Wall v. Horn Abbot Ltd.

IN THE SUPREME COURT OF NOVA SCOTIA

Citation: Wall v. Horn Abbot Ltd. 2007 NSSC 197

Date: 2007/06/22

Docket: Sn. No. 101331

Registry: Halifax

Between:

David H. Wall

v.

Plaintiff

Horn Abbot Ltd., 679927 Ontario Limited (formerly Horn Abbot Productions

Limited), Christopher Haney, Charles Scott Abbott, John Haney and Edward

Martin Werner

Defendants

Judge:

Heard:

The Honourable Justice A. David MacAdam

In Sydney, Nova Scotia, on

May 23, 24, 25, and 25, 2006,

June 5, 6, 7, 8, 12, 13, 14, 15, 19, 20, 21, and 22, 2006

July 4, 5, 6, 7, 10, 11, 12, 19, 24, 25, and 31, 2006

August 1, 8, 9, 10, 14, 15, 16, 17, 21, 22, 23, 24, 28, 29,

and 30, 2006

October 30, 2006, November 30, 2006

December 1, 2006

January 5, and 6, 2007 (total 47 days)

Final Written

Submissions:

February 7, 2007

Counsel:

Kevin A. MacDonald , for the Plaintiff

John C. Cotter, for the Corporate Defendants

William L. Ryan, Q.C., and Christa M. Hellstrom

for the Individual Defendants

INDEX

Paragraph No.

I

THE PARTIES

OVERVIEW

2

II

3

A.

B.

C.

The Litigation

The Positions of the Parties

Evidence Relevant Only, or Primarily, to Credibility 7

3

5

III THE ISSUE

13

IV THE PLAINTIFF

14

A.

B.

Wall’s Early Interest in Trivia

The Day of the Hitchhiking Encounter

14

16

1.

David Wall

16

2.

Donnie Campbell

a) Commentary

Wayne Fennell

Doug Reeves

55

82

3.

4.

85

91

a) Commentary

Jerry Murphy

Brean Stott

113

115

125

5.

6.

II

Paragraph No.

C.

The Events of December 1980 - January 1981

127

136

137

140

141

145

1.

2.

The Phone Call

Seeking Investors

(a) Paul Peterson

(I) Commentary

(b) Art Ells

(I) Commentary

(c) The Windsor Street Apartment Building 148

(I)

Selma Doucet

150

152

155

156

157

(ii) Nelson Latimer

(iii) James Kehoe

(iv) Lawrence Lewis

(v) Commentary

D.

E.

The First Trip West

The second Trip West

159

160

162

165

1.

2.

Donald (Donnie) MacLellan

Cecil Currie

III

Paragraph No.

F.

The Alberta Period

1. Paul MacLellan

G. The British Columbia Period

171

172

176

1.

2.

3.

4.

Ted Van Overbeek

Bruce Pitt-Payne

James Norquist

David Hickey

182

184

187

188

H. Commencing The Law Suit

1. Harvey MacPhee

191

193

V

SUGGESTED DEFICIENCIES, INCONSISTENCIES AND

CONTRADICTIONS IN THE PLAINTIFF’S EVIDENCE 197

A.

B.

C.

The Evidence that Haney was the Driver

198

The “Evolving” Date of the Hitchhiking Encounter 203

Wall’s Other “Evolving” Recollections

218

1.

2.

3.

Doug Reeves

219

223

224

The Hockey Tournament

The Hockey News

IV

Paragraph No.

4.

5.

6.

7.

8.

The Driver from Westmount

The “Wagon Wheel”

225

226

227

228

Nana’s Blueberry Pie

Freddie Johnson’s Halloween Party

The Time Between the Hitchhiking Encounter

and Wall’s First Trip West

229

232

233

9.

The License Number of the Driver’s Vehicle

10. The Date of the Phone Call

11. Donnie Campbell’s Role in Wall’s

Evolving Recollections

234

(a) Gillis Lake/MacAdams Lake/

Blackett’s Lake

234

235

236

237

238

(b) The weather

(c) Marie Bisson/Wayne Fennell

(d) The name “Haney”

(e) Commentary

D.

The Various Versions of the Hitchhiking Encounter 240

Ted Van Overbeek 241

1.

V

Paragraph No.

2.

3.

4.

Bruce Pitt-Payne

Art Ells

242

243

244

Cameron Andrea

E.

F.

Wall’s Evidence on the Status of the Game Before and

Immediately Following the Hitchhiking Encounter

246

251

The Lack of Documentary Evidence

1.

2.

The Business card

Commentary

255

256

G. The Offers of Money

259

H. Wall’s Guarded Treatment of His Idea

262

264

1.

2.

3.

4.

5.

Keeping It From His Family

Heidi Stevens (Munroe)

Brean Stott

266

270

271

276

282

285

William Keough

Commentary

I.

Failure to Follow Up with Reeves and Campbell

Uncorroborated Events

J.

VI

Paragraph No.

1. The Incident at Smooth Hermans

2. Workers’ Compensation Records

3. The Sightings

285

291

293

300

311

318

356

367

VI THE DEFENDANTS

A. The Present and Former Individual Defendants

1.

Edward Werner

John Haney

Chris Haney

Scott Abbott

Commentary

2.

3.

4.

5.

VII OTHER WITNESSES FOR THE DEFENDANTS

370

378

383

385

A

Sarah Haney

John Mahoney

Van Ewart

B.

C.

D.

E.

Douglas Ball

Commentary

388

Paragraph No.

VII

VIII THE LAW

A. Limitations

390

395

398

400

405

408

419

1.

2.

3.

4.

5.

6.

The Nova Scotia Limitation of Actions Act

Applicable Limitation Periods

Disallowance of a Limitation Defence

Impecuniosity

Discoverability

Concealed Fraud

B.

Laches

426

443

450

457

475

476

479

486

1.

Limitation by Analogy

C.

D.

E.

F.

Limitations and Copyright

Conclusion on Limitations and Laches

Summary re Limitations and Laches

Ontario Limitations

G. Copyright

1.

2.

3.

The Copyright Claim

Subsistence of Copyright

Ownership of Copyright

494

496

VIII

4.

5.

Infringement

Conclusion on Copyright

515

529

538

544

546

548

549

557

H. Fiduciary Duty

1. The Position of the Parties

2. Conclusion on Fiduciary Duty

3. Fiduciary Duty Between Joint Venturers

Breach of Confidence

I.

J.

Equitable Fraud & Deceit

IX CREDIBILITY, FACT-FINDING AND

THE BURDEN OF PROOF

569

583

X

CONCLUSION

Page 1

By the Court:

[1] Who conceived the popular board game “Trivial Pursuit” (herein also

referred to as “the game”)? Is it the teenage high school graduate who says in late

November/early December, 1979 while hitchhiking with a friend, he was picked up

and, during the drive and at destination, told to the driver his idea for a board game

based on trivia and horoscopes? Or, is it the former photo-editor of the Montreal

Gazette, who, after purchasing his sixth Scrabble game (at least) and paying, in his

view, too much, proceeded to invent and create the game in collaboration with his

friend and his then spouse, on December 15, 1979? The answer will not be found

in any of the answers contained in the game, in the original or subsequent versions;

rather, it is to be found on an assessment of the evidence, and lack of evidence,

presented during the course of this trial.

I

THE PARTIES

[2] The teenager is the plaintiff, David H. Wall (herein also referred to as

“Wall” and “Wally”) and the present defendants are Horn Abbot Limited, (herein

also referred to as “Horn Abbot” and “the corporate defendant”) and Christopher

Haney (herein also referred to as “Haney” and “the individual defendant”). Also

sued by the plaintiff was 679927 Ontario Limited (formerly Horn Abbot

Productions Limited), Charles Scott Abbott, (herein also referred to as “Abbott”),

John Haney, (herein also referred to as “J. Haney”), and Edward Martin Werner,

(herein also referred to as “Werner”). Following conclusion of the plaintiff’s

evidence, these former defendants were successful on a motion of non-suit and the

proceeding as against them was dismissed. Nevertheless, Abbott, J. Haney and

Werner, (herein collectively referred to as the “former individual defendants”) all

gave evidence on behalf of the remaining defendants.

II

OVERVIEW

A. The Litigation

[3] This litigation has had a long and stormy history, dating back to the issuance

of the Originating Notice (Action) and Statement of Claim on November 14, 1994

and up to and including an application, after the initial conclusion of evidence, to

have the trial re-opened to hear an additional witness. During this interval many

Page 2

applications have been heard before a variety of judges of this Court and, in some

instances, the Court of Appeal.

[4] Chief Justice Kennedy, by Order dated the 17^thday of August, 1998,

directed:

... that the issues of liability and damages be tried separately ... .

Consequently the trial considered solely whether the plaintiff has successfully

established a cause of action against any, or all, defendants, leaving the issues of

“remedy and damage” to be decided at a further hearing, if required.

B.

The Positions of the Parties

[5] Counsel on both sides have suggested, forcefully, that a review of the

evidence and the exhibits, and a consideration of the inconsistencies in the

evidence of the other party, will lead the Court to the inescapable conclusion that

the position of the other party is without merit and indeed borders on “criminal” or

“fraudulent”. The plaintiff says Haney stole his idea for what became known as

the game, “Trivial Pursuit”. The defendants say Wall is involved in a conspiracy

to take from them the recognition they have earned and received as the inventors

and creators of the game and the financial benefits that have accrued to them as a

consequence.

[6] There are troubling inconsistencies, and other concerns, in both the evidence

presented and the manner in which this case has been conducted by all parties.

There are clearly glaring inconsistencies in the evidence of the plaintiff, both with

respect to earlier evidence he has given and, in comparison with the evidence of

other witnesses he has called in support of his principal allegation that the game

was his idea, his creation, his invention. On the other hand, the defendants have

taken certain steps in this proceeding, such as the suing of two of the plaintiff’s

witnesses and advancing an allegation that one of them had acknowledged in

writing that Wall’s claim was a scam; yet when this person testified he was not

confronted with any such written statement.

Page 3

C.

Evidence Relevant Only, or Primarily, to Credibility

[7] Much of the trial evidence related not to the alleged hitchhiking and whether

approximately 13 months later Haney called Wall, but to whether any of the

present and former individual defendants had been seen in Cape Breton, either by

themselves or in company with certain local residents of Cape Breton, and whether

following the alleged telephone call, Wall contacted a number of local business

persons suggesting there was an opportunity to invest in this game. He has

suggested some of these persons have, in fact, invested.

[8] Whether any of the defendants have ever been seen in Cape Breton, apart

from whether Haney was there at the time of the alleged hitchhiking event, is not

determinative of whether in fact Haney was the driver who picked up Wall and his

friend, Donnie Campbell (herein also referred to as “Campbell”). Wall, together

with members of his family, testified to a number of occasions in the 1980's and

90's when they say they saw one or more of the defendants in Cape Breton, in

some cases in the company of other residents of Cape Breton. The present and

former individual defendants have denied the occurrence of any of these events,

and many of the local residents, in whose company they were allegedly seen also

denied any recollection of any such occurrences. In fact, apart from Wall and his

family, no witness has testified to the presence of any of the present and former

individual defendants in Cape Breton. Other than in attending at trial, and one

occasion in 1972, and therefore prior to these events, when they travelled with

others to Cape Breton on a holiday, Haney and his brother J. Haney absolutely

deny any presence in Cape Breton. The relevance of this issue is simply as to how

it may relate to the credibility and reliability of Wall and Haney. In view of their

respective positions, the conclusion that these sightings had occurred would indeed

raise concerns about the reliability and credibility of Haney. On the other hand, the

conclusion that the sighting had not occurred, would similarly raise concerns about

the credibility and reliability of Wall, in respect to the evidence he has presented at

this trial. Apart from this issue of reliability and credibility, whether or not the

present and former individual defendants have ever been in Cape Breton in the

1980's or 1990's is not determinative of the central issue in this case.

[9] The evidence of the telephone call is, of course, suggested as confirmative of

the existence of a prior interaction between Wall and Haney. If the evidence of

the telephone call is accepted, the only occasion when such an earlier interaction

could have occurred would have been at the time of the hitchhiking. Whether

Page 4

residents of Cape Breton ever invested in Trivial Pursuit is, of course, not

determinative of the essential question, whether Haney picked up Wall and

Campbell on the night in question.

[10] Acceptance of Wall’s evidence that in early January, 1981 he approached a

number of persons suggesting an investment opportunity in a board game would

be, at least to some extent, confirmatory of the alleged phone call between Haney

and Wall. The call is said to have occurred sometime between December 10, 1980

and January 1, 1981. Wall testified that between January 1, 1981 and January 9,

1981, when he travelled to Alberta, he approached a number of local business

persons with this investment opportunity and that this followed the call from

Haney indicating he and his friends intended to proceed to develop the game and

inquiring whether Wall was interested in investing in the project. The existence of

such investors, particularly ones approached by Wall, could be confirmative of the

phone call which Wall said he received from Haney.

[11] From time to time Wall has suggested there were persons with information

who have not come forward. He, in effect, appeared to suggest there was a

“conspiracy of silence” in respect to information possessed by others that would

assist him in establishing he was the “true creator” of the game. On testifying he

was asked whether he still believed there was an agreement or conspiracy to keep

information from him. He replied:

No, Do I believe that some folks have knowledge? Yes.

[12] Apart from the many people who testified at this trial, the identity of any

others with such knowledge was not made known by Wall.

III THE ISSUE

[13] At issue is whether the “virtual creation” of the game occurred in a car

driven by Haney, while it was stopped on King’s Road, Sydney River, Nova

Scotia, adjacent to the then Irving Service Station, at a point overlooking the

Sydney Shopping Plaza. Plaintiff’s counsel does not dispute that from a meeting

that occurred in Toronto in early January, 1980, involving the present and former

individual defendants, at the residence of the mother of Haney and J. Haney, the

four of them proceeded with the production and marketing of the game. In fact,

Page 5

both Wall and his counsel acknowledge that their work deserves credit. In dispute

is whether the origin of the game occurred in a car parked on King’s Road, Sydney

River or in Haney’s residence in Montreal where Haney and his friend, Abbott, say

they came up with the concept for a board game based on trivia and created a

model, at least in rough form, that was later transformed into the game, now widely

distributed and marketed throughout the world. Effectively, also at issue is

whether Haney’s then spouse, Sarah Haney, or Campbell came up with the name

“Trivial Pursuit” for the game.

IV THE PLAINTIFF

A.

Wall’s Early Interest in Trivia

[14] Wall called seven family or former family members as witnesses, including

his mother, Jessie Wall, his wife, Brenda Wall, his sister, Janet Lewis, and his

brother Gerald (Jerry) Wall, as well as his sister-in-law, Therese Wall, the wife of

Jerry Wall, his brother-in-law, Paul Peterson, husband of his mother’s sister Linda

Peterson, and Owen Lewis, who is separated from his sister, Janet Lewis. The

evidence of these witnesses related in part to Wall’s interests and hobbies when he

was growing up; a telephone call he said he received from Haney either in late

1980 or January 1, 1981; his quest for investors; and in respect to their opinion of

his character and integrity.

[15] A number of other witnesses have also testified about Wall’s interests and

hobbies as he grew up and while he attended school in the Westmount area of Cape

Breton. In addition to an interest in sports, some indicated he had an interest in

trivia and in asking trivia type questions. Wall, himself, testified that for some

time he had an interest in trivia, particularly in respect to sports and recounted how

he would listen to a morning radio program where the host would ask a sports

trivia question each morning. He said that during this period he developed the

notion that a game, similar to monopoly, but based on trivia and horoscopes, could

be popular and successful. On the other hand, the defendants point to a number of

witnesses who knew Wall during this period and who said they had no recollection

of his showing any interest in trivia.

B.

The Day of the Hitchhiking Encounter

1. David Wall

Page 6

[16] In respect to the events preceding and during the alleged hitchhiking

encounter with Haney, on examination by his counsel, Wall testified he and

Campbell left the Peridot Beverage Room and proceeded out to Blacketts Lake.

He believes, but has no specific recollection, that while at the Peridot, he likely

would have had a beer. He said they left sometime in the afternoon to visit friends

in Blacketts Lake, although he could not recall the name of the friends they

intended to visit. He said they hitchhiked and were picked up, and although he was

unable to remember the type of vehicle, he said he has the thought it may have

been a truck. Eventually they ended up at the residence of Wayne Fennell and

Marie Bisson. Mr. Fennell and Ms. Bisson were then dating and subsequently

were married. They were not home when Wall and Campbell arrived, and Wall’s

recollection is that Campbell, after entering the house through a window, opened

the door to let him in. Wall testified he was uncomfortable, as he only knew Ms.

Bisson to see her and had never met Mr. Fennell. Campbell, on the other hand,

was comfortable since Mr. Fennell was a friend of his. He does not recall what

they did, once inside the house, although he does recall music being played. He

said it was dark when Mr. Fennell and Ms. Bisson returned home. During the

period they were in the house, in addition to listening to music, he smoked a hash

oil joint with Campbell. His recollection is that Ms. Bisson was upset with their

presence in their home, but Mr. Fennell was not. He believes that before they left

they smoked some joints, including with Mr. Fennell. He, however, testified he

does not recall having a drink while they were there.

[17]

He cannot recall what time they left, although he believes it was late in the

afternoon. He says their plan was to return to the Peridot Beverage Room. He

remembers it being dark, perhaps with drizzle, when they left. Later he recalled it

was dark, windy and overcast. He said they walked down the driveway from Mr.

Fennell’s and Ms. Bisson’s home to the highway.

[18] He testified he and Campbell were picked up by a vehicle with an out of

province license plate. He recalled it as being a big, dark, four door vehicle, the

license plate of which he later recognized as being from Ontario. He says he got in

the backseat of the vehicle and, to his surprise, Campbell jumped in the backseat

with him. He had expected Campbell to jump in the front. The only thing he

could recall of the driver was that he had dark hair. In respect to the vehicle, he

observed what he said appeared to be attachments up the right and left hand sides

Page 7

and along the ceiling. Later on he suggested the possibility this may have

indicated it was an ex-police car or a former taxi.

[19] He said the vehicle proceeded towards Sydney River and he, Campbell and

the driver engaged in “small talk”. He testified it is approximately an 8 - 10

minute drive from where they were picked up to where they were dropped off in

Sydney River. During this period, the driver indicated this was the furthest east he

had ever travelled. He also said that this was not his vehicle because “his beater

would not make it”. Wall interpreted this as a reference, by the driver, to the fact

his own vehicle was mechanically incapable of driving that far east. Wall said he

recalls the driver saying he was in Cape Breton on a working vacation and that he

had previously travelled east to an “ Entrepreneur’s Convention”. He also

remembered the driver referred to his brother as a hockey player, but was unsure

whether he said he had played hockey in the east. He also recalled the driver

saying “... he was always on the lookout for a good idea”. He said he believes he

responded, “I’ve got the next best game in the world”. Wall said the driver then

wanted to know what it was.

[20] Wall stated he didn’t want to tell him, but the driver asked a couple of times,

as to what Wall had been referring. He thinks he may have told him that he would

be interested in meeting him the next day to talk about it, but the driver persisted in

asking to what Wall was referring. He said the driver promised he wouldn’t take it

from him, and at this point Wall told him of his belief:

... that people were genuinely interested in trivia and horoscopes and that a trivia

game based on that would be a good game, a good board game.

[21] Wall repeated that he was assured by the driver he would not take it from

him, adding that if the driver had not given him this assurance, he would not have

told him his idea. He said he could not recall specifically how the driver reacted

other than, “... he was very interested.”

[22] At this point they had reached the area of Sydney River, across from the

Sydney Shopping Plaza where they intended to depart from the vehicle, cross the

highway and go down to the Peridot Beverage Room. He described the location as

near a “closed” Irving garage. When the driver pulled over he indicated he wanted

to talk about this game. Wall testified:

Page 8

What happened next was my telling him my observations and between the three

of us, the near complete invention of Trivial Pursuit.

[23] He confirmed, on cross-examination that prior to the meeting with the

driver, all he had done in respect to development, was to have the belief “it would

be a good trivia board game.”

[24] Wall said the driver sat with his back to the door and there was a free flow of

information between himself, Campbell and the driver. As the driver had his back

to the door, Wall was able to clearly see him, although his only memory is of his

hair. No other features stood out. He had a strong memory of the driver asking to

take notes, which he did. He said he probably took approximately 2 - 3 pages of

notes, as best he could recall. He said the driver used notepad - sized paper. He

said they had a discussion about Wall’s belief that trivia would be a good basis for

a board game and that different topics came up, specifically, “history, geography,

sports, science, movies and tv. These were trivia topics.”

[25] At some point, Campbell got out of the vehicle, to relieve himself, and then

returned. Wall says the discussion continued about the board concept and design

and how the board would work. He did not recall any discussion about the board’s

appearance, in terms of colour or other design. He said the driver had difficulty

understanding what he was saying and it took him at least three attempts before he

was able to put on paper what Wall was trying to say about the game design.

While he was trying to do this, Wall says he leaned up over the seat and helped

him. He said the suggested board design was:

A wagon-wheel design with the centre hub. Or you travel on spokes travel the

outside of it and finish in the middle. It was the idea of having something unique

and different that was important.

[26] In respect to what he recalls the driver having written on the page, he said

the categories were written at an angle. On being referred to the diagram of the

driver’s drawing made by Campbell at his discovery, he agreed it bore “no

resemblance” to the drawing he had made at one of his discoveries.

[27] He said next they talked about pieces of the pie; “Specifically, I have a

memory of my grandmom’s blueberry pie pan, picking up pieces of the pie.” He

said when you collected pieces of the pie, you would put them in a holder, a token.

He said there were many categories discussed, but they settled on the six he had

Page 9

enumerated. With respect to how one would travel around the board, he said he

had a memory of suggesting dice, single or double dice; nothing came specifically

to his mind other than it was going to be by “dice”. He said he could not recall

what the driver contributed to the discussion, but he probably participated in the

game part; by game part he meant game design. He said the driver was excited

about what was transpiring.

[28] He said Campbell participated, particularly in respect to naming the game.

He said they all suggested several names. One name he recalls suggesting was

“Pursuit of Trivia”. He said there were other names put forward, but he could not

recall them. He said Campbell suggested “Trivial Pursuit” as a good name. He

said in reference to the name “Trivial Pursuit”, he initially did not like it and

disagreed when Campbell mentioned it, saying that “Trivial” and “Trivia” were

two different things and were contradictory. But after a few minutes of not hearing

a better name, the name “Trivial Pursuit, the Game of Trivia”, was what they went

with. It was accepted, he said, when the three of them agreed, it would be a great

name for the game. He acknowledged his understanding that Campbell does not

recall having proposed the name “Trivial Pursuit” for the game.

[29] Wall said they then spoke about how this game would be an international

game and that it could be taken to the world in many languages. They spoke about

the possible world-wide appeal and possibly getting investors and taking it to

market. He said there was discussion about taking it, “... to a reputable game

maker for royalties”.

[30] Upon being asked, by counsel about any further recollections in respect of

the appearance of the driver, he responded:

No, other than it’s my belief that his name’s Christopher Haney.

[31] In response to counsel requesting the basis for this belief, he said he has

always remembered the last name, Haney, as a result of the conversation that took

place in the vehicle. The driver had told him his brother played hockey, and there

were introductions exchanged. He said the driver asked for Wall’s name as well as

Campbell’s name and phone number and Wall had responded that the driver

should only take his phone number, as he “... was to be the only person contacted.”

He said he made this statement because it was his game and he was the person to

be talked to in respect to anything about the game. At this point, the driver gave

Page 10

him a business card on which he scratched out an existing number and wrote

another one, which he presumed was the driver’s personal contact number. He

stated he can’t specifically recall what the number was on the card. He didn’t

believe it contained the numerals “902". Wall said he gave the driver his

grandfather’s phone number and that at some point the name “Westmount” must

have come up, in that he and the driver were both from Westmount.

[32] Wall said the driver was genuinely excited, as were he and Campbell. The

driver used the phrase:

... This is hot; this is real hot. And I have to make some phone calls when I get to

the hotel.

[33] Wall stated the driver must have asked where he could stay while he was in

Cape Breton. He said he suggested to the driver that he might like to stay at

Keddy’s Motor Inn, which was located approximately a mile up from where they

were stopped on King’s Road, Sydney River.

[34] With respect to the driver’s purpose in being in Cape Breton, Wall said he

remembers him using the words “working vacation”. Wall testified to a

recollection of the driver saying, “... he was here a day late already.” He added that

he does not specifically know to what the driver was referring. He subsequently

came to believe the driver was there to attend the Cape Breton Metro’s Hockey

Tournament. He agreed this was a recollection that only came to him some time

later. He stated when he reviewed information on the Hockey Tournament, he

learned it started on a Wednesday. He formed the conclusion that this is what the

driver was referring to, when he said he was “late”. He acknowledged, to counsel,

however, that he did not specifically know this to be the case.

[35] In respect to his remembering the last name “Haney”, he said the television

show, “Green Acres” is what rang a bell with him. He said there is a character on

the show by the name of “Haney” and, to the day of testifying, that was the only

other occasion when he had heard the name “Haney” used. He noted it was not a

common local name. As to the first name of the driver, he said he came to the

belief the first name was “Chris” based on research he carried out on the

defendants. In addition, he was aware his brother was a hockey player and later on

he received a phone call from a person identifying himself as “Chris Haney”.

Page 11

[36] On cross-examination by counsel for the corporate defendant, Wall said, in

respect to the driver: “I’ve got a recollection of the last name ‘Haney’ and I believe

it was Chris Haney.” Later he added that he always remembered the name

“Haney”, saying he had no doubt the name was “Haney”. Still later he said, “I’ve

got a strong recollection that the name was “Haney”. Then he said, “My memory

is that his name was ‘Haney’”, adding he was not comfortable with putting his

memory at 100 percent.

[37] Wall said the driver asked him if he could generate interest in the Montreal

area, to which Wall responded that if it involved anything to do with the game, it

was not his, it was Wall’s game. He said the driver, “... did not not agree with me”.

He also said that before they left the vehicle, Campbell threatened the driver “He

said you don’t look like you’re that big a fella and if you did Wally wrong, I would

kick the shit out of you, I think something along those lines ...”.

[38] As to how he knew the time was ten to nine when he left the vehicle, he said

he remembers asking the time just prior to leaving the vehicle. He said he could

not recall whether he had asked this of the driver or of Campbell.

[39] Wall testified that when he stepped to the rear of the vehicle he made a

mental note of the license plate of the car. He said he did this because one of the

questions posed by the driver, before he left the vehicle , “who else knows about

this game?”, made him nervous. He said he responded to the question by saying he

had told his girlfriend and her father.

[40] He also confirmed, on cross-examination, that he had only spoken of his

idea to three people before the hitchhiking, his then girlfriend, Heidi Munroe, her

father, George Munroe and Brean Stott (herein “Stott”). The conversation with

Stott occurred at the Peridot sometime after May 1979, when Wall had reached the

legal drinking age.

[41] In respect to the license plate, he said he has testified it was an Ontario

license plate and, on discovery, may have said “BNG or BKG - 682". He said

something along those lines rings a bell, as to what he had said on discovery. He

said although he had written it on the business card, he was not 100% sure of the

license plate number.

Page 12

[42] Wall stated that after exiting the vehicle, and making a mental note of the

license plate, he proceeded to the Peridot with Campbell. They crossed the No. 4

highway and went down the hill. At some point there was a reference to the name,

“Haney” and they had a chuckle and a laugh. He said the reference was to the

character in the “Green Acres” show. He described what happened next:

We proceeded down the hill and into the Peridot Beverage Room. We entered

from the right-hand door. It had two openings, a left-hand door and a right-hand

door. We went in from the right-hand side. I proceeded directly from that point

to the bar and got a pen and made a specific note of that license plate on Chris

Haney’s business card.

[43] He said he could not recall specifically where Campbell went, after they had

entered the Peridot together. He said it was not uncommon for their friends to be

there, and on this occasion one person comes to mind as being present when he

arrived, namely, Stott. He knew Stott from high school and from playing sports.

He was also the only person, apart from Heidi, and her father, that he had told

about his idea for a game, prior to the meeting with Haney. He said there may

have been other persons present in the bar that evening.

[44] After making the notation of the license plate number on the card, Wall said,

he sat at a table with someone else, across from a booth in which four persons were

sitting. He said at this point, he did not know where Campbell was. He said he

discussed with them what had happened, but the only specific person he

specifically could recall being present was Stott. He stated he specifically

remembered referring Stott to the business card and saying this was about what he

had previously told him. He said Stott took down the information from the

business card and transferred it to a piece of paper. He assumes Stott wrote down

the information that was on the card, which would have included the phone number

written down by Haney, and the license plate number he himself had written down

after entering the Beverage Room. He acknowledged, however, he doesn’t know

with 100% certainty what Stott wrote down. He also confirmed he did not know

why Stott took down the information.

[45] Upon being questioned as to why, apart from his girlfriend and her father,

Stott was the only one of his friends he had told about his idea for this game, he

stated he was the only person whose father was “actually a businessman.”

Page 13

[46] On cross-examination by counsel for the corporate defendant, Wall agreed

his recollection that the driver referred to his own vehicle as a “beater” may very

well have been a recent recollection. Later, in the same cross-examination, he

acknowledged that at his discovery in July 1999, he said the driver had referred to

his own vehicle as a “clunker”. He acknowledged that was the word he had

recalled the driver had used.

[47] Also, on cross-examination, he stated that the driver assured him he would

not take his idea. He said he then stated to the driver he had a belief “that trivia

and horoscopes had intrigued.” He agreed at this point he did not even know the

driver’s name. He repeated that the driver “... asked if he could generate interest

in Montreal”, to which he responded, “yes, but I distinctly told him that this was

my game.”

[48] On further cross, he agreed the sketch of the board he drew at his 1999

discoveries represented what he recalled the driver finally drawing after three

attempts. He added it was not all that the driver had on the paper, only what he

was able to remember. He said, although all three in the car were involved in the

discussion that resulted in the near-complete invention of the game, he considered

it his game “... because 98 percent of what went forward at that point was mine.”

[49] Wall acknowledged the use of the term “wagon wheel” in the car was a

relatively new recollection. He also agreed his reference to his “nana’s blueberry

pie” could very well be a relatively new recollection. He said he cannot say he is

100 percent, as to whether the word “token” was used while he was in the car.

[50] He also responded to counsel that he recalled Trivial Pursuit being discussed

at a Halloween Party at Freddie Johnson’s, adding he made somebody mad at him

about it. He agreed this was also probably a relatively new recollection.

[51] On cross-examination Wall suggested the possibility he may have phoned

his Uncle, prior to looking for investors during the first week of January 1981. If

this contact was in response to the call from Haney, which at the earliest occurred

on December 10, 1980, he provided no explanation as to why he would be calling

his Uncle Paul Peterson about investing in the game. If he is suggesting the call

was prior to December 10, 1980, no explanation is given as to why he would then

be looking for investors. If it was after December 10, then the timing of this call is

Page 14

not consistent with Mr. Peterson’s recollection as to when he says he received the

call from Wall.

[52] On cross he acknowledged that at the time he started the lawsuit he recalled

that Doug Reeves, (herein “Reeves”), was at the Peridot on the night of the

hitchhiking. Later, on being cross-examined about his recollection in 1997 that the

hitchhiking had taken place on December 4, 1980, he agreed this was consistent

with his belief that Reeves was present the night of the hitchhiking. On cross by

counsel for the individual defendant, Wall acknowledged that when he changed the

date of the hitchhiking to 1980, all three of he, Campbell and Reeves agreed that

Reeves was there the night the driver let Wall out of his car.

[53] On being further pressed by counsel for the corporate defendant, he agreed it

always had been his recollection that Reeves was at the Peridot Tavern on the night

of the hitchhiking; later, he said he no longer recalled Reeves being there on that

night. He agreed his recollection as to whether Reeves was in the Peridot, had

changed. In respect to Reeves being in the Peridot, when he and Campbell entered,

he responded, on cross by counsel for the individual defendant:

My initial belief is that I met Doug Reeves that night. But obviously the facts in

this case, I don’t believe he was there that night at this point in time.

[54] In response to counsel he said he believes this occurred sometime in the

November 27 - 30^thtime period of 1979, adding it is more likely it was the 29^th.

However, on cross-examination as to when this hitchhiking encounter occurred,

Wall acknowledged that even during a hearing before Chief Justice Kennedy in

1998, he continued to believe the hitchhiking had occurred in December 1980.

Despite this belief, if the evidence presented at the hearing by the defendants, as to

the extent of the game development in 1980, and “providing the defendants

evidence was not fabricated,” by the time of his discovery in July 1999, he had

decided to change the date of the hitchhiking to November 29, 1979. It was by this

time, he agreed, that he began to tie the hitchhiking encounter “very strongly into

the hockey tournament.”

2.

Donnie Campbell

Page 15

[55] Campbell plays a pivotal role in Wall’s claim, since he is the friend who

Wall says was with him when they were picked up while they were hitchhiking and

who, Wall said, is responsible for naming the game “Trivial Pursuit”. It is

Campbell who accompanied Wall to the Peridot Tavern. It is Campbell who later

reminded Wall that the hitchhiking occurred from Blacketts Lake and not Gillis or

MacAdams Lake, as well as, of certain other events that had transpired preceding

the alleged hitchhiking.

[56] Following his discovery, in February, 1998, Campbell apparently returned

to his residence in Fort St. John, British Columbia. Counsel for all parties

indicated they had, since the date of his discovery, attempted at various times to

locate Campbell, but had been unsuccessful, with the attempts by the defendant

being more recent than ongoing attempts apparently made by the plaintiff. As a

consequence, and on the agreement of all parties, and in view of their consensus he

had apparently “disappeared”, Campbell’s discovery transcript was tendered and

read into the record at trial.

[57] In respect to when the hitchhiking event occurred, Campbell, on discovery,

said it was the fall before Marie Bisson and Wayne Fennell were married. He

agreed with plaintiff’s counsel that if they were married in 1981, the hitchhiking

would have occurred in the fall of 1980.

[58] At the time of Campbell’s discovery, Wall was alleging the hitchhiking had

occurred in December 1980. On being examined by a previous counsel for the

corporate defendant, Campbell testified he did not believe Wall was lying when he

suggested it took place in December 1980, but he might have been mixed up, as to

the date. He then indicated that he thought it occurred in 1979, but agreed he could

be mistaken. Wall later amended his Statement of Claim to reflect the date in late

November 1979, that he testified to in Court. Nevertheless, Campbell continued

to maintain that, to his recollection, the hitchhiking encounter occurred in

December of the year before Mr. Fennell and Ms. Bisson were married.

[59] On further examination by counsel for the corporate defendant, Campbell

acknowledged that at the time he met with Wall and counsel for the plaintiff, in the

mid 90's, he and Wall believed the hitchhiking had occurred in 1979. He replied to

counsel that although the year 1979 kept coming up, it didn’t seem right and he

related this event to the wedding of Mr. Fennell and Ms. Bisson. When Wall, after

researching his records, concluded the year of the hitchhiking was 1980, Campbell

Page 16

agreed with counsel for the corporate defendant that he and Wall were then in

agreement it had occurred in December 1980. As noted earlier, on examination by

plaintiff’s counsel he had indicated he “would say” it occurred in 1979.

[60] On cross examination by the counsel for the individual defendants,

Campbell acknowledged he has no specific recollection of being driven from the

Peridot Tavern to the turn off to Blacketts Lake. He cannot recall anything about

the car that picked them up, the driver of the car, or whether in fact it was a truck, a

car or a van. He cannot recall anything about any conversation that might have

occurred during the drive from the Tavern to the Blacketts Lake turnoff.

[61] Campbell’s recollection is that Mr. Fennell and Ms. Bisson arrived home

four or five hours after he had broken into their home. His recollection is that Mr.

Fennell did not care, but Ms. Bisson was “pissed off”. He said he smoked some

dope with Wall and Fennell, probably half a gram. He said they left just after it

was getting dark. He remembered walking up the driveway, adding it was very

muddy. He said they left because “the boys” were waiting for them at the Peridot.

