Douglas Barrett is a corporate/commercial lawyer and a member of the Communications Group of Toronto law firm McMillan Binch.

Is the lawsuit recently launched by surviving Canadian aircrew members of Bomber Command concerning the film The Valour and the Horror going to turn into its own ‘valour and horror’ saga? There is not only every possibility that this will be the case but, if it is, an equally strong likelihood that the production of controversial documentaries will ultimately become all but impossible in this country.

If the lawsuit proceeds and is even partially successful, the amount of due diligence necessary in future to attract public sector funding to this type of program will be so great that few producers or broadcasters will have the resources, or the nerve, to take on such a project.

The lawsuit

As has been reported in the press, the statement of claim for the Valour and Horror lawsuit is 221 pages long.

It is a substantial and ominous document specifying in detail 41 alleged errors in the program and 17 causes of action commencing with defamation and including legalistic items such as conspiracy, breach of fiduciary obligation, malicious falsehood and negligence, to name a few.

The statement of claim was prepared by experienced and reputable litigation counsel and the federal government defendants, namely CBC, Telefilm Canada and the National Film Board, and various government departments and ministers, are known to be taking it very seriously.

This does not, of course, mean that every, or for that matter, any allegation in the statement of claim is correct or will result in an award or order against the defendants. It does, however, show a substantial determination on the part of the plaintiffs to proceed with the suit and has the makings of a long and dramatic trial.

That the lawsuit is being brought at all is due in large measure to the newly proclaimed Ontario Class Proceedings Act, 1992, which permits one or more members of a class of persons to commence a court proceeding on behalf of all members of the class.

At first blush, all these tests of this legislation would appear to have been met in the Valour and Horror suit and many observers believe the suit will proceed.

The Bomber Harris Trust, an entity formed specifically to institute and maintain the lawsuit, represents the 25,000 surviving and identifiable aircrew. The trustees are, for the most part, senior officers of several aircrew veterans associations.

The Class Proceedings Act permits the solicitation of financial contributions from class members and such a solicitation has been prepared for distribution to surviving aircrew and their families. If even half the surviving aircrew members gave $25 each, a healthy kitty would be created to fund the litigation.

The veterans

One aspect of this case which increases the likelihood of its proceeding is the nature of the individuals who make up the plaintiff class. Since the war ended over 40 years ago, almost every surviving member of Bomber Command is now retired. There are therefore plenty of people who have enough time available to help raise the money needed to keep the litigation going.

As well, the members of the class are quite closely knit with many active associations in existence across the country. Presumably, there is a fairly strong degree of ongoing contact between these associations and their respective members.

Finally, since their few months of active experience in Bomber Command may have been the most traumatic and emotionally intense of their lives, those survivors who are committed to the lawsuit can be expected to remain so for the long haul.

The result of all this is a determined group of people with all the necessary financial wherewithal to go the distance. It’s no wonder the lawsuit is being taken so seriously.

Damages

As has been widely reported in the press, the lawsuit has claimed $500 million in damages. While the sheer magnitude of the amount claimed has lead some people to believe that the suit shouldn’t be taken seriously, this is not the case.

The section of the Statement of Claim which spells out the ‘relief’ which the veterans are seeking sets out the following:

– first there are various demands that the court ‘declare’ the defendants’ actions to be improper in all sorts of ways;

– then there is a claim for an injunction preventing the further televising or other distribution of the program;

– then, as an alternative, there is a demand that a disclaimer be affixed to every copy of the program which states that it contains distortions;

– finally, and as a further alternative, there is a claim of damages composed of: $1,000 for every surviving class member ($25 million); $1 for every resident of Canada in 1970 ($20 million and I don’t get it either); $10,000 for every copy of the program sold to the public ($120 million); $1 for every resident of Germany, the u.k. and Sweden, because of the telecast in those countries ($145 million); and $1 for every person in the world estimated to have viewed the film to date ($170 million).

