Works Noticed:

Canadian Pediatric Society Journal, Pediatrics and Child Health, Pesticide Assessment: Protecting Public Health on the Home Turf, generally [para. 52].

National Academy of Sciences, Veterans and Agent Orange (2004 Update), generally [paras. 13, 53].

Counsel:

Anthony Merchant, Q.C., for the plaintiff;

I.H. Fraser, for the defendant;

J. David Eaton, Q.C., for the Dow Chemical Company;

Daniel M. Boone, Q.C., for Pharmacia Corp.

This application was heard at St. John's, Newfoundland and Labrador, on March 26-30, 2007, by Barry, J., of the Newfoundland and Labrador Supreme Court, Trial Division, who delivered the following judgment on August 1, 2007.