He identified “the boys” as including Reeves, Stott and Billy Butler. In response to

counsel for the individual defendant, Campbell said he didn’t know why they went

to Mr. Fennell’s home, adding he was a friend and they had smoked dope together.

He responded that he went there to smoke hash, adding however, that Mr. Fennell

and Ms. Bisson would not have been expecting him that day. He estimated he and

Wall were in the residence for approximately one hour to one and a half hours

before Mr. Fennell and Ms. Bisson arrived. During this period he and Wall

consumed or smoked a half a gram of hash. The only hard liquor they consumed

was from a bottle of Rye he had brought. He said he knows he had some Rye, but

could not recall whether Wall had any. Prior to Mr. Fennell and Ms. Bisson

arriving, he and Wall did not discuss any game or anything of a trivia nature or

anything along those lines at the house. He also agreed that after Mr. Fennell and

Ms. Bisson arrived, there was no conversation about games or playing games, with

them or with Wall. He also indicated to counsel that from that night to his

discovery he had “never ever” talked to either Ms. Bisson or Mr. Fennell about the

occasion when he had broken into their home.

[62] With respect to the hitchhiking, he remembered getting into the car and that

it was a dark-colour, he believed, four door car. He said when they got in the car,

Wall started talking to the driver. He couldn’t recall if he was in the front or the

back of the vehicle. He said he did not remember anything that occurred during

Page 17

the 10 minute drive until they arrived at Sydney River. He stated they stopped in

Sydney River and were there quite a while, and he remembered getting out of the

car and going behind the service station to relieve himself. He said he remembered

the guy who had been driving, writing something down on paper and Wall leaning

over and watching whatever he was writing. He said he just remained in the back

of the car. He said he can’t recall any of the discussion between the driver and

Wall, and at the time the only thing he was thinking of was getting to the Peridot,

because that was where they were planning to go. He said the driver was interested

in what Wall had to say and writing down on a piece of paper what he was taking

about. He was “very interested”.

[63] Campbell confirmed that he has no recollection of any conversation from the

time they were picked up until the vehicle came to a stop at King’s Road, in front

of the “closed” Irving Station. He also confirmed he has no recollection of what

was discussed in the car, while it was parked. However, he also said that after the

vehicle stopped at Sydney River, Wall was talking to the driver about a radio

program that came on in the morning and this had something to do with the game.

He added that this followed upon the driver indicating he was looking for ideas.

He repeated to the former counsel for the corporate defendant that he does not

remember what they were talking about, after they stopped, and although he

probably heard some of it, he could not remember what was said by the time of his

discovery. With respect to the paper on which the driver was drawing, he

remembered lines and circles and five or six words down the side of the paper. He

said the driver retained this paper.

[64] As to the driver, he described him as having hair; brown hair was all he

could remember seeing. In respect to whether he could identify the individual

defendant, he responded to a previous counsel for the corporate defendant:

“I wouldn’t know this man if I tripped over him.”

[65] With respect to the driver, notwithstanding he never got out of the vehicle,

he estimated he was between 5'8" and 6' tall. He said he was of slight build,

repeating that all he really saw was the top of his head. He said he was looking at

his hair. He said his hair was short, “clean-cut”. He said he doesn’t remember

looking at his face and could not say whether he had hair growth on any part of his

face.

Page 18

[66] Campbell said the driver had been interested in what Wall was talking about,

while he was interested in “getting the hell out of the car and going and having a

beer”. Campbell said the next thing he remembered was being outside the car, but

he does not know if Wall was “taking” the license plate number. He said the driver

had said his name was “Haney”. Campbell added the name “Haney” stuck out,

because it was not a name from his part of the province. He did not recall the

driver giving his first name. However, he repeated that “Haney” is a name he

remembers and it stands out, because it is not an east coast name. To him, it was

not a common name.

[67] Campbell agreed that he tied the date of the hitchhiking with the wedding of

Mr. Fennell and Ms. Bisson, and appeared to agree with counsel for the individual

defendant that if they were married in February, 1982 then the hitchhiking event

would have occurred just prior to Christmas 1981. On further cross examination,

he said this was an assumption on his part.

[68] Campbell said when he entered the Peridot he met Reeves. He testified he

remembers telling him the name “Haney”, but he doesn’t recall whether he told

him what had happened. He could not recall what he told Reeves that evening. He

said there had to be four people at the table during the evening. On cross-

examination, he indicated he had no recollection of entering the Peridot, although

he does recall Reeves being present.

[69] Campbell acknowledged to plaintiff’s counsel he understands Wall says he

is the person that suggested the name “Trivial Pursuit”. He said, he has no

memory of this.

[70] On further cross-examination, Campbell acknowledged he did not see a

business card and Wall never showed him one at a later time. After entering the

Peridot the only two persons he can remember being present that night were Wall

and Reeves. He was told by Wall, later, that there were other persons present, but

he has no memory himself.

[71] He confirmed to counsel for the individual defendant that Wall never played

a game with him at the Tavern nor at any other place nor told him, at any time, he

was inventing a game or had come up with an idea for a game. He also

acknowledged that Wall never discussed nor described to him plans for a game

involving trivia, or for that matter anything else.

Page 19

[72] Following the read-in of Campbell’s discovery transcript, one of the

investigators who had previously been retained by counsel on behalf of one or

more of the defendants, read in the local media the story of his disappearance. He

contacted Wall suggesting he would be able to locate Campbell. Wall referred him

to his counsel who then authorized him to attempt to locate Campbell. The effort

was successful and over the objections of the defendants, Campbell was permitted

to testify, notwithstanding there had already been read-in the transcript of his

evidence given on discovery.

[73] Campbell, on testifying, initially responded to counsel for Wall that although

his memory of the driver was vague, he remembered his last name was “Haney”.

He also said he believed this occurred in the Fall of 1979. He recounted how he

had met Wall at the Peridot Beverage Room and they decided to go to visit his

cousin, Marie Bisson’s place. He recounted entering the property and that when

she returned she was not pleased he had entered without permission from herself or

Mr. Fennell. He said he and Wall and Mr. Fennell listened to music and smoked

hash. He was questioned by counsel for the individual defendant and responded

that there never was a discussion at Ms. Bisson and Mr. Fennell’s about Wall

having a game or an idea for a game. He repeated it was not one of the topics

talked about.

[74] He recounted leaving and eventually being picked up by a large dark car

which he believed had an out of Province license plate. He believed he got in the

front of the four door car and a conversation began about the weather. During the

drive, the driver indicated he was “here to watch his brother play hockey in Halifax

for the Voyageurs and this was the first time he had been in Cape Breton”. He

recounted the vehicle stopping in Sydney River and his getting out to relieve

himself and, upon returning, finding Wall talking about his idea for a game. He

recalled the driver giving the name “Haney”, because of the Green Acres TV show,

adding it was not a common name in Cape Breton. He said the driver was writing

something, but he could not recall what it was, because, even though the dome

light was on, it was still dark. He said he remembered both he and Wall looking at

the license plate but Wall not being able to write it down, until he arrived at the

Peridot. In his direct examination he said, at the Peridot, there was a pre-arranged

meeting with friends who he identified as Bill Butler, Reeves, Jerry Murphy and

Stott. Later, however, he testified that the only persons he remembers in the

Page 20

Peridot were Wall and Reeves. He says at the Peridot he spoke of the ride they had

just completed.

[75] Upon being further examined, he said he has no recollection of his having

put forward the name “Trivial Pursuit”, during the period the car was stopped in

Sydney River.

[76] On cross-examination by counsel for the corporate defendant, he was

referred to his recollection of the date of this event. He stated to counsel he is not

sure whether it was 79,80, or 81 and he tied it to the date of Mr. Fennell and Ms.

Bisson’s wedding. He agreed with counsel if they were married in February 1982,

then his recollection would be that this event occurred in December 1981, namely

the December preceding the year of their marriage. As such, his evidence, in

response to counsel for the corporate defendant, mirrors that which he gave on his

discovery in 1998. In fact, he agreed with counsel his evidence at discovery was

accurate and later acknowledged to counsel that his discovery evidence would have

been his best recollection at the time it was given. He responded to counsel that

the purpose in going to Ms. Bisson and Mr. Fennell’s residence was to look for a

place to smoke hash. In reference to their friends at the Peridot, he said the only

person he can recall is Reeves, who he thought was home from Alberta at the time.

His recollection was that Reeves was in the tavern when he and Wall entered. He

said he has heard that other persons were in the tavern at the time, but he does not

recall them being there.

[77] At trial Campbell could not say what the driver looked like and, repeated

that he would not know him if he tripped over him. He said his recollection was

that the driver’s last name was “Haney”, but he was not sure of the name “Haney”.

He remembered vaguely he and Wall looking at the license to get the number and

being unable to write it down until they obtained a pen.

[78] On cross-examination by counsel for the individual defendant, Campbell

said he had no recollection of either Jerry Murphy or Mike Monahan being at the

tavern at the time. He said Brean Stott would be “one of the boys” and probably

was there, but he did not recall seeing him. He said he had no recollection of the

conversation that took place in the car. He repeated that he was not sure that the

last name was “Haney”. He repeated that, apart from tying the date to Ms. Bisson

and Mr. Fennell’s wedding, he could not put a year on this event. He said he had

no memory of what was discussed at the Peridot and did not recall when, nor with

Page 21

whom, he left. He also repeated that he could not recall seeing Wall after they

entered the Peridot, and he was unable to remember his conversation with anyone

that evening in the Peridot.

[79] In respect to the time he and Wall met with a lawyer, Mr. Rizzetto, he agreed

he and Wall were not in agreement on the date of the hitchhiking. He added it was

a guess on both their parts.

[80] In respect to the writing on the paper, all he knew was that the driver was

writing something on the paper. He repeated that he had no recollection of the

driver saying anything about being on the lookout for good ideas or inventions.

[81] In respect to the reference to Green Acres, Campbell agreed he did not

mention an association of “Haney” with Green Acres during his discovery. This

association, he said on re-direct by counsel for Wall, occurred when he had been

watching TV shortly before giving his evidence at trial.

(a) Commentary

[82] In his post-trial submission, counsel for the corporate defendant outlines a

number of what he suggests are “significant aspects” of Campbell’s evidence. I

have reviewed many, if not, all of them. Counsel notes Campbell has no

recollection of what happened at the Peridot, other than his meeting with Reeves.

He refers to his evidence that despite their meeting from time to time, Campbell

has no recollection of Wall mentioning the encounter, until, in 1989, Wall

telephoned him asking if he remembered hitchhiking from Gillis or MacAdams

Lake. Counsel notes it was not until months later that Campbell remembered it

was Blacketts Lake, not MacAdams or Gillis Lake, and called Wall, on which

occasion he mentioned to Wall that prior to the hitchhiking they had been at the

residence of Mr. Fennell and Ms. Bisson. During this call, he apparently, for the

first time, brought up the name “Haney”.

[83] Counsel also comments that the next discussion Campbell had with Wall is

when they went to see Mr. Rizzetto. He refers to the acknowledgement by

Page 22

Campbell that at some point Wall had suggested his naming of the game could be

worth a million dollars.

[84] These are Campbell’s recollections, as he testified at discovery and at trial.

They do not mean he is telling the truth, nor do they mean he is lying. In many

respects, they do not “significantly differ” from the evidence of Wall, at least in

respect to recollections to which they both have testified. Considering the

evidence of Campbell’s consumption of alcohol and use of drugs, the lack of detail

in his evidence is not surprising.

3.

Wayne Fennell

[85] Wayne Fennell testified he married Marie Bisson on February 20, 1982. Mr.

Fennell was referred to an occasion when he and Ms. Bisson arrived home and

found Wall and Campbell in their house. He said they remained for 20 minutes or

less, leaving, he estimated, around 7:00 p.m. He said Campbell and Wall smoked

marijuana or hash while they were there. He said he was very upset with the two

of them being there and wanted to get them out of the house as fast as he could.

He said Ms. Bisson was also upset, although she was trying to keep him from

becoming too agitated.

[86] Wall testified he had “smoked a hash oil joint with Donnie Campbell” and

later stated he believed he had smoked some with Mr. Fennell as well, but he was

not sure. His only other recollection, he said, was of music being played. He also

agreed with counsel that, apart from the initial discussion when they came home,

he has no recollection “of any of the discussion with Wayne Fennell ....” He said

when he left their residence “he was stoned”. Later, he agreed that when he was

picked up he was “really washed” or “really stoned”.

[87] Mr. Fennell testified that Campbell and Wall were “excitedly talking about a

game”. He stated they talked about hitchhiking, getting picked up. and the

expression of ideas back and forth during the hitchhiking. It appeared to be a

question and answer game and he recalled questions on music because he was

interested in music. He said there may have been others, but he could not recall

what they were. He recalled that Campbell “was a little excited” and Wall was

“very excited”. He said Campbell and Wall talked about the game having been

played at the tavern where they had been prior to being picked up.

Page 23

[88] Mr. Fennell’s evidence is also relevant in respect to his recollection of the

timing of this encounter. On discovery he testified that although he could not

recall when this had happened, his best recollection was that it took place some 6

to 8 months before he and Ms. Bisson moved out of the house, which was in

January, 1983. At trial he said his discovery evidence, which was given some

years earlier, was likely to be more accurate than his present recollection.

[89] Also relevant is his evidence that this was the only occasion he has ever

spoken to Wall, and that he had never spoken to Wall or Campbell about what they

say happened on the day in question. He had never heard what they claimed

occurred in his house on the day in question. His recollection, therefore, is limited

to his recall of the conversation and the discussion between Campbell and Wall

that took place prior to their leaving his residence.

[90] Mr. Fennell in saying he could not recall the year this occurred,

acknowledged that he and Ms. Bisson were living in this residence in September

1979.

4.

Doug Reeves

[91] Reeves was, along with Campbell, one of two witnesses,, who were sued by

the defendants. He testified to his recollection of an occasion when Campbell and

Wall came into the Peridot, saying they had just been picked up hitchhiking, that

there had been a discussion with the driver of the vehicle, and that Wall had

disclosed to the driver his idea for a game.

[92] Reeves said he was at a table with Stott, Mike Monahan and some other

persons when Wall and Campbell arrived. He believed this would have been in the

late Fall of 1980 as it was “sometime during that period of time I was home during

that school year”. He said he had been out West and had returned to Cape Breton

in August, 1980, planning to continue his education. He said he returned to Fort

Saskatchewan, Alberta, in May 1981, and remained there until August 1982.

[93] Although he could not recall the day of the week the incident at the tavern

occurred, Reeves said he had a vivid recollection of Wall and Campbell coming in

Page 24

and Campbell sitting on his left and Mike Monahan being on his right. Reeves

suggested Jerry Murphy could have been there, but had no recollection of seeing

him, and no recollection of Campbell talking to Jerry Murphy that night. It was

Campbell who told them what had taken place.

[94] Reeves said Wall and Campbell were excited, and Campbell said they had

been hitchhiking, and that Wall had told the driver, who picked them up, about his

idea for a board game. Campbell said the idea had “blown the driver away”. He

did not hear any name associated with the game, nor was he told the subject matter

nor told it had anything to do with trivia. He said he did not hear the name “Trivial

Pursuit”, nor the name “Trivial Questions” being used that night.

[95] Reeves said he has no specific recollection of talking to Wall about the game

that night. Prior to the night at the Peridot, he had never discussed with Wall this or

any other game that Wall said he had invented. He has never discussed the events

of that evening with Mike Monahan. On further examination he said they did not

give details as to what was said in the car, but that Campbell said Wall had talked

of his idea for a game. He said Campbell never described the game, nor did he say

how it was played, as far as he could recall. He did not recall any mention by

Campbell, or Wall, about a license plate from Ontario.

[96] In reference to the time of this event, Reeves said his recollection was that it

occurred in the Fall or December of 1980, as shortly after that, in early 1981, Wall

had moved out West; Reeves was still in Sydney, in school, at the time. He

acknowledged that during the various times he lived with Wall out West, he did

not recall him saying he had invented a board game; nor did he recall Wall saying

Trivial Pursuit was his idea; nor that this idea had been taken from him; nor of

talking about the night at the Peridot; nor that the driver of the car had later

contacted him saying he was looking for investors; nor of Wall saying he himself

had looked for investors in Cape Breton. During visits with Wall in 1984, while he

lived in British Columbia and later in October 1985, when he visited Vancouver to

attend a Bruce Springsteen concert, Reeves said there was no discussion about

these matters. He said it was not until 1993 or 1994 that Wall called him and for

the first time, indicated that he was the true inventor of Trivial Pursuit. Reeves

said he was shocked.

[97] In reference to evidence by Wall that the hitchhiking occurred in 1979,

Reeves said, if it was that year, he could not have been at the Peridot. He said he

Page 25

was not in Cape Breton in 1979 and he has told this to Wall. He said during a

discussion in October 1997, Wall told him he was amending the date of the

hitchhiking from 1979 to 1980. He said when Wall said it was 1980, he told him

he remembered some things. He said he didn’t go into details as Wall told him to

contact Mr. MacDonald, his counsel. He said in October 1999, he was in Halifax

with Wall when he was told he was going to change the date again to 1979. He

said he told him he was sure it was 1980.

[98] As to his discussing with Wall his recollection of the date of this incident in

the Peridot, Reeves testified:

Q.

A.

What else, if anything, was discussed between you on that call?

Well, that particular call he, ah, he then asked me if I remembered being at

the Peridot one night when they came in from hitchhiking and talkin’

about the game of Trivial Pursuit, and although I remembered - them

comin’ in, I said, you know, when was that, and he said it was in

November or December of ‘79.

Q.

A.

Okay, and what response, if any, did you make to that?

I said I wasn’t there, I said I couldn’t have been there.

[99] Again, during cross-examination by counsel for the corporate defendant, he

said:

Q.

And it’s in that call that David Wall mentions to you the discussion at the

Peridot Tavern after he and Donnie Campbell are hitchhiking, correct?

A.

Q.

Yeah.

And you ask him, when did this happen, or something along those lines,

correct?

A.

Q.

No, I said, ah, what did I say then? I said I remember something about

that.

But somehow in the conversation he tells you that he thinks it happened in

1979, correct?

Page 26

A.

Q.

That’s right.

And you say, or you respond, something along the lines of “that’s

impossible”?

A.

Q.

I said if it was ‘79 I couldn’t have been there.

That’s right, because you were not living in Cape Breton for that one-year

period, from the summer of ‘79 to the summer of ‘80, correct?

A.

Q.

A.

That’s right.

And you told David Wall as much, correct?

Yeah.

[100] And finally:

Q.

And David Wall was saying that it was December 1980, correct? That’s

what he was telling you?

A.

Q.

Ah well I know he changed it to that, so obviously he felt that way.

And there was absolutely no question in your mind that it took place in

December or the fall of 1980, correct?

A.

Q.

That’s the way I remembered it.

And the last question I think I have for you, Mr. Reeves, is it’s absolutely

impossible for this discussion or meeting or encounter at the Peridot

Tavern that you were present for to have taken place in the fall or

December of 1979, that’s correct, is it not?

A.

In 1979? That’s correct.

[101] Wall testified there were two meetings at the Peridot, the first on the night of

the hitchhiking and the second a “mirror” meeting a year later. In reference to this

suggestion by Wall, that there must have been two occasions at the Peridot when

Page 27

the game was talked about, Reeves said he disagreed with Wall that there was a

second meeting, as he always remembered he was at the Peridot the night that Wall

and Campbell had been picked up. This, he said, was the way he remembered it,

adding there was nothing at the Peridot to suggest the hitchhiking had occurred on

another day, as far as he could recollect. He said he has been consistent from day

one, and always said he was there the night of the hitchhiking when Wall and

Campbell came in and told them what had occurred. In his mind, there was no

question that it occurred in the Fall or December of 1980. He repeated he could

not have been present if it occurred in the Fall or December of 1979.

[102] Reeves also reiterated that during the meeting at the Peridot, at no time did

anyone suggest the hitchhiking had occurred a year earlier. He repeated his belief

it had been the night that Campbell and Wall had been picked up, and that is why

they were so excited. He said they told everyone at the table that they had been

picked up. He said that during the call with Wall, in 1993 or 1994, Wall had never

suggested there were two meetings. He also testified that Wall never mentioned,

when he said he was changing the date from 1979 to 1980, that there had been two

meetings and that one was a “mirror image” of the other. He could not remember

when Wall first brought up the subject of two meetings.

[103] On cross-examination by counsel for the individual defendant, Reeves said

he has never played games involving questions and answers with Wall, nor had he

seen Wall do it with anyone else.

[104] Reeves said he first played Trivial Pursuit in 1983 while he was living in

Fort Saskatchewan. During these occasions he made no connection between

Trivial Pursuit and the discussion at the Peridot Tavern on the night of the

hitchhiking encounter. He testified:

Q.

And when you played the game, you didn’t associate that game with

David Wall?

A.

Q.

No.

You didn’t associate it with anything that had happened or that you had

heard about at the Peridot Tavern a few years before when Donnie

Campbell and David Wall came in after hitchhiking?

A.

No.

Page 28

Q.

A.

Q.

And you played the game several times or many times after that, correct.?

Yeah.

You still don’t make any connection between Trivial Pursuit and David

Wall, correct?

A.

Q.

No.

You make no connection between Trivial Pursuit and that night at the

Peridot Tavern when Donnie Campbell and David Wall came in after

hitchhiking?

A.

Q.

No.

In fact you make no connection whatsoever between David Wall and

Trivial Pursuit until that phone call in 1993 or 1994 when David Wall

called you, correct?

A.

Yeah, that’s right.

[105] In fact, as earlier noted, Reeves testified it was not until 1993 or 1994 when

Wall called him, that he was first aware of Wall’s claim to have invented Trivial

Pursuit.

[106] Reeves said that during the period when he was out West, living at times

with Campbell, Doug Campbell, Paul MacLellan, Cecil Currie and Wall, there was

no mention of Wall’s game nor of the evening at the Peridot Tavern, as far as he

could remember. He testified he had no recollection of hearing any discussion, by

any of them, about this subject. During this period, prior to 1993, no one

suggested to him that there had been such a discussion, and he had no recollection

of Wall bringing up the game while they were both in Fort Saskatchewan. During

the time he lived with Wall, he never mentioned showing a business card to people

in Sydney, nor that he had given it to a Nelson Latimer, who had not given it back

to him.

[107] Reeves said he had no recollection, prior to 1994, of Wall mentioning the

name “Haney” to him. He thinks the first time Wall mentioned the name was

during the telephone call in 1994. He said in 1997 is when he received the call

Page 29

from Wall and learned he was changing the date to 1980. This is when Wall told

him about the call he received, a year after the hitchhiking, from the driver. He

said this was the first time he had learned from Wall that the driver had called him.

[108] In a discussion between Wall and Reeves, in 1998 or 1999, Wall told him he

was changing the date of the hitchhiking encounter from 1980 back to 1979 and

indicated the reason for the change was his belief that the timing of the hitchhiking

related to that of his breakup with his girlfriend, Heidi Stevens, then Heidi Munroe.

[109] As counsel for the corporate defendant notes, this is not a reason advanced

by Wall in his evidence as to why he changed the year in which the hitchhiking

encounter allegedly occurred from 1980 to 1979. Counsel for the individual

defendant, asked, in reference to the reason Wall gave Reeves for the changing

back to 1979:

Q.

Do you recall when he told you he was doing that, sir, that he also gave

you a reason why he was going back to 79?

A.

Q.

Yes.

And he told you that it had something to do with his breakup with his

girlfriend, Heidi Munroe?

A.

Q.

Yes.

And he went on to say that the reason he was going back to 79 was that he

recalled that the incident had happened very close to when he broke up

with Heidi.

A.

Q.

I think that’s what he told me.

He also said that he remembered talking to Heidi’s father at the time of the

breakup, and he had thought about that and then he knew because of the

breakup and talking to Heidi’s father that it must have been in 1979 as

opposed to 1980.

A.

Q.

Yeah.

Yes, you’re agreeing with me that’s what he told you?

Page 30

A.

Q.

A.

Yeah.

And that information he conveyed to you in 1998, didn’t he?

Ah, yeah, I think so. I think it was. I don’t want to say for sure, but I

think it was, yes.

Q.

A.

And it’s true that this was the only reason he has ever given you as to why

he was switching from 1980 back to 79?

Yeah.

[110] Reeves recounted an occasion when he and Wall were being driven by

Charles Mahoney from the Yacht Club in Westmount. During the drive, which he

said was in either 1995 or 1996, Wall asked Mahoney about a trivial pursuit party

at his house. Wall said words to the effect that, “you know Charles that I invented

Trivial Pursuit”. Reeves said Mahoney responded “What do you want out of it?”

Reeves viewed this as a strange response, adding, if Mahoney knew nothing, he

expected he would have said “No”. He said Wall replied, “I want the truth.”

[111] Reeves also referred to the fact that after his discovery in 1998 he was sued

for One Million ($1,000,000.00) Dollars for being a member of a conspiracy with

Wall and Campbell. He said he was mad because he was not party to any

conspiracy and was never involved in any scam, as was suggested in the pleadings.

[112] Months later he had occasion to see Stott, and, concerned about this lawsuit,

asked of him whether he remembered anything about the evening at the Peridot.

He told Stott about being sued, to which Stott replied “Wally would not drop it.”

He said Stott told him that he was not saying it didn’t happen, but rather that he

didn’t remember it.

(a) Commentary

[113] In his oral submission, as to the credibility of Reeves, plaintiff’s counsel

observed:

Page 31

If they were making up this story...they would have all gotten together and picked

a date. Your Lordship hit the nail on the head yesterday; Mr. Reeves is either the

dumbest conspirator, or words to that effect, or what Mr. Reeves says is what he

honestly recalls. And you know where I’m at on that...

[114] As noted, on the evidence of Reeves, he was not in Cape Breton in 1979. If

he was in the Peridot Tavern on the night of the hitchhiking encounter, then it

could not have occurred in 1979. Plaintiff’s counsel suggests that either Reeves is

mistaken or that there were two meetings at the Peridot, the second of which

counsel described as a “mirror” of the first, although with some different

participants present. Plaintiff’s counsel refers to the evidence of Wall as to the

occurrence of this second meeting at which Reeves would have been present and in

which the hitchhiking encounter would have been discussed. In oral submissions,

counsel suggested it would have occurred after the phone call to Wall from Haney,

that is, between either December 10, 1980 or January 1, 1981 and Wall’s departure

for Alberta on January 9, 1981. Wall testified to such a second meeting, although

acknowledging it is a further new recollection. No one else suggested a “mirror”

meeting.

5.

Jerry Murphy

[115] Another person who said he was at the tavern on the occasion of the

hitchhiking encounter is Jerry Murphy. Mr. Murphy said he recalls an occasion at

the Peridot Tavern when Campbell and Wall arrived saying they had been

hitchhiking and Wall had described a board game to the driver. Apparently the

driver was in promotions and Campbell thought the game was going to be taken to

market. His recollection was that the hitchhiking had occurred that same evening.

He said he could not recall if Campbell discussed how the game worked, but that

he was excited. Although Campbell was inebriated, Mr. Murphy had no problem

in understanding what he was saying. He said he has not spoken to Campbell since

that evening. He said he did not recall Wall being there, and, although there were

other people present, he could not recall who they were. He said there was only

one evening that he recalls Campbell talking about a game and about hitchhiking.

He said he understood from the discussion with Campbell the driver was from

Toronto.

Page 32

[116] Upon being referred to a statement he gave to an investigator, retained by

counsel on behalf of one of the defendants, Mr. Murphy acknowledged the

statement was accurate and true to the best of his ability. In his statement, he said:

... remember the table I was sitting at when Donnie and him [David Wall] and

another gentleman came into the Peridot Tavern, and he told me that he had told

this other gentleman the idea of the game.

[117] He confirmed that in the statement he also said he first learned from Reeves

that Wall was claiming to have invented Trivial Pursuit while Wall was living in

Vancouver and Reeves was living in Alberta. He said it would have been in the

1980's.

[118] Mr. Murphy also acknowledged that in his statement to the investigator, he

had said he was sitting in the Tavern when Campbell and Wall came in with

“another gentleman”. Campbell told him this was the gentleman that Wall had told

about his idea for a game. In the statement, he had said he had never met the

gentleman before, but he was introduced and they shook hands. He testified he had

a picture of “a guy with a mustache and sort of curly hair”, but he was not sure if

that was accurate.

[119] Interestingly, Mr. Murphy is the only witness who suggests Wall and

Campbell, on entering the Peridot, were accompanied by the person to whom Wall

said he had given his idea for the game.

[120] None of the other witnesses recall Jerry Murphy at the Peridot Tavern on the

night of the alleged hitchhiking encounter, although Reeves testified he could have

been there. Campbell, although saying there was a pre-arranged meeting with

friends, including Mr. Murphy, also said the only person he recalled being in the

tavern when he and Wall entered was Reeves.

[121] Mr. Murphy testified he could not say when this event at the Peridot Tavern

happened, that he could not put a year on it. He said he has no recollection of what

the game was about and first heard about Wall’s claim to have invented Trivial

Pursuit when he was visiting Stott’s apartment and a number of friends were

playing the game.

Page 33

[122] Mr. Murphy said he was not sure to what extent his recollections are things

he has learned from reading newspapers, as opposed to what he actually

remembered. He said it is hard to sort out his memory, from what he has read

about the case. In reference to the unidentified person having been indicated as the

driver, he said he was not certain he would have said it was the driver. He agreed,

however, that in his statement the reference is to the unidentified person being the

driver. He confirmed that in his statement he did not say that Campbell had said he

had been hitchhiking, and that the first time there was a reference to Blacketts Lake

was when he had a subsequent conversation with Wall, which he estimated was

around 1996. He acknowledged he could not be sure that Campbell mentioned

hitchhiking from Blacketts Lake, while they were in the Tavern. He also agreed

that in giving his evidence at trial, he hadn’t mentioned the unidentified person.

He said it was now jumbled up, as to whether there were two or three persons who

came into the Tavern that night. He was then referred, on cross-examination, to his

discovery evidence that, when talking to Wall around 1995, he mentioned a person

coming in with Campbell and Wall. He also acknowledged that at his discovery he

said this person was the driver, and he confirmed to counsel that he was prepared

to adopt and accept his statement on discovery. He agreed on discovery he was

unable to say whether the person had facial hair, nor was he able to give

information on the individual’s height or weight.

[123] Mr. Murphy said following their discussion in 1995, there were further

discussions with Wall, sometime between 1996 and 1998, and during one of these

discussions he mentioned to Wall that he remembered being at the Tavern with

Campbell, but he could not recall Wall’s reaction when he told him this. He was

again referred to his discovery, where he testified about telling Wall about his

conversation with Campbell that night, and indicating Wall was surprised and

hadn’t recalled that he had been there. He said after the conversation with

Campbell the night in the Tavern that Campbell never brought up the game or what

had been talked about at the Tavern again. He described it as a “one-time” event.

[124] Mr. Murphy testified he had no recollection of what year the event at the

Peridot occurred. He could not say the day of the week, the month, or the year,

and agreed he would probably have been drinking beer or draught and could

possibly have been using drugs. He said he could not say “yes” or “no” as to

whether the name Chris Haney was used, although he did not recall it. He could

not recall definitely whether Campbell mentioned the nature of the game, other

Page 34

than that it was a game. He did not recall the word “trivia” being used that night,

nor the words “Trivial Pursuit”.

6.

Brean Stott

[125] According to at least Wall, Campbell and Reeves, also present in the Peridot

Tavern was Stott. Stott testified, on behalf of the defendants. He said he had no

recollection of being informed by Wall in 1979 that he had invented a game. He

said he had no recollection of Wall talking about trivia or giving him a business

card, although he added that he may have. He had no recollection of Wall and

Campbell coming into the tavern and saying they had been picked up hitchhiking

from Blacketts Lake and during the course of which Wall had given the driver his

idea for a game. In reference to the events involving himself at the Peridot Tavern,

he said he was not saying they did not happen, only that he cannot recall them

happening.

[126] In reference to Stott, Wall replied to counsel that, “I only have a problem

with Brean Stott’s memory.”

C.

The Events of December 1980 - January 1981

1. The Phone Call

[127] Wall testified that between December 10, 1980, which was his

grandmother’s birthday, and January 1, 1981, he received a phone call from Haney.

Other members of his family testified to their recollections of an occasion when

Wall received a phone call.

[128] Wall’s mother, Jessie Wall, testified about family gatherings on the occasion

of her mother’s birthday, which was December 10, as well as on New Year’s Day.

During one of these occasions, she recalled, there was a phone call. She picked up

the telephone and the caller asked, “can I speak to David” or “can I speak to

Dave”. She said she didn’t recognize the voice, describing it as male and as “a

deep voice”. She told Wall, who was in the living room of her house, that there

was a call for him. Wall took the phone, walked across the kitchen into a vestibule

Page 35

and then into his own bedroom. She said it was not uncommon for Wall to take

calls in his bedroom, as it provided him with privacy. She stated that as a

consequence she did not hear the conversation between Wall and the caller. She

said he was not on the phone very long, estimating it to have been five or six

minutes. She believed the call occurred after they had finished eating supper,

which would have suggested the 5:30 - 6:30 p.m. time period. Although she could

not be positive of the date, she believed it occurred during one of the previously

noted family gatherings. She said after he completed the phone call Wall spoke a

sentence or two, and then asked if she had an extra $1,000.00 to spend on a game.

She replied she had purchased his ticket to fly out West and would not talk any

more about it.

[129] She acknowledged it was not until some 17 years later, in 1998, that she had

occasion to recall this phone call. She was in Halifax, on the application before

Chief Justice Kennedy, and heard Haney speak. She said when she heard Haney

speak she recognized his voice as being that of the caller who had, seventeen years

earlier, asked for Wall when she had picked up the phone, describing his voice as

“distinctive”. She agreed the caller had not identified himself or indicated from

where he was calling. She at no time, testified to an understanding it had been a

long distance call. Her evidence is that in 1998 she concluded the voice on the

phone sounded like Haney, as he testified during the hearing before Chief Justice

Kennedy, but agreed with defence counsel she could not positively say it was him.

[130] Brenda Wall, Janet Lewis, Therese Wall, Owen Lewis and Jerry Wall all

testified about their recollections of a call received by Wall during one of the

family get-togethers.

[131] In respect to the call, Wall said there was a social event at the home and he

recalled taking a phone call as his brother was preparing to leave. He took the

phone call in his bedroom, but he could not recall where he was when the phone

rang, and he did not recall hearing it ring. He said he did not know where

everyone else was at the time. He said he took the phone and stretched the cord

across the kitchen and around into the doorway of his bedroom. Present in the

house were Jerry Wall and Therese Wall, their daughter, Janet Lewis, her husband,

Owen Lewis, their two children and his mother and father. He could not recall

specifically where everyone was sitting. He stated the call occurred shortly after

supper.

Page 36

[132] He testified the person on the line said he was “Chris Haney”, adding he

remembered he had a distinctive voice. Haney said he had generated interest in the

game, with his brother, a friend and a friend of his brother. He said they were

looking for investors in lots of $1,000.00 and $5,000.00 for shares and all he could

offer Wall was an opportunity to invest in the game. Wall said the caller told him

they were going to say it was invented over a game of Scrabble. Haney did not say

who was going to make the claim that it was invented over a game of Scrabble.

Haney, he testified, said he had not stayed at Keddy’s Inn in Sydney, because it

was full and he, in fact, had stayed at the Holiday Inn. Wall said, Haney asked if

he still had the business card. He said that within seconds, or less than a minute, he

took the business card from the top drawer of his dresser. He said Haney would

have known that he was not happy. He told him this was not how it was supposed

to be, that it was his game. Haney said the other persons involved did not know of

Wall’s involvement.

[133] Wall said something appeared wrong with the phone line, as it did not sound

right. He did not get a response when he asked if there was a problem with the

phone. The call ended with Wall saying he would see how he might generate

interest in finding investors in Cape Breton for the game.