The total comes to $480 million. While there may be a basis for some damage award if the veterans succeed in their action, the grand total of what they are seeking seems clearly excessive. It has, however, been effective as a headline grabbing device. Right on cue, reference is now routinely made to the ‘cbc’s $500 million lawsuit’.

One aspect of the total claim which adds a twist to the proceedings is that it is vastly in excess of the $3 million or so of errors and omissions insurance coverage which is likely available to the defendants if they lose. This means that each of the defendants is technically exposed to real financial loss and will likely retain their own legal counsel to participate along with the lawyers approved by the insurance company.

If at any stage in the proceedings it becomes apparent that a financial award over $3 million is possible, the lawyers for all of the defendants will begin to take each other on in order to reduce their client’s share of the overall burden. It will, in short, be lawyer heaven.

The merits of the case

After I had read the statement of claim, I borrowed a copy of the program and watched it again, this time from a lawyer’s point of view. Part of me wants to ask, ‘What is all the fuss about?’ The program appears well made and researched and certainly does not demean the capabilities, bravery or sacrifices of Canadian bomber crews.

The use of an actor to dramatically portray Sir Arthur Harris in the context of a documentary program certainly raises a complex journalistic question, but, given the collective conclusions of the Senate committee and the CBC Ombudsman (however right or wrong they may have been), why do the veterans seem so determined to launch what is bound to be a hugely expensive lawsuit?

The veterans’ complaints seem to centre principally on the characterization of British Bomber Command in its decision to bomb civilian targets and only peripherally with the portrayed activities of Canadian aircrew. If this is the case, why are Canadians so keenly interested in the historic treatment of a foreign command structure in which they had little, if any, role?

I think the answer lies in the intense feeling of individual aircrew members who participated in the Bomber Command strategy that their honor is implicitly questioned if the honor of that strategy is questioned, given that the strategy involved the attack of civilian targets. Thus the lawsuit attacks the documentary’s rather determined investigation of the overall integrity and honor of the Bomber Command strategy.

Unfortunately for both sides, it is unlikely that any court is going to be able to clearly resolve either the overall historic or deeply personal aspects of this issue. Instead, the court will examine each of the 41 allegations of error and, to the extent that any of the allegations are correct, apply the law relating to any of the specified causes of action to determine whether some form of order or damage award is appropriate.

It is going to be a very difficult process for the producers and will require immense resources in time and money to fight. What may be most galling of all is the possibility that the program context may have an overall historic accuracy but individual research errors could, in theory, give the veterans at least a partial victory.

The implications for the industry

In addition to the aspects of this case which are more suited to popular press headlines, there are several issues which could have a considerable impact on the Canadian television production industry.

The first is the possibility that if there is a substantial financial award, its payment could be drawn from the already slim resources of cbc, Telefilm and the nfb.

Second, as many of you know, writers give ‘no defamation’ warranties to producers, and producers in turn give such warranties to broadcasters, funding agencies and distributors. In the case of The Valour and the Horror, if a claim is paid by any public sector body, will such body turn for indemnification to the producers, and if so, will the producer similarly turn to the writers?

Third, if an award is made, how will liability be apportioned among the various government agencies? After all, while the cbc’s liability as a broadcaster of the material will be clear, the nfb’s liability as a coproducer/investor will be less clear, and Telefilm’s as a mere investor still less clear. Should Telefilm be taking the independent position that the case against it should be dropped right away, or should it join cbc, the nfb and others in defending on the merits?

Finally, on the implications on freedom of speech, Canadian law is more heavily weighted toward the interests of those about whom comments are made while u.s. law leans heavily towards the interests of those who are doing the commenting. While many feel that American law has gone too far to protect freedom of speech, many also strongly believe that Canadian law does not go far enough. This case puts a very fine point on this debate and could focus attention on the problems in our current law.

Unless it is dropped or settled, the Valour and Horror lawsuit promises to be a landmark case in this area, and the trial will surely be its own story of valour and horror.

(This article contains general comments only. It is not intended to be exhaustive and should not be considered as advice on a particular situation.)