Since I’ve designated today as a day to think about ethics, it’s worth quoting from a recent US judgment on a issue that had and has both legal and moral implications that comes from the boomer days – the Viet Nam war and the consequences of the use of Agent Orange – and comparing that to how the Canadian government handled the problem that produced Authorson v Canada.
In a recent decision dealing with the US Dept of Veteran affairs refusal to pay some Viet Nam war veterans who are suffering from Agent-Orange (dioxin) linked diseases – Namer v US Dept of Veteran Affairs – see the summary and links on JURIST, a judge of the USCA (Th Circa) wrote:
The answer to the legal question on this appeal is quite apparent. The Department of Veterans Affairs is obligated by law to pay disability benefits to the veterans who are suffering from Chronic Lymphocyte Leukemia as a result of their exposure to Agent Orange, a noxious chemical widely used by our government in the course of the Vietnam war. Three different Congresses in three different decades have enacted legislation signed by three different presidents, designed to ensure the payment of such benefits to veterans afflicted with Agent Orange-related ailments. What is difficult for us to comprehend is why the Department of Veterans Affairs, having entered into a settlement agreement and agreed to a consent order some 16 years ago, continues to resist its implementation so vigorously, as well as to resist equally vigorously the payment of desperately needed benefits to Vietnam war veterans who fought for their country and suffered grievous injury as a result of our government’s own conduct. Whether the Vietnam war was just or not, whether one favored or opposed it, one thing is clear. Those young Americans who risked their lives in their country’s service and are even today suffering greatly as a result are deserving of better treatment from the Department of Veterans Affairs than they are currently receiving. We would hope that this litigation will now end, that our government will now respect the legal obligations it undertook in the Consent Decree some 16 years ago, that obstructionist bureaucratic opposition will now cease, and that our veterans will finally receive the benefits to which they are morally and legally entitled.
Crystal-clear, right? The gov’t had a legal and moral obligation to live up to its obligations. It had chosen, once, to live up to both. It attempted to resile from both. It was called on both. Moral, of course, is legally superfluous given the finding of the legal obligation; however, it’s important that the judge included it because the use of “moral” enforces the normative weight of the decision. Putting this another way, it increases the likelihood the public will believe the decision was not only legal but right.
Now let’s move to Authorson v Canada.
Authorson, for those who don’t know, deals with the failure of the Canadian gov’t to invest disabled veterans’ pensions and disability funds that it was holding for them, as far back as World War I. Then, in 1990, Parliament passed a law that eliminated the veterans’ rights to sue for any losses arising out of this failure which losses occurred prior to 1990. The Supreme Court of Canada ultimately held that law was constitutional. The Supreme Court of Canada judgment is here.
The most recent case in the saga, which is the class (or class counsels’ – take our choice at this point) attempt at a second kick at the pot of gold, is here. The introduction is a nice summary of the history of the case. You’ll find a summary of the recent decision here. The Ontario Court of Appeal summarized the prior SCC decision and the case before it, this way.
 Before the Supreme Court of Canada, the Crown conceded that it had breached its fiduciary duty, but submitted that s. 5.1(4) lawfully rendered the debt unenforceable. The Supreme Court agreed and found that s. 5.1(4) was valid legislation that was not inconsistent with the Bill of Rights. The Crown’s appeal was allowed.
 One might have expected this to be the final word on the matter. However, shortly after the Supreme Court released its decision, in the fall of 2003 the Class moved before the motion judge for judgment on damages. The Class argued that the motion judge’s initial declaration that the Crown had breached its fiduciary duty had not been disturbed, and that the reach of both s. 5.1(4) and the Supreme Court’s decision were limited to “interest” as distinct from damages for failure to invest. The motion judge agreed. In doing so, he rejected the Crown’s submissions that he was functus officio, that the Class’s claim was barred by res judicata or issue estoppel, or that the claim was time-barred. The motion judge then directed further hearings to determine the quantum of damages for the failure to invest the funds. Those hearings were held over eight days in 2004 and 2005. At the end of 2005, the motion judge released the final damages decision, in which he assessed the Class’s damages at more than $4.6 billion. The Crown now appeals to this court.
 As we will explain more fully below, we agree with the Crown’s submission that the judgment of the Supreme Court was final and binding and that there was no basis in fact or law for the Class to pursue its claim, or any aspect of it, once that judgment had been rendered. We also agree with the Crown’s submissions that properly interpreted, s. 5.1(4) constitutes a complete bar to the claim, and that the motion judge erred by applying the doctrine of equitable fraud to overcome the Crown’s limitations defence. Accordingly, we allow the appeal.
The Ont CA allowed the Crown appeal, using words that amount to, in legal terms, scathing criticism of class counsel and the trial judge.
 We propose to address these jurisdictional problems not on an issue-by-issue basis but more by way of an historical overview of the case, with particular emphasis on the metamorphosis of the Class position. In the end, we agree with the Crown that the judgment of the Supreme Court was final and binding and that there was no basis for the Class to pursue its claim, in whole or in part, after that judgment had been rendered.
 Regrettably, the motion judge viewed the matter differently. Had he applied the correct principles of law to the irrefutable facts, he would, in our respectful view, have recognized the October 2003 Class motion for delivery of the judgment on its “outstanding quantum motion” as a blatant case of revisionism and dismissed it out of hand. As it is, that motion has resulted in four years of unnecessary litigation and an unfortunate drain on scarce judicial resources.
The legal difference between Authorson and Nehmer should be crystal-clear. The legal obligation didn’t exist any more. The Canadian government had acted: legally according to the SCC. It hadn’t agreed to pay any benefits other than those set out in the 1990 statute. It hadn’t resiled from that agreement. So, all that was left was the moral obligation for the pre-1990; something entirely outside of this courts’ – and any civil courts’ – jurisdiction.
Coincidentally, or maybe that’s what has me thinking more than usual about law and morality, Joseph Raz, one of our pre-eminent philosophers on legal and moral issues, has started to release some of his older papers onto SSRN. The most recent release is Raz, Incorporation by Law [SSRN link to the paper] which deals with the incorporation of morality into law.
Was Parliament’s conduct in Authorson legal? The SCC has said it was so. Was it moral. That’s a different question. One that should never have been relitigated.