[134] On cross-examination by counsel for the individual defendant, Wall said that

although he may have formed the opinion Haney was a “thief and dishonest”, he

agreed he was still asking his family to invest. As to his intention and purpose in

trying to help this person take the game to market, he said:

Maybe I could still be part of Trivial Pursuit, that’s why.

[135] Haney testified that between December, 1980 and January, 1981 he was in

Spain and had no access to a telephone in his residence. He acknowledged he used

a phone outside his residence when he wished to make telephone calls, including

to friends and relatives in Canada. He denied calling Wall at any time.

2.

Seeking Investors

[136] Wall testified that following the call from Haney he contacted a number of

persons, suggesting they may wish to invest in the game. Apart from Art Ells and

Paul Peterson, those he said he approached and who gave evidence at trial denied

any recollection of being approached by Wall, or by anyone else, to invest in a

Page 37

game. There is no evidence whatsoever that any Cape Breton business persons, or

Wall’s Aunt, Linda Peterson, or her husband, Paul, ever invested in the game.

a)

Paul Peterson

[137] Paul Peterson, who is married to Jessie Wall’s sister, and is therefore Wall’s

uncle, testified to recalling a phone call from Wall inquiring about his interest in

investing in a game. He, together with his wife, Linda, are two of the persons that

Wall believed had invested in Trivial Pursuit. Mr. Peterson denied they ever did.

[138] In reference to the call from Wall, Mr. Peterson said it occurred while they

were living on Shepard Avenue in Scarborough, Ontario, which he believed was in

the 1979 - 1980 time frame. He said this was the only occasion when Wall called

about a potential investment. He recalled that Wall said it was a kind of board

game, although he acknowledged that on discovery he had said it was about an

investment in a game. He had no memory of Wall using the name “Trivial

Pursuit”, he had been ripped off, or that his idea had been taken. All he could

recall is that he referred to some kind of a “board game”. He said that on

subsequent occasions, when he was in the company of Wall, he was never asked

about this phone call, nor whether he or his wife had invested in Trivial Pursuit.

He said he was aware Wall had the belief he and his wife, Linda, were investors,

but was not aware Wall continued to hold the belief, after he was told that they

were not. He said neither he nor his wife did anything to lead Wall to believe that

they had been investors.

[139] On cross-examination he said he believed Wall was telling the truth, but

added, he does not know the evidence upon which Wall’s allegations are based. He

said he does not know why Wall does not believe his denial of having invested in

Trivial Pursuit and said he was first informed of Wall’s belief by counsel for the

individual defendant.

(

I)

Commentary

[140] Mr. Peterson placed the timing of the call about the potential investment, in

the time frame of 1979 and 1980. As such, his evidence is that the phone call,

Page 38

about investing in a game, occurred prior to the first week of January, 1981 which

is the time frame during which Wall says he approached persons about investing in

Trivial Pursuit. In his evidence, on cross examination, Peterson said that as far as

he could recall Wall didn’t mention the nature of the game, the name of the game,

or the circumstances under which the game had come about. As such, his evidence

is hardly confirmatory of Wall’s evidence that in the first week of January 1981 he

approached potential investors, including Paul Peterson. The only approach Paul

Peterson acknowledges, occurred prior to that time, and in the circumstances, at

least on the evidence presented at trial, could not have been in reference to Trivial

Pursuit. Wall never testified to approaching anyone prior to January 1, 1981 about

investing in the game, as a result of a phone call he received from Haney.

b)

Art Ells

[141] The evidence of Art Ells is also less than corroborative of Wall’s evidence,

in view of the circumstances recollected by Mr. Ells as to when his conversation

with Wall occurred. Mr. Ells testified that in the late 70's or early 80's, Wall had

come to him and asked if he was interested in investing in a game. He said he

recalled that it was sometime in January, he believed in 1980, that this occurred.

The discussion occurred on a Saturday at his office and he remembers the

investment involved a question and answer type of game. He was referred to his

discovery and acknowledged he gave evidence on discovery in 1999, that it was

about a board game and that Wall had said he and some friends, while they were

out West, had put together a game that involved questions and answers and he

required money in order to market it. He said he did not recall saying the game

had been developed out West, and that he had no idea if Wall had been out West

prior to this occasion. He said he remembered the amount Wall was looking for

was $10,000.00 for the investment to market the game. He told Wall he was not

interested.

[142] Because Wall was the brother of his best friend, Wall’s brother Jerry, Mr.

Ells said he wanted to do something, and so he suggested the names of some

persons who, he believed, might potentially be interested in investing, such as

Marty Chernin, Hugh Lynch, Gary Lewis and possibly others. He knew them as

business persons who made investments. He never called these people nor told

Wall he would do so.

Page 39

[143] On cross-examination Mr. Ells said he had no recollection of Wall

mentioning he had been hitchhiking and picked up by someone, and that the person

had stolen his game or his idea for a game. He made no mention of having been

robbed nor the name “Trivial Pursuit”. He just said he was looking for investors.

[144] Mr. Ells said it was in his second discussion with Wall, some time later, that

Wall first mentioned the name “Trivial Pursuit” and that the idea for a game had

been stolen. This was the first time he indicated the game was based on trivia. He

agreed he said this on discovery and confirmed it was his best recollection. He

also adopted, as his best recollection, his discovery evidence where he indicated he

had the impression the person who had picked up Wall was a salesman. The

second discussion, he said, would have occurred in the 1990's. It was after Wall

had been to see Mr. Rizzetto, the lawyer Wall originally retained in this

proceeding. On cross examination, he was referred to a further passage from his

discovery, where he had said to Wall at the second meeting, upon asking what he

recalled of the first meeting, that he remembered Wall coming in, telling him that

he and guys from out West had this game and were looking for investors. He said

to the best of his knowledge, this was his present recollection and he adopted it for

purposes of his evidence at trial.

(I)

Commentary

[145] With the evidence of Mr. Ells, there is a difficulty with his reference to Wall

being out West, or involved with persons from out West. Wall’s’s first trip out

West did not occur until early 1981. On cross-examination by counsel for the

individual defendant, in respect to his recollection of Wall saying the game was

from out West or had a connection with the West, he said by West, it could have

been “Westmount”. He agreed that in his discovery in 1999, he had said his

recollection then was that Wall was out West working and had put the game

together with a group of his friends. He acknowledged that on discovery he had

indicated he had a clear recollection that Wall had been out West when the game

was put together.

[146] On the evidence, it appears Mr. Ells adopted his discovery, as being his

recollection as to what Wall had said were the circumstances as to where and with

whom he had developed the game. He added, on further cross-examination, that

when the game Trivial Pursuit came to market, he did not associate it with the

game that Wall had discussed with him on the first occasion. On further cross-

Page 40

examination, he again said it was the second occasion, on speaking with Wall, that

he told him Trivial Pursuit was his idea and that he was the true inventor.

[147] The reference by Mr. Ells to Wall either inventing the game out West or

inventing the game with persons who lived out West, is confusing in the context of

the other evidence in this case. As noted, Wall did not travel out West until 1981.

This was after he had, according to his evidenced, approached persons in Cape

Breton as potential investors, following the call from Haney. However, the

evidence of Mr. Ells, as well as all the evidence must be considered in the context

of the long period between the occurrence of these events and the giving of

evidence, both initially at discovery and subsequently at trial.

(c) The Windsor Street Apartment Building

[148] A number of the persons Wall said he had believed were investors, and in

some cases still, at the time of testifying, believed were investors, stated they were

never investors and were never approached to invest in the game. In respect to

persons he continued to believe were investors, he listed Nelson Latimer, James

Kehoe, as well as Marty Chernin, Gordie Doucet, Selma Doucet, Garfield Lewis,

John “Dough Boy” MacDonald, Bruce Mackay, Nelson MacLeod, Wayne Miller

and Arnie Rudderham. To the extent any of them testified during the trial, they all

denied having invested, or having been approached by Wall to invest, in the game.

[149] Wall testified that in the course of approaching persons to invest in the

game, he visited an apartment building on Windsor Street in Sydney, on the advice

of Selma and Gordie Doucet. He described it as a two-storey apartment building

that was in the final stages of construction. He said it was the second brick

building on the right. When he arrived the construction workers were apparently

preparing for their morning break. He stated he went into the building and met

with a group of the workers and began to explain about the opportunity to invest in

a game. He asked to see Nelson Latimer and an individual stepped forward, whom

he believed to be Mr. Latimer. He had a discussion with Mr. Latimer. During his

discussions with Mr. Latimer, he took the business card from him and put it in his

own pocket. This was the same business card Wall said he had received from the

driver, shown to Stott on the night of the hitchhiking (when Stott had copied down

the information), noted the new contact number when he received the phone call

from Haney, had with him when he had a second meeting with Stott, at which time

Page 41

Stott took down the new contact information and had shown to Selma Doucet,

whom he believes also copied down information.

(I)

Selma Doucet

[150] Wall testified he approached Selma and Gordie Doucet about investing in

the game. He said he must have passed the business card he had received from the

driver to Mrs. Doucet, as she copied down information from the card, although he

could not see what she was copying down. He testified he asked them if they knew

anyone who might be interested in this type of investment and they suggested he

see Nelson Latimer of Joneljim, the construction company owned by Mr. Latimer,

John Yurchesyn and James (Jimmie) Kehoe. Wall testified to his belief that Mrs.

Doucet took the information and flew to Toronto, apparently to invest in the game.

[151] Selma Doucet said she did not recall meeting with Wall in January, 1981 and

having a conversation with him about his being picked up while hitchhiking,

receiving a business card from the driver and his disclosing to the driver his idea of

a board game based on trivia. She denied receiving the card from Wall and being

asked for the names of any persons who might be interested in making such an

investment. She denied Wall asking her to write down the contact information

from the business card. She denied flying to Toronto, or investing in the game.

Mrs. Doucet spoke highly of Wall’s integrity, but denied that any of these events,

as testified to by Wall, ever occurred.

(ii) Nelson Latimer

[152] Wall, in respect to his encounter with the Mr. Latimer at the Windsor Street

apartment building, testified:

Q.

... While we’re at the Joneljim apartment building for a moment, sir, that

was the place where you say Nelson Latimer took the business card from

you.

A.

Q.

A.

That is.

And he didn’t ask to take the business card.

He just took it.

Page 42

Q.

A.

He took it right out of your hand.

Yes, he did.

[153] Wall, acknowledging the card was “an incredibly valuable piece of

evidence” said he returned on “two occasions to try getting it back”. When he

returned the first time to retrieve the card, Mr. Latimer was not present and he

spoke to James Kehoe, one of Mr. Latimer’s partners. When he returned the

second time, Mr. Latimer was present. He asked him for the return of the card. Mr.

Latimer responded that he had given the card to another person.

[154] Mr. Latimer testified he was never approached in one of the Windsor Street

apartments built and owned by his company, to invest in a game; that no one ever

approached him saying someone had been at the Windsor Street apartments talking

to them about investing in a game; that he never stepped out of a crowd when

someone approached him at the Windsor Street apartments asking for him; and

that he was never given a business card by Wall nor by anyone else in the

circumstances as described by Wall. He denied the event testified to by Wall had

ever occurred.

(iii) James Kehoe

[155] Mr. Kehoe testified he had no knowledge of having a conversation with a 19

or 20 year old individual about a business card he had given to his partner, Nelson

Latimer. Mr. Kehoe also said there was only one two-storey apartment building on

Windsor Street, and construction only began in August 1982.

(iv) Lawrence Lewis

[156] Testifying on behalf of the plaintiff, Lawrence Lewis said he was a friend of

Jerry Wall, Wall’s brother. Essentially, he testified to once seeing Wall at an

apartment building on Windsor Street, and said that on this occasion Wall was

talking to “a few suits for a few seconds”. He said this happened in 1977 or

earlier. He related the timing of this occurrence to the fact he got married in 1977.

He said he was painting the second floor of one of the apartments on Windsor

Street when he saw Wall. This was the “only time” he ever saw Wall at this

Windsor Street apartment building. He could not overhear what Wall was saying,

Page 43

nor did he see Wall speaking with Nelson Latimer. He said he has a clear

recollection of seeing Wall and Jerry Wall a few months later, during the summer,

while he was camping in Ingonish. He said upon being introduced to Wall he

mentioned he had seen him at the Windsor Street apartments. He said this

discussion occurred before he was married and therefore would have taken place in

1977 or earlier.

(v) Commentary

[157] James Kehoe, one of the owners of Joneljim Construction, the company that

apparently constructed and owned the two storey apartment building on Windsor

Street that Wall identified as being the one he attended, testified to the date of its

construction. On his evidence Wall could not have been in this two storey building

during the first week of January 1981, as this building had not then been

constructed.

[158] In view of the evidence of James Kehoe that the apartment building in which

Wall says he met with workmen and interacted with Mr. Latimer was not

constructed at the time of the alleged occurrence, Wall’s evidence regarding this

event is lacking credibility. Mr. Kehoe was not challenged on his evidence that

this apartment building was not constructed by January 1981. The evidence of

Lawrence Lewis does not assist since he places his sighting of Wall speaking to “a

few suits” in 1977 or earlier.

D.

The First Trip West

[159] On January 9, 1981, Wall travelled to Alberta, returning in July. He said

during this period he may have told Wayne Burke, and his wife, Darlene, about the

game. Mr. Burke, he said, was with the RCMP and they were friends he knew

from school. Mr. Burke did not testify.

E.

The Second Trip West

[160] Wall said that during the course of his second trip to Alberta, in a truck

owned by Joe Morley, in which Cecil Currie and Donald MacLellan were also

passengers, he spoke a lot about Trivial Pursuit to Mr. Currie, to the point that he

was driving Mr. Currie crazy. Mr. Currie was no longer interested in him as his

Page 44

driving partner. He then partnered with Mr. MacLellan. He cannot recall

specifically what he said to him, but he likely told him about the game, as well.

[161] Mr. MacLellan and Mr. Currie testified about Wall and his alleged

preoccupation with trivia and trivia questions.

1.

Donald (Donnie) MacLellan

[162] Mr. MacLellan acknowledged he was one of the four persons in Joe

Morley’s pickup truck that in mid September 1981, travelled from Cape Breton to

Fort Saskatchewan, Alberta. Mr. MacLellan testified that during the trip two of

them would sit in the front and the other two would be in the box, in the back of

the truck. He said he and Wall were paired up the entire trip, meaning they would

either be in the front together or in the back together. He indicated that to pass the

time Wall would ask questions about events and sports. He stated Wall never said

anything to him about a hitchhiking encounter or someone taking his idea for a

game and planning to take it to market. He acknowledged Wall had some paper

with him in the truck, but he had no idea what was on the paper. He never asked

Wall what he was doing with the paper.

[163] When they arrived at Fort Saskatchewan they stayed with Reeves. During

the time he was with Wall in Fort Saskatchewan, Mr. MacLellan said Wall never

brought up anything about a board game, nor did Wall draw a board and try to get

people to play a game. Nor did Reeves ever say anything about being at the

Peridot Tavern when Wall and Campbell had come in, after having been picked up

hitchhiking. Also Campbell never said anything to him about Wall inventing a

game or of a hitchhiking encounter, or of his being responsible for naming the

game.

[164] Wall testified, on direct, that he shared with Mr. MacLellan information

about Trivial Pursuit. This does not appear to accord with Mr. MacLellan’s

recollection.

2.

Cecil Currie

Page 45

[165] Mr. Currie was also on the September, 1981 drive from Cape Breton to Fort

Saskatchewan, Alberta.

[166] Prior to giving evidence, Mr. Currie was contacted by Ralph Ripley, a

lawyer practicing in Cape Breton, Nova Scotia, who, following a telephone

interview, prepared a memorandum of the interview and forwarded it to counsel

for the defendants, by whom he had been retained. On testifying and upon

reviewing the memorandum, Mr. Currie said there were substantial discrepancies

between his recollection of what he said in the interview and what Mr. Ripley had

set out in his memorandum. Mr. Ripley also testified about the circumstances

surrounding the telephone interview, the preparation of the memorandum and the

forwarding of it to one of the counsel for the defendants.

[167] Counsel for the defendants assert that where there is contradiction or

inconsistency between the evidence of Mr. Currie at trial and the memorandum

prepared by Mr. Ripley, the latter should be preferred. During the course of oral

submissions I indicated to counsel for the defendants that I found it extraordinary

that a lawyer, particularly one of some seniority, would conduct a telephone

interview, and prepare a memorandum of that interview, without either recording

the interview or forwarding a copy to the interviewee for his comments, and then

seek to rely on the accuracy of that memorandum over the recollection of the

person being interviewed. It is now common for the police to record interviews,

which are later sought to be introduced as admissions or confessions of accused

persons and, in the absence of such recording, to be asked to explain why there was

no recording. In the event it was impractical to record the interview, as suggested

by Mr. Ripley, then the alternative would have been to forward to Mr. Currie a

copy of the draft memorandum, at least to the extent it reflects what Mr. Ripley

says Mr. Currie was telling him, for any comments, corrections or clarifications

Mr. Currie would seek to add. The first time Mr. Currie was presented with the

statement was when he was on the stand, a circumstance I find unacceptable,

particularly where the memorandum is alleged to represent a complete outline of

all the significant points raised by Mr. Currie during the course of the interview.

[168] In respect to the drive out West, there are inconsistencies between the

evidence of Mr. Currie and Mr. MacLellan. In view of the time that has passed

since this event some discrepancies are to be expected. Mr. MacLellan suggested

he and Wall were paired up for the entire trip, and he has no recollection of Wall

talking about a game or seeking investors for a game during the trip to Fort

Page 46

Saskatchewan. Mr. Currie said he was initially paired with Wall but was being

driven “batty” on the trip west by Wall’s idea for a game he called Trivial

Questions and this led to a realignment of the pairings. He said Wall talked of a

pie, about pieces of a pie. He said Wall wanted them to invest in the game and

kept asking them questions to try to get them interested in the game, and this

continued during the time they were in Fort Saskatchewan, adding that the topic of

the game came up constantly. Mr. Ripley denied he was told by Mr. Currie about

Wall’s idea for a board game called “Trivial Questions”.

[169] I recognize that the version of the travel out West recorded by Mr. Ripley

from his interview with Mr. Currie is more consistent with that of Mr. MacLellan’s

evidence at trial, than the version testified to by Mr. Currie at trial. Although I am

not prepared to dismiss Mr. Currie’s trial evidence, where it conflicts with Mr.

Ripley’s memorandum, I must weigh the consistency of the version in the

memorandum with the evidence of Mr. MacLellan, particularly in relation to

whether Wall was discussing a game called “Trivial Questions” or “pieces of a pie”

during the trip. Such a discussion does not appear in the memorandum nor in the

evidence of Mr. MacLellan.

[170] There are other inconsistencies or variances between Mr. Currie’s evidence

and that of a number of the witnesses who testified about whether there was any

discussion by Wall, in Fort Saskatchewan, about his game, Trivial Questions, and

his attempt to get the others interested in the game and in investing in it.

F.

The Alberta Period

[171] Wall testified he remained in Alberta, until moving to British Columbia. He

said he was living in British Columbia by October 1981. Testifying about their

interaction with Wall during this period were William Kehoe, Reeves, Paul

MacLellan, Doug Campbell and Donald (Donnie) MacLellan.

1.

Paul MacLellan

[172] Mr. MacLellan testified he travelled to Alberta in the summer or fall of

1981, although he acknowledged his recollection of the year was based on

information provided by his sister, rather than on his own memory. He remained

Page 47

out west for approximately six months, living in Edmonton during the first four,

and in Fort Saskatchewan the last two. During the period he lived in Edmonton he

would drive to Fort Saskatchewan, on most weekends, and stay at Reeves’

apartment. During these visits he would also see Wall. He testified that on one of

these weekend visits Wall told him about a board game. He said that a number of

other persons were present, including Reeves, during this discussion.

[173] He acknowledged, however, that Wall never said anything about his idea for

the game having been taken or that he had been trying to secure investors in Cape

Breton. Also, Campbell, a friend of his, did not mention anything to him about the

alleged hitchhiking encounter.

[174] On cross-examination, after acknowledging that Paul MacLellan was

someone he encountered before and while he was in Fort Saskatchewan, Wall

agreed “he had no recollection of having any discussion at any point in time with

Paul MacLellan about Trivial Pursuit or the hitchhiking encounter.”

[175] Counsel for the corporate defendant suggests the evidence of Mr. MacLellan

is not of assistance because Wall, in his evidence, said he did not discuss the game,

while he lived in Fort Saskatchewan, and said he has no recollection of discussing

it with Mr. MacLellan. Also, counsel notes, Reeves testified he has no recollection

of Wall mentioning a game while living in Fort Saskatchewan and finally that what

MacLellan said Wall told him did not involve anyone taking Wall’s idea.

G. The British Columbia Period

[176] Wall testified that in or before October, 1981, he travelled to Maple Ridge,

British Columbia, to live with Billie Leslie. His intention was to seek employment

and join the RCMP. Later he moved in with David Hickey, who was, like Mr.

Leslie, a member of the RCMP. He testified that during this period he did not

speak to anybody about Trivial Pursuit.

[177] He said he was at the apartment of a friend, Bruce Pitt-Payne and Mr. Pitt-

Payne was reading a newspaper and referred to “... how good that trivia game from

back East was doing or made reference something about they can not get enough

games to market.” He said he interjected:

Page 48

Just don’t tell me the name of the game is Trivial Pursuit.

[178] Wall said that after Mr. Pitt-Payne asked him how he knew that, he then

proceeded to tell him all about the “invention of Trivial Pursuit, the hitchhiking,

and all the facts involved.” He said Mr. Pitt-Payne suggested he should “get legal

help.”

[179] Wall stated that during this period in British Columbia, he also spoke of his

invention to Ted Van Overbeek, another member of the RCMP stationed in Maple

Ridge. He said they were neighbours on Silvermere Island and he recollected an

occasion when he brought up the subject of Trivial Pursuit with Mr. Van Overbeek

and his wife. He told them he was the inventor and about the meeting with Haney

and what had transpired.

[180] He said Mr. Van Overbeek suggested he should get legal help. Although not

100 percent certain, Wall suggested this could possibly have been in 1986. Mr.

Van Overbeek recommended he speak to a lawyer he knew, Jim Norquist. Wall

testified he called Mr. Norquist and told him he was the inventor of Trivial Pursuit.

Apparently from his accent, Mr. Norquist picked up that Wall was from the East

Coast. He told him that the only way for him to take the fight would be to create a

“war chest” of money. Wall said the term “contingency fee” was neither explained

nor suggested to him.

[181] Testifying about their interaction with Wall during this period were Ted Van

Overbeek, Bruce Pitt-Payne , Jim Norquist and David Hickey. Mr. Hickey was

called by the defence while the others were called by the plaintiff.

1.

Ted Van Overbeek

[182] Mr. Van Overbeek has been an RCMP Officer for approximately 26 years.

He and Wall lived on Silvermere Island in British Columbia for approximately a

year and a half in 1986 and 1987 and became good friends. He testified that in

1986 Wall informed him he had invented the game Trivial Pursuit. During this

period Wall brought up the subject a number of times, until finally Mr. Van

Overbeek suggested he seek legal counsel and recommended a lawyer he knew,

Jim Norquist.

Page 49

[183] Mr. Van Overbeek stated Wall informed him he had been hitchhiking alone

when he was picked up by four individuals and he had told them about his idea for

a game. He said he was left with the distinct impression Wall had known the four

individuals who had allegedly picked him up and that they were from the Sydney

or Westmount area.

2.

Bruce Pitt-Payne

[184] Mr. Pitt-Payne is also a member of the RCMP and was a friend of Wall

during the period he lived in British Columbia. Mr. Pitt-Payne referred to an

occasion when he was reading an article in a newspaper about a new game that was

on the market ,and on commenting to Wall about the article, Wall responded

“Don’t tell me it’s Trivial Pursuit”, or words to that effect. Wall became very

agitated, to the extent Mr. Pitt-Payne described him as having a “temper tantrum”.

The timing of this discussion and Wall’s “temper tantrum” is not clear. In the

Amended Statement of Claim issued October 17, 2000. Wall stated he was aware

Trivial Pursuit had come on the market by the Fall of 1982. Plaintiff’s counsel, in

a post-trial submission, says this is a mistake, and not in accordance with the

evidence.

[185] Mr. Pitt-Payne testified he had first met Wall shortly after he moved to

Maple Ridge, B.C. in 1983, and he believed this discussion with Wall occurred in

1983 or 1984, shortly after he met him. He acknowledged this was an estimate and

it could have happened as late as 1986, although he added, in response to counsel

for the corporate defendant, that he did not believe it was as late as 1986. He

linked the timing of the discussion to two events, meeting Wall and Wall’s move to

Silvermere Island, stating it occurred before Wall moved to Silvermere Island. As

already noted, Mr. VanOverbeek testified Wall lived on Silvermere Island for a

year and a half in 1986 and 1987. The discussion, therefore, would have been

sometime between 1983 and 1986, after Trivial Pursuit was on the market. In the

submission of counsel for the corporate defendant, Mr. Pitt-Payne’s evidence is

simply to the effect that Wall was telling him, at some point between 1983 and

1986, “an early version of a story that he was the inventor of Trivial Pursuit”.

[186] Counsel also references details of the hitchhiking encounter as Wall

apparently communicated them to Mr. Pitt-Payne. Mr. Pitt-Payne testified that

Wall told him that the driver of the car was from the Maritimes, which he

Page 50

understood to be P.E.I., New Brunswick, Nova Scotia and Newfoundland. He was

also left with the impression that Wall knew the driver and that he and a friend, had

discussed with the driver his concept for a game.

3.

James Norquist

[187] Mr. Norquist is a lawyer practising in British Columbia, and is the lawyer

recommended by Mr. Van Overbeek to Wall. He testified to receiving a call in

late 1985 or 1986 from someone who claimed to have invented Trivial Pursuit. He

said he could not recall details of what the caller told him, other than claiming to

have invented Trivial Pursuit. The caller asked about bringing a lawsuit in British

Columbia and he had replied that it was impractical. He acknowledged telling the

caller they would need a “war chest” in order to pursue the claim and any action

should be brought in the caller’s home jurisdiction, which he understood to be in

the Maritimes. He said he does not believe he told the caller about the possibility

of retaining a lawyer on a “contingency fee” arrangement, adding he remembers

thinking that no lawyer in his right mind would take the case on a “contingency

fee” basis.

4.

David Hickey

[188] Mr. Hickey is a Sergeant in the RCMP. He met Wall while they lived

together in British Columbia. He testified they first met in either 1981 or 1982

through a mutual friend who was also an RCMP officer. Beginning in 1982 or

early 1983 he and Wall shared an apartment for approximately a year to fifteen

months. Mr. Hickey was married in 1984 and in 1985 he and his wife rented to

Wall, for a few months, an apartment in the residence they then occupied.

[189] Sergeant Hickey said he did not recall Wall ever suggesting to him he had

invented Trivial Pursuit, nor did he recall Wall ever conveying any information to

him regarding his having been picked up hitchhiking and his idea for a game

having been stolen by the driver nor about his efforts seeking investors in Sydney.

[190] Sergeant Hickey testified he was first aware Wall was claiming to have

invented Trivial Pursuit when Wall phoned him in approximately 1994. He recalls

Wall mentioned something about knowing one of the “people” who had developed

Trivial Pursuit and that this person apparently had roots in Cape Breton, which

Sergeant Hickey believed meant they had family there, or a house or a cottage. He

Page 51

also testified that on numerous occasions he and friends would play Trivial Pursuit,

including during the period that Wall was living with him. He could not say,

however, whether Wall had participated in any of the games.

H. Commencing the Law Suit

[191] While in British Columbia, and following his telephone conference with Mr.

Norquist, Wall concluded he would be unable to pursue his claim to be the

inventor and creator of the game. The advice by Norquist that he would need a

“war chest” and should initiate the proceeding in the East, convinced him he

should “proceed to get on with his life”.

[192] After he returned to Nova Scotia, he worked for his brother and sister-in-

law’s company, J&T Well Pumps. He had occasion to work at the residence of a

Cape Breton lawyer, Harvey MacPhee. He said that during the course of attending

at Mr. MacPhee’s residence, he had discussions with him, including inquiring on

whether his law firm would “actually be interested in this kind of a lawsuit”. He

testified, to an understanding “that this was not the type of thing that they would

normally get involved with.” During a later telephone call with Mr. MacPhee,

Wall heard explained for the first time “contingency fee”. He said it was explained

he “could get legal representation, where the legal firm would fight on my behalf

for a piece of the winnings.” He agreed he had heard of this concept previously,

but his understanding had been it did not apply to this kind of case.

1.

Harvey MacPhee

[193] Mr. MacPhee is a lawyer practicing in Cape Breton. Wall, while working at

his home in the late 1980's, spoke to him on several occasions about his claim to

have invented Trivial Pursuit. He stated Mr. MacPhee led him to believe that

Jimmy Kehoe and Nelson Latimer had sold their interests in Trivial Pursuit in

1988. Mr. MacPhee, on the other hand, said he never suggested to Wall that

Jimmy Kehoe and Nelson Latimer had sold an interest in Trivial Pursuit and that

he “absolutely” did not, and would not, have discussed Jimmy Kehoe’s or Nelson

Latimer’s business interests.

[194] Wall also testified about an encounter with Mr. MacPhee at a restaurant or

bar known as Daniels. This discussion apparently took place after the

commencement of the lawsuit. Wall said he believes, after he told Mr. MacPhee

Page 52

that “there were a lot more people involved than Nelson Latimer and Jimmy

Kehoe”, Mr. MacPhee told him not to talk about Trivial Pursuit. He said there

was a discussion and it concluded with Mr. MacPhee saying “Oh shit” and walking

out.

[195] In respect to this evidence by Wall, Mr. MacPhee testified he had no

recollection of telling Wall to stay quiet about Trivial Pursuit and further that he

had no reason to make such a statement. He said it is not uncommon for him to use

the phrase “Oh shit” but he had no recollection of saying it to Wall, and if he did,

it had nothing to do with Trivial Pursuit.

[196] It appears that, by this time Wall had met and retained another Cape Breton

lawyer, Joseph Rizzetto to initiate his lawsuit. In due course, the action initiated

by Mr. Rizzetto on behalf of the plaintiff, was taken over by the plaintiff’s present

counsel.

V

SUGGESTED DEFICIENCIES, INCONSISTENCIES AND

CONTRADICTIONS IN THE PLAINTIFF’S EVIDENCE

[197] The defendants assert a number of what they allege to be inconsistencies and

contradictions in the plaintiff’s evidence, including what counsel for the corporate

defendant says are “David Wall’s changing allegations regarding the date of the

alleged hitchhiking encounter” and “David Wall’s new or changing memories”. A

number of other inconsistencies and contradictions are suggested as well.

A.

The Evidence that Haney was The Driver

[198] Counsel for the corporate defendant, noting that there are only two persons

who testified to seeing or meeting with the driver of the vehicle, presumably

disregarding the evidence of Mr. Murphy, adds that neither witness could describe

his appearance or any distinguishing feature. He also quotes from the evidence of

Wall, as to the appearance of the driver, as follows:

Q.

Is it not the case, Mr. Wall, that you have no recollection of seeing the front

of the driver's face?

A.

Not specifically to that occasion, no.

Page 53

...

Q.

It’s correct, is it not, that you have no recollection of seeing the side profile

of the driver’s face?

A.

...

Not a vavid recollection, no.

Q.

It's more than "not vivid." You have no recollection. Correct?

A.

I don't recall what he looked like on his frontal view or perhaps the side

view other than I remember shoulder-length dark hair.

Q.

And you're not in a position to describe the driver's face, based on your

recollection of that evening?

A.

No.

[199] And later, as to his belief the driver’s name was “Haney”, he stated:

Q.

And it's your belief as opposed to your recollection that the driver of the

car on the night in question was Chris Haney. Correct?

A.

Q.

A.

I believe the driver that night was Chris Haney.

Sorry. It's "belief" as opposed to "recollection." Correct?

I've got a recollection of the last name "Haney" and I believe that it was

Chris Haney.

Q.

Well, let's talk about that recollection that it was Haney. That's a

recollection that you're not 100 percent certain of, though.

A.

...

I've always remembered the name "Haney."

Page 54

Q.

Are you saying that you are 100 percent certain that you recall the name

"Haney"?

A.

Q.

A.

Q.

A.

I've got a strong recollection that the name was "Haney."

You'd agree with me that it's less than 100 percent.

My memory is that it his name was "Haney."

But you cannot put it at 100 percent.

I'm not comfortable with that, saying 100 percent.

[200] Also pointed out by counsel is the failure of Wall to recollect any name on

the business card, and his not knowing the information contained on the business

card other than the fact that apparently a Montreal phone number was written on it.

Counsel further notes the evidence of Campbell to the effect he had no recollection

of what the driver looked like and “would not know him if he tripped over him”.

[201] Counsel also alludes to the fact that when Wall was calling Campbell, to

determine whether or not he recollected the hitchhiking event, he did not use the

name Haney and only recalled it when Campbell, in due course, called back and

said he recalled the event and that the name of the driver was Haney. Counsel

appears to be suggesting Wall does not recall the name Haney but rather advances

that name on the basis of his conversation with Campbell.

[202] I am not satisfied that such a conclusion can be drawn from the exchange

between Wall and Campbell, particularly since it occurred, whenever it occurred, a

substantial time after the telephone call in which Wall testified the person who

called him identified himself as Chris Haney. If the occurrence of the call from

“Haney” is accepted, and since on the evidence of Wall the name of the driver was

also “Haney”, the content of the call, as testified to by Wall, is clearly referable to

and following upon the alleged hitchhiking event and the discussion in the car

concerning a board game based on trivia.

B.

The “Evolving” Date of the Hitchhiking Encounter

Page 55

[203] Counsel for the corporate defendant, stating that Wall has changed his story

five times as to when the alleged hitchhiking encounter occurred, notes the details

as follows:

...

Version 1 - Autumn of 1979

This is the first version and was the allegation in the original statement of claim

(filed November 1994).

[204] In reviewing his suggested key points to this version, counsel comments that

on cross-examination Wall admitted that when he commenced his lawsuit he had

recollected he had moved to Alberta in January 1980, and recalled the hitchhiking

occurring 4 to 5 weeks before he moved out west. He also recollected that Reeves

was at the Peridot Tavern on the night of the hitchhiking.

[205] At this time, counsel suggests, the dates Wall later amended to in versions 2

and 3 had no significance to him, and he had no specific recollection of the hockey

tournament in connection with the hitchhiking encounter.

Version 2 - December 14, 1979

This is the second version and was the allegation in the first amended

statement of claim (filed July, 1995).

[206] Counsel for the corporate defendant suggested key points include the fact the

amendment alleged the hitchhiking encounter occurred on December 14, 1979 and

that Wall had moved to Alberta on January 8, 1980. Counsel comments that the

date of December 14, 1979 had no significance at the time Wall commenced the

action. Counsel references Wall acknowledging, on cross-examination, his having

read and approved the statement of claim before it was filed. In respect to this

amendment, counsel notes Wall’s then belief that he had always recalled the

hitchhiking encounter happened 4 to 5 weeks before he moved out west, that the

weather began to play a role in his selection of the date, and that he then had no

recollection of the hockey tournament in connection with the hitchhiking encounter.

(Version 3 - December 4, 1980

Page 56

This is the third version and was the allegation in the second amended

statement of claim. This amendment was a result of the plaintiff's

application to amend heard by the Honourable Justice Edwards in

September 1997. At that point David Wall was 100% certain that the date

was December 4, 1980, ...

[207] In respect to version 3, counsel notes as key points, in addition to the

application to amend, that Wall’s affidavit contained a Record of his Employment

with Greg Rudderham Water Systems Limited indicating his last day of work as

December 22, 1980. It indicated: “David is leaving our employ and travelling to

western Canada for employment or training”. His affidavit also outlines how he

arrived at December 4, 1980. He attributes the earlier date in 1979 to incorrectly

believing he had left Cape Breton for Alberta in the first week of January, 1980.

He said he still recalled the encounter as being 4-5 weeks before he left Cape

Breton. He also indicated the phone call with Chris Haney occurred on or about

January 1, 1981, and that he approached Cape Breton business persons in January

1981 to seek private investments.

