Restitution Discussion Group Archives
| Sender: |
Lionel Smith |
| Date: |
Mon, 21 Jan 2002 15:58:59 -0500 |
| Re: |
Big Time Restitution/Disgorgement: Updates |
Three updates on large scale cases:
1. Authorson v. Canada. This class action was brought
by veterans who were or became unable to manage their own affairs. They
alleged that for many years the agencies of the federal Crown had systematically
mismanaged the veterans' pension & benefits assets, in particular by not
investing the funds or even paying interest. In Oct 2000 the trial judge
held that the Crown was liable. The quantum was to be decided separately
but is estimated at between Can$1.6 and Can$3.6 billion (or between six
and fourteen US dollars). More details in my posting of 23 Nov 2000. There
has been a lot of activity in this file, including interventions and various
interlocutory orders. I believe the plaintiff class has also been expanded
to cover the estates of veterans who died before this action was started
(raising the potential liability to US$18). The Ont CA has yet to decide
the Crown's appeal on liability, so far as I know, although I believe
the appeal was argued last year.
2. On 21 December 1999 the Canadian federal government
launched a lawsuit in US federal court against RJR-Macdonald, alleging
that they were involved in smuggling cigarettes into Canada and seeking
$1 billion, much of that as disgorgement of profits. The action was brought
under RICO, under which civil damage awards are tripled. This was posted
to the list in Jan 00 and sparked some debate. The federal district
court (SDNY) dismissed the claim on the basis that it was barred by the
"revenue rule" (no enforcement of another country's tax laws). This has
now been affirmed on appeal: AG
of Can. v. R.J. Reynolds Tobacco Holdings, Inc., 268 F. 3d 103. Judge
Guido Calabresi (of "One View of the Cathedral" fame) dissented; the opening
line of his judgment is: "On its face, and despite the considerable confusion
created by defendants' able arguments, the revenue rule has nothing to
do with this case."
3. Garland
v. Consumers' Gas Co. [2001] O.J. No. 4651 (C.A.). This is a class
action brought by those who paid late payment fees on their gas bills.
It was argued that the automatic late fee violated the Criminal Code as
potentially exceeding an interest rate of 60% p.a. The Supreme Court of
Canada held that it did violate the code and the case went back to trial
(more details in my posting of 3 Nov 98). The trial judge held nonetheless
that the class plaintiffs could not have restitution (more details in
my posting
of 1 Nov 00). He gave summary judgment for the defendants. The Ont.
C.A. has now affirmed that judgment, but with a vigorous dissent by Borins
JA.
I am also happy to note that Steve Hedley told me in
advance that this posting would be no 1000 since the RDG began in Sept
95. In addition to this milestone, we also recently passed 300 subscribers.
Lionel
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