After 15 years of litigation that has gone all the way to the Supreme Court of Canada and back, the Ontario Supreme Court on Wednesday issued its final decision on liability, dismissing the suit on all of the pleaded grounds. The claim was filed in 1997 and has taken this long to work its way through the system to this final decision on liability. Intermediate proceedings included several motions resulting in 14 reported prior decisions from various levels of the courts, including the Supreme Court of Canada (see http://www.CanLII.org; search "Berry v. Pulley").
The lawsuit alleged that Air Canada pilots, by failing to follow through to implement the Picher arbitration award merging the seniority lists of the two disparate pilot groups, caused the Air Ontario pilots harm and damage (now totalling in the amount of hundreds of millions of dollars). The original lawsuit alleged damages in both contract and tort, but as a result of decisions of the courts in interim proceedings, the allegations that were based in contract were dismissed early on. The lawsuit was certified as a class action lawsuit, with seven separate classes of defendents within the Air Canada pilot group, defined primarily by the role that each "group" or "class" of individuals played in the alleged breaches, from no role at all (Class 7) to a very substantial role (Class 1).
I have posted the original PDF version of the decision on the Fly Past 60 web site. The document is 156 pages long, and 2.4 MB in size. Access to the decision there is available only by linking directly to the file itself, through the following link (there is no reference on that web site to the document, so don't go there looking for it):
http://www.flypast60.com/Documents/2012ONSC1790.pdf
Some preliminary observations and comments regarding this case and this decision:
The were five causes of action dealt with in this decision that included the torts of :
- unlawful conduct conspiracy;
- intentional interference with economic interest;
- breach of fiduciary duty;
- negligent misrepresentation; as well as
- eight other common issues.
Most of the causes of action were comprised of several required component elements, all of which were required to be satisfied in order for the cause to be sustained and liability to be found—an onerous requirement. Some component elements in some of the causes of action were found to be sustained against some of the classes of defendants, but no cause of action was sustained entirely against any or all of the defendent classes. Hence, the Plaintiff's claims failed on all grounds as a result.
It is interesting to note that the Court left the issue of costs to the parties to resolve. That issue alone could well eventually consume weeks of additional hearings before the taxing officer of the Court, given the 15 years of legal wrangling. A dispute as to the amount of costs payable might conceivably run into significant litigation in and of itself. Given the protracted length of proceedings, the ultimate award of costs payable to the Defendants could be quite sizeable.
With 15 years of litigation already completed and with the number of dollars at stake in the final outcome combined with the litigious nature of this dispute's history, it is quite likely that this litigation is anything but over yet.
One interesting excerpt from the decision:
Link Corrected"[475] Although not a ground to refuse relief, I note that if the damages claimed by the Plaintiffs were awarded, the 23 members of sub-classes 1, 3 and 5 would each be liable to pay $8,604,094.17 to the Plaintiffs."