[208] Counsel comments that on cross-examination, as of 1997, Wall had no doubt,

“... whatsoever that the hitchhiking encounter took place on December 4^th, 1980.”

He also admitted, counsel observed, that this date was “consistent with his

recollection that Doug Reeves was at the Peridot Tavern on the night of the alleged

hitchhiking encounter.” Counsel observes that upon being examined at discovery,

Reeves had confirmed he was not in Cape Breton in the fall or December of 1979.

Version 4 - December 1979 or December 1980

[209] In respect to Version 4, counsel, in his written submission, says:

This is the fourth version and it surfaced in July of 1998, in response to the

evidence of the defendants (which was filed on the application for security for

costs) that showed that the game, Trivial Pursuit, had clearly been created well

before December 1980. David Wall admitted on cross-examination that if the

game was already under development by the defendants before the alleged

hitchhiking encounter, he could not have been the one who came up with the idea.

As a result of the evidence of the defendants, he changed his story on the date

again. At this point (July 1998) David Wall still believed that the alleged

encounter took place in December 1980. His position was that if the defendants'

evidence on the development of the game was fraudulent, then he was sticking

Page 57

with the December 1980 date, but if the defendants' evidence was genuine, his

position was changing to the fall or December of 1979. It is significant that at this

point in July 1998, in the face of the evidence that the development of the game

was underway before the December 4, 1980 date of the alleged hitchhiking

encounter, he still believed that the alleged encounter took place in December

1980.

[210] In response to version 3, the defendants, had tendered evidence in July, 1998

at a hearing before Chief Justice Kennedy, suggesting the game was in development

during l980 and therefore well before any suggested “late 1980" hitchhiking

encounter. Wall testified that at the security for costs hearing he was still of the

belief the hitchhiking encounter took place in December 1980. He then continued:

Q.

And your either/or position was if it turns out that the defendants* evidence

is correct and that the game development was already underway in the

1980s or in 1980, and despite my belief I*m moving back to 1979.

A.

...

Correct.

Q.

And then by the time we get to discovery in July of 1999 you changed.

Correct? By July of 1999 you*re saying that the hitchhiking encounter took

place on November the 29th, 1979, correct?

A.

I believe I said something about the last week ... last couple

... last

week in November perhaps. At one point, perhaps, even got specific to a

number, yes.

Version 5 - November 29, 1979

[211] In respect to the 5^thand final version of the date of the hitchhiking encounter,

counsel for the corporate defendants asserts:

This is the fifth version and is the plaintiff's current position. By the time that

David Wall was examined for discovery in July 1998, his evidence as to when the

alleged encounter took place had changed again, to what is now his current

position, namely, November 29, 1979. David Wall's current position is that the

driver of the car was in Cape Breton to attend a high school hockey tournament

and had arrived a day late (the Cape Breton Metros high school hockey tournament

began on November 28th). Of great significance is the fact, as noted earlier, that

no reference was made to the hockey tournament when the first amended statement

Page 58

of claim was filed in July 1995, because at that point David Wall had no

recollections relating to the hockey tournament. In other words, his evidence

regarding this high school hockey tournament is based on recollections that

developed and grew at least 15 years after the alleged encounter.

[212] Counsel then references the evidence of Wall agreeing that at this time his

recollection of the hockey tournament and its role in the hitchhiking encounter

began to grow. Wall agreed he had a recollection by July 1999 that the “... driver

said he was getting here one day late.” He further agreed that his belief and

recollection that the driver was in Cape Breton for the hockey tournament continued

to grow between July 1998 and July 1999. By July 1999 he was tying “... the

hitchhiking encounter very strongly into the hockey tournament”. He also agreed

the tournament began on November 28 and, having the belief the driver was a day

late, he fixed the 29^thas the day of the encounter.

[213] Counsel for Wall does not appear to take issue with the submission of

counsel for the corporate defendant concerning the differing dates Wall has from

time to time suggested for the hitchhiking encounter, nor to the details as outlined in

counsels’ submission. In his oral submission, in respect to Wall having changed the

date of the alleged hitchhiking, counsel said:

The one thing that he was mistaken about in affidavits was when that occurred,

and literally my friends are right, if he became aware of information he would try

to rationalize and that in his mind. He originally felt he left for Alberta in January

of 1980, but when he realized that the work records...no, I didn’t go out in January

‘80, it was 1981, then we amended in good faith. Every time we became aware we

were inaccurate we did the right thing and tried...we amended to reflect what we

understood. Is that done in bad faith? I would submit not. That’s what you would

expect of an honest [litigant]..

[214] In one of his post-trial written submissions, plaintiff’s counsel suggested:

Although the date for the meeting was changed by the Plaintiff, it was done only

for the purpose of being as truthful as possible about the date of the meeting and as

Mr. Wall remembered more about the time period as this action progressed. In his

effort to be as accurate as possible, the Plaintiff felt it necessary to amend the date

of the meeting to reflect his honest recollections.

Page 59

[215] In a written submission, regarding the evidence of Reeves on the date, Wall’s

counsel stated:

Notwithstanding Doug Reeves has tried to be as accurate as possible, he may

simply be mistaken and does not recall being home in the late fall, early winter of

1979. Having heard all of the witnesses and knowing that Doug Reeves has

always been sure he was not home at that time, it is likely the case that he is

accurate in his recollection and David and Donnie are mistaken that he was there

on the first night.

[216] There is, of course, yet another possible explanation. Wall and Campbell

arrived at the Peridot in the fall of 1980, or later, not in 1979. This would be

consistent with the evidence of not only Reeves, but Campbell and Wall, earlier on,

that Reeves was in the Peridot Tavern when Wall and Campbell entered on the

night of the hitchhiking encounter. On all the evidence, the only certainty would be

that any hitchhiking encounter, subsequent to 1979, would not have involved the

individual defendant, Haney, since, on the uncontradicted evidence, the game was

under development by early 1980 and Haney was in Spain by November 1980.

[217] Defence counsel, on the other hand, suggests Wall, rather than recalling in

more detail specifics as to the date of the alleged encounter, is simply moulding his

evidence so as not to be in conflict with uncontradictable evidence tendered by the

defendants that would make Wall’s previous versions untenable.

C.

Wall’s Other “Evolving” Recollections

[218] The defendants suggest that in moulding his evidence, so as not to conflict

with unassailable contradictory evidence, Wall has testified to new recollections or

variations on old recollections. A number of instances are cited as demonstrating

Wall’s proclivity for changing his story so as to make it fit, or at least be not

inconsistent, with facts that are known and are uncontradictable.

1.

Doug Reeves

[219] On cross-examination by counsel for the corporate defendant, Reeves stated,

that if Wall was saying the night of the hitchhiking encounter and the following

discussion in the Peridot Tavern was in 1979, “I couldn’t have been there”. He

Page 60

confirmed that for the one year period from the summer of 1979 to the summer of

1980, he was not living in Cape Breton, and he agreed that he told “...Wall as

much.”

[220] During the course of his evidence, Wall testified the occasion when Reeves

was present at the Peridot Tavern must have been a later “mirror” meeting after the

original meeting in November 1979, which Reeves apparently had not attended. On

cross-examination by counsel for the individual defendant, Wall said:

Q.

And according to your evidence, there was a second meeting at the Peridot

Tavern in 1980.

A.

Q.

A.

Q.

A.

Correct.

And to use your words “It was virtually a mirror meeting to the first.”

Similar, the same topics were there, yes.

Well, would you agree with me, sir, that it was virtually a mirror image?

I stated that, I believe, yes.

[221] He then continued by saying Stott, Reeves, and possibly Mike Monahan were

present at the second meeting. He added that he couldn’t remember if Campbell

was present at this meeting. He said he could not recall Jerry Murphy being present

at either meeting.

[222] Reeves commented on the possibility of there having been two occasions at

the Peridot Tavern when the hitchhiking encounter was discussed, the first being on

the night of the encounter, when Reeves would not have been in attendance, and the

second being late in 1980, involving many of the same persons as well as Reeves.

Reeves, as earlier noted, said the occasion when he was in the tavern and Campbell

and Wall entered and spoke of the hitchhiking and Wall telling the driver of his idea

for a game, was the same day it had occurred. In addition, there is the evidence of

Campbell, who also said that the day he entered the Peridot and met Reeves was the

same day as the hitchhiking and the disclosure by Wall to the driver of his idea for a

game.

2.

The Hockey Tournament

Page 61

[223] Wall was examined in reference to his most recent version of the date of the

alleged hitchhiking encounter and his further “new” recollection that the driver’s

attendance was related to a metro hockey tournament held in November 1979, in

Cape Breton. Counsel for the corporate defendant notes that he did not recall this

recollection when he commenced the proceeding in 1994 and it appears to have

evolved since the hearing before Chief Justice Kennedy in July, 1998, when the

evidence presented by the defendants demonstrated the game was under

development during 1980, and therefore preceding any alleged encounter that may

have occurred in December, 1980.

3.

The Hockey News

[224] Wall confirmed that his original recollection was that a few months following

the alleged hitchhiking he had a discussion with George Munroe, the father of his

then-girlfriend, about the encounter. During the course of this discussion, Mr.

Munroe showed him a copy of the Hockey News that contained a photo of Haney.

He agreed his recollection subsequently changed, to the effect that George Munroe

had shown him a copy of the Hockey News that indicated Haney was in Cape

Breton for the hockey tournament, but there was no photo of Haney in the sports

newspaper. As counsel observes, in his written submission, Wall then further

changed his recollection to the effect it was not the Hockey News that George

Munroe had shown him but rather a piece of paper that indicated Haney was in

Cape Breton. As noted by counsel for the individual defendant, Haney testified he

has never worked for the Hockey News and he has neither taken pictures for it, nor

has his picture ever appeared in the Hockey News.

4.

The Driver from Westmount

[225] Wall said the driver, during the course of their conversation, indicated he was

from Westmount, Montreal. He recalled this, he said, because he himself resided in

Westmount, Cape Breton. Counsel for the corporate defendant refers to the

transcript of his discovery evidence where he acknowledged the recollection the

driver made a reference to Westmount, was not a recollection he had at the time he

started his law suit, but it had come later, since July 1998.

5.

The “Wagon Wheel”

Page 62

[226] Similarly, Wall in his evidence confirmed that his recollection that the words

“Wagon Wheel” were used in his discussion with the driver was a relatively new

recollection that had come to him in the last few years. He acknowledged it was not

a recollection he had, at the time of his discovery in 1999.

6.

Nana’s Blueberry Pie

[227] Also suggested by counsel for the corporate defendant as an inconsistency, is

the evidence of Wall in respect to the extent his concept for the game was fashioned

around his grandmother’s blueberry pie. Counsel notes that in evidence Wall said

that during the discussion with the driver, he was inspired by his “nana’s blueberry

pie”, to think of a suggested mechanism for scoring the game. Counsel for the

corporate defendant observes Wall acknowledged this could very well have been a

new recollection. He also comments that when Wall was cross-examined by

counsel for the individual defendant, his recollection then was that he had a “strong

memory right back to that time period”.

7.

Freddie Johnson’s Halloween Party

[228] The corporate defendant suggests that when Wall was discovered in 1999 he

had no recollection of a Halloween party having anything to do with the alleged

hitchhiking encounter or with his claim to have been the originator of Trivial

Pursuit. Counsel suggests this is also a recollection that came to him since he was

examined for discovery:

Q. Will you agree with me , Mr. Wall, that this is another relatively new

recollection?

A. That would probably be accurate, yes.

8.

The Time between the Hitchhiking Encounter and Wall’s First

trip West

[229] Counsel for the corporate defendant describes ss “incredulous” that Wall

would now say there was more than a year between the date of the alleged

hitchhiking and his travel out West, when previously he had indicated the time

period was some 4 to 5 weeks. Counsel notes this “new recollection” has arisen

since the hearing before Chief Justice Kennedy in July, 1998.

Page 63

[230] On the other hand, Wall testified that when he realized his employment

record showed he worked in Cape Breton until December 1980, he also realized his

travel out West was in January 1981 and not January 1980. Then, in view of the

evidence presented by the defendants as to the development of the game prior to

December 1980, he concluded the hitchhiking encounter had occurred in 1979. He

further realized, as a consequence, that the period between the hitchhiking

encounter and the travel out West was not four to five weeks, but rather, in the

order of a year plus four to five weeks.

[231] There does not appear to be any challenge to the evidence suggesting Wall

worked until December 1980 and travelled out West in January 1981. Similarly,

the evidence presented by the defendants as to steps taken in 1980 in the

development of the game are also unchallenged. Consequently, Wall is saying the

hitchhiking encounter occurred in 1979, he worked for another year in Cape Breton

and flew out West in January 1981. By itself there is nothing “sinister” or

“incredible” - having regard to the passage of time, and the information Wall

subsequently obtained about when he ceased working in Cape Breton - about his

finally realizing he was out a year as to the time period between the hitchhiking

encounter, and his departure to the West. Nevertheless, it is yet another

circumstance to be weighed with all the others, in assessing the credibility of his

evidence.

9.

The License Number of the Driver’s Vehicle

[232] Again, counsel for the corporate defendant suggests Wall’s evidence

recollecting the license plate number of the vehicle that picked him up was a new

recollection, in that at discovery he had no recollection of the license plate number

of the vehicle. On examination by his counsel, Wall said he had previously testified

to a recollection of the license place number, and he may have said the number on

discovery. On cross-examination, he suggested that at some point he had stated the

number on the record, acknowledging however, it may not have been when he was

being examined by counsel. He did agree, however, that his recalling the license

place number was a “relatively new recollection”.

10. The Date of the Phone Call

Page 64

[233] In 1999 Wall’s recollection was that the alleged phone call from Haney had

occurred on January 1, 1981. Counsel for the corporate defendant suggests at trial

he had a new recollection in that he had changed the date to his grandmother’s

birthday, December 10, 1980. In his evidence, he stated his belief:

... that phone call came in I thought it was the first week of 1981, or possibly back

to my grandmother’s birthday in 1980.

I do not see anything significant turning on this “suggested” inconsistency.

11. Donnie Campbell’s Role in Wall’s Evolving Recollections

(a) Gillis Lake/MacAdams Lake/Blacketts Lake

[234] Wall said that when he initially contacted Campbell to ascertain his

recollections of the hitchhiking encounter, he endeavoured to provide as little

information as possible so as to obtain Campbell’s own memories, uninfluenced as

much as possible by anything Wall was telling him. In these phone calls he asked

Campbell whether he had any recollection of when they had hitchhiked from Gillis

Lake or MacAdams Lake. Campbell had responded in the negative. Campbell

testified he subsequently recollected they had not hitchhiked from Gillis Lake nor

MacAdams Lake, but rather from the area of Blacketts Lake. It was at this point

that he called Wall and told him. This phone call occurred at some point in the

1990's and, according to Wall, awakened his recollection that in fact it was

Blacketts Lake and not as he had earlier suggested Gillis Lake or MacAdams Lake,

from which they had hitchhiked.

(b) The weather

[235] Also referenced in the written submission of the corporate defendant is the

evidence by Wall that his recollection of the weather on the day and night in

question was the result of his discussion with Campbell. Again, as with his

evidence as to the name of the lake from which the hitchhiking began, I am not

Page 65

satisfied that anything significant turns on his acknowledgment that his recollection

of the weather was awakened by his discussion with Campbell.

(c) Marie Bisson/Wayne Fennell

[236] Yet another “awakened recollection” resulting from his discussion with

Campbell, was Wall’s recollection of visiting the home of Wayne Fennell and

Marie Bisson on the day in question. Wall agreed that until Campbell called and

said it was Blacketts Lake, not Gillis Lake or MacAdams Lake, he had not

recollected they had been at the Fennell and Bisson residence. As with the other

“awakened recollections”, I am not satisfied that anything turns on the fact that

Wall acknowledges his recollection of this visit was awakened during his

discussions with Campbell.

(d) The Name “Haney”

[237] It appears it was Campbell, who first referred to the driver’s name as

“Haney” when he called Wall to tell him the hitchhiking was from Blacketts Lake,

not Gillis Lake nor MacAdams Lake. The name “Haney” had apparently not come

up in the earlier calls by Wall to Campbell inquiring on whether he recalled

hitchhiking from MacAdams Lake or Gillis Lake.

(e) Commentary

[238] I am not satisfied that this evidence represents some kind of “conspiracy”

between Wall and Campbell to designate an agreed lake as the area from which the

hitchhiking began; that makes no sense whatsoever. It is only Wall’s testimony,

together with that of Campbell, that even raises this issue. Apart from their

evidence, there is no way for the defendants, or for that matter, the court, to be

aware that at one point Wall had suggested Gillis Lake or MacAdams Lake rather

than Blacketts Lake as the area from which they had been picked up. Although

defence counsel makes much of this change in Wall’s recollection, I am not

satisfied that there is anything significant in it. Similarly the acknowledgement of

Wall’s “awakened recollections” that they had been at the residence of Marie

Bisson and Wayne Fennell, as to the weather on the night of the hitchhiking

encounter, and that Campbell first mentioned the name “Haney” for the driver, are

not particularly significant in resolving the issues at this trial.

Page 66

[239] If indeed Campbell and Wall were collaborating on the story they intended to

advance, it makes little sense that they would include in that story the fact that Wall

had not recollected certain events until informed by Campbell. Such an admission

is unnecessary and certainly does not add to the credibility of their story, as to what

occurred. Counsel for the corporate defendant has not advanced any reason or

motive for two collaborators to suggest the memories of one had only been

awakened as a result of a discussion with the other, rather than that they had each

recollected these events throughout the whole intervening period, from the alleged

hitchhiking to the date of giving evidence on discovery and in court. If there is a

motive or a reason that can be advanced, it was not been suggested during the

course of the trial or in counsel’s later submissions, and remains unknown.

D.

The Various Versions of the Hitchhiking Encounter

[240] During the course of the trial a number of witnesses testified to their

recollection of conversations with Wall in which he made reference to the

hitchhiking encounter. Three of these witnesses were called by the plaintiff and a

fourth by the individual defendant.

1.

Ted Van Overbeek

[241] Mr. Van Overbeek testified that from his conversation with Wall he

understood he had been hitchhiking alone when he was picked up by four

individuals. On the basis of a discussion with Wall he assumed Wall knew the four

individuals and that they were from Sydney or close to the Sydney area.

2.

Bruce Pitt-Payne

[242] Mr. Pitt-Payne testified that from a discussion with Wall, which occurred in

1983-1984, he understood the car was being driven by someone from the

Maritimes, which Mr. Pitt-Payne understood to be P.E.I., New Brunswick, Nova

Scotia and Newfoundland. He was also, he said, left with the impression from what

Wall told him, that Wall was familiar with the driver and knew him.

3.

Art Ells

Page 67

[243] Mr. Ells testified that from his discussion with Wall he understood the game

was put together when Wall was out West with a group of friends.

4.

Cameron Andrea

[244] Mr. Andrea testified that from his discussions with Wall he understood his

idea for a game had been stolen when he had been picked up hitchhiking in British

Columbia.

[245] The accounts given by these witnesses are to be contrasted with the evidence

of Wall that he was hitchhiking with Campbell and was picked up by a stranger

who drove them to King’s Road in Sydney River, where he stopped the vehicle near

the Irving Service Station, and there followed a discussion in which there was the

“virtual complete invention of the game”. This version is, albeit to a very limited

extent, confirmed in the evidence of Campbell, but is in sharp contrast to what

Messrs. Van Overbeek, Pitt-Payne, Ells and Andrea indicated was their

understanding from their discussions with Wall as to the circumstances of the

hitchhiking encounter and the disclosure of his concept for a board game based on

trivia.

E.

Wall’s Evidence on the Status of the Game Before and Immediately

Following the Hitchhiking Encounter.

[246] In respect to the extent to which a board game, based on trivia, had been

developed prior to the hitchhiking encounter, Wall testified:

Q.

Mr. Wall, I'd like to now focus on the game idea that you had before the

hitchhiking encounter. You gave evidence yesterday to His Lordship about what

you had conceived or thought of before the hitchhiking encounter. Do you recall

that?

A.

Q.

Yes, I do.

And I believe that you said that you had a belief that a trivia game similar

to Monopoly was a good idea. Correct?

A.

Q.

I did say that.

I believe you went further than that in your evidence yesterday as to what

you had before the hitchhiking encounter. Do you recall that?

Page 68

A.

Q.

Not specifically, no.

Is it the case, Mr. Wall, that prior to the hitchhiking encounter, all you had

was a belief that a trivia game similar to Monopoly was a good idea?

A.

. . .

Q.

I had that belief, yes.

Mr. Wall, does that assist you on this topic? And I'm going to suggest to

you again that prior to the hitchhiking encounter, you had absolutely no

idea how the game was going to be played.

A.

I did not have an idea of how the game was going to be played. That

would be correct.

[247] In his description of the encounter with the driver of the vehicle, Wall said

there was free flow of ideas resulting in the near complete invention of the game.

He suggested that 98% of the ideas were his and that the driver put on paper what

he outlined as to the concept and nature of the game. In fact, in reference to the

outline of the board, he said the driver had difficulty in understanding his concept

and had to re-draw the outline of the board on three occasions, before he was able to

represent on paper what Wall was suggesting. He said the only suggestion he can

recall from Campbell was the name of the game. Although he acknowledges the

driver participated in the discussion, he had no recollection of any suggestions made

by the driver.

[248] Counsel for the corporate defendant notes that Wall had no recollection of the

sequence in which the game ideas were discussed:

Q.

A.

Q.

Let’s focus on the chronology of the discussion. The first thing that's

discussed or one of the first things that's discussed is the shape of the

board, is that correct?

Well, as far as chronology goes, it came out in a generalized way, and I'm

not going to be 100 percent specific what point was first. But I can be

specific as to what points were covered.

So you at this point have no recollection of the order, just what the end

result was, is that correct?

Page 69

A.

Q.

A.

Just basically what the end result was and ...

And the end result was the near-completed invention of Trivial Pursuit.

And that would be correct.

[249] In his post-hearing submission counsel for the corporate defendant

summarizes the “purported recollection of the discussion and end results” as

testified to by Wall:

The sum total of David Wall’s purported recollection of the discussion and the end

results is listed below:

(a) David Wall suggested a pizza shaped or wagon wheel design, which the driver

sketched on the third try, although the reference to “wagon wheel” is a new

recollection that came to David Wall in the last few years. . . .

(b) Six categories were determined: history; geography; sports; science; movies;

and, t.v. The driver wrote these down on the paper with the drawing. . . .

(c) With respect scoring, he was inspired by his Nanna’s blueberry pie (although,

David Wall acknowledged that his recollection of being inspired by his Nanna’s

blueberry pie could well be a new recollection), and as to what was discussed:

A. Well, the specific term "pieces of the pie," I remember that distinctly,

and even travelling around the board answering trivia questions, travelling

to the center, and finishing. That was discussed

(d) Donnie Campbell suggested the name “Trivial Pursuit”. David Wall thought

there was a contradiction in the terms “trivia” and “trivial” and ultimately

suggested “Trivial Pursuit, the Game of Trivia”.

(e) The topic of the finished product and how it would look and be packaged was

discussed, but he cannot remember any of the details.

(f) There was a discussion about the ability to sell the game world wide, that it

was a game that would appeal to the masses and it was transferable to all

languages and cultures. There was also a discussion of generating a group of

investors to take the game to market, and generating enough money from that to

take it to the rest of the world, or possibly to take it to a reputable game maker, and

that the word “royalties” came up.

Page 70

[250] Counsel for the corporate defendant submits it is “not believable that the

man who claims to have conceived the idea for the trivia game, Trivial Pursuit, and

who supposedly came up with 98 percent of the ideas for the game that became

Trivial Pursuit, would not be able to recall the details as to how and why the various

aspects of the game were developed”. He suggests this is further confirmation of

the fact that the alleged hitchhiking encounter never occurred.

F.

The Lack of Documentary Evidence

[251] Notwithstanding reference to a number of written documents in the course of

his evidence, Wall was unable to produce at trial any documents relating to or

connecting Haney to the hitchhiking incident, or confirming his assertion that

Haney was present in Cape Breton in November 1979, or for that matter, at any

other time. Some of the potentially relevant documents that he alluded to are noted

by counsel for the corporate defendant in his post-trial submission:

a.

b.

c.

the business card received from the driver of the car which David Wall

claims he gave to Nelson Latimer (Nelson Latimer says it never happened);

the sheet of paper on which Brean Stott allegedly recorded the information

contained on the business card (Brean Stott has no recollection of this);

a piece of paper provided by George Munroe that supposedly showed Chris

Haney to be in Cape Breton (as discussed elsewhere in these submissions,

this is one of the changing recollections – initially it was copy of The

Hockey News that had a photo of Chris Haney in it; it then became a copy

of The Hockey News that showed Chris Haney as being in Cape Breton for

the Hockey Tournament; and it then changed again to David Wall’s current

recollection, namely a piece of paper that showed that Chris Haney was in

Cape Breton);

d.

e.

a list of names prepared by David Wall of some of the people contacted, or

to be contacted, in his search for investors in the game; and

a photo of Chris Haney in Joe MacPhee’s basement.

Page 71

[252] Further, noted by counsel, is the evidence by Wall of the “document” he

received from George Munroe and which he placed in an “accordion folder” where

he kept what he described were “important papers”. Counsel observes that Wall

said that once or twice through the years he had looked at it, but in 1993, at the time

he was “searching for the facts”, and presumably preparing for the law suit he

initiated in 1994, he went through the accordion folder and “inexplicably” threw the

document out.

[253] In respect to having thrown out the “document” he received from George

Munroe, he testified:

...

Q.

Correct? And as I understand it, at some point you believe you cleaned out

... in 1993, you cleaned out the expandable file folder.

A.

Q.

A.

Q.

Yes, I did.

In 1993, that*s the year before you start the lawsuit, correct?

It is.

It*s about the time when you*re really starting to put things into high gear

for your potential claim, correct?

A.

Q.

A.

Q.

A.

Q.

No, that*s a time period where I’d been searching for the facts, yes.

You were doing work on the case

I*m doing work on it.

... at that point, correct?

Yes.

And somehow you manage to go through your expandable file folder and

throw out the document that you got from George Munro.

A.

Yes, I did.

Page 72

Q.

A.

Q.

A.

And you have no explanation for why you did that.

My wife pestering me to clean it out.

But you looked at the stuff before you threw it out, though.

Yes, I did.

[254] In addition, there are the documents or papers his mother, Jessie Wall, said

she found in the ‘junk drawer” of his bureau which she threw out, believing they

related, in some way, to his work, but subsequently, in hindsight, believed they may

have related to Trivial Pursuit. At the time she thought they were drawings to do

with plumbing but later, while playing a game of Trivial Pursuit, believed that they

were sketches that bore a similarity to the game board. This is simply a further

example of where documentary evidence, alleged to exist, was destroyed, lost or

taken by others and not returned.

1.

The Business Card

[255] As earlier observed, Wall testified that before exiting the vehicle he was

handed a business card by Haney, on which Haney had written a telephone number.

He said he showed this business card to Stott who wrote down on a piece of paper

certain of the information on the card. He also testified that he had made notations

on the card during the phone call from Haney. He further stated that he had the card

with him when he visited Selma Doucet and later when he attended at the building

on Windsor Street, when it was taken from him by Nelson Latimer. He said he

attempted to retrieve the card on two occasions, realizing its importance, but was

unsuccessful.

2.

Commentary

[256] As already noted, both Stott and Selma Doucet testified to having no

recollection of Wall producing a business card from which they had taken down any

information and Nelson Latimer denied ever taking a business card from Wall.

[257] Certainly over the period of time that has now transpired, from the date of the

alleged hitchhiking to the date of the trial, it is not unexpected that some

documentary evidence that once existed would no longer be able to be located.

Also, in respect to the paper on which Stott allegedly recorded information from the

Page 73

business card and the photo in Joe MacPhee’s basement, these would be documents

Wall never had in his possession. However, it is surprising that at a time when he

was apparently “searching for the facts”, documents that may have confirmed some

aspects of his evidence were inexplicably thrown out.

[258] Also surprising is the absence of any documentary evidence confirming the

presence of some, or all, of the present and former individual defendants in Cape

Breton; any early efforts at documenting his idea for a board game on trivia;

perhaps most significantly, the business card he says the driver gave him; and the

document he received from Mr. Munroe which showed that Haney had been in

Cape Breton in the Fall of 1979.

G. The Offers of Money

[259] During the course of the trial there were two instances of evidence of Wall

suggesting to persons a potential for reward in the event he was successful at trial.

The first involved a suggestion to Campbell that his naming of the game could be

worth One Million dollars to him. Wall acknowledged he may have said to

Campbell, “I bet you this is worth a million dollars to you some day”. Campbell, in

reference to this suggestion of One Million dollars, testified to similar effect.

[260] The second instance involved the witness, Cameron Andrea. Mr. Andrea

stated he was told by Wall that if he had information and came forward, Wall would

make it worth his while, with a reference to “One Million”, either in money or

shares in a new company which apparently Wall would establish for the purpose of

marketing a new children’s game he had invented. Mr. Andrea testified he believed

he had no useful information for Wall in this regard. The offer was later repeated

during a telephone conference between Wall and Mr. Andrea.

[261] There is nothing in the evidence of either Campbell or Cameron Andrea, nor

of Wall, to support an allegation that Wall attempted to bribe either or both of these

individuals to give false evidence supporting his claim to have invented Trivial

Pursuit. In respect to Campbell, at most it was simply a statement that if his lawsuit

was successful, the naming of the game by Campbell could be worth a million

dollars. In reference to Mr. Andrea, there was no request to him to give false

information, but simply a statement that if he came forward with information that

was useful in sustaining Wall’s claim to have invented Trivial Pursuit, then there

could be a million dollars, either in money or shares in the new company. At no

Page 74

time did Mr. Andrea suggest he interpreted the offer as a bribe or an offer of

payment for him to give false information.

H. Wall’s Guarded Treatment of his Idea

[262] Wall said he essentially told no one of his idea for a trivia based board game,

until after the hitchhiking encounter. He recollected telling his girlfriend, her father

and his friend, Stott, but no one else, although, following the initial completion of

evidence, William Keough, came forward and testified that Wall told him about his

idea for a game called “Trivia or Trivial Pursuit”, while they were playing ping-

pong in his parent’s basement.

[263] Mr. Munroe was apparently never discovered and passed away before the

trial. Consequently, we do not have any recollection he may have had of any

discussions with Wall about his idea for a game based on trivia or in respect to

whether he provided information, in any form, to Wall suggesting or confirming the

presence of Haney in Cape Breton in November 1979.

1.

Keeping It From His Family

[264] Counsel for the corporate defendant says one factor suggesting these events

never occurred was the failure of Wall to tell his parents about the hitchhiking

encounter, his claim that Trivial Pursuit was his idea and that his idea was stolen,

until shortly before he commenced this lawsuit. Jessie Wall testified it was not

until 1993 she learned from Wall of his claim to have invented, “Trivial Pursuit”.

Wall acknowledged when he told them they were “cranky”, upset with him. He also

said he did not know why he had not told them earlier, adding ‘It’s a difficult

subject to talk [about]”.

[265] Although it is perhaps surprising that no one in his immediate family would

have known of his idea for a board game, it is hardly indicative that it could never

have happened. Considering his age during the period leading up to and following

the hitchhiking, I am not satisfied he is not to be believed because he did not tell his

family.

2.

Heidi Stevens (Munroe)

Page 75

[266] Ms. Stevens, then Ms. Munroe, was Wall’s girlfriend in the Fall of 1979. She

is one of the three individuals Wall testified to having told about his idea for a game

based on trivia; the others being Stott and Ms. Stephen’s late father, George

Munroe. In his evidence, he said he did not tell anyone else because of his belief it

was a great idea and he did not want anyone else to know about it. In his words, he

“had the next best game in the world” and was guarded about telling others about it.

[267] Wall said that in speaking to George Munroe he made a comment to the

effect that it was his belief that a “trivia-based board game would be a good game”.

Although not necessarily his exact words, he said this conveyed the idea he was

suggesting to Mr. Munroe and was the substance of his discussions with him that

occurred prior to the hitchhiking encounter. He said he did not have a separate

discussion with Ms. Stevens, but was of the opinion she would have overheard his

discussion with her father, because as he walked through the kitchen she had made

a comment to the effect that, “So you’re going to invent a game”.

[268] Wall stated that later, in another discussion with George Munroe, Mr.

Munroe indicated understanding that Haney had been in Cape Breton for a hockey

tournament. He said, as earlier noted, that he previously believed that Mr. Munroe

had given him a copy of the Hockey News, or a page from it, that contained a photo

of Haney. Wall later recalled there was no photo and that the sports newspaper only

contained a reference that indicated Haney was in Sydney during the relevant

period. He could not recall specifically the nature of the reference to Haney. Still

later, he recalled what he received from Mr. Munroe was not from the Hockey

News, but was the piece of paper he had placed in his “accordion folder”.

[269] Ms. Stevens said she dated Wall for a period in 1979 and 1980. She could

not recall any discussion with him about his interest in trivia, nor any discussions

Wall had with his friends about trivia questions, trivia and horoscopes, or his belief

that trivia and horoscopes would be a good basis for a board game, nor of his

intention to invent a game. She denied every saying to him, “So you’re going to

invent a game”, and denied overhearing any conversation between Wall and her

father on this topic. She also had no recollection of Wall saying anything to her

about hitchhiking with Campbell nor of overhearing him say anything along these

lines to her father. She said her father never said anything to her about having such

a discussion with Wall.

Page 76

3.

Brean Stott

[270] Stott was the only other person Wall said he told about his idea for a game

based on trivia, prior to the day of the hitchhiking encounter. After referencing his

discussion with Heidi Stevens and her father, Wall then testified.

A.

And the only other time I recall having a conversation about it was with

Brean Stott, and that would have occurred at the Peridot Beverage Room.

Q.

A.

Did ...

It’s just my observation and belief that I believed that trivia would be a

good board game.

Q.

A.

Do you recall the approximate time that was done?

Well, in order for it to happen at the Peridot Beverage Room, it had to be

after May of ‘79. That was ...

Q.

Because of your earlier evidence that you weren’t in the Peridot before you

turned 19.

A.

Q.

Correct.

Okay. And do you remember whether you told George Munro first or

Brean Stott first?

A.

Q.

I couldn’t specify which at this point.

Fair enough. Why were you thinking of a board game for trivia as opposed

to another media to express that interest?

A.

That was just my personal belief at the time. It ... that was ... at that time,

that was my understanding of ... my personal knowledge of a board game

and how I envisaged it at the time, was something along the lines of a

Monopoly game.

Q.

A.

Okay. To your knowledge, did you tell anyone else about your observation

for a board game?

Not that I recall.

Page 77

Stott said he has no recollection of such a discussion with Wall.

4.

William Keough

[271] William Keough testified that he met Wall through school friends, when he

was a student at Riverview High School, but they hung out together and played

ping-pong primarily after Mr. Keough finished high school. He said he and Wall

spent a great deal of time together over a span of up to six months, but perhaps for

as little as two or three months. During this time, they often played ping-pong in

Mr. Keough’s parents’ basement. According to Mr. Keough’s testimony Wall

spoke of his idea for a game based on trivia at least twice during these games . The

two occasions were, according to Mr. Keough, within a short time of each other,

within a week or weeks of each other. Mr. Keough said these discussions about

Wall’s idea were brief, each lasting one or one and one half minutes. The first time

Wall talked about the game he said “it’s gonna be huge”. He said the first time

Wall mentioned the game, when he used the word “huge”, he might have also

referred to it as a “board game”, but he was not certain of this, saying Wall might

only have used the word “board” the second time he spoke of the game. In neither

case did Wall elaborate on the details of the game. The second time, however, he

referred to it by the name, “trivia or trivial pursuit”.

