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.