William H.A. Willbond MSM, CD

COMPENSATION FROM THE NATION?

How many early graves must our Country dig
For using soldiers as Guinea Pigs?
How many more will have to die
Before the courts can answer why?

How many of our soldiers were made sick?
Some died slowly and the others went quick
No compensation did these soldiers see
They served to keep the true north strong and free!

Receiving Cancers and a weakened heart
Many to early Canadian graves depart
From effects of chemicals and mustard gas
Courts seem to drag their heels, to let time pass?

These soldiers’ pensions will soon cease
And into graves they’ll rest in peace?
Without receiving their compensation cheque
Do our Canadian court officials really give a heck?

From: Darren Williams
Sent: Friday, December 14, 2007 3:09 PM
Subject: Chemical Warfare Testing (class) action

Gentlemen, please accept this email as an update on the chemical warfare testing (proposed) class action.

In May of 2007 the Federal Court ordered that our application to certify the chemical warfare testing law suit as a class action be heard in the week of December 10, 2007. Shortly after this order, the defendant Crown brought an application to “strike the statement of claim”. This type of application (which essentially asks the court to find that the claim cannot proceed because it will not succeed) is a common strategy utilized by a defendant to a large law suit – it is a first line of defence. The grounds for bringing the application, as argued by the defendant, included that the claim could not succeed because of Crown immunity granted by the National Defence Act and the Public Authorities Protection Acts (of Alberta and Ontario), stays of proceedings granted by the Pension Act, and the expiration of limitation periods under the Alberta and Ontario Limitation Acts as well as the federal Crown Liability and Proceedings Act.

The court ordered that the defendant’s application strike the claim be heard during the week of December 10, 2007 and that it be heard before the plaintiffs’ certification application.

Accordingly, five Merchant Law Group lawyers (Anthony Merchant Q.C., Patrick Alberta and Casey Churko from Regina, Darren Williams from Victoria, and Owen Falquero from Montreal) appeared at the December 10 hearings and argued against the Crown’s motion to strike the claim. The parties put, in all, more than 3, 000 pages of materials (affidavits, evidence of historical documents, case law, written argument) before the court. Those arguments took 3 days, and left only one day to argue the certification motion. The Court indicated it would not provide a decision on the motion to strike until after it had heard the motion to certify.

Because all the lawyers anticipated the certification application (which is distinct from the application to strike) would take a minimum of three days to argue, the Court elected to delay the certification application (rather than have counsel argue one day and then come back at a later date – thus breaking up the evidence and argument). Justice Hansen advised that the Court would contact the lawyers next week (week of December 17) to discuss dates in the new year for the certification hearing, and importantly, that the Court was aware there were many plaintiffs for whom this case was time sensitive and therefore she would make every effort to ensure the certification application was heard as early as possible. I suspect it may be heard in January of 2008 but perhaps in February or March and possible (but hopefully not) later – this depends entirely on the court’s schedule.

In short, we fought vigorously at the motion to strike and are optimistic that the court will allow the claim to proceed. I will write when the court has provided us with dates for the full certification hearing so that you are aware when these arguments are being made.

Thank you.

Darren Williams, BSc. LLb.
Barrister & Solicitor
Member of the Interprovincial Merchant Law Group, LLP
203-468 Belleville Street, Victoria B.C. V8V 1W9