[272] Before he and Wall became friends, William Keough had been to Alberta

once, then returned to Cape Breton to take several courses during the 1978-79

school year, during which it appears from his school records he was in school the

entire school year. Mr. Keough testified he went to Alberta again after that school

year. Brian Keough stated that when he arrived in Edmonton, Alberta on August 9,

1979, his brother William was already there. Brian also said he and his brother

spent Christmas 1979 in Edmonton. It, therefore, appears that William Keough

would have travelled to Edmonton, for the second occasion, sometime between

June 1979 and August 9, 1979.

[273] In a statement Mr. Keough gave to the Plaintiffs’s counsel, shortly before he

gave evidence at trial, he appeared to have no doubt that his ping-pong games with

Wall occurred when he was in Cape Breton, after returning from his first period in

Page 78

Alberta, in the summer of 1978 and before going West again at some time on or

before August 9, 1979. He said:

KEOUGH:

Well that would have been, like I say, 78/79 - probably I’d say the

summer of 79, more than likely. Dave and I used to play a lot of

ping pong in my parent’s place. We’d play 35-40 games a day, ah,

when not in school. When I wasn’t in school. And ah, I just recall

him talking to me and saying you know ‘Keough I got this, I got

this thing, I can’t tell you about it’ he said ‘but it’s gonna be huge’.

Um, he didn’t really elaborate. And he just said, he’s got a, you

know, he said, I can’t say nothing, I gotta keep it under my hat right

now. Um, as we’ve, I remember distinctly at the bottom of my

parents’ stairs, um, him telling me this and then my response was

‘Dave, you need to get a patent or a lawyer and get into some legal

avenue that’s gonna protect you’ ...

[274] Later in the statement, the following appears:

MACDONALD:

KEOUGH:

So this goes back to 79 sort of time frame.

Yes.

MACDONALD:

Do you remember where you were in your high school year,

like, whether or not you were into the new year or if it was

before Christmas or after Christmas that this occurred?

KEOUGH:

Boy I’d have to think about that. Um, if that was 79, it

would have to be, I would think before Christmas. I’m

guessing at that.

MACDONALD:

KEOUGH:

Okay. Or could it have been 79/80 year and you could have

been early, into early 80 or something like that.

Ah, that’s possible.

[275] After the statement is concluded, the recording and transcript is restarted with

counsel’s comment that “one of the things you just recalled was that you said you

spent a lot of time with David [Wall] and one of the things is you recall at the time

you were spending with him he had just broken up with Heidi”. Mr. Keough

responded by describing himself and Wall going for drives in the evening,

Page 79

sometimes going by her house, and said, “they had broken up and Dave was very

unhappy with it.” He added:

KEOUGH:

I’m not sure on the time frame of that.

MACDONALD:

So, so the, when he told you what you’ve described earlier,

the occasions when he told you about his invention going to

be big, and it was a board game, and the name was Trivia or

Trivial Pursuit - that was after he had broken up with Heidi

and before you went out west, is that, is that fair.

KEOUGH:

I would say that’s fair. I would say that’s fair. Um, it

would all be around that time. Everything would be around

that time. Um, I haven’t actually sat down and tried to pin

point times on it but I can remember ah, pretty much the

same time him and Heidi had broken up and he took it pretty

bad type of thing.

5. Commentary

[276] Ms. Stevens and Stott have no recollection of Wall telling them of his idea

for a board game based on trivia. Also, Ms. Stevens says her father never

mentioned to her that Wall had told him of his idea.

[277] Mr. Keough, on the other hand, says he recalls two occasions while playing

ping-pong with Wall that he referred to his idea for a game, saying on the first

occasion it was “gonna be huge” and on the second attributing the name “trivia or

trivial pursuit”. However, there is a complication in the timing of Mr. Keough’s

ping-pong games with Wall. He testified that these occurred after Wall and his

girlfriend Heidi Munroe (Stevens) broke up; the evidence of both Ms. Stevens and

Wall was that this occurred in 1980. Wall said it happened around the time she

graduated that year. As such, if the second conversation over ping-pong, in which

Wall mentioned the name of the game occurred after the breakup, it was almost

certainly in 1980; Wall himself went to Alberta early in 1981.

[278] Plaintiff’s counsel submits that, based on the timing of the breakup, “the

discussion with Mr. Kehoe [sic] was after the meeting with Mr. Haney and before

Mr. Haney’s phone call”. While the Plaintiff refers to the 1980 dating of the

breakup as “unrebutted”, the individual defendant submits that “just the opposite is

Page 80

true”, apparently on the basis that Mr. Keough was “in Alberta throughout the entire

year of 1980 and did not return to Nova Scotia at any time during that period of

time.” The latter statement is incorrect, as neither William nor Brian Keough

excluded the possibility that William made one or more trips to Cape Breton in

1980. William Keough testified that when he went West the second time, in 1979,

he remained there for three years, returning to Nova Scotia in 1982. He believed

that he visited Nova Scotia periodically during that period, and remembered making

several airplane trips, possibly between two and four. At trial he suggests that one

or more if those visits might have been for an extended period; on discovery he

stated he did not remember returning for as long as a month during that time. His

brother, Brian Keough, did not know if he had visited Cape Breton in 1980, saying

he did not know whether William Keough was in Cape Breton “during the summer

of 1980". It is clear, however, that if Wall’s reference to “trivia or trivial pursuit”

was after he broke up with Heidi Munroe, that is, in 1980, it must have been during

a visit home by Mr. Keough.

[279] William Keough’s evidence is that at least the second, if not both discussions,

with Wall occurred after his breakup with Ms. Stevens, and on the evidence that

would be sometime after approximately June 1980, Abbott acknowledged that there

was no way for Wall to have known the name “Trivial Pursuit” before it went to

market:

MACDONALD:

... from your way of thinking there is no way Mr. Wall could

have known Trivial Pursuit before it was on the market,

correct?

ABBOTT:

Absolutely none.

However, if Mr. Keough’s evidence at trial is accurate, then Wall referred to his

own game idea as “trivia or trivial pursuit” at some point during 1980, and most

likely between June and December.

[280] Is Mr. Keough confused, mistaken or fabricating? Certainly there are

inconsistencies as to when the ping-pong games and accompanying discussions

occurred. At times in his initial statement, at least before the break in the statement,

it appears that they took place before Wall’s hitchhiking encounter, and therefore

prior to the naming of the game. His evidence later in the statement and at trial,

however, was that it was after Wall’s breakup with Heidi Munroe, which could only

Page 81

be in 1980, and after the suggested hitchhiking incident, and after Mr. Keough went

to Alberta the second time. If the latter is the case, I must assume that it occurred

while Mr. Keough was in Cape Breton for a short visit.

[281] Additionally, even if it was 1980, it would still have been before Reeves says

the hitchhiking encounter occurred, before Campbell calculates it occurred based on

the marriage of Mr. Fennell and Ms. Bisson, and before Mr. Fennell calculates the

break-in occurred, based on when he moved out of his house in Blacketts Lake.

The evidence of Reeves, Campbell and Mr. Fennell cannot be reconciled with Mr.

Keough’s trial evidence that Wall used the title “trivia or trivial pursuit” in a

conversation before December 1980, at the earliest. Unless Reeves, Campbell and

Mr. Fennell are in error in their recollections, Wall could not have referred to “trivia

or trivial pursuit” until December 1980. A further possibility is that Mr. Keough

has inadvertently conflated a reference by Wall to a game based on “trivia” with the

later publicity given to “Trivial Pursuit” and to Wall’s legal claim.

I.

Failure to Follow Up with Reeves and Campbell

[282] Counsel for the corporate defendant suggests it is “inconceivable” that Wall

would not have discussed with Reeves or with Campbell anything concerning

Trivial Pursuit or the alleged hitchhiking encounter for well over a decade. Counsel

refers to the evidence of Reeves and Wall, acknowledging their friendship and

confirming they lived together in Alberta on at least two occasions, as well as

visiting each other from time to time.

[283] On the evidence, it appears that Reeves was living in Cape Breton from the

summer of 1980 until May 1981. Until January 1981, both he and Wall were

living in Cape Breton. Additionally, when Reeves went to Fort Saskatchewan in

May, 1981, he and Wall apparently shared an apartment for a few months, until

Wall returned to Cape Breton later that year. When Wall returned to Fort

Saskatchewan in September 1981, he apparently lived with Reeves until he moved

to British Columbia. Wall returned to Fort Saskatchewan in early 1982 for a few

days to pick up belongings that he had left at Reeves’ apartment. Apparently at this

point Campbell was living with Reeves and Wall, Campbell and Reeves were thus

in the same residence for a brief period. In early 1984 Reeves visited Wall in

British Columbia and stayed with him for at least a few days. In October 1985,

Reeves went to British Columbia, again to visit Wall and to attend a Bruce

Springsteen concert. In 1989 Reeves brought his girlfriend to Cape Breton for a

Page 82

visit and saw Wall. Campbell was also in Cape Breton at this time and Reeves

visited him as well. Shortly before the law suit started, apparently in either 1993 or

1994, Wall called Reeves and it was only at this time he told him that Trivial

Pursuit was his idea and that he was the true inventor.

[284] Despite the various occasions when Wall met with or was resident with

Reeves and/or Campbell, the evidence of the three appears consistent that the events

surrounding the alleged hitchhiking and creation of the game were not discussed

until, in the case of Campbell, in 1989, when Wall first called him and asked if he

had any recollection of their hitchhiking from MacAdams Lake or Gillis Lake, and

in the case of Reeves, in 1993 or 1994, when Wall called him. As noted, counsel

for the corporate defendant suggests it is “inconceivable” Wall would not have

discussed with Campbell the events in the car on the night of the hitchhiking

encounter. Similarly, counsel suggests, it is “inconceivable” he would not have

discussed these events with Reeves since he was the person he had always

recollected being in the tavern when Campbell and he had left the car and entered

the Peridot. Wall testified that, at one time, he had believed Reeves was in the

Peridot when Campbell and he entered after the hitchhiking encounter. Counsel

says Wall’s failure to discuss these events with Campbell or Reeves is surprising,

particularly in view of Wall’s evidence that in the first week of January 1981, he

was sharing details of these events with complete strangers, during the period he

was supposedly looking for investors, following the call from Haney.

J.

Uncorroborated Events

1. The Incident at Smooth Hermans

[285] Wall testified to an incident at Smooth Hermans Bar and Restaurant in

Sydney, Nova Scotia when Stott, Gary Lewis and Art Ells were present. On cross-

examination by counsel for the corporate defendant, he said:

Q.

A.

What*s your recollection of what happened on that occasion?

Brean Stott, we were having a conversation. For whatever reason,

something must have happened that got him a little cranky at me. He asked

me if I had any new inventions, that the first one was doing pretty good.

That*s what Brean Stott was referring to me. Whether it was Gary or Art

across the aisle from where we were speaking, he had told Brean to be

quiet. I believe it was Art. And Brean once again asked me did you have

Page 83

any new inventions, Wally, or something along those lines, in which case

they just simply took him and left with him.

Q.

And you think that Brean Stott might have been ready to talk to you in a

little bit of detail about Trivial Pursuit, correct?

A.

...

He was certainly open to conversation at that point, yes.

Q.

In any event, you believe that they yanked him out of there so that he

wouldn*t talk about it any more.

A.

Q.

A.

Q.

A.

Q.

A.

Q.

That*s my belief, yes.

He was close to spilling the beans.

Well

Correct? That*s your belief.

He certainly had knowledge and wanted to talk about it.

And they, you believe, took him out before he could say anything.

They left with him.

For that reason, correct? That*s your belief.

It wouldn*t surprise me, no.

A.

[286] And on cross-examination by counsel for the individual defendant, he agreed:

Q.

A.

They wanted to muzzle him and get him out of there in other words.

Correct.

[287] Stott testified he could not recall an incident at Smooth Hermans when Wall,

Gary Lewis and Art Ells were present and he asked Wall if he had invented

anything new, “as the first one had done very well”, and was then hauled off by Mr.

Page 84

Lewis and Mr. Ells. On cross-examination by counsel for Wall he agreed that on

discovery he had been asked about an incident at Smooth Hermans and he replied

he could not remember. He repeated that it could have happened; he was not

saying it did not happen, only that he did not remember it.

[288] Art Ells, who Wall says was also present, said he is familiar with the Smooth

Hermans Beverage Room and that Gary Lewis is a friend and he knows Stott. He

stated he had no recollection of being at the Smooth Hermans with Mr. Lewis and

Stott together. He said he has no recollection of Stott coming in and asking,

“Wally, have you come up with any new inventions?”,after which he and Mr. Lewis

removed Stott from the bar. He said he has no recollection of removing Stott from

Smooth Hermans. He added, however, that he may have done so, but he has no

such recollection.

[289] William Keough testified Wall had asked him on a number of occasions,

what he knew about an incident at Smooth Hermans, to which he had replied he had

no recollection of anything out of the ordinary. He testified to an occasion when he

was at the home of a friend, Kevin Carrigan, when Wall was also present. During

the evening there was an incident and one of the persons in attendance, Kelly

Mahoney, was asked to leave. Eventually the remainder of the group ended up at

Smooth Hermans with Wall, in the words of William Keough, “going one way and

him another”. He said he does not remember seeing Stott and was not privy to

anything out of the ordinary happening on that occasion. This he interpreted to be

the occasion that Wall was referring to when he asked him if he remembered an

incident involving Stott at Smooth Hermans, and to which he had responded in the

negative.

[290] This is simply one of a number of incidents testified to by the Plaintiff, or one

of his relatives, that is neither confirmed nor corroborated by the other persons

allegedly involved in the event or incident. Although again not directly related to

whether the hitchhiking encounter between Wall and Haney ever occurred, it is

nevertheless one more consideration in assessing the credibility of the witnesses

and, in particular, the Plaintiff’s witnesses.

2. Workers’ Compensation Records

[291] Wall testified that at the time of the hitchhiking encounter, he was injured

and receiving Workers’ Compensation.

Page 85

[292] Evidence of two claims by Wall for Workers’ Compensation were

introduced, one relating to an accident in December 1978, and the second in

October, 1980. There is apparently no record of a Workers’ Compensation claim

by Wall during the period of November and December, 1979.

3. The Sightings

[293] The Plaintiff, together with his mother and sister, testified to a number of

different occasions in the 1980's and 1990's when they say they saw one or more of

the present and former defendants in Cape Breton. In some instances, they testified

to sighting one or more of the defendants by themselves and, on other occasions, in

the company of other residents of Cape Breton. The various defendants who are

identified by the Plaintiff, his sister and mother, as having been in Nova Scotia

during these periods, all denied that such was the case. Additionally, many of the

residents of Cape Breton who were allegedly seen in the company of one or more of

the defendants, testified and denied that they were in the company of the person

with whom the plaintiff, his sister and mother alleged they were seen, and each

stated that they had not met any of the defendants.

[294] Wall said he was introduced to J. Haney and Haney in the back yard of his

neighbour, Charles Mahoney. He also testified to an occasion when Mr. Mahoney

had driven himself and Reeves from the Yacht Squadron to his home during which

a conversation had occurred in Mr. Mahoney’s vehicle. Mr. Mahoney denied that

Haney or J. Haney were ever in his back yard, and said he could not recall an

occasion when he had driven Wall and Reeves from the Yacht Squadron, and

during which he had asked Wall what he wanted from “these guys”. He said he did

not recall such an incident.

[295] Another resident of Cape Breton, who was alleged to have been in the

company of some of the present and former defendants, is Hugh Lynch. He

testified he has never met any of them nor ever told anyone he has met any of them,

nor socialized with them at his home or at his cottage in Ingonish, Cape Breton.

[296] Mrs. Wall testified to observing at the Country Classic Restaurant in Cape

Breton, a person she later recognized, at a court hearing in Halifax, as Jim Ware and

said she was told by Janet Lewis, that also present, were Abbott and Stott. Ms.

Lewis testified about the sighting of Mr. Ware in the Country Classic Restaurant, as

Page 86

well as observing Stott and Abbott at the same time. Abbott denied ever being in

the Country Classic Restaurant. Stott said he does not know any of the present or

former defendants, or James Ware, and further that he has never been in a restaurant

with any of them.

[297] Mr. Ware, in the transcript of his discovery evidence dated June 20, 2001,

tendered by the plaintiff at trial, said he had been “once” to Cape Breton, in March

2000 to attend a pre-trial application in this proceeding. He was never asked if he

ever visited the Country Classic Restaurant, alone or with Stott and/or Abbott in

1998, prior to attending the Court hearing before Chief Justice Kennedy. However,

in view of the above response to plaintiff’s counsel on discovery, it is clear his reply

would have been in the negative, if had been asked.

[298] A number of other witnesses, including Robert MacNeil, Bruce MacKay, and

Deborah Kirkpatrick, testified that evidence of their being sighted in the presence of

any of the defendants was incorrect, and that they had never met any of them. Also

read in was the discovery evidence of Doug Miller and Herbert Hines, similarly

denying they had ever met any of the defendants, in whose company they were

alleged to have been sighted by the Plaintiff, his sister, Janet Lewis, or his mother,

Jessie Wall.

[299] The sightings, of themselves, are alleged to have occurred long after the

marketing of Trivial Pursuit. As such, whether any of the defendants were ever in

Cape Breton, and whether they were in the presence of any other residents of Cape

Breton, is not particularly germane to a determination of whether Wall

communicated to Haney, in confidence, his idea for a game based on trivia.

However, Wall, as well as his sister and mother have testified to these sightings.

The defendants, as well as a number of residents of Cape Breton have denied the

substance of the sightings, as alleged, and the present and former defendants have

testified they do not know nor have they ever been in the company of the persons

with whom they were alleged to have been sighted. This evidence, therefore, goes

only to the issue of credibility. The meeting between Haney and Wall could have

occurred whether or not the present and former defendants were ever subsequently

in Cape Breton in the presence of any of the local residents with whom they are

alleged to have been sighted by Wall, Jessie Wall and Janet Lewis

Page 87

VI THE DEFENDANTS

A. The Present and Former Individual Defendants

1. Edward Werner

[300] Werner testified he is a lawyer by trade, having been called to the Bar in

1977. He practiced law in St. Catherine’s, Ontario. He first met Haney while

playing hockey at Colgate University on a team in which J. Haney was the

goaltender. Occasionally Haney would come to visit J. Haney and he would meet

Haney on some of these occasions. In December, 1979 he was contacted by J.

Haney to attend a meeting in Toronto. At the meeting, Haney explained his idea for

a game he had developed and unveiled a “mock-up” of the proposed game. Werner

understood from the meeting that Abbott and Haney had put the game together.

[301] At the conclusion of the meeting, Werner understood he was being given an

opportunity to become involved, although the nature of the involvement was not

fully discussed. There was no formal commitment, but on their way back to St.

Catherine’s he discussed the opportunity with his wife, Barbara, and ultimately the

decision was made that it was worth pursuing. One of the questions he was asked at

the meeting was whether there was anything in the nature of intellectual property

that should be protected. Werner took it upon himself to locate a patent firm in

Ottawa and arranged for Haney and Abbott to attend at the offices of Julian Swann.

Mr. Swann, on their behalf, contacted a law firm in the United States to conduct

patent searches. As a result of these searches, it was determined the game board

could not be patented, as there were already a number of patents granted for boards

that had some similarity to the proposed Trivial Pursuit game board. There were

also some similarities with the proposed playing pieces and the use of questions and

answers. As a consequence, it was suggested they could not patent the board, the

playing pieces or the cards on which the questions and answers appeared. They,

nevertheless, decided to proceed. However, they applied for and were eventually

successful in obtaining industrial design protection on the game board and a

trademark for the name “Trivial Pursuit”. The only copyright they were able to

obtain was for the “Rules of Play and Cards”.

[302] On March 28, 1980 Werner arranged to register a partnership comprising

Haney, Abbott, J. Haney and himself under the name “Trivial Pursuit”. From this

period Haney was involved in determining how to produce the game. In May,

Page 88

Haney committed himself full-time, having resigned from his position at the

Montreal Gazette. At the same time, the others worked on questions and conducted

related research in their spare time. It was decided that in order to proceed with the

initial production they would need investors, and Werner drew up letters of intent

which required investors to make a deposit, and providing options for additional

investment as the project went ahead, in exchange for which they would receive

shares. He testified that none of the people contacted were residents of Cape Breton

or Nova Scotia. The original Letter of Intent provided for a deposit of 10% with

options in blocks of $1,000. The first Letter of Intent was signed in September,

1981.

[303] Werner also testified that Haney and J. Haney decided to go to Spain during

the winter of 1980 - 1981. It was contemplated they would use the time in Spain to

work on questions for the game. They left at the end of September, or the

beginning of October, with Haney returning to Canada near the end of March or

beginning of April.

[304] Horn Abbot Limited, the corporate defendant, was incorporated April 6, 1981

and Werner assumed the title of President. The first shareholders’ meeting was held

on January 23, 1982, at which time those in attendance were brought up to date on

the status of production and marketing of the game.

[305] Werner outlined the steps in financing, producing and marketing the game

that occurred during the period following the first shareholders’ meeting. He said

James Ware, a lawyer who had provided them with tax advice, joined the corporate

defendant in October, 1984. Mr. Werner was President and Chairman of the board

at the time, and remained in that position until replaced by Mr. Ware, approximately

a year later.

[306] There had been no discussion of any Cape Breton or Nova Scotia connection

or involvement at any time. Werner said he first heard the name “David Wall”

when he received a call from Wall in 1994. He testified that his secretary called

him and said there was a Dave Wall on the phone. He had played hockey with a

Dave Wall and assumed that was the person who was making the call. When

Werner picked up the phone, the caller said he was Dave Wall from Nova Scotia

and asked whether any of the partners had mentioned his name. He described the

conversation as going “sideways” and that the caller kept saying Trivial Pursuit was

his idea. Werner thought, on the other hand, it was someone who had an idea that

Page 89

could be attached to the game, as had happened on some previous occasions. He

asked the caller if he wanted to call the head office of the corporate defendant and

the caller responded “No, no, thank you.” Werner called Mr. Ware and asked if he

had heard of this person, to which he received a negative response. He commented

to Mr. Ware that he may hear from him in the future. In the end, the caller never

called back and apparently Mr. Ware never heard from him.

[307] Approximately three weeks or a month later there was a message on

Werner’s answering machine. He did not connect the message to Wall because the

caller did not give his name. The message, the tape of which he retained, has the

caller saying he is the person who laid the “golden egg” and that there were backers

in Nova Scotia. There were three phone numbers where he could be contacted.

Werner said the message was somewhat frightening and startling and he had his

secretary transcribe the tape. He contacted Mr. Ware and sent him the transcript.

They decided to obtain legal advice.

[308] In respect to the suggestion he had business interests in Cape Breton, Werner

testified that he had no such interests and as far as he knows, none of the other three

partners had any such interests. He had never indicated to anyone that he had any

interests in Cape Breton and has not attended any boat races or “poker runs” adding

that prior to seeing a letter referring to “poker runs”, he did not know what a “poker

run” was. He had not been to Cape Breton, has no connections to the area and had

never said or done anything to suggest otherwise. He further testified that he had

never been on a private plane that landed in Sydney, nor had he ever had an interest

in a Holiday Inn in Cape Breton.

[309] Werner described being attracted to Haney, who he said had a “magnetic

personality”. He said he brings out the best in people, develops friendships easily

and when he enters a room, he fills it with his presence. He describes Abbott as

having a similar personality, but quieter and said it is their personalities that drew

him to them. He said he had developed the utmost respect and trust for Haney. He

says everyone who has dealt with Haney has been treated fairly and that the joy for

Haney has been his ability to share his success with others.

[310] On cross-examination, Werner agreed he had felt Wall was involved in a

conspiracy with others and believed that Wall had “mental problems”. He said this

conclusion was based on the confusing nature of the call from Wall . He agreed

that Wall was civil in his demeanor, adding “yet confusing”. He found it strange

Page 90

that at the end of the call, when he asked Wall whether he would like to contact

head office, he received a negative response. At the time he had wondered about

the purpose of the call, although he agreed with plaintiff’s counsel that he has a

different understanding of the call today, in view of what he has subsequently

learned. On cross-examination, he repeated he has never been to Cape Breton

although he agreed there might have been someone there who looked like him and

there could be a case of mistaken identity. He added, however, when you have the

number of witnesses who have said they have seen one or more of the present and

former individual defendants, “it means they are working hard to be helpful to

Wall”. On cross-examination, he further repeated that the suggestion Haney stole

the idea from Wall is “alien” to him. He said he has never asked Haney directly,

adding it would be too ludicrous to have asked Haney if he had stolen the idea from

Wall.

2.

John Haney

[311] J. Haney is also one of the former individual defendants. He stated that apart

from a visit in 1972 he has never been in Cape Breton. Counsel asked him to

respond to each of the alleged sightings of him, by Wall and by members of his

family. He testified he did not know Doug Miller, had never been in Broad Cove

campground, had never been in Charles Mahoney’s back yard, and had never been

present in any place where someone had said “thank God for Trivial Pursuit” and

someone else had responded “no, thank him”. He had never been on a seadoo and

had never been at Black Brook Beach. He did not know Deborah Kirkpatrick or

Deborah McSween and had never dined with her at the Coastal Waters restaurant.

He had never heard of the Coastal Waters restaurant, nor had he been in it. He did

not know Hugh Lynch. He said he believed Ingonish is located in Nova Scotia, but

that he had never been there. He had never been in any dwelling owned by Hugh

Lynch and the name James Kehoe did not mean anything to him. He did not know

where St. Peter’s is nor where a Mr. Kehoe’s house in St. Peter’s is located. He did

not know Stott. He had never golfed in Cape Breton. He had never flown in a

private plane that landed at the Sydney Airport. He had never been at the Sydney

Casino, adding he did not know that Sydney had a casino. He had never been in a

red car in Sydney with Abbott and his brother. He had never dined at Ziggy’s

Restaurant in Sydney, adding he had never heard of “Ziggy’s Restaurant” . He said

the name Robert MacNeil had no significance and he has never heard of Swartz

Furniture. He has never purchased furniture from a Mr. MacNeil to be delivered to

any place in St. Peter’s.

Page 91

[312] J. Haney said he attended Colgate University, where he played hockey, from

1966 to 1970. After tryouts with National Hockey League teams, he received an

offer to play in Austria, and did so for two years. He then played for two years in

Denmark, finishing his career in Denmark in 1978. He had never heard of the Nova

Scotia Voyageurs, nor did he ever play for a team called the Voyageurs. He had

never played professional or amateur hockey in Nova Scotia.

[313] In the Fall of 1979 J. Haney was living at his mother’s home in Toronto. His

brother, the defendant Haney, was living in Montreal with his wife, Sarah Haney.

They had a son. Haney worked at the Montreal Gazette as a photo editor. He

testified that in November, 1979 he did not know where Haney would have been,

other than that he was working at the Montreal Gazette and taking care of his child.

[314] J. Haney said his brother phoned him and said he and Abbott had come up

with a game and asked if he would he be interested. He was, because he was not

doing anything else at the time. He called Werner and asked if he was interested.

He believed that if it was going anywhere, they would need a lawyer and he had

known Werner since university. He testified to the meeting at his mother’s place on

January 5, 1980, attended by Werner, his soon to be wife, Barbara, Haney, Abbott,

himself and perhaps his mother. The purpose of the meeting was to show the game

to Werner and himself.

[315] During the previous Christmas holidays, J. Haney said, he and his girlfriend

had gone to Montreal to visit Haney. During this visit he had found out the name

and concept of the game. They played a version of the game, as best they could in

the circumstances. Haney, his wife Sarah Haney, her parents and he and his

girlfriend had played. He identified the cardboard mock-up that was used. He was

directed by plaintiff’s counsel to where the original drawing of the circular spaces

on the mock-up board were covered over by white. He said he had no idea if the

“roll again” feature that became part of the game was present at the time, but agreed

that the version that appeared to be underneath the white paper did not have the

“roll again” feature. He said Abbott came up with the idea of the “roll again”

feature.

[316] Following the meeting on January 5 it was decided to proceed further.

Eventually the Haney brothers went to Spain to write questions for the game, and

following his return, J. Haney continued writing questions. On cross-examination,

Page 92

he could not recall if Haney and he had gone to Spain at the same time or one had

joined the other.

[317] J. Haney identified a number of investors that he persuaded to invest in the

game. He stated that in 1979 he did not own a motor vehicle. He said Haney

owned a car, which was a Gremlin. He said he had never seen Haney drive

anything but the Gremlin.

3. Chris Haney

[318] In November 1979 Haney was 29 years of age and living in Westmount,

Montreal, with his wife Sarah Haney and his son, John. Abbott would often spend

weekends with them at their residence. John was one year old at the time. Sarah

Haney worked at a community clinic from approximately 8:00 in the morning until

1:00 in the afternoon. He would look after John while she was at work. His work

hours were from roughly 1:30 to 1:45 in the afternoon until 7:00 at night, Monday

to Friday. He said he could not remember who they used for babysitting when they

went out, but recalled using Abbott as a sitter twice.

[319] In respect to Doug Ball, Haney indicated he had known him since 1973,

describing him as one of his “dearest and closest friends”. He said he and Mr. Ball

worked in downtown Montreal and spoke almost on a daily basis, if not in person,

by phone. He said in 1979 he talked to Abbott every day, adding Abbott worked at

the Canadian Press as a sports writer.

[320] Haney said the only trip he took in 1979 was to Wiarton, Ontario, with Mr.

Ball and another individual, where they met another friend. They went ostensibly

to go deer hunting, although over the three days they did not see any deer. This was

the only trip he could recall making in November, 1979. He said he made no trips

in December, 1979. He also said the trip to Wiarton would have been the only trip

he made without his wife during this period.

[321] On cross-examination Haney also acknowledged he may have gone to

Toronto, during the period between November 29 and December 3, 1979, adding he

never kept track of when he went to see his mother. He said he does not know if he

did, but he could have gone down to see her.

Page 93

[322] In November, 1979 Haney said he was Photo Editor at the Montreal Gazette.

He said his job did not involve taking pictures, adding that he was in management.

There was a union and, as such, the photo editor, as a member of management, was

not permitted to take photos. He said his reference on discovery to being a

photographer, referred to his time at the Canadian Press, which preceded his

employment at the Gazette. At the Canadian Press he was both a photo editor and a

photographer.

[323] Haney was referred by plaintiff’s counsel to an occasion when he and Abbott

attended a toy fair in Montreal. Abbott had his own press pass and introduced

Haney as his photographer. As a consequence they were allowed to enter the toy

fair. On cross-examination he acknowledged that at the toy fair he obtained

information about game production from several sources, including from a

representative of Parker Brothers. He said it was a joke when he said in an

interview, “Ah we probably got $10,000 worth of free advice”. He said the free

advice helped him make decisions on how to go about producing the game. In

response to counsel’s question, “ ... You were holding yourself out as a

reporter/photographer team that was covering that toy fair to get some information,

and, in fact you weren’t really there to cover or write a story”, he responded, “ ...

that’s a fair statement.”

[324] Haney identified a copy of the photographer’s assignment log of the

Montreal Gazette for the last week of November, 1979. After noting the purpose

and the procedure for maintaining the log, he reviewed the entries from Sunday,

November 25 to the end of that week. He identified on the entries that were in his

handwriting and described the circumstances surrounding certain entries. On being

referred to Thursday, November 29, he observed that one of the entries was in his

handwriting. It appears to be the last entry in his handwriting on the portion of the

assignment log tendered at trial. He noted, in response to counsel, that during the

following week, being the first week of December, 1979, he was in Montreal.

[325] Haney confirmed on cross-examination that in the portion of the

photographer’s log that was entered, there was no handwriting of his on the entries

for the Friday of last week of November, 1979.

[326] Haney testified:

RYAN:

Now I want to take you to Thursday, November 29^th...

Page 94

Haney:

November 29^th. Okay. We got Mike off sick three days in a row

and oh Ted Church has called in with the flu. It’s going to be a

tough day we are short two guys.

RYAN:

Haney:

Do you recognize any of the handwriting on that page as being your

own?

Yes, when you go down before 2:30 freezing lady city that means

city desk, that’s my handwriting and so it p.m. soonest transit

perhaps combined with cold weather. Obviously, another slow day

but we were breaking story I don’t know if it was a ... Wildcat

Transit strike then I don’t know so I went in and said come on guys

get out there and wrote that in immediately

RYAN:

Haney:

Okay, what day would you have written that?

It would have happened well that afternoon and if I put soonest I

just went straight in there so that could have been within five

minutes of when, I don’t know what time they left.

[327] Later, on cross-examination:

MACDONALD:

What I’m interested in taking you to, the Thursday. My

understanding sir is your handwriting appears

Haney:

Yes

MACDONALD:

Haney:

At the entry, before 2:30 freezing lady

Correct, and the word city

MACDONALD:

City. And then below that p.m. soon as transit, perhaps

combined with cold weather, city, that’s your hand writing

as well

Haney:

Right. That’s right

MACDONALD:

Okay. And then if we go to the Friday. We do not see any

handwriting of yours. Is that correct

Page 95

Haney:

Not on Friday, no.

[328] Haney then described the events of December 15, 1979. He said it was a

Saturday and he and his wife, Sarah Haney, decided to go shopping and to leave

their son with Abbott. He said it was a “very balmy day for that time of year, it was

just around freezing or just above freezing and things were melting ...”. On cross-

examination, he said, “It was around, just above the freezing, just above, because

the snow was melting ... I don’t recall it being a windy day because if it was windy,

it probably would have been a bit cool and we probably would have driven, ...”. He

acknowledged that there may have been a gust of wind, but he did not remember

specifically all the conditions of that day. He repeated to plaintiff’s counsel that he

did not recall it being a “blustery day”. Although he could not remember the

weather for the preceding day, he said he remembers December 15 because, “It’s

the day that changed my life”.

[329] The grocery store was about four to five blocks away and so Haney and

Sarah Haney walked there. After finishing their shopping, they began to walk

home. As they were walking back, “ ...we passed a variety store and in the window

a game of Scrabble caught my eye, and I said, I pointed, I said to Sarah, Scrabble

game, I got to get it, I got to get it”.

[330] He testified that during the period he had known Abbott they had an

immediate friendship and were avid pinball players at the Press Club and

shuffleboard at the local tavern. Scrabble had come up at some point and Abbott

had claimed to be the world’s greatest scrabble player. He said they kept saying

they should have a game of scrabble, but they had never played the game. When he

and his wife moved into their house, he said, there might have been an opportunity

to play scrabble, but he had found that four or five tiles were missing and said, “you

can’t play with the missing tiles”.

[331] Haney said it was in the back of his mind that he should pick up a Scrabble

game, so when he saw the game he decided to buy it. He said the store was a

variety store, and as such the price of the game was greater than in a large store

distributing games. He speculated that the cost of the game at a major chain might

have been $8.95 and he had probably paid around $12.00. He said he was “ticked

off” because it was the fourth or fifth game of Scrabble he had bought and he felt he

was wasting good money.

Page 96

[332] Haney said he and Ms. Haney returned to their house, and:

Scott was sitting there reading the Gazette at the kitchen table and we through

(sic) the groceries down and I had the Scrabble game was in a brown paper bag

and I pulled it out and said Scott I bought a Scrabble game and I dropped it on the

table in front of him and I stood back and I said dame it you know that got to be

the forth or fifth game of Scrabble I bought there must be a whole lot of money in

board games and he sort of mumbled and I said ah, Scott we ought to invent a

game. What would it be about and grunting and this is how Scott behaves and this

is his little ... and he immediately said “grunting” I don’t know Horn, Trivia, like

that and I said Trivia yea why not, I don’t any trivia games out on the market, yea

let’s d (sic) a trivial game. And so I said Scott beer and he said sure Horn. So I

turn around to the fridge and I grabbed out two bottles of beer and opened them up

and as I turn around I said Scott why don’t you and immediately Scott had already

gotten a piece of paper out and he was drawing a square, I said oh what are you do

there? Drawing a square. I passed hin a beer and I said ah, you know I don’t

know if you want to have a square board we don’t want to compete with Monopoly

or Scrabble. Ah, you know something different. I want to back track here to

where I want to underscore. The fact that I overpaid for the game, that was the

trigger the trigger for me saying there’s got to be a lot of money in board games,

we ought to invent a game. Had I paid $7.95 for that game, Trivia Pursuit never

would have happened. It never would of happened without a doubt. Okay. Now.

