2010 NLCA 30, 2010 NLCA 30

Date: 2010 0423 Citation: 2010 NLCA 30 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL Docket 07/64 BETWEEN : THE DOW CHEMICAL COMPANY APPELLANT AND : 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 And Docket: 07/65 BETWEEN : PHARMACIA CORPORATION APPELLANT

AND : 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 And Docket: 07/66 BETWEEN : THE ATTORNEY GENERAL OF CANADA AND THE MINISTER OF NATIONAL DEFENCE APPELLANT AND : EDWARD RING SR. AND MARY WILLIAMS FIRST RESPONDENT AND : THE DOW CHEMICAL COMPANY AND PHARMACIA CORPORATION SECOND RESPONDENTS Coram: Cameron, Welsh and White, JJ.A.

Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division, 200601T2880 Applications Heard: April 23, 2010 Decision Rendered: April 23, 2010 (Orally) Memorandum of Disposition Filed: April 27, 2010 Counsel for the Dow Chemical Company: David Eaton, Q.C. Counsel for Edward Ring, Sr. and Mary Williams: John Legge, Q.C. Counsel for the Attorney General of Canada and the Minister of National Defence: Catherine Coughlin Counsel for Pharmacia Corporation: Daniel Boone MEMORANDUM OF DISPOSITION White, J.A. [ 1 ] On March 27, 2010, the Court rendered its judgment in the above matters.

Cameron J.A., for the Court, stated at para. 126: … the Trial Division judge erred in certifying a class action. The appeal is allowed. The order certifying a class action is set aside.

Pursuant to s. 37(1) of the Class Actions Act there shall be no order as to costs. [ 2 ] A draft form of order was agreed upon by all three Appellants (“Dow”, “Canada”, and “Pharmacia”) and forwarded to this Court. [ 3 ] Canada filed an Interlocutory Application on March 30, 2010 applying to settle the form of order following judgment and stating that counsel for the First Respondents, Edward Ring, Sr. and Mary Williams (“Ring”) did not consent to the draft form of order. [ 4 ] The form of order sought by Dow, Canada and Pharmacia is consistent with the judgment of this Court as set out in para. 1 above. [ 5 ] On April 1, 2010, counsel for Ring filed an Interlocutory Application seeking to “… provide further argument on the appropriate relief on disposition of these appeals”.

This Application and Canada’s Application were heard together. [ 6 ] In his written submission Ring set out three alternative forms of relief.

It was, however, acknowledged on the hearing of the Applications that the only alternative relief being pursued was that the order of this Court should include the words: without prejudice to the First Respondents or others to apply or reapply for certification in this or another class action. [ 7 ] In his oral submission counsel for Ring suggested that the additional words be: without prejudice to right of Plaintiff to move for certification on grounds and material consistent with these reasons. [ 8 ] Counsel for Ring argued that the addition of the suggested words to the formal order would enhance judicial economy as he said there were large areas of the trial judge’s decision on certification which were undisturbed by Cameron J.A.’s judgment.

He further suggested that there would be no substantial prejudice to any party, and no mischief would be created by this Court making the express statement requested. [ 9 ] Counsel for Ring referred to a number of cases in support of his submission that the words noted in para. 7 above should be added. He emphasized, in particular, the statement of Winkler R.S.J. in Caputo v. Imperial Tobacco Ltd. (2004), 2004 CanLII 24753 (ON SC) , 236 D.L.R. (4th) 348 (Ont. S.C.J.): [86] The plaintiffs have not met the test for certification. The motion must be dismissed.

However, I do not intend that these reasons should stand for the proposition that no class proceeding relating to tobacco use can ever be certified under the CPA . My reasons for refusing certification relate to defects in this particular action, not such litigation in general. As always, and to reiterate the words of McLachlin C.J. in Hollick, the “question of whether an action should be permitted to be prosecuted as a class action is necessarily one that turns on the facts of the case.” [ 10 ] The Caputo case and several others cited are in relation to denial of certification at the trial court level.

Neither counsel for Ring nor counsel for the Appellant were aware of any appellate decision where the court gave a “direction” such as is sought here in circumstances where a certification order was set aside.

[ 11 ] The judgment of this Court does not opine on whether or not there is a class which can be certified. What the Court did conclude was that the particular certification order appealed should be set aside for the reasons given in its judgment. [ 12 ] No compelling argument was advanced for this Court to make a general statement in its formal order which would state the obvious – that there can be a further application to the Trial Division on whatever basis the Plaintiff sees fit. Of course, any such application would be subject to a proper

interpretation of the effect of the judgment of this Court setting aside the prior certification order. [ 13 ] In addition to the general argument dealt with above, the application of Rule 15.07 of the Rules of the Supreme Court, 1986 was argued.

Rule 15.07 provides: 15.07 Clerical mistakes in decisions or orders, or errors arising therein from any accidental mistake or omission, or an amendment to provide for any matter which should have but was not adjudicated upon, may at any time be corrected or granted by the Court, without appeal. [ 14 ] The only part of the Rule which could have any possible application is: … an amendment to provide for any matter which should have but was not adjudicated upon, … . [ 15 ] Counsel for Ring suggested that the failure on appeal to argue a possible amended class which could be considered on a further certification application was a “slip” by counsel. [ 16 ] Rule 15.07 has been considered by this Court in Bussey v.

Maher , 2006 NLCA 44 . Welsh, J.A. stated at paras. 16-17: [16] As applied to the appeal before this Court, it is clear that Elizabeth Bussey failed to make an argument that was available to her, and which she had made, in the alternative, in the trial division.

Although she was successful in obtaining the entire disputed strip of land at trial and was, therefore, responding to an appeal by Lloyd Bussey, it was incumbent on her to make all the relevant arguments, including those that would apply in the alternative should Lloyd Bussey’s appeal succeed. [ 17 ] This Court, having decided the issues put before it in the appeal, is therefore functus officio . [17] As in Bussey , an alternative argument could have been made on hearing of the appeal, but was not.

It is not now for this Court to make an additional statement, arguably amounting to a “direction” to the Trial Division, when such an option was not put before the court on the appeal and where the court is effectively “functus” in respect of any substantive matter. [ 18 ] Counsel for the Appellants argued, in effect, that anything additional in the order would be superfluous or ambiguous, and would not add to judicial economy but the opposite.

We agree. [ 19 ] Accordingly, Ring’s Application is denied. [ 20 ] The Appellants submitted that if Ring’s Application was denied, the form of order they sought should issue. On denial of Ring’s Application, his counsel did not oppose this form of order. The formal order was filed on April 23, 2010. _________________________ C.W. White, J.A.