[333] After commenting that Sarah Haney was in the kitchen, Haney continued:

...Anyway, um so Scott ripped up the piece of paper and started doing a figure

eight or something and you know, I just watching him and he ripped it up again

and he drew a circle, no I think he did a wiggly thing you know anyway eventually

he decides on a circle and I am looking down there you know okay and then he put

a circle in the middle like a hub and I said you know okay and I don’t know what

the exact answer might have been, okay trivia we got to have different categories

and he just drew those spokes, six spokes. Said okay six categories well six

categories will so we take all the knowledge of the world and had it in six different

categories and ah, and then he started okay well, we will have category

headquarters here and then he said I got to work out how we would have the

spaces going around how you connect and I said well lets use one dice probably

would be cheaper and everybody else uses two anyway. And the (sic) he started to

work out where all the outside and interior categories would be, this is beyond me.

He has an extremely analogical mind. I said Scott you work it out I can’t do that.

So he spent I don’t know twenty minutes or whatever roughly and he drew out

basically what is outlined on that thing but wasn’t outlined on that board but so it

was all .... and all fit and worked together. And we included the roar (sic) again

swears (sic) because to go from category headquarters we didn’t want to be able to

Page 97

do it on one role of the dice. We had to make six spots in the middle so it would

take at least two roll, but at least if you had to roll again you had a chance to go

either way and get into that anyway but to get back into the centre, we wanted to

keep it, roll again so that you could directly to get into the centre if you were lucky

you’d roll a six.

[334] As to the naming of the game, Haney said the day after Abbott had invented

the game, he suggested the name “Trivia Pursuit”. Abbott had responded “not bad”

for a start and a few days later, perhaps three, Sarah Haney had suggested, “Why

don’t you add an “L” and make it “Trivial Pursuit”. He said “that’s perfect, I love

it”, adding, “it just flowed so well”. Haney said he immediately phoned Abbott,

who responded, in what Haney described as typical Abbott fashion, “Of course,

why didn’t I think of that”. He said at no time during the course of conceiving or

naming the game did anyone mention the name “Pursuit of Trivia” or “Trivial

Pursuit, The Game of Trivia”.

[335] On cross-examination Haney said that as far as he knew the “roll again”

feature was on the board drawn on December 15, 1979, and was not first

incorporated into the game the next day. He repeated, on further cross-examination,

his recollection that the “roll again” feature was established prior to December 16.

He also agreed it was decided there would be two roll-agains, between the category

headquarters.

[336] Haney said he believed it was on December 16 that he drew a card. It had

“Trivia Pursuit” on it and he had put down six little coloured spots and wrote by

hand six questions, as an idea of what would be on the card. He said this card does

not exist anymore. He said he thought the first question he had written, was, “Who

was the star of Leave it to Beaver?”.

[337] Haney said he phoned his brother on December 16, although he agreed it was

possible the call was on December 17 from his place of work. He testified he

phoned him in Niagara, where his brother was working at the Shaw Festival at

Niagara on the Lake. He said he phoned his brother and told him he and Abbott had

come up with a “silly little idea for a board game” and asked whether he would like

to get involved. J. Haney responded “Why not” and Haney suggested he give

Werner a call, as “we’re obviously going to need a lawyer on this”. J. Haney

responded that he would do so and would get back to Haney.

Page 98

[338] Haney testified that although he recalls showing what they had developed so

far at Christmas, he could not recall whether they actually tried to play the game at

that time. He confirmed further that after the meeting on January 5 “ ... Mission

control said we were a go for lift-off.”

[339] On cross-examination Haney acknowledged there has been a debate between

himself and Abbott as to how the idea for the token used in the game came about.

Haney says he has a clear recollection of the discussion of the idea for the token

occurring while they were on the train from Montreal to Toronto for the January 5

meeting, although Abbott has a different recollection.

[340] Haney stated that it was not his practice, in 1979 and 1980, to pick up

hitchhikers. He acknowledged, on cross-examination, that around Christmas 1973,

while travelling from Amsterdam to Spain, he had been looking for riders to share

the cost of gas with him. He met a young American “kid” who joined him, and on

the trip they picked up two hitchhikers, students with backpacks, for whom they felt

sorry. The four of them travelled to the south of Spain, sharing the gas. He said

this is the only time he has ever picked up a hitchhiker.

[341] Plaintiff’s counsel has suggested that Haney’s whereabouts in November and

December of 1979 could be ascertained more easily if there were credit card records

available. On cross-examination Haney was referred to a Chargex slip dated April

29, 1980, which he acknowledged was on his credit card. He confirmed, therefore,

that at least by 1980 he did have a credit card. He agreed with an Interrogatory on

which he responded that he may have held a credit card at that time.

[342] On cross-examination Haney said he would not comment on counsel’s

suggestion that “this law suit bores you”. He did agree, however, that he probably

said this while he was being discovered.

[343] In reference to the TV film called, “Breaking All The Rules”, Haney testified,

on cross-examination that it was not a “documentary drama”. He said it was “a

comedy”. He was then referred by counsel to an Answer to Interrogatories he had

signed, one of which made reference to the movie as a “documentary drama”. He

said he did not recall saying this, but guessed he had. He said he was mistaken, in

reference to another Interrogatory, where he had responded he had editorial control

over that movie. He replied to plaintiff’s counsel that he did not have editorial

control, and if he said he did, he was mistaken.

Page 99

[344] On being referred to a number of newspaper articles discussing the creation

of Trivial Pursuit, including, in some instances, purported quotes from himself and

Abbott, Haney acknowledged, in respect to a reference to Abbott as the person who

said “Why don’t we invent a game?” and Haney saying “Okay, how about Trivia?”,

that they had gotten it backwards and what was reported was “absolutely, totally

false”.

[345] Haney also said that another media report was inaccurate when it suggested

“It took two more months to figure out how to keep score without, ... having to use

a pen and paper”.

[346] In reference to another alleged quote by himself that, “we’re scam artists who

lucked out” Haney said he did not remember saying this to the reporter. He said he

had never referred to himself or Abbott as a “scam artist”. He said he had never

engaged in any scam that he could recall. He acknowledged making money off a

chain letter, but indicated it was not his chain letter. He also said he could not recall

anybody ever calling him a “scam artist”. In reference to a newspaper report

suggesting that he and Abbott were known as con artists, he responded that he was

not known as a con artist, and that the quote was a misquote, because it suggested

they had originated the chain letter, when they had not. A number of other quotes

in newspaper articles, he claimed, were “misquotes”. He denied saying to a

reporter, Juan Rodrigeuz, that “The game Trivial Pursuit was an impossible scam.”

Mr. Rodriguez was a friend of Haney’s while he was at the Gazette and was later

retained by the corporate defendant to write questions for later versions of the

game. He also denied giving a quote to Mr. Rodriguez, in reference to a poster

designed by another employee of the Gazette, depicting a “take-off” of the Last

Supper, that “The posters are almost as hot as the game itself.”

[347] In response to counsel, Haney also testified about an occasion when Abbott

was being interviewed and was reported to have said, as to how the invention of the

game occurred, “Actually we were sunning ourselves on the patio at the lovely

Anchorage Hotel in beautiful Niagara on the Lake one day and it just came to us.”

Haney responded that at the time they owed an outstanding bar bill with the

Anchorage Hotel, and the operator of the hotel had heard that Abbott and J. Haney

were going to be interviewed on television and struck a deal, whereby he would

burn their bill if the hotel got mentioned. Therefore, when Abbott was asked the

question, “So where did you invent the game?” he had responded, as reported. At

Page 100

the time, Haney was in the Anchorage and found it humorous. The bar tab was

ripped up.

[348] In reference to a CBC television interview involving himself and Abbott

describing how they came to invent the game and who had said what to whom,

Haney said, “We were doing our shtick there ... we tried to be funny in all our

interviews.” He said that any confusion would have been, “Semi-intentional - I

can’t recall but we were just doing our shtick.” On re-examination by his counsel

he indicated there never has been any confusion whatsoever as to who came up with

the idea for “trivia”, adding it was Abbott.

[349] Haney testified that apart from attending to give evidence in this proceeding,

he was in Cape Breton on only one other occasion, the summer of 1972, when he

took a holiday with his brother, and others. The only other time he had been to

Cape Breton, was a week before testifying at trial.

[350] Haney said that in 1979 and 1980 he drove an AMC powder blue Gremlin

hatchback. He denied at any time having the use of or owning a dark large four

door vehicle. Although he could not remember the licence plate number, he said it

would have been a Quebec plate. He also denied attending an “Entrepreneur

Convention” in eastern Canada or ever saying to anyone that Sydney was the

farthest east he had ever travelled. He has never referred to his Gremlin as a

“beater”, adding that he had never heard the term before. He said the only place he

would have driven his Gremlin, outside of the Montreal area, would have been a

couple of times to Toronto to see his mother and his in-laws. He went on a hunting

trip in Wiarton, Ontario, the first week of November, 1979. He also drove to Lake

Placid, New York on a pre-Olympic trip as part of his duties with the Montreal

Gazette. He said he took no vacation during the 14 months he worked at the

Gazette.

[351] Haney said he would not have brought up with a stranger the fact his brother

was a former hockey player, although, if asked, he would not deny it. He said he

had never made a statement to anyone to the effect he was “always on the lookout

for a good idea”. He denied that anyone had ever said to him, “I’ve got the next

best game in the world”. He said he had never heard this from anyone, nor had he

said it. With respect to picking up hitchhikers, he said he had a policy, in 1979 and

1980, not to pick up hitchhikers. He denied that he had ever played golf in Nova

Scotia, including never having played golf in Cape Breton.

Page 101

[352] Haney said that in 1979 and 1980 he did not have a business card. On cross-

examination, he also denied ever using someone else’s business card, crossing out

information and replacing it with his own personal information. He said he would

not have put his name on anyone else’s business card, unless that person was asking

for his address on their card. He indicated if he had said such a thing was possible

on discovery, he had been wrong: “I certainly have not used somebody else’s

business card as my own”.

[353] Haney said he had never used the phrase “this is hot, this is real hot”. He said

he had never heard of the Keddy Motor Inn or the Holiday Inn in Sydney. He

denied he had ever flown into the Sydney Airport, except the week before giving

evidence. He said he had never been to a community known as St. Peters, adding

that he had never heard of St. Peters.

[354] Haney said he never had any dealings with Hugh Lynch, James Kehoe or

Robert MacNeil, adding he did not know any of these persons. He said, prior to

this law suit, he had never heard of the Cape Breton Metro Hockey Tournament.

He said that in his time at the Montreal Gazette, it would never have covered such a

tournament. He described the process whereby the paper would arrange to cover a

story outside Montreal, adding that the paper would probably use the services of the

Canadian Press. He said it would only be on a really important story they would

send a staff photographer to cover it.

[355] He denied ever having worked for The Hockey News, adding that he was

aware of The Hockey News, but had never taken pictures for The Hockey News and

that his picture had never appeared in it. He said he has never given an interview or

made a statement that appeared in print in any edition of The Hockey News.

4.

Scott Abbott

[356] Abbott is another of the former Defendants. He was advanced, along with

Haney, as one of the conceivers of the game and as the principal developer of the

initial game concept and board outline.

[357] Abbott testified that he first met Haney in September 1975, in Montreal,

while they were both working for the Canadian Press. They became very good

friends and their friendship continued after Haney left the Canadian Press in the fall

Page 102

of 1977. He stated that in the fall of 1979 he socialized with Haney and shared his

residence. He testified they were in contact virtually every day. He said that in the

fall of 1979 the only vehicle he saw Haney drive was a Gremlin.

[358] Abbott testified to a long standing interest, from early childhood, in board

and table games. He referenced a number of board games he played with friends

and to “tinkering” with some games in order to improve their “playability”.

[359] Abbott testified, in detail, to the events of December 15, from the time

Haney and Sarah Haney left to go grocery shopping, leaving him babysitting their

young son. He described their return, and his discussion with Haney about

inventing a board game based on trivia. He testified in detail about designing a

number of layouts, eventually settling on a board similar to the present version. He

said Haney did not make any contribution to the board design or the rules, and that

Haney’s role was to make it work. Abbott said he invented Trivial Pursuit; Haney

got it built. He was the “architect” and Haney the “general contractor”. He stated

that as of December 15, 1979, they had the board, an understanding of what the

rules would be and the categories. He said it was on December 16 that Haney

suggested the name “Trivia Pursuit”. Some three or four days later, while he was

visiting his father, he received a call from Haney who said that Sarah Haney had

suggested adding an “L” to Trivia to make it “Trivial Pursuit”. His reaction, he said

was, “this was perfect”.

[360] Abbott said it was while watching television one evening and contemplating

how the score would be kept, that it occurred to him that the playing pieces

themselves would be the scoring pieces. During a train trip to Toronto with Haney,

in early January 1980, he advised him of his idea. He said it was at the meeting on

January 5, at Haney and J. Haney’s mother’s home in Toronto, with J. Haney and

Werner also present, that the board was unveiled and the game explained to them.

They were asked if they were interested in going into it, and, if Werner was

interested, how would they go about proceeding. Werner advised that they needed

copyright or trademark or some form of intellectual property protection and said he

knew a patent lawyer in Ottawa. Following this, Abbott and Haney drove to Ottawa

to meet with Julian Swann about obtaining intellectual property protection. He

testified that, as a result of their dealings with Mr. Swann, they understood they

could get intellectual property protection by way of copyright of the rules, and

industrial design protection for the board.

Page 103

[361] Later, in 1980, after Haney had set about finding people to provide

components and to manufacture the game, the Haney brothers went to Spain to

write questions. Abbott visited them in late 1980, returning January 19, 1981. He

stayed with Haney and Sarah Haney at their Spanish apartment. He testified there

was no phone in the apartment and, to make a phone call, it was necessary to go to a

hotel down the road.

[362] Abbott described in some detail various steps in the design and manufacture

of the final version of the game, and approaches to potential investors. He said they

never approached anyone from Cape Breton to invest and that none of the original

investors in the corporate Defendant were from Cape Breton.

[363] Abbott said he first heard the name David Wall in April 1994. He received a

call from Jim Ware saying a person from Nova Scotia named “David Wall” had

called claiming to have invented Trivial Pursuit. He said he knew this was false as

it was he, himself, who had invented the game.

[364] On direct examination Abbott stated that apart from a visit in 1964, he had

not been to Cape Breton until 2006. He denied each of the alleged sightings

testified to by witnesses on behalf of the Plaintiff, and said he was never in Cape

Breton at the time of these alleged sightings, nor at the places, nor with the persons

suggested by the Plaintiff’s witnesses.

[365] On cross-examination, he agreed that there was no way Wall would know

about “Trivial Pursuit” prior to its being on the market. In reference to Articles in

which the author quoted him or Haney saying they had been involved in a “scam”

or “scams”, he said he did not recall Haney ever making such a reference, and he

had no idea why some of the reporters or authors would have used the word “scam”.

He said the design and development of the game that occurred on December 15,

1979, took approximately 45 minutes from beginning to end.

[366] On cross-examination, he responded:

MACDONALD:

Can a person be tricked into saying something. Do you

admit that possibility sir.

ABBOTT:

I imagine it’s a possibility, certainly, a great many things are

possible. I know I wasn’t tricked by Chris Haney into

Page 104

saying Trivia. I also know that Chris Haney had had not

previous encounter with anyone in Nova Scotia is that the

kind of fantasy line argument you want to make out of this.

MACDONALD:

ABBOTT:

How do you know that sir.

I lived with Chris Haney. I worked in the same business as

Chris Haney. I was in constant communication with Chris

Haney and I know he wasn’t in Nova Scotia in the fall of

1979.

5.

Commentary

[367] The evidence presented by the Defendants is that the conception, initial

design, and development of the game occurred on December 15, 1979, in Haneys’

residence. Although there are some discrepancies in their evidence, for example,

the extent to which there had been a discussion between Haney and Abbott about

playing scrabble on the day in question, the discrepancies are not, in my view,

substantial nor material as to whether the idea for the game originated with the

Plaintiff and was communicated to Haney, as he testified, or was conceived,

designed and developed by Haney and Abbott with input from Sarah Haney,

particularly in reference to finalizing the name.

[368] All the witnesses’ evidence was given some 26 - 27 years after the events in

question. As such, minor discrepancies or inconsistencies are to be expected. In

fact, the absence of such inconsistencies might well lead to an inference that the

evidence was rehearsed and fabricated. There is nothing in the evidence of Haney

and Abbott to suggest the creation of the game was otherwise than as they testified.

Nevertheless, there is also nothing that substantiates or corroborates their version of

events, other than their own testimony. If, indeed, Haney met Wall on King’s

Road, Cape Breton, Nova Scotia, and received from him his idea for a board game

based on trivia, then the evidence of what occurred on December 15 would simply

be the next step by Haney, in conjunction with Abbott and Sarah Haney, in taking

Wall’s idea, and designing, developing and marketing it under the name of “Trivial

Pursuit”. Clearly, if that is the case, the evidence of Abbott as to whether Haney

travelled to Cape Breton in late November or early December of 1979 would

similarly be fabricated. It is reasonable, having regard to the circumstances that

Abbott would know if Haney had travelled outside Quebec, particularly if he had

Page 105

travelled to Cape Breton during this period. It would appear inconceivable that

Haney would have travelled to Cape Breton without the knowledge of Abbott.

[369] There are number of other witnesses called by the Defendants, who counsel

say, support the conclusion Haney was not in Cape Breton in late November or

early December 1979.

VII OTHER WITNESSES FOR THE DEFENDANTS

A.

Sarah Haney

[370] Although Ms. Haney is alleged to have been present during the initial

conception, design and development of the game on December 15, and

subsequently to have contributed by suggesting the addition of the letter “L” to the

name Trivia, she is not now, nor ever has been, a Defendant in this proceeding.

[371] Sarah Haney was married to Haney, who she met in 1970. She described

their wedding in September 1977 and their travels in Europe, particularly in Spain,

both before and after the wedding. On cross-examination she indicated she and

Haney separated in 1990 and are now divorced.

[372] Ms. Haney recalled, as had other witnesses called by the Defence, that in

early November 1979, Haney had gone on a hunting trip to Wiarton, Ontario with

Doug Ball and others. She said this was the only time, during this period, that she

had not slept with Haney. She was therefore aware of where he was during this

period of time. She stated that in 1979 -1980 they drove a blue Gremlin, which

they had purchased from her mother. They kept it until 1981 or 1982.

[373] Ms. Haney described her recollections of the events of December 15, 1979,

when she and Haney went shopping and Abbott agreed to look after her son, John.

She described Haney purchasing the scrabble game, returning to the house and their

proceeding to put the groceries away. She said she remembered Abbott and Haney

talking about a game, but she was not present for the whole of their discussion, as

she was upstairs during some of this time. She recalled the discussion on the

following morning, December 16, and Haney again talking about the game. She

said Haney cut out a piece of a cardboard box that he had flattened, and on which he

placed the design of the game. She said some of the writing on the design was in

her handwriting. She testified Haney threw out the idea of calling the game “Trivia

Page 106

Pursuit”, but later in the week, she suggested it would be more euphonious if an “L”

was added to the word “Trivia”. She said this would make the word more

“harmonious or flowing”. She believed Haney liked the idea of the new name. He

said he had to call Abbott.

[374] Ms. Haney said the subject of the game came up on Christmas Day, when

Haney produced a mock-up and sample questions. She referred to their trip to

Spain and being joined by his brother, J. Haney, during which period they wrote

and discussed various questions for the game. She said there was no telephone in

their apartment, and in order to place calls, it was necessary to visit a nearby hotel.

[375] In reference to Haney’s practice or policy in respect to picking up

hitchhikers, she testified she was not aware of him ever picking up a hitchhiker in

Canada.

[376] Ms. Haney said she did not recall the word “scam” being used in reference to

Abbott or Haney, nor did she recall Haney ever referring to himself as having been

involved in a “scam”.

[377] Sarah Haney says Haney did not travel to Cape Breton at the end of

November 1979. If he had, clearly she would be expected to know. As such, the

evidence supporting Haney’s assertion that he had not travelled to Cape Breton is

supported by the evidence of both Abbott and Sarah Haney. Clearly, if Haney has

fabricated his story that he did not travel to Cape Breton, both Abbott and Sarah

Haney have fabricated their evidence on the same point.

B.

John Mahoney

[378] Mr. Mahoney is employed at the Montreal Gazette. He acknowledged having

obtained his initial position with the assistance of Haney. He said he and Haney

had a close working relationship. He reviewed the entries for the Photographers’

Assignment Book for the week commencing Sunday, November 25, 1979. He

indicated the entries were generally made by the photographer or the photo editor.

They recorded assignments for particular photographers as well as other

information, such as the unavailability of photographers due to illness or for other

reasons. Entries were typically made when the assignments were made. On

reviewing the entries for Thursday, November 29, 1979, he recalled an incident

Page 107

referred in the notes, as having been discussed with Haney. This suggests that at

some time on November 29, Haney was at the Gazette office in Montreal, Quebec.

[379] Mr. Mahoney said the entry for 10:00 a.m. was in his handwriting and

involved him interviewing a sex therapy specialist in Montreal. When he returned,

he remembered, there was joking in the office. Haney was one of those that were

joking about this assignment. Haney, he said, used to refer to him as the “virgin

photographer”. He said it was part of the “jocular nature” of the department. He

agreed, on cross-examination, it was the earlier entries on Thursday, November 29

that were in Haney’s handwriting, rather than the entries for later that day.

[380] Mr. Mahoney testified that while he worked at the Montreal Gazette, Haney

was not in Nova Scotia. In fact, his evidence can only be that he was “not aware”

that Haney was in Nova Scotia. He did not spend weekends with Haney and it is

inconceivable for him to have known the whereabouts of Haney, at all times, almost

some 27 years ago in late November and early December 1979. He places Haney at

the Montreal Gazette on the morning of Thursday, November 29 and draws the

inference from the entries in the assignment book that he would have authorized the

overtime of another photographer to attend a hockey game that evening. On cross-

examination, he surmised that the writing, in respect to the overtime authorization

was not in Haney’s handwriting and agreed that the authorization could have been

made over the telephone.

[381] On cross-examination he said he was told by Haney, in the fall or winter of

1979, of his having invented a game. They were at one of the Montreal drinking

establishments, near the Gazette offices, when Haney, while patting his shirt pocket,

had said he had the answer to his future. Haney apparently explained to him that he

and Abbott had been playing scrabble the night before and there were letters

missing from the game and they had kicked around the idea of finding a better

game. Haney pulled out a piece of paper with a sketch of the game and said it was

about trivia. Mr. Mahoney described the piece of paper as having the design of the

board. On cross-examination he said he did not recall if Haney then discussed that

the game was about trivia. He said this may have been a later conversation. He said

he was one of the persons approached by Abbott to invest, but at the time did not

have money and consequently failed to take advantage of the opportunity.

[382] It is to be noted that this is the only evidence suggesting Haney and Abbott

had played scrabble either on the day they say the game was conceived or the night

Page 108

before. None of the other witnesses, including, Haney and Abbott, testified they

had actually played a game of scrabble either that day or the night before.

C.

Van Ewart

[383] Mr. Ewart was another witness who worked at the Montreal Gazette, while

Haney was a photo editor. He stated that although they worked together, they did

not really socialize, and particularly, did not socialize on weekends. He said he was

invited, with others, to invest $1,000.00 to develop a prototype of a game, but at the

time he advised Haney he had no money for such an investment. He testified that

Haney never went to Cape Breton to cover a hockey tournament, or for any other

reason. However, again, his evidence, at best, is that he was not aware of Haney

having travelled to Cape Breton, Nova Scotia, intending to cover a hockey

tournament or for any other reason. He said the Montreal Gazette, if intending to

cover a story outside of Montreal and depending upon the importance of the

particular story, would often rely on the Canadian Press or a local newspaper to

cover it on a freelance basis. In his opinion, the Montreal Gazette would never

send a reporter, or any employee, to cover a high school hockey tournament in

Nova Scotia.

[384] On cross-examination, he repeated that he was asked to invest and believed

Haney used the name “Trivial Pursuit”. He guessed this would have been in 1979.

This is, of course, not consistent with the evidence as to when Haney, and the other

former individual defendants were looking for investors.

D.

Douglas Ball

[385] Mr. Ball was employed by the Canadian Press and met Haney in 1973. He

said they got along “famously” and their work resulted in them being in regular

contact. He and his wife would socialize with Haney and Sarah Haney. He said

they were in regular contact during the summer through the end of 1979, describing

it as “everyday contact”. He was one of the persons who went bow hunting with

Haney in early November 1979. He said he does not recall Haney going anywhere

else in November 1979, adding that Haney was in the Montreal area during the first

week of December as well. On cross-examination, he acknowledged that there

could have been periods of up to five days in which he would have had no contact

with Haney.

Page 109

[386] Mr. Ball said Haney mentioned to him that he and Abbott had invented a

game, and offered him an opportunity to invest. He said he did not have any money

at the time, as he had a young child and had just bought a house. Consequently he

said, he did not take advantage of that offer. On cross-examination, he said the

first time Haney told him about inventing a game, he would not say what it was

called. He agreed with plaintiff’s counsel he was “somewhat guarded about

disclosing information about it at that time”.

[387] On further cross-examination Mr. Ball said that Haney, later in 1980,

explained to him how they had come to invent the game. Haney apparently was fed

up, having purchased 7 or 8 scrabble games. When he would try to play, he would

find they had lost a tile or tiles, so he had to buy a new game. He had said to

Abbott that they should invent a game and Haney said to Abbott “what should we

do it on”? Abbott had replied, “let’s do trivia”. He said in a few days they had

come up with the design, although at the time Haney did not show him any

drawings they had made.

E.

Commentary

[388] With respect to the evidence tendered by the Defendants, as to whether

Haney travelled to Nova Scotia in late November or early December 1979, apart

from Haney, Sarah Haney and Abbott , the witnesses called can, at best, say that

they were not aware, and perhaps did not believe, Haney had travelled to Nova

Scotia. There is nothing in their evidence that would exclude the possibility that

Haney travelled to Nova Scotia, although certainly their evidence is clear that they

were not aware he had done so. On the other hand, Haney denied that he travelled

to Nova Scotia, as did Sarah Haney. Presumably if he had travelled she would have

known, and therefore she is in a position to testify that he had not done so. Also,

the close relationship he had with Abbott at the time, suggests that if Haney had

travelled to Nova Scotia, he too would have been aware. Additionally, both Sarah

Haney and Abbott were involved, according to their evidence, in the conception,

design and development of the game on December 15, 1979, and would logically

be aware of whether the idea or concept had originated only with Haney or was a

joint creation of Abbott and Haney. The suggestion by plaintiff’s counsel that

somehow Haney may have implanted in Abbott, without his knowledge, the idea of

a game based on trivia, is pure conjecture and not supported by any of the evidence,

and the suggestion was “ridiculed” by Abbott.

Page 110

[389] On the other hand, each of Abbott and Sarah Haney have benefitted from the

creation and marketing of the game, and their denial that Haney was in Nova Scotia

must be viewed in that context.

VIII THE LAW

A. Limitations

[390] At issue is whether some or all of the plaintiff’s causes of action are

limitation- or laches-barred. Does the interval between the alleged events and the

commencement of these proceeding preclude the plaintiff from pursuing any or all

of his claims against the defendants, on account of any statutory or common law

limitation period, or due to the application of the doctrine of laches?

[391] The defendants say the plaintiff’s action is barred on account of the expiry of

statutory limitation periods and on applying the doctrine of laches.

[392] The plaintiff argues that unless limitations or laches defences are specifically

pleaded, it is not open to the Court to consider them. He says no defence of laches

or limitations has been raised in relation to the claim of “legal” fraud and theft. In

any event, the plaintiff submits, none of Mr. Wall’s claims should be dismissed on

this basis.

[393] Pursuant to Rule 14.14 a party in a defence or any subsequent pleading “shall

relevant statute of limitation, statute of frauds, fraud, or any act showing illegality

that,

(I) might make any claim or defence of the opposing party not

maintainable;

(ii) if not specifically pleaded, might take the opposing party by surprise

(iii) raises issues of fact not arising out of the preceding pleadings.

[Emphasis added.]

Page 111

[394] The defendants have each pleaded the Nova Scotia Limitation of Actions Act,

R.S.N.S. 1989, c.25, as amended,(herein the “Nova Scotia Limitations Act”) (as

well as the Ontario Limitations Act, R.S.O. 1980 (sic), c. L-15 or the “Act”, herein

the “Ontario Limitations Act”) with respect to the plaintiff’s claims for breach of

contract and conversion, as well as the Copyright Act, R.S.C. 1985, c. C-42 as

amended, with respect to the claim for breach of copyright. This would seem to

encompass the plaintiff’s legal (as opposed to equitable) claims. The Amended

Statement of Claim makes passing reference to “theft and fraud”, as well as “deceit”

and deception of the public, but it does not appear these have pleaded as causes of

action as opposed to general accusations of misconduct by some or all of the

defendants. The defendants have been pleaded laches in respect to the plaintiff’s

claims for breach of fiduciary duty and breach of confidence and have also raised

the issue of limitation by anology.

1. The Limitation of Actions Act

[395] The Nova Scotia Limitation Act, provides a six-year limitation period for

certain types of actions. Paragraph 2(1)(e) states:

2 (1) The actions mentioned in this Section shall be commenced within and not

after the times respectively mentioned in such Section, that is to say:

(e) all actions grounded upon any lending, or contract, expressed or

implied, without specialty, or upon any award where the submission is not

by specialty, or for money levied by execution, all actions for direct

injuries to real or personal property, actions for the taking away or

conversion of property, goods and chattels, actions for libel, malicious

prosecution and arrest, seduction and criminal conversation and actions for

all other causes which would formerly have been brought in the form of

action called trespass on the case, except as herein excepted, within six

years after the cause of any such action arose;

[396] The Nova Scotia Limitations Act allows for a four-year extension of the

stipulated limitation period under certain circumstances, namely, where the Court

considers it equitable to disallow the limitations defence:

3 [...] (2) Where an action is commenced without regard to a time limitation, and

an order has not been made pursuant to subsection (3), the court in which it is

brought, upon application, may disallow a defence based on the time limitation and

Page 112

allow the action to proceed if it appears to the court to be equitable having regard

to the degree to which

(a) the time limitation prejudices the plaintiff or any person whom he

represents; and

(b) any decision of the court under this Section would prejudice the

defendant or any person whom he represents, or any other person.

* * *

(4) In making a determination pursuant to subsection (2), the court shall have

regard to all the circumstances of the case and in particular to

(a) the length of and the reasons for the delay on the part of the plaintiff;

(b) any information or notice given by the defendant to the plaintiff

respecting the time limitation;

(c) the extent to which, having regard to the delay, the evidence adduced

or likely to be adduced by the plaintiff or the defendant is or is likely to be

less cogent than if the action had been brought or notice had been given

within the time limitation;

(d) the conduct of the defendant after the cause of action arose, including

the extent if any to which he responded to requests reasonably made by the

plaintiff for information or inspection for the purpose of ascertaining facts

which were or might be relevant to the plaintiff's cause of action against the

defendant;

(e) the duration of any disability of the plaintiff arising after the date of the

accrual of the cause of action;

(f) the extent to which the plaintiff acted promptly and reasonably once he

knew whether or not the act or omission of the defendant, to which the

injury was attributable, might be capable at that time of giving rise to an

action for damages;

(g) the steps, if any, taken by the plaintiff to obtain medical, legal or other

expert advice and the nature of any such advice he may have received.

* * *

Page 113

(6) A court shall not exercise the jurisdiction conferred by this Section where the

action is commenced or notice given more than four years after the time limitation

therefor expired.

[397] The Nova Scotia Limitations Act also preserves certain rules of equity:

31 Nothing contained in this Act shall be deemed to interfere with any rule of

equity in refusing relief on the ground of acquiescence, or otherwise, to any person

whose right to bring an action is not barred by virtue of this Act.

2. Applicable Limitation Periods

[398] The defendants say the six-year limitation period under s. 2(1)(e) of the Act

applies to the plaintiff’s claims for breach of contract and conversion (and assume

this includes “theft”). The corporate defendant adds that fraud should be included

under this limitation provision, on the basis that deceit falls within “action on the

case.”

[399] The plaintiff responds that there are no limitation periods applicable to a

claim for breach of fiduciary duty, citing Hartman Estate v. Hartfam Holdings Ltd.

(2005), 263 D.L.R. (4^th) 640 at para. 84. Nothing is stated as to whether the

defendants have omitted to plead limitation with respect to the remaining causes of

action.

3. Disallowance of a Limitations Defence

[400] The discretionary period permitted by section 3 is a "four year maximum

discretion”, as Kelly J. observed in Kovacs v. Dempsey Estate (2000), 187 N.S.R.

(2d) 160 (S.C.), at para. 5.

[401] In K.A.S. v. Reddick (1997), 160 N.S.R. (2d) 5 the Court of Appeal held that

the extension under s.3(6) cannot be extended beyond four years. In an appeal of

the dismissal of an action commenced in 1996, for damages suffered as a result of

an alleged sexual assault in 1988, Roscoe J.A. stated:

[10] ... it is apparent that the Chambers judge applied the correct principles of law

in concluding that the appellant was substantially aware of the effects of the

assault in 1989. The s. 2(1)(a) limitation period therefore expired in 1990. He was

Page 114

accordingly precluded by the operation of s. 3(6) of the Act from extending the

limitation period beyond a further four years.

See also Layes v. Chisholm (1999), 174 N.S.R. (2d) 139 (C.A.), para. 7.

[402] In Rushton v. Nova Scotia (Registrar of Motor Vehicles) (1992), 118 N.S.R.

(2d) 107 (S.C.T.D.) Davison J. provided an analysis of “prejudice” as it relates to

balancing the considerations for and against allowing a limitations defence:

[6] Mr. Justice Hallett gave detailed consideration to the relevant legislation in

Anderson and Anderson v. Cooperative Fire and Casualty Company (1983), 58

N.S.R. (2d) 163 (T.D.). He stated at p. 167:

The issue before the court on this application is whether it is equitable to

disallow the time limitation defence, having regard to the degree to which

(1) the time limitation prejudices the plaintiff or any person whom he

represents and (2) any decision to disallow the time limitation pursuant to

this amendment would prejudice the defendant or any other person. In

determining the issue, the court must have regard to all the circumstances

of the case and, in particular, the seven matters referred to in s. 2A(4)(a) to

(g).

In any case, there is great prejudice to a plaintiff if a time limitation

defence succeeds as the plaintiff loses his cause of action. On the other

hand, there is great prejudice to the defendant who loses a perfect defence

if the order is granted. The legislature in enacting this amendment must

have recognized that there was prejudice to each party when the word

'degree' was used in s. 2A(2). The court has been directed to consider not

simply whether there is prejudice but to weigh the degree of prejudice to

the parties. The intention of the legislature as expressed is to give the court

the authority to disallow a defence based on time limitation considering the

criteria set forth in ss. 2A(2) and (4).

The degree of prejudice to a plaintiff caused by a valid time limitation

defence could not be greater as the cause of action is lost ...

What the legislature must have meant when it authorized the court to

disallow the defence if it appeared equitable to do so, having regard to the

degree to which any such decision would prejudice the defendant, was

whether the defendant was prejudiced in the defence of the action on its

merits because of the failure of the plaintiff to have proceeded in time. The

legislature could not have intended that the court consider the fact that the

Page 115

defendant loses a perfectly good defence in assessing the degree of

prejudice to the defendant if the order were granted, as, otherwise, it would

be somewhat pointless for the legislature to have enacted the amendment.

There would be virtually no basis upon which to weight the degree of

prejudice to the parties as if the relief is refused, the plaintiff is totally

prejudiced in the case and to allow the relief, the defendant is totally

prejudiced. In summary on this point, in determining the degree of

prejudice that would be suffered by the defendant if a decision were made

to disallow the time limitation defence the court should not give much

weight to the fact that the defendant loses its defence.

[403] Davison J. struck the limitations defence, partly due to his determination the

plaintiff could not have been expected to know of statutory relief for persons

injured by unknown motorists, which he called "an unusual remedy" (para. 11).

[404] The corporate defendant submits that even if this action was commenced

within four years after the expiration of the six-year statutory limitation period

(which is denied), the Court should nevertheless not disallow the limitations

defence. The corporate defendant says the plaintiff was aware, at all relevant times,

of potential remedies available to him and, according to his own evidence, was

aware of his cause of action. Further, when the relative degree of prejudice to the

Plaintiff and Defendants is weighed, the corporate defendant says it would be

“equitable” to allow the limitations defence.

4.

Impecuniosity

[405] Counsel for the individual defendant says impecuniosity is not a satisfactory

explanation for the plaintiff’s failure to commence this action within the time limits.

He refers to Capobianco v. Regina District Health Board (1997), 160 Sask. R. 157

(Q.B), where MacPherson C.J.Q.B. held that a plaintiff claiming impecuniosity

needed to show serious and genuine efforts to raise the required money. Examples

of such efforts would include canvassing lawyers to see if any would take her case

on a “contingency basis”. Counsel also refers to Cecil v. Holt Renfrew & Co., 2001

BCPC 54; 2001 CarswellBC 583 (B.C. Prov. Ct.), where the court dismissed a

claim for payment of an alleged debt because it was statute-barred. The claimant

knew the identity of the alleged tortfeasor for many years, and obtained legal advice

eight years before bringing the action.

Page 116

[406] The plaintiff’s evidence is that he made one call to a lawyer, James Norquist,

in the mid-1980s, and took no further steps to enforce his rights. As a result,

counsel for the individual defendant submits, the lack of “serious and genuine”

efforts should bar his claim.

[407] The corporate defendant’s position is that Wall’s stated reason for not

starting the action earlier – that he could not afford it and was not aware of

contingency fee proceedings – is not a relevant consideration for the purposes of

limitation periods. This would not appear to be consistent with the holding of Chief

Justice MacPherson in Capobianco. Mr. Norquist acknowledged he did not advise

Wall of the possibility of a “contingency fee” arrangement, adding his belief that

“no lawyer in his right mind would take the case on a contingency fee basis”. In

such a circumstance, it is difficult to see what other “serious and genuine” efforts

could be expected of the plaintiff. In fact, it does appear that the year after learning

from Mr. MacPhee of the possibility of the potential for a “contingency fee”

arrangement enabling him to obtain legal assistance, this proceeding was

commenced. This is not a circumstance where, having legal advice on how to

proceed, Wall ignored the advice by not proceeding with his litigation.

5. Discoverability

[408] In respect to his knowledge, that something had been taken from him, the

plaintiff responded to counsel for the individual defendant:

Q. And would it be fair to say, sir, that the position you’ve taken is that even since

January or maybe December 1980 or January ‘81, you knew something had been

taken from you, and you knew it was, according to you, the concept for this game.

A. Correct.

Q. And you were aware of the fact that it was going to market as of that telephone

call.

A. Yes, I did.

Q. And you became aware of the fact that it was on the market in either ‘82 or ‘83

because you started to play it sometime around then, correct?

A. I was aware of it very early as it went to British Columbia, yes.

Page 117

Q. And that would have been in 1982 or ‘83, correct?

A. I believe you’re correct.

[409] The corporate defendant suggests that according to the “discoverability

principle”, the limitation clock starts when the plaintiff has discovered, or ought to

have discovered, the material facts upon which his cause of action is based. Counsel

asserts the plaintiff discovered the material facts on which his claim is based in

January, 1981, when, according to his evidence, he received a phone call from

Haney, thereby learning that any agreement they had, had been breached.

Alternatively, the corporate defendant says in 1982 Wall became aware that Trivial

Pursuit was on the market. Regardless of whether the limitation clock runs from

January 1981, or from 1982, counsel says, the six year limitation period expired by

1988.

[410] As to the plaintiff’s absence from Nova Scotia, after September 1981, the

corporate defendant says “the limitation clock starts to run if the potential plaintiff

visits the province for as little as a day.” Counsel refers to R. B. Ferguson

Construction Ltd. v. Nova Scotia (1989), 91 N.S.R. (2d) 226 (A.D.) and Clarke v.

Milford (1984), 64 N.S.R. (2d) 361 (T.D.) (appeal allowed: (1987), 78, N.S.R. (3d)

337). With respect to the relevant facts on this point, counsel says:

David Wall moved out Alberta the first time on approximately January 9, 1981....

David Wall moved back to Nova Scotia in July 1981 and then moved back out

Alberta in September 1981.... [D]uring the period of time that David Wall lived in

Western Canada he came back to Nova Scotia for visits, including a visit during

the summer 1983 or the summer of 1984 at the latest. The evidence on this comes

from a variety of sources, including: 1) the calendar/planner of his mother Jessie

Wall for 1983 ... as well as her notes summarizing the entries in the calendar

planner that related David Wall ..., which indicate the following: a) May 6, 1983 –

David leaves Vancouver; b) May 7, 1983 – David home – 12 noon; c) May 22,

1983 – David accepted; went back to Vancouver; and, d) May 24, 1983 – David

back to work. Consistent with the foregoing, David Wall's discovery evidence that

was read in to evidence at trial from his July 5-8, 1999, examination for discovery,

at page 422 and which was entered as an exhibit (Exhibit 97), included the

following:

Page 118

Q. Now prior to moving back I take it you came home to Cape Breton from time

to time for a visit?

A. Yes, I did.

Q. Can you recall how often? Was it sort of an annual thing, come home for

Christmas, come home for Summer holidays?

A. I believe initially I came home two Springs in a row. Perhaps...I was home for

two Springs and two Christmases, but I believe the first one may have been...it

might've been 1983 my first Spring home and that's what...I'm not 100% sure of

that and then the following Spring I came home and then the next two trips home

were during and over Christmas.

[411] The individual defendant also says the plaintiff knew of his cause of action in

January 1981, at the latest, after the alleged telephone conversation with Haney. By

not commencing the claim until 1994, counsel says, he exceeded the limitation

period. Counsel adds this would still be the case if the limitation period commenced

when the plaintiff learned of the marketing of the game in 1982. In addition, he

argues, the delay is of a length to raise a presumption of prejudice; it is the fault of

the plaintiff alone; and there is no evidence of a disability which would have

prevented him from pursuing his claim in 1982.

[412] The plaintiff argues that, absent any disability or exceptions, the cause of

action in contract accrued when Wall learned the defendants had brought Trivial

Pursuit to market, being in late 1982 or spring 1983, when Sergeant Pitt-Payne read

him the story in the newspaper. While he was advised by Haney, in December 1980

or January 1981, that he intended to take the game to market and would claim to

have invented it with friends, the plaintiff says Haney was “trying Mr. Wall on for

size to see how he would react.” It did not “crystalize” for him that the agreement

was going to be breached. It was when he learned Trivial Pursuit had come to

market that he became aware Haney had breached the agreement. Absent anything

else, the plaintiff argues, that is when the limitation period, in contract, commenced.

[413] The plaintiff says he was outside the jurisdiction when he learned of the

breach and did not move back to Nova Scotia until 1987. He was home for a visit at

Christmas, 1985. The plaintiff says his absence from the jurisdiction acts as a

Page 119

disability. Although the Limitations Act does not now contain such a provision, one

appears to have existed in earlier versions, including part of the 1980s and 1990s.

[414] In Clarke v. Milford, supra, Hallett J. (as he then was), at paras. 15-16

observed:

Plaintiff's counsel argues that it is an injustice if a plaintiff, who resides out of the

jurisdiction, loses the protection of the disability provisions upon a short visit to

the province. He submits that the cases he referred to were decided on the

assumption that the plaintiffs involved in those cases knew of the existence of the

cause of action at the time they came into the jurisdiction. The plaintiff in this case

did not know of the problem until 1981.

While I have sympathy for the plaintiff, I cannot accept his argument on this issue.

The Act only states that the time starts to run when the plaintiff returns to the

province and it is clear from the evidence that in 1971 the plaintiff attended in

Nova Scotia and in fact saw his solicitors with respect to the bill that had been

rendered with respect to acting for him on the purchase. There is nothing in the

Act that would indicate that the visit would have to be for a reasonable length of

time before time begins to run. Nor does the Act state that the time does not run

against a person out of the province until he is aware that he has a claim.

[415] Although cited by plantiff’s counsel, this excerpt clearly does not support the

plaintiff’s position. While an appeal was allowed on the ground that the cause of

action arose only when the material facts were known, or ought to have been

known, this does not appear to displace the comments of Hallett, J. regarding the

nature of the return to the Province, after an absence, that will trigger

commencement of the limitation period for bringing a lawsuit. In Ferguson

Construction, supra, at paragraph 29, the Court of Appeal specifically endorsed the

statement that time began to run when the plaintiff entered the province “for

however short a time.”

[416] Independent of any other claim that may survive, the plaintiff says it is open

to the Court to exercise its discretion and allow the contract claim to proceed, it

having been commenced within the four-year discretionary period. The plaintiff

says there is no evidence of prejudice to the defendants with respect to loss of

evidence or the other factors to be considered under section 3. In view of the

reasons in Kovacs, supra and in K.A.S., supra, there would not appear to be any

discretion to extend the period for commencing an action beyond the legislated

period and the maximum four year extension. The plaintiff appears to be either

Page 120

forgetting or mis-reading the finding of Hallett, J. in Clarke v. Milford, supra, or the

evidence of Wall that he returned to Nova Scotia in 1982 or 1983, albeit for brief

visits.

[417] The plaintiff takes a similar position with respect to the claim for conversion,

submitting the limitation period began to run in 1985, when Mr. Wall returned to

Nova Scotia for Christmas. Therefore, the suggestion is the action would have been

commenced within the discretionary period. Again, the submission appears to

ignore the plaintiff’s own evidence as to when he visited Nova Scotia during the

early 1980's.

[418] The causes of action having a limitation period of six years are statute-barred

by the Limitations Act. The plaintiff was, or should have been aware of the material

facts on which his claim is based no later than late 1982 or early 1983, when, after

learning the game had been brought to market, he returned to Nova Scotia for a visit

probably in the Spring of 1983 and clearly by May 1984. Consequently, the six year

limitation period, together with the maximum permitted extension of four years,

would have expired before the Originating Notice (Action) and Statement of Claim

in this proceeding was filed. Additionally, Wall knew of his right to make a claim

before his return to Nova Scotia.

6. Concealed Fraud

[419] The plaintiff argues that in the event the Limitations Act applies to the claims

in contract and conversion, legal and equitable fraud on the part of the individual

defendant nevertheless relieves him from its strict application. He cites Faulds v.

Harper, (1885), 11 S.C.R. 639, to the effect that limitations statutes have no

application in cases of trustees or other fiduciary agents, where fraud is involved.

[420] Graeme Mew writes, in The Law of Limitations (2d edn., 2004), at p. 43,

that “[n]o length of time will act as a bar to relief in the case of fraud, whether or

not the defendant takes steps to conceal its fraud, in the absence of laches on the

part of the person defrauded”. The corporate defendant says this is essentially an

articulation of the discoverability principle, applied where the plaintiff was unaware

of the wrongful act, regardless of whether the defendant actively concealed it.

Accordingly, it is argued, in the context of this case, the principle does not affect

the limitation period, which is governed by discoverability. The defendant says the

Page 121

plaintiff was aware of the conduct of which he complains since the time of the

alleged phone call, and certainly since learning of the game coming to market.

[421] The corporate defendant refers to Bulli Coal Mining Company v. Osborne,

[1899] A.C. 351 (P.C.) and Pigott v. Nesbitt, Thomson & Co., [1941] S.C.R. 520 to

support the proposition that "fraud" in this context means "any act of wilful and

conscious wrongdoing." In Pigott, the majority of the Supreme Court of Canada, at

p. 530, agreed with the following statement by Masten and Fisher, JJ.A., found in

the Ontario Court of Appeal decision, [1938] 4 D.L.R. 593 at p. 605:

We have carefully read and considered all the cases that are referred to by counsel

on either side, and it seems to us that they are completely and accurately

summarized in Salmond on Torts, 9^thed., p. 180, in the following words:

When the defendant has been guilty of fraud or other wilful wrongdoing,

the period of limitation does not begin to run until the existence of a cause

of action has become known to the plaintiff. This is commonly spoken of

as the rule of concealed fraud, but the term fraud is here used in its widest

sense as meaning any act of wilful and conscious wrongdoing – for

example, a wilful underground trespass and abstraction of minerals. The

term concealed, moreover, does not imply any active suppression of the

facts by the defendant, but means merely that the wrong is unknown to the

person injured at the time of its commission.

[422] Bulli Coal Mining Co. involved a deliberate underground trespass by a coal

mine onto a neighbouring property, whose owner was not aware of the trespass,

although the mine had not taken active steps to conceal it. On the discoverability

issue, Lord James of Hereford, for the Privy Council, stated at pp. 362-363:

... Where the remedy is given on the ground of fraud Lord Westbury (3) [in Rolfe

v. Gregory, (1865) 4 D.J. & S. 576 at 579] pointed out that ‘it is governed by this

important principle that the right of the party defrauded is not affected by lapse of

time, or, generally speaking, by anything done or omitted to be done so long as he

remains without any fault of his own in ignorance of the fraud which has been

committed.’

[423] It was in this context that Lord James, at p. 363, added:

... Now it has always been a principle of equity that no length of time is a bar to

relief in the case of fraud, in the absence of laches on the part of the person

defrauded. There is, therefore, no room for the application of the statute in the case

Page 122

of concealed fraud, so long as the party defrauded remains in ignorance without

any fault of his own.

[424] Returning to The Law of Limitations, the corporate defendant cites the

following, at p. 121:

Equity will not permit the use of a limitation period as the engine of fraud.

Accordingly:

. . . fraud on the part of one party prevents the Statute from running until it

is discovered or until it might with reasonable diligence be discovered, and,

where there are no laches on the part of the person defrauded, his action is

not barred even though the other party took no active steps to conceal the

fraud. [E.L. Weaver, Limitations (Toronto, 1939) at 307]

It has been suggested that the foregoing principle is both one of equity and

common law. What is clear is that the principle applies to statutory limitation

periods and does not require that active measures have been taken to prevent the

detection of the fraud.

[425] Again, as with the cause of action in contract, the issue is when was the

plaintiff aware of the material facts on which his claim was based. Once these facts

were known to Wall, there was no longer a “concealed fraud”. Is the plaintiff able

to allege he was in “ignorance” of the alleged misconduct of the defendants. As

with the cause of action in contract, the claims in conversion, theft, fraud and deceit,

to the extent alleged against the defendants, or either of them, are therefore

limitation barred.

B.

Laches

[426] The defendants say the equitable claims, although not specifically listed in s.

2(1) of the Limitations Act, must fail on the basis of laches. The plaintiff, listing

three reasons, says there has been no laches: (1) it is not open to the defendants, not

having clean hands, to invoke the equitable defence of laches; (2) there has been no

unreasonable delay; and (3) even if there has been delay, the defendants must show

actual prejudice, of which there is “no evidence whatsoever.”

[427] Mew’s Law of Limitations, at pp. 39-40:

Page 123

Where a plaintiff delays in pursuing its rights, such delay ‘may furnish a defence

in equity to an equitable claim’. Laches is established when two conditions are

fulfilled:

(1) there has been unreasonable delay in the commencement of

proceedings; and

(2) in all the circumstances the consequences of the delay render the grant

of equitable relief unreasonable or unjust.

Accordingly, in determining whether the doctrine of laches should be invoked to

bar a plaintiff’s remedy, the court will have regard not only to the actual period of

delay, but also to the effect upon third parties and the balance of justice or injustice

to the parties that will result from its granting or refusing relief. In contemporary

parlance, there must exist some prejudice to the defendant for equity to impose a

bar.

[428] A leading authority on laches is Lindsay Petroleum Company. v. Hurd

(1874), 5 P.C. 221, at para 2, (Ont. P.C.), where the doctrine is explained at pp. 239-

240:

Now the doctrine of laches in Courts of Equity is not an arbitrary or a technical

doctrine. Where it would be practically unjust to give a remedy, either because the

party has, by his conduct, done that which might fairly be regarded as equivalent to

a waiver of it, or where by his conduct and neglect he has, though perhaps not

waiving that remedy, yet put the other party in a situation in which it would not be

reasonable to place him if the remedy were afterwards to be asserted, in either of

these cases, lapse of time and delay are most material. But in every case, if an

argument against relief, which otherwise would be just, is founded upon mere

delay, that delay of course not amounting to a bar by any statute of limitations, the

validity of that defence must be tried upon principles substantially equitable. Two

circumstances, always important in such cases, are, the length of the delay and the

nature of the acts done during the interval, which might affect either party and

cause a balance of justice or injustice in taking the one course or the other, so far

as relates to the remedy....

[429] In M. (K.) v. M. (H.), [1992] 3 S.C.R. 6, at pp. 77-78, La Forest J. observed:

The rule developed in Lindsay is certainly amorphous, perhaps admirably so.

However, some structure can be derived from the cases. A good discussion of the

rule and of laches in general is found in Meagher, Gummow and Lehane [Equity

Page 124

Doctrines and Remedies (Sydney, 1984)] at pp. 755-765, where the authors distill

the doctrine in this manner, at p. 755:

It is a defence which requires that a defendant can successfully resist an

equitable (although not a legal) claim made against him if he can

demonstrate that the plaintiff, by delaying the institution or prosecution of

his case, has either (a ) acquiesced in the defendant's conduct or (b ) caused

the defendant to alter his position in reasonable reliance on the plaintiff's

acceptance of the status quo, or otherwise permitted a situation to arise

which it would be unjust to disturb.

Thus there are two distinct branches to the laches doctrine, and either will suffice

as a defence to a claim in equity. What is immediately obvious from all of the

authorities is that mere delay is insufficient to trigger laches under either of its two

branches. Rather, the doctrine considers whether the delay of the plaintiff

constitutes acquiescence or results in circumstances that make the prosecution of

the action unreasonable. Ultimately, laches must be resolved as a matter of justice

as between the parties, as is the case with any equitable doctrine.

[430] La Forest J. went on to discuss acquiescence, at pp. 78-79:

Acquiescence is a fluid term, susceptible to various meanings depending upon the

context in which it is used. Meagher, Gummow and Lehane, supra, at pp. 765-66,

identify three different senses, the first being a synonym for estoppel, wherein the

plaintiff stands by and watches the deprivation of her rights and yet does nothing.

This has been referred to as the primary meaning of acquiescence. Its secondary

sense is as an element of laches -- after the deprivation of her rights and in the full

knowledge of their existence, the plaintiff delays. This leads to an inference that

her rights have been waived. This, of course, is the meaning of acquiescence

relevant to this appeal. The final usage is a confusing one, as it is sometimes

associated with the second branch of the laches rule in the context of an alteration

of the defendant's position in reliance on the plaintiff's inaction.

As the primary and secondary definitions of acquiescence suggest, an important

aspect of the concept is the plaintiff's knowledge of her rights. It is not enough that

the plaintiff knows of the facts that support a claim in equity; she must also know

that the facts give rise to that claim: Re Howlett , [1949] Ch. 767 . However, this

Court has held that knowledge of one's claim is to be measured by an objective

standard; see Taylor v. Wallbridge (1879), 2 S.C.R. 616 , at p. 670. In other words,

the question is whether it is reasonable for a plaintiff to be ignorant of her legal

rights given her knowledge of the underlying facts relevant to a possible legal

claim.

Page 125

It is interesting to observe that in practical terms the inquiry under the heading of

acquiescence comes very close to the approach one takes to the reasonable

discoverability rule in tort. As we have seen, the latter focuses on more than mere

knowledge of the tortious acts -- the plaintiff must also know of the wrongfulness

of those acts. This is essentially the same as knowing that a legal claim is possible.

That the considerations under law and equity are similar is hardly surprising, and

is a laudable development given the similar policy imperatives that drive both

inquiries

[431] The law regarding laches was reviewed by Edwards J. in his unreported

decision in this proceeding, dated September 26, 1997 (S.N. No. 101331). He

referred to Halsbury's Laws of England (4^thEdn.), Vol. 16, at para 925:

A plaintiff in equity is bound to prosecute his claim without undue delay.... A court

of equity refuses its aid to stale demands, where the plaintiff has slept upon his

right and acquiesced for a great length of time. He is then said to be barred by his

laches... .

[432] Edwards J. noted that in the context of claims relating to a business, delay

can be fatal, because the plaintiff should not be permitted to wait to see if the

business is successful and then seek to reap the rewards without any effort or risk.

At p. 5 he cited Snell's Equity , where the following appears (citing from the 31^st

Edn. (2005) at paras 5 - 19:

Laches essentially consists of a substantial lapse of time coupled with the

existence of circumstances which make it inequitable to enforce the claim. Delay

will accordingly be fatal to a claim for equitable relief . . . if the claim is to a

business (for the claimant should not be allowed to wait and see if it prospers)....

[433] The plaintiff asserts the present claim is not to a business but to a property.

Edwards J. cited Re Jarvis,[1985] 2 All E.R. 336 (Ch.D.), which concerned a claim

for breach of trust. The parties were sisters and trustees of their father's tobacconist

business. The trust was for the benefit of the parties, and another sister and their

mother. The defendant ran the business for her own benefit, in breach of her trust

obligations, for several years before the action was commenced. The court refused

to grant the plaintiff a remedy, due to laches. The plaintiff’s inability to afford

counsel, while a consideration, did not bar the application of laches. In Jarvis,

Upjohn, J., in his discussion of the principles underlying the doctrine of laches

stated at p. 341:

Page 126

The principles applying in relation to a business are quite different from those

applying in the case of a specific asset, such as a renewed lease. The principle was

stated in Clegg v. Edmondson (3) ((1857), 8 De G.M. & G. 787). There KNIGHT

BRUCE, L.J., said (ibid., at p. 814):

A mine which a man works is in the nature of a trade carried on by him. It

requires his time, care, attention and skill to be bestowed on it, besides the

possible expenditure and risk of capital, nor can any degree of science,

foresight and examination afford a sure guarantee against sudden losses,

disappointments and reverses. In such cases a man having an adverse claim

in equity on the ground of constructive trust should pursue it promptly, and

not by empty words merely. He should show himself in good time willing

to participate in possible loss as well as profit, not play a game in which he

alone risks nothing.

That was the case of a mine, which may be regarded as an exceptionally

hazardous undertaking, and the delay which was held to be fatal in that

case was ten years, i.e., four more than here; but the principle as stated is of

general application.

[434] The delay, as noted in Clegg, supra, was ten years; the delay in Jarvis was

six years. The delay by Wall is longer, just under 14 years from the alleged phone

call from the driver until the action was commenced, or 12 years, from the time he

learned the game had been taken to market, or 11 or 12 years depending on the

actual date he returned to Nova Scotia for a visit, after he was aware the game had

been brought to market.

[435] Spry’s Equitable Remedies, 5^thed. (1997), discusses unreasonable delay at p.

226 - 228:

The point of time as from which the reasonableness of delay is determined is,

prima facie, the time at which the plaintiff came to know of the facts that had given

rise to the ground of equitable intervention in question....

... the general rule is that in order to establish that the delay of the plaintiff has

been excessive it must appear that, in all the material circumstances, a reasonably

assiduous person would have proceeded with substantially greater speed or

diligence. All the acts of the parties and all the circumstances of the particular

case must, accordingly, be examined in order to establish whether this condition is

satisfied.

Page 127

[436] In Susin v. Genstar Development Co. (2001), 14 C.L.R. (3d) 292 (affirmed at

(2003), 27 C.L.R. (3d) 161 (Ont. C.A.), the claimant commenced an action in 1999

for funds allegedly due under a contract between the parties’ predecessors for work

carried out in 1973. The defendant claimed the action was barred by statute or

laches. With respect to laches, the court considered the delay in commencing the

action, the effect of the delay on the defendant’s ability to obtain evidence,

including necessary witnesses, and the succession of interests. The court held that

these factors prejudiced the defendant in answering a “stale claim”.

[437] In Prkacin v. Winter, 2005 CarswellOnt 1650 (Ont. S.C.J.) the Court held

that a ten-year delay in bringing an action for breach of fiduciary duty was a

significant delay and that laches barred the claim. The plaintiffs retained the

defendant lawyer in 1989 and in 1990, in connection with a land transaction. They

purchased land for development. Several investors sued them and the defendant in

1993 for, inter alia, theft and fraud. In 2003, the plaintiffs commenced an action for

negligent representation, breach of fiduciary duty and perjury. Speigel J. held that

the plaintiffs could have cross-claimed in the 1993 action, and, as a result of their

failure to do so, the defendant had “reasonably entered into a settlement with the

Investors, thus altering the status quo. Accordingly, the doctrine of laches bars the

claim against Winter for breach of fiduciary duty” (para. 22).

[438] In Warren v. People’s Finance Co. (1961), 27 D.L.R. (2d) 567 (Man. C.A.)

an individual deposited shares in the defendant’s company as a security for a

business loan in 1932. The loan was reduced in 1937, but no further payments were

made before his death in 1955. During that time, the deceased made no request for

the return of the shares, nor any assertion of ownership. The plaintiff, his executor,

sought a declaration that the deceased was, at his death, the owner of the shares.

The defendant pleaded laches. The Court stated the defence of “laches must be

based on the consideration that it would be an injustice to allow the remedy

demanded by the plaintiff, either because the plaintiff by his conduct had waived

his rights or because the position of the parties had changed” (p. 574). The Court, at

p.577, continued:

There is ... difficulty in applying equitable principles in most actions such as the

present, but that difficulty is minimized in the present instance by the careful and

thorough analysis of the evidence set out in the reasons of the learned trial Judge.

That analysis shows that so far as the Company was concerned there was no

concealment of any facts from Waisman; nobody was better aware than he of the

circumstances under which the loan was made or the agreement for repayment. He

Page 128

not only had every reason for asserting a claim if he thought he had one – his

economic difficulties are proof of that – but he had every opportunity for doing so

because he was in touch with the manager of the company on many occasions

during the 21-year period prior to his death. It is indeed difficult to justify laches

under such circumstances: the only logical inference that can be drawn from his

circumstances, from his lack of action, from his statements to Mr. Spivak, is that

he acquiesced entirely in the action of the Company. The necessity for some

degree of promptitude in asserting a claim, if he thought he had one, is stressed in

many cases. See the remarks of Rinfret, J. in Harris v. Lindeborg, [1931] S.C.R.

235, at 243, which varied [1930] 1 W.W.R. 411, 42 B.C.R. 276:

Where a person is obliged to apply for the peculiar relief afforded by equity

to declare a trust or to enforce a contract, the principle is that he must come

promptly.

...

In all of these cases the Courts recognize that the decisive factor is whether the

balance of justice is or is not in favour of withholding the remedy. This is as far as

one can go in considering other cases, for this is a realm of law where each case

depends so much on its own facts that reference to other cases is of no great

assistance as there are inevitably points of difference.

[439] The corporate defendant says the plaintiff's “incredibly lengthy delay” makes

it unjust and unreasonable to allow the action to proceed. It claims to be prejudiced

in addressing certain issues, asserting it was apparent that witnesses had difficulty

recalling events given the extreme passage of time. The individual defendant says

laches applies given the plaintiff’s significant delay in commencing the action. He

says the plaintiff knew of his claim as early as January 1981 but did not act.

Further, the fact that he could not afford to proceed should not affect the application

of laches (relying on Capobianco, supra). He says the 13-year delay renders this a

“stale claim,” prejudicing the defendants’ capacity to obtain relevant evidence.

Given the passage of time it is clear that some witnesses may not have sufficient

memory of events. As such, his position is that the delay represents an “inordinate

delay” which prejudices him.

[440] The individual defendant says the plaintiff cannot sit on his rights and try to

“forget” (as per his own evidence) about the alleged wrongful conduct, at the

expense of the defendants. Laches requires there be an unreasonable delay in

commencing proceedings and that, in all the circumstances, the consequences of the

delay render the grant of equitable relief unreasonable or unjust. He says both

Page 129

conditions are fulfilled: the delay of almost 27 years between the alleged events and

the trial is an “undue delay,” and the plaintiff has “slept upon his right and

acquiesced for a great length of time.” By failing to proceed, he argues, the plaintiff

waived any claim; the defendant suggests the plaintiff has waited to see if the

business is successful, and then tried to reap the rewards without any effort. As a

result of waiting to prosecute the claim, it is argued, the plaintiff is estopped from

asserting any rights. Furthermore, memories have faded over time and individuals

with material evidence have died (e.g. Frederick (Dusty) Miller, George Munroe

and John Yurchesyn), disappeared (Doug Miller) or were too ill to testify (Herbie

Hines).

[441] The plaintiff says the defendants do not have clean hands and refers to

comments by Edwards J. with respect to the “unclean hands” doctrine, he claims

that:

the very fact that they had taken the game from Mr. Wall and then became

extremely wealthy as a result was a direct, immediate and necessary relation to his

inability to bring an action. By the time he became aware it was at market out

West (approximately Winter 1982 - Spring 1983) it had already taken off in the

East and at that point the Defendants were already "Multimillionaires”.

This was the very reason that Jim Norquist advised that Mr. Wall would need to

have a "war chest". Coupled with the fact that he would have to take the action

back East Mr. Wall was left with the inescapable conclusion that there was nothing

that he could practically do to address the wrongs visit upon him.

Additionally, the Defendants actions since the action had been commenced can

also be looked to determine clean hands. Their bringing an application in July of

1998 to summarily dismiss Mr. Wall's case as having no merit when they full well

knew of Cecil Currie, Gerry Murphy (and likely a number of other witnesses) had

to say confirms that they do not have clean hands and are entitled to no equitable

relief whatsoever!

[442] In any event, the plaintiff argues, the length of time taken by Wall is not

excessive, as the action was commenced within the limitation periods and does not

approach the length of the delay in more extreme cases, such as the 43 year delay in

Canada Permanent Trust Co. v. Lloyd, [1968] S.C.R. 300. In The Law of

Limitations, Mew at p. 41 remarks that “it has been suggested that 20 years is the

maximum period beyond which equitable relief will not be granted”. In the present

instance, regardless of which of the suggested dates is used to trigger the running of

Page 130

the limitation period, the delay to commencement of this lawsuit, does not approach

20 years.

1.

Limitation by Analogy

[443] The corporate defendant suggests the doctrine of laches permits the Court to

apply limitation periods by analogy where a plaintiff asserts claims that are statute-

barred along with equitable claims for which there is no statutory limitation period.

[444] In M.(K.) v. M(H.), supra, the Supreme Court of Canada confirmed that

statutory limitation periods may apply by analogy to equitable claims, but that such

application by analogy is subject to all of the circumstances of the case. La Forest

J., on behalf of the majority, at p. 74, explained that “concurrent actions in equity

will be subjected by analogy to the limitations statute. However, equity...is not

bound to follow the law, and its residual discretion may be employed through the

doctrine of laches.”

[445] The application of this principle is illustrated in Canadian Microtunnelling

Ltd. v. Toronto (City) (2002), 28 M.P.L.R. (3d) 109 (Ont. S.C.J.); affirmed at

(2004), 4 M.P.L.R. (4^th) 120 (Ont.C.A.); leave to appeal to S.C.C. refused, May 19,

2005, where the plaintiff gave the City a proposal for a particular project. The city

did not accept the proposal and directed an open tender. The plaintiff bid for the

project, but the City chose a lower bidder. Seven years later, the plaintiff

commenced the action, asserting several causes of action, including breach of

contract, breach of confidence, breach of fiduciary duty and unjust enrichment.

Himel J. held that the claim for breach of contract was statute-barred, and added

that statutory limitation periods may apply by analogy to equitable claims where

legal claims and equitable claims are sought concurrently. At paragraphs 115-117,

the Court said:

Where an equitable claim is not expressly covered by any statutory limitation

period but is closely analogous to a claim that is expressly covered, the defence

can assert that the relevant limitation should be applied by analogy. Quite often,

legal remedies and equitable remedies are sought concurrently or in the alternative

(as is the case at bar). A court will not afford a plaintiff ancillary equitable relief

after the expiry of the statutory period for pursuing the legal remedy.

Page 131

For a limitation period to be applied by analogy, the equitable claim should

precisely correspond to one to which a statutory limitation period applies. A vague

similarity is not enough: G. Mew, The Law of Limitations, at p. 23.

Equity has rarely limited a claim by analogy to the common law's doctrine of

discoverability when a case falls within its exclusive jurisdiction, as in a claim for

breach of fiduciary duty. However, in claims in equity the doctrine of laches

applies. This is a defence which requires a defendant to demonstrate that the

plaintiff, by delaying the institution of a suit, has either (a) acquiesced in the

defendant's conduct or (b) caused the defendant to alter his position in reasonable

reliance on the plaintiff's acceptance of the status quo, or otherwise permitted a

situation to arise which it would be unjust to disturb’: Meagher, Gummow and

Lehane Equity Doctrines and Remedies ... as quoted in M.(K.) at pages 77-78.

[446] Himel J. went on to decide that the limitation period applicable to contract

could be applied by analogy to the claim for equitable relief (para. 135).

[447] In Ellement v. Upenieks, 2006 CarswellOnt 2697 (Ont. S.C.J.) the plaintiff

claimed the defendant had breached an agreement to sell a leasehold interest in a

house. The plaintiff brought an action for breach of contract and a concurrent action

for unjust enrichment. Swinton J. held that the claim for breach of contract was

statute-barred, and that the statutory limitation period applied by analogy to the

claim for unjust enrichment. At para. 27, the Court stated:

The essence of the plaintiff's claim is one for breach of contract. He seeks damages

for breach or, in the alternative, the return of the downpayment because the sale

has not occurred. Therefore, the six year limitation period applies by analogy....

[448] The corporate defendant asserts that the reasoning in these cases applies to

the plaintiff’s equitable claims. The defendant says the essence of Wall's claim is

breach of contract, in that the driver of the car allegedly agreed to, then breached,

terms requested by Wall. The claim for breach of contract is statute-barred, and the

equitable claims – breach of confidence and breach of fiduciary duty - "precisely

correspond" to the other claims. They are based on the same alleged facts. The

equitable claims are analogous and therefore, it is argued, the six-year limitation

period for breach of contract should apply.

[449] The individual defendant likewise submits that the Court can assert the

statutory limitation periods, in addition to laches, against the plaintiff’s equitable

Page 132

claims. This would result in a maximum ten-year period during which the plaintiff

could have asserted the equitable claims.

C.

Limitations and Copyright

[450] The Copyright Act includes a limitation period. Section 41:

41. (1) Subject to subsection (2), a court may not award a remedy in relation to an

infringement unless

(a) in the case where the plaintiff knew, or could reasonably have been

expected to know, of the infringement at the time it occurred, the

proceedings for infringement are commenced within three years after the

infringement occurred; or

(b) in the case where the plaintiff did not know, and could not reasonably

have been expected to know, of the infringement at the time it occurred, the

proceedings for infringement are commenced within three years after the

time when the plaintiff first knew, or could reasonably have been expected

to know, of the infringement.

(2) The court shall apply the limitation period set out in paragraph (1)(a) or (b)

only in respect of a party who pleads a limitation period.

[451] The corporate defendant says the theory of the plaintiff’s case regarding

copyright infringement is unclear. The statement of claim alleges the plaintiff’s

ideas were taken. Counsel responds that there is no copyright in an “idea”. The

statement of claim does not allege that any artistic work was created, nor does it

describe the nature of the infringing work.

[452] The individual defendant argues that because more than three years have

elapsed since the alleged infringement, and the plaintiff claims he was aware of the

infringement, the copyright claim is barred by the limitation period. The restriction

in s. 41(2) does not apply, since the defendants have pleaded the limitation defence.

The Copyright Act does not permit an extension beyond the limitation period of

three years set out in s. 41(1). The individual defendant says actions for copyright

infringement are statute-barred three years from the time a plaintiff becomes aware

of activities that form the basis for an infringement claim: Tele-Direct

Page 133

(Publications) Inc. v. American Business Information Inc. (1996), 113 F.T.R. 123

(Fed. T.D.); affirmed 1997), 154 D.L.R. (4^th) 328 (F.C.A.), leave to appeal to S.C.C.

submits, the plaintiff’s ability to commence an action expired in 1985.

[453] The plaintiff cites J. Morton, Limitation of Civil Actions (1988) at p. 78:

... Every unauthorized reproduction of a work is an infringement of copyright and

therefore the limitation period will commence running only from the latest

instance of infringement and not from the commencement of infringement. It

should be noted, that the limitation period does not apply to bar an action for an

injunction restraining future copyright infringements. In such an action, statute-

barred infringements can be raised as evidence of a future threat to infringe the

copyright.

[454] While admitting to the three-year limitation period under the Copyright Act,

the plaintiff argues that (1) the expiration of the limitation period, being procedural,

does not extinguish the right. It simply extinguishes the cause of action to legally

pursue a remedy for a breach of that right; (2) expiration of limitation period of

three years on an initial copyright infringement does not preclude action on ongoing

and subsequent infringements (Morton, supra); and (3) the limitation period does

not run in instances of fraud (Morton, supra).

[455] The plaintiff therefore claims that although the Copyright Act would bar any

recovery (in the absence of fraud) for infringements prior to November 14th, 1991

(three years prior to the commencement of the action), infringements since that time

are actionable. Every reproduction of the pie-shaped board or marker, or use of the

name, or any derivative flowing from any of these, constitutes a breach of Wall's

common law copyright.

[456] Plaintiff’s counsel would appear to be incorrect, at least in respect to his

assertion “the expiration of the limitation period, being procedural”. On the other

hand, defence counsel do not appear to take issue with his assertion that

infringements within three years of the commencement of this proceeding would

not be statute barred.

D.

Conclusion on Limitations and Laches

Page 134

[457] It is not until the plaintiff was aware the defendants had brought the game to

market, that the statutory period begins to run. Until then, the plaintiff from the

January 1981 call was only aware that Haney was looking to breach his agreement,

not that he had yet done so. Wall says, Haney was authorized by him to contact

persons in Montreal with the obvious purpose of advancing their common goal of

producing and marketing the game.

[458] Although he had every reason to conclude that Haney was cutting him out,

and going ahead with his friends, it is not until the game was produced and

marketed, to the exclusion of Wall, that the full extent of his cause of action is

evident. This occurred when Wall realized his idea has been brought to fruition,

which, on his evidence, occurred while he was in British Columbia. However, in

view of the legal disability cause by his then absence from Nova Scotia, the

limitation period only commences to run from the date he returned, namely late

1982 or early 1983.

[459] The causes of action for which there is a statutory limitation period, and

where any statutory extension period has expired, are consequently dismissed.

Included in this dismissal are the causes of action on contract and conversion, and

to the extent advanced as causes of action, this for theft, fraud and deceit. There is

nothing in the submissions of the Plaintiff that provides a legal basis for any

discretionary relief from the statutorily mandated limitation periods. To the extent

the Plaintiff suggests conduct amounting to concealed fraud extends any limitation

period or bars the running of any limitation period, regardless of the merits of such

a legal assertion, the facts and conduct of the defendants were sufficiently known to

the Plaintiff more than 10 years prior to his initiating this proceeding, and therefore,

more than the statutory six year limitation period and the maximum four year

extension permitted under the Limitations Act.

[460] In respect to the remaining causes of action, the defendants assert an

entitlement to a dismissal on the basis of laches by the Plaintiff. Included in these

causes of action are those described within the umbrella of “equitable claims” and

any other claims for which there is not a statutory prescribed limitation period. The

equitable causes of action include the Plaintiff’s claims based on the individual

defendant’s “breach of fiduciary duty” as well as the related claim for “breach of

confidence.”

Page 135

[461] As noted in Mew’s Law of Limitations, supra, laches exists where there are

two conditions, namely “unreasonable delay” and the “consequences of delay

render the grant of equitable relief” unreasonable or unjust.

[462] There is nothing in the evidence to suggest the Plaintiff waived any claim or

remedy he had against any of the present and former defendants. This is identified

by LaForest, J. in M.(K.) V. M. (H.), supra, a basis for a defendant to successfully

resist an equitable claim. There must be something more than mere delay in

initiating the proceeding before a determination of “waiver” or “acquiescence in

the defendant’s conduct” can be made.

[463] As noted by Himel, J. in Canadian Microtunnelling Ltd. v. Toronto (City),

supra, a second circumstance where laches may be applied to dismiss an equitable

claim is where the claimant “has caused the defendant to alter his position in

reasonable reliance on the plaintiff’s acceptance of the status quo, or otherwise

permitted the situation to arise which it would be unjust to disturb.” A review of

the evidence, particularly of the present and former defendants, does not suggest

any alteration of position as a consequence of the plaintiff’s acceptance of the status

quo. In fact, it was only shortly before the launching of the lawsuit that the

defendants first became aware of Wall and his claim to be the person who

developed the idea of a board game based on “trivia” and then had it stolen when he

disclosed, in confidence to the individual defendant, his idea and a basic outline of

“the game”.

[464] There was substantial delay, however, as observed by Edwards, J., in his

1997 decision, citing Snell’s Equity, is the delay coupled with the existence of

circumstances that make it inequitable to enforce the claim?

[465] Although the defendants assert the effect of delay, on the ability of witnesses

to recall details of events to which they testified, or, in some circumstances, were

unable to testify, including the intervening death of three witnesses, the

disappearance of one witness and the illness of one witness, preventing him from

testifying in person, it is not clear the whole of the 27 years from the date of the

alleged hitchhiking encounter to the trial can be attributed to the Plaintiff. Certainly

the Plaintiff was responsible for the delay in initiating this proceeding, However,

another 12 years passed before the trial commenced. To what extent, if any, this

“unacceptable delay” in bringing this claim to trial is attributable to the Defendant

rather than the Plaintiff is unclear. Since the Statement of Defences were filed, the

Page 136

defendants were entitled, under the Rules of Court, to pursue, within the available

court resources and subject to completing pre-trial preparation, earlier trial dates.

Indeed, it is evident, the defendants conducted a series of pre-trial steps, including

discoveries of potential witnesses, as well as the Plaintiff, during this 12 year

period.

[466] Absent statutorily mandated limitations on prosecuting his claim, of which

there are none in respect to the equitable claims advanced by Wall, the less than two

years between the statutorily mandated limitation period and the commencement of

this proceeding, taking into account the six year limitation period and the maximum

four year possible extension, is yet another factor and circumstance to be considered

in weighing whether the doctrine of laches and/or the application of limitation by

analogy should be applied, so as to bar the plaintiffs equitable claims. Although

laches is not limited to the period after the expiration of the statutory limitation

period, and any extension, it certainly is yet another factor that may be considered.

[467] Although the Plaintiff, by at the latest 1983, was aware “the game” had been

brought to market, and on the basis of the plaintiff’s allegations, in breach of the

committment and understanding he had with the individual defendant, and this

proceeding was only commenced in 1994, a year, or perhaps almost two, in excess

of the statutory limitation period, and the maximum permitted extension, the

Plaintiff’s “excuse”, although not legally justifiable, does provide for an

explanation for his failure. The failure of lawyer Norquist to advise of the possible

availability of a contingency fee arrangement that may have enabled Wall to pursue

his claim, may explain why the lawsuit was not earlier instituted. However, as

already noted, impecuniosity by itself has not been held to be a justifiable excuse.

[468] The Defendants in asserting the Plaintiff’s equitable claims should be

dismissed on the basis of limitation by analogy, reference the reasons of LaForest, J.

In M. (K.) V. M. (H.), supra. As earlier observed from the reasons of the Court in

Canadian Microtunnelling Ltd., supra, where an equitable claim, although not

covered by a statutory limitation period, is closely “analogous” to a statutory claim

that is covered, the defence is sometimes able to successfully assert the application

of the statutory limitation period to the equitable claim. For such an “analogous”

application of the statutory limitation period, “the equitable claim should precisely

correspond to one to which a statutory limitation period applies”.

Page 137

[469] Justice LaForest, as already observed, in M. (K.) v. M. (H.), supra, stated

“equity ... is not bound to follow the law, and its residual discretion may be

employed through the doctrine of laches”.

[470] Having weighed all of the factors and considered the submissions of counsel

and having regard to all the circumstances, I am not persuaded the circumstances

warrant the dismissal of the Plaintiff’s equitable causes of action on the basis of

laches, or the application of statutory limitation periods by analogy.

[471] Notwithstanding the obvious similarities between the Plaintiff’s claim in

contract and conversion with the claim for breach of fiduciary duties and breach of

confidence, there is an essential distinguishing feature. The former relate to the

violations of legal rights; the latter to violations of obligations of fundamental

justice, the right of persons to rely on promises and committments made to them,

and on which they themselves have acted. Although limitation by analogy has been

applied to equitable claims, to do so in the present instance would be unjust. As the

doctrine of laches should not apply; similarly limitation by analogy should not

apply.

[472] The Plaintiff is entitled to have his claim adjudicated upon; there is nothing

in the submissions of the Defendants to justify disentitling the Plaintiff to have the

substantial merits of his claim assessed. Absent such an assessment, justice is not

served; any prejudice arising from the long delay in initiating this proceeding is far

outweighed by the juristic injustice in arbitrarily failing to assess the Plaintiff’s

claim. The Plaintiff, in particular, as well as others in general, are entitled to know

whether he has presented evidence that substantiates his claim. To the extent his

delay in presenting his claim may affect his ability to do so, he has no one to blame,

but himself. The onus is on the Plaintiff. If because of the delay in advancing the

claim, his evidence and the testimony of the witnesses he has called in support of

his claim, fail to satisfy that onus, then the fallout from such failure, is on the

Plaintiff.

[473] The difficulties of the Defendants, in responding to his claims, must be, and

will be, considered in assessing their response to his allegations. The Defendants

are prejudiced, on account of failed memories and possibly the death or

disappearance of witnesses as well as witnesses’ reduced memory recollections.

However, the balance of justice, the essential fairness of the trial process and the

right of all persons to have their claims judicially considered and determined, absent

Page 138

clear juridical reasons to the contrary, necessitates the rejection of the submissions

to dismiss the Plaintiff’s equitable claim on the grounds of laches or limitation by

analogy.

[474] In respect to the claims relating to copyright, it does not appear to be

contested that although claims relating to breaches that occurred more than three

years preceding the commencement of this proceeding are barred, ongoing breaches

within the three years and following the commencement of this proceeding are not.

E.

Summary re: Limitations and Laches

[475] To summarize, the causes of action in contract, conversion and to the extent

advanced, in theft, fraud and deceit, are dismissed, not having been initiated within

the statutory limitation period, and the maximum discretionary extension, under the

Limitations Act. The equitable causes of action, such as breach of fiduciary duty

and breach of confidence, as well as the claims for copyright infringement, are not

dismissed, the latter in respect to any claims that arose within three years of the

initiation of this proceeding.

F.

Ontario Limitations Law

[476] The individual defendant suggested the application of the Ontario limitations

statute that was in effect at the relevant time, the Ontario Limitations Act, R.S.O.

1990, c. L-15 (since repealed). That statute did not provide any discretion to extend

a limitation period. It provided a six-year limitation period for actions for simple

contract or debt grounded upon any lending or contract without specialty, as in the

Nova Scotia Act. The defendant refers to Canadian Microtunnelling Ltd. v. Toronto

(City), supra.

[477] Counsel for the corporate defendant, Mr. Cotter suggested in oral argument

that Ontario was “another possibility in terms of the proper law to be applied.” He

conceded, however, that there had been no submissions as to why Ontario law

should apply, and took the view that the question was “not something that needs to

be decided.”

[478] Similarly, the individual defendant has not provided any jurisdictional

analysis to explain why Ontario, rather than Nova Scotia, limitations law should

apply. As such, I have decided to apply Nova Scotia limitations law, without

Page 139

considering whether the Ontario Limitations Act is applicable here, and, if it is,

whether it would in any way effect my conclusions on the effect of the Nova Scotia

Limitation Act on the circumstances in this case.

G.

COPYRIGHT

[479] In the amended Statement of Claim dated October 17, 2000, the plaintiff, in

para 42(b), claimed against the Defendants, and each of them, jointly and severally:

A declaration that the Defendants and each of have held all copyrights, trademarks

and other intellectual property in the Game and its derivatives as constructive

trustees for David Wall and for an Order of this Court for them to transfer all rights

therein to David Wall.

[480] The definition and content of copyright is described in section 3 of the

Copyright Act:

For the purposes of this Act, ‘copyright’, in relation to a work, means the sole right

to produce or reproduce the work or any substantial part thereof in any material

form whatever, to perform the work or any substantial part thereof in public or, if

the work is unpublished, to publish the work or any substantial part thereof, ... and

to authorize any such acts.

[481] It is not necessary to “register or mark one’s work in order to benefit from

copyright protection; rather, copyright subsists in a work upon its creation.”

Registration is an advisable formality, but not a requirement for copyright

194). As the Court observed in Grignon v. Roussel (1991), 44 F.T.R. 121

(F.C.T.D.) at para 5:

... The law provides that a work may be registered, but it should be noted that

unlike industrial designs and patents of inventions which the law requires be

registered if the author is to claim ownership title to them, in matters of copyright

registration does not create, only declares the right. In short, the registration of a

work is not necessary to provide copyright protection for its author. The practical

significance of registration lies primarily in the fact that, in the absence of proof to

the contrary, the person registered is deemed to hold the right claimed by him.

Rather than helping to establish authorship, registration helps to establish that a

person holds a copyright and facilitates proof of the holding of copyright in court.

Page 140

[482] Copyright protects the expression of ideas, not ideas per se. This principle

was outlined by the Exchequer Court in Moreau v. St. Vincent, [1950] Ex. C.R. 198,

at para. 203:

... It is ... an elementary principle of copyright law that an author has no copyright

in ideas but only in his expression of them. The law of copyright does not give him

any monopoly in the use of the ideas with which he deals or any property in them,

even if they are original. His copyright is confined to the literary work in which he

has expressed them. The ideas are public property, the literary work is his own.

Every one may freely adopt and use the ideas but no one may copy his literary

work without his consent. ...

[483] The Supreme Court of Canada summarized the distinction between

“expression” and “ideas”, and described the form a work must have in order to

attract copyright, in CCH Canadian Ltd. v. Law Society of Upper Canada, [2004] 1

S.C.R. 339 at para. 8:

Copyright law in Canada protects a wide range of works including every original

literary, dramatic, musical and artistic work, computer programs, translations and

compilations of works: see ss. 5, 2 and 2.1 of the Copyright Act. Copyright law

protects the expression of ideas in these works; it does not protect ideas in and of

themselves....

It flows from the fact that copyright only protects the expression of ideas that a

work must also be in a fixed material form to attract copyright protection....

[484] The authors of Hughes on Copyright and Industrial Design, (2d. Ed.,

Looseleaf, updated to January 2007), at §12, summarize:

Copyright subsists in every original literary, dramatic, musical and artistic work,

which work must be expressed to some extent at least in some material form,

capable of identification and having a more or less permanent endurance. Fixation

distinguishes works capable of being copyrighted from general ideas that are the

common intellectual property of everyone. Thus, copyright springs into existence

as soon as the work is written down or otherwise recorded in some reasonably

permanent form, i.e., fixated. A person has no copyright in unstructured remarks

made during an interview. No copyright exists in ideas themselves but only in the

expression of ideas in a material form.

Page 141

[485] Copyright, then, subsists in an original work upon its creation in “fixed

material form”, but does not protect the ideas as such.

1. The Copyright Claim

[486] The Plaintiff claims the Defendants hold copyright to Trivial Pursuit for his

benefit, as constructive trustees. It is alleged the Defendant Haney made “notes and

pictorial representations based on what Mr. Wall conveyed to him.... This was done

with Mr. Wall’s consent and express understanding that anything that was

generated was still his.” Haney allegedly acted “as agent or amanuenses” in

recording and fixing his ideas about the pizza shaped board, the marker/token, the

‘pieces of the pie’, the six categories, the colours, how the game would be played,

etc.. As such, the copyright in all the original designs and any derivatives are and

remain Mr. Wall’s.”

[487] Horn Abbot, the corporate defendant, submits the basis for the plaintiff’s

claim in copyright is unclear from the pleadings. Counsel speculates the facts

relevant to the copyright claim relate to the “pizza-shaped or wagon-wheel board

design,” which Wall “explained ... to the driver and it was the driver who prepared

the sketch.... All of the drawing was done by the driver. The pen was in the driver’s

hand and not in David Wall’s hand.”

[488] As counsel for the corporate defendant observes, the Plaintiff’s recollection

of the drawing made by the driver, as Wall was able to recollect at his discovery in

July 1999, was reduced to paper during his discovery. The drawing by Wall

consists of a circle with 6 lines from the exterior to a smaller circle in the middle,

together with the words, “History, Geography, Science, Sports, Movies and

Television” on the left side of the page.

[489] The categories, as listed by Wall, do not match the categories appearing in

the game. The game categories are: Geography, Entertainment, History, Art &

Literature, Science & Nature, and Sports & Literature.

[490] Also, the categories Wall recalls discussing with the driver, appear to omit

one of the “categories” or “areas of questions” remembered by Mr. Fennell. He

said that he recalled Wall and Campbell discussing Sports and Music questions,

adding he remembered music because it interested him.

Page 142

[491] At a later discovery, in October 1999, Wall made another drawing, similar to

the drawing he had made previously. However, he added “Pizza Shaped Board”

and “Go around outside and Finish in the Middle” to the drawing. There does not

appear to be any reference to the words, History, Geography, Science, Sports,

Movies and Television” on this drawing.

[492] Haney argues there is no evidence supporting the Plaintiff’s copyright claim,

as the evidence suggests he only had “some ideas about a board game.” His ideas

did not have originality or fixed form, and all he did was suggest ideas to someone

else. He was thus not an “author” for copyright purposes. According to the

submissions on behalf of Haney, the questions are “at the heart of” Trivial Pursuit,

and the success of the game is not only based on “the idea of trivia, the board or

game pieces, but in the expression of those ideas, found in the questions.”

[493] The thrust of the argument appears to be that, because the Plaintiff does not

claim to have written the questions, he could not have been involved in the

expression of the ideas at the core of the game’s success. Essentially, Haney’s

position is that before the alleged hitchhiking encounter, the Plaintiff had nothing

more than an idea that “a trivia game similar to monopoly was a good idea”; that he

had not considered how the game would be played; that he had not designed the

board or written any rules; and that he had not made efforts to market or package

the game. As such, “there was no expression of a material form capable of being

copyrighted and ... there was no real authorship of the Plaintiff in the game.”

2. Subsistence of Copyright

[494] In order for copyright to subsist in a work, the work must be original. The

Supreme Court of Canada considered the meaning of “original” in CCH Canadian,

supra, contrasting the minimalist view that “originality” required only that a work

“originates from an author and is more than a mere copy of a work” with the

position that a work must be “creative” in order to attract copyright. The Court at

para. 16, appears to have taken a position between these extremes:

... For a work to be "original" within the meaning of the Copyright Act, it must be

more than a mere copy of another work. At the same time, it need not be creative,

in the sense of being novel or unique. What is required to attract copyright

protection in the expression of an idea is an exercise of skill and judgment. By

skill, I mean the use of one's knowledge, developed aptitude or practised ability in

producing the work. By judgment, I mean the use of one's capacity for discernment

Page 143

or ability to form an opinion or evaluation by comparing different possible options

in producing the work. This exercise of skill and judgment will necessarily involve

intellectual effort. The exercise of skill and judgment required to produce the work

must not be so trivial that it could be characterized as a purely mechanical

exercise....

[495] There would seem to be no dispute that copyright will subsist in the original

design of the components of a board game, such as the board design and the written

rules. Horn Abbot submits the drawing of a “wagon wheel design” did not call for

the necessary degree of “skill and judgment” required for copyright to subsist. All

that is required for “originality” is an “exercise of skill and judgment.” If Wall

actually conceived the specifics of the board design, and directed Haney in giving

the design material form by drawing it on paper, this would seem to be an exercise

of skill and judgment involving intellectual effort. The result would be an “original”

design for a game board.

3. Ownership of Copyright

[496] In the circumstance that what the driver drew was capable of copyright

registration, the Defendants then submit that Wall does not own the copyright

relating to “the alleged drawing” on the ideas he conveyed to the driver. Counsel

for the corporate defendant, in his submission of January 30, 2007, maintains, on

the version of events testified to by Wall, the driver was the owner of any copyright

as the author of the work. Counsel asserts “the plaintiff himself did not create any

of the works”, that he “...only alleges that he provided most of the ideas for the

works.” A person who merely provides ideas and direction is not an “author.”

[497] In Kantel v. Grant, [1933] Ex. C. R. 84, the plaintiff, a radio writer and

producer, was engaged by the defendant company to prepare a broadcast. The

defendants suggested the general outline of the broadcast and the plaintiff

undertook to prepare a radio sketch. He wrote the original manuscript, giving the

work “form and expression which required some labour and effort on his part,” (p.

92) and rehearsed it with one of the defendants. The fact that one of the defendants

might have made suggestions did not alter the conclusion that the plaintiff was the

author. The Court said, at pp. 93 and 94:

... Because another makes suggestions to a dramatic producer, or to the author of a

radio sketch of the nature of the one in question, it does not follow that the person

Page 144

to whom the suggestions were made is not the author of the work produced, or that

it is not a work in which copyright may subsist....

... I think [the plaintiff] was the sole author. Any suggestions as to the general

scheme of the sketch contributed by [the defendants] do not, in my opinion, suffice

to give them a share in the copyright as joint authors with Kantel. It clearly was

not a collective work. There is no evidence that any word or line of the sketch was

produced by anyone other than Kantel. A person who merely suggests certain

ideas without contributing anything to the literary or dramatic form of the

copyright is not a joint author.

[498] In Neudorf v. Nettwerk Productions Ltd. [2000], 3 W.W..R. 522 (B.C.S.C.),

the plaintiff sought a declaration of co-ownership in the copyright on several songs,

on the basis he was a co-author. The Court referred to the discussion of the term

“author” in John Maryon International Ltd. v. New Brunswick Telephone Co. Ltd.

(1982), 141 D.L.R. (3d) 193 (N.B.C.A.), at p. 244, where La Forest J.A. (as he then

was) said:

The term author is not defined in the Act, but reference was made to the statement

in Fox, The Canadian Law of Copyright (2nd ed.), p. 239, that it is the person who

actually writes, draws or composes a work. However, this idea must not be carried

too far. The cases reveal that the person who "actually writes" must not be equated

to a mere scribe or anamuensis.... On the other hand, a person who merely gives

ideas to a person is not the author.... Rather, the author would seem to be the

person who expresses the ideas in an original or novel form....

[499] As a result, the Court stated at para 18, of Neudorf, supra, “authorship has

two basic requirements: originality, and expression.” At para 19 the Court adopted

the description of “originality” from University of London Press Ltd. v. University

Tutorial Press Ltd., [1916] 2 Ch. 601, where the Court stated, at pp. 608-609:

... The word 'original' does not in this connection mean that the work must be the

expression of original or inventive thought. Copyright Acts are not concerned with

the originality of ideas, but with the expression of thought... The originality which

is required relates to the expression of the thought. But the Act does not require

that the expression must be in an original or novel form, but that the work must not

be copied from another work -- that it should originate from the author.

[500] At para. 20, the Court observed that the plaintiff is therefore required to

prove “that whatever expressions he claims to have contributed to the songs

originated from him and were not copied.”

Page 145

[501] The Court considered the concept of “joint authorship” at paras. 25 and 26:

In his written submission, plaintiff's counsel in the instant case stated that Maryon,

and other cases dealing with authorship, made a distinction between a situation

where someone merely suggested an idea, and where someone was involved in the

actual expression of an idea. He gave the example: if person A wrote an original

song and person B heard it and said to person A, ‘I think that this song needs a

bridge,’ the mere suggestion of the idea of a bridge would not make person B an

author. He claimed that if, on the other hand, person B not only suggested the idea

but was involved in the actual writing of the bridge, then person B would be an

author of the bridge. He argued that while the plaintiff at times suggested an idea,

it was clear from the evidence that he was involved in the actual expression or

writing of ideas as well. I think this position is flawed.

The issue before me is not whether the plaintiff was ‘involved in the actual

expression or writing of ideas.’ Rather, the issue is whether the plaintiff himself

contributed original expressions to the songs. Only then would he be able to meet

the test for joint authorship under s. 2 of the Act. Mr. Maryon was ‘involved’ in the

expression of an idea, but did not himself express the idea, and so did not acquire a

copyright interest in Mr. Chatwin's expression of it. Indeed, in the instant case, if it

turns out that all the plaintiff contributed to the songs were suggestions and ideas,

then the facts and the result in Maryon weigh strongly against a finding in favour

of the plaintiff.

[502] The Court went on to comment on the distinction between an “author” and a

“scribe” or “amanuensis” at para. 28:

In my view, McLachlan could not be considered a mere scribe if what the plaintiff

was communicating to her were ideas, or suggestions. A reason that an amanuensis

or scribe is not the author of expression is that he exercises no authority or control

over the recording, but is instead a verbatim recorder. To the extent that the

plaintiff's contributions were ideas or suggestions, this means that McLachlan was

free to accept or reject them. This is antithetical to claiming that in those situations

her status was that of a mere scribe or amanuensis.

[503] The Court concluded that “to satisfy the test for joint authorship a putative

joint author must contribute original expression, not merely ideas, to the creation of

the work. Even involvement in the expression of ideas is not enough to satisfy the

element of contribution,” (para 37). A putative joint author is not required to “to

prove that any of the ideas embodied in the work originated from him” so long as he

gave the ideas original expression,(para 38). Nor is it necessary for the various

Page 146

joint authors to make an equal contribution to the work, so long as their

contributions are “significant or substantial,” (para 43). As to the determination of

whether a contribution meets that standard, the Court observed at para 46 that:

There is no bright line test for what constitutes a significant or substantial

contribution. I think that the test must include both quantitative and qualitative

considerations of the contribution of the joint authors.

[504] Finally, the Court, at para. 71, commented that joint authorship requires

intention:

... [I]n my opinion, the authorities, at the very least, have settled that to satisfy the

test for joint authorship a putative joint author must establish that he has made a

contribution of significant original expression to the work at the time of its

creation, and that he has done so pursuant to a common design (or, in other words,

some form of shared intent).

[505] The court described “mutual intent” as an “intent to co-author” as described

in Childress v. Taylor, 945 F.2d 500 (2d Cir. 1991). The test for joint authorship, as

applied to the facts of that case, was therefore:

(I) Did the plaintiff contribute significant original expression to the songs? If

yes,

(ii) Did each of the plaintiff and McLachlan intend that their contributions be

merged into a unitary whole? If yes,

(iii) Did each of the plaintiff and McLachlan intend the other to be a joint

author of the songs? (para. 96)

[506] The Plaintiff’s claim to co-ownership of copyright was dismissed.

[507] The corporate defendant argues, based on these authorities, that even if the

drawing alleged by the plaintiff did exist, the driver is the author and would own the

copyright, “being the one who put pen to paper...”. This submission fails to

address several salient points, among them the submission that the driver acted as a

mere “scribe or amanuensis”, while the Plaintiff described his concept for the

design of the board. If the Plaintiff’s evidence is accepted, it might be reasonable to

consider him and the driver as co-authors (or co-designers) of the board. If the

Page 147

Plaintiff conceived and described the board design, it could hardly be denied that he

contributed original expression. As to intention, the conversation in the car would

support the view that the participants intended their contributions to be merged into

a unified whole. It also appears that the Plaintiff did more than suggest a general

idea (e.g. “a board game based on trivia would be a good idea.”) His contribution

extended to the design and contents recorded, at his instructions, by the driver on

the paper. To the extent that he contributed “significant original expression” to the

fixing of these items in material form, he would be a co-author or co-creator. In

fact, if the driver was a mere “scribe or amanuensis”, then Wall would be the sole

author, and not just a “co-author or co-creator”. However, on the evidence of Wall,

the driver was a contributor, although to a much lesser extent. Although Wall could

not recall any contributions by the driver, he certainly did not forgo the possibility

he made some.

[508] Counsel for Haney has not distinguished between the issues of subsistence,

ownership and infringement, but has submitted several cases to support the general

position that there has been no infringement of any copyright owned by the

Plaintiff. Counsel has reviewed the Neudorf, supra, decision, but does not appear

to suggest it has particular relevance.

[509] In Preston v. 20^thCentury Fox Canada Ltd. (1990), 38 F.T.R. 183, affirmed

at 164 N. R. 304, the plaintiff claimed to have developed the concept and name of

“Ewoks,” creatures featured in one of the defendants’ Star Wars films. He alleged

that a script, written by a friend and based on his notes about the characters, had

been forwarded to the defendant filmmaker George Lucas, care of the defendant,

20^thCentury Fox. The plaintiff alleged the script had been received by Lucas’s

company, the defendant Lucasfilm, which had a policy of returning unsolicited mail

unopened. The Court, at para. 34, held that the evidence of access to the script by

the defendants was at best circumstantial, but that such access could be inferred in

the event there was “substantial similarity” with a copyrighted work. The Court, at

para. 63, commented on the idea of a “common store” of ideas:

Many of the detailed similarities, in my view, can be traced to the common store of

folklore about primitive species with human characteristics upon which Lucas was

as free to draw as were Preston and Hurry. Yet drawing upon a common store of

information does not in itself answer to the claim of infringement. It is the

expression of ideas, not the ideas themselves, that is the subject of copyright. It is

entirely possible that two or more authors, composers, dramatists or other artists

may draw upon a common store of information for ideas and each may have

Page 148

copyright in his or her expression of those ideas. But if while drawing upon the

common information base, one should copy the expression in literary or dramatic

form of another author copyright may be infringed.

[510] The Court concluded that, while there were some general similarities in

details, there was not substantial similarity between the script and the film, (para 68).

Nor was the character of the “Ewoks”, as developed by the plaintiff, sufficiently

distinct to attract copyright on its own, or sufficiently well-known as a result of the

script in which he claimed copyright, (paras 74-75). The Plaintiff’s action was

dismissed. Apparently Preston, supra, is submitted to demonstrate the need for a

“casual [sic.] connection” in an infringement claim (upon which counsel does not

elaborate), and for emphasizing the principles that general ideas cannot be

copyrighted” and specificity in the expression of an idea is necessary in order for it

to be worthy of copyright protection.

[511] In Dolmage v. Erskine, [2003] O.J. No. 161 (Ont. Sm. Cl. Crt.) (QL) the

plaintiff, a university lecturer in education, claimed copyright infringement with

respect to a case study he had written, which the university used in workshops and

from which it had eventually removed his name. The Small Claims Court did not

have jurisdiction to grant certain remedies requested under the Copyright Act,

although the plaintiff was awarded damages on account of infringement of his moral

rights. At para. 44, citing L.E. Harris, Canadian Copyright Law, 3d edn. (2001), the

Court reviewed the law on authorship, approving a comment that the author of a

work is “the person who creates the work or the first person to express the idea in a

tangible form: for example the person who puts the work on paper or otherwise

‘fixes’ it...”, (see 3d edn. at p. 78). The defendant submits that “[a]uthorship

requires a tangible expression of an idea, and [it] is highly unlikely (if not

impossible) that a mere oral explanation would suffice. This idea of authorship is

tied to the ‘fixation’ requirement for copyrightable works, which itself appears to be

a major obstacle for the Plaintiff....”

[512] The individual defendant also relies upon the recent Chancery decision in

Baigent & Anor. v. The Random House Group Ltd. (The Da Vinci Code), [2006]

EWHC 719; affirmed at [2007] EWCA Civ 247. In that case, the authors of a book

entitled The Holy Blood and the Holy Grail (a.k.a. Holy Blood, Holy Grail) alleged

that the novelist Dan Brown infringed their copyright with his book The Da Vinci

Code, which, they claimed, copied a “central theme” of their own book. They

claimed that this “central theme” was composed of a group of ideas and facts,

Page 149

allegedly combined so as to create a copyrightable central theme. The Court rejected

the claim that such a central theme existed in the claimants’ book, concluding that it

was an “artificial contrivance designed to create an illusion of a Central Theme” for

the purposes of the copyright infringement claim, (para 250). Instead, the book’s

themes consisted of “generalised ideas, assertions or facts”, many of which were not

part of the alleged “central theme,” (paras 257-258). Even if there was a central

theme, it was “merely an expression of a number of facts and ideas at a very general

level,” and not capable of copyright protection, (para 259). As a result, the author

Mr. Brown was “perfectly entitled to copy these themes”, which, in any event, did

not amount to a “substantial part” of the claimants’ book, (para 266). The Court

concluded that many “central theme points” were found in both books “in terms of

language similarity,” but the failure to establish all of the alleged themes made those

remaining “even more general and of an even lower level of abstraction and

therefore less central and less a substantial part” of The Holy Blood and the Holy

Grail, (paras 292-293). While there were “generalised” instances of language

copying, these were not actionable, and the claimants had not relied upon language

copying as part of their infringement claim, (paras 310-319). The action was,

accordingly, dismissed.

[513] The defendant asserts that the Da Vinci Code case resembles the current

matter, in that the Plaintiff alleges that “his ideas were stolen and utilized to produce

a successful product. However, as the decision ... states, there is no copyright

protection given to ideas.” While this is undoubtedly correct, it is an elementary

principle of copyright law. It may be that the defendant is suggesting that Wall’s

ideas were too general to be copyrighted, as was the case in Da Vinci Code.

[514] Finally, the defendant cites Plews v. Pausch, 2006 ABQB 607, (Alta. Q.B.), a

case in which a former Ph.D. student alleged that his first dissertation supervisor had

published an article in which he used “research information” derived from the

student’s work, without his consent. Veit J. held that there was no infringement of

copyright, as it was clear that the defendant had not seen a draft of the plaintiff’s

work until after his own article had been delivered; additionally, there were

differences in content that did not support a copyright claim. The most significant

issues in the Plews decision were fiduciary duty and breach of confidence, not

copyright. While Plews supports a more expansive view of the protection of ideas –

as opposed to expression – by way of breach of confidence, it has little of relevance

to say about copyright, (see paras 66-74).

Page 150

4. Infringement

[515] Counsel for the corporate defendant suggests, there are clearly “significant

differences” between the drawing made by Wall, from his recollection of what the

driver made on the night of the hitchhiking, and the game board of “Trivial Pursuit”.

There is also the use of colour in the game board as opposed to the single colour in

the drawing made by Wall. In view of the “simplistic” nature of the sketch made by

the driver, albeit from the directions he was given by Wall, can it be that any round

circle containing an inner smaller circle with six lines joining the larger circle to the

inner circle would amount to copyright infringement? Clearly the answer is in the

negative.

[516] The second drawing is similar to the earlier, although as Wall testified, “a lot

neater than the other one”. Apparently the circle was drawn with the aid of a

styrofoam cup.

[517] The corporate defendant argues that even if there is a subsisting copyright in

the drawing, and it is owned by the Plaintiff, there has been no infringement, for

several reasons:

(1) there has been no copying of the “artistic expression,” but only of the idea;

“copyright does not protect the idea of a wagon wheel or pizza shape”, but only

“the particular way an artist might draw a wagon wheel or pizza shape....”.

[518] The design is not a generic “wagon wheel” or a “pizza shape” – or, for that

matter, a “game board” – but rather a design of a specific board for a specific game.

(2) the drawing no longer exists, and thus it is “difficult if not impossible” to

determine whether there has been an infringement.

[519] If it is accepted that the drawing did exist, this would imply that Haney, who

kept it after meeting the Plaintiff, was responsible for its preservation. In other

words, the Defendants would be seeking a benefit from their own loss or destruction

of the drawing.

(3) infringement requires that a work must be copied, and there is “no evidence to

suggest that Scott Abbott copied anything from the alleged drawing....”.

Page 151

[520] If there was a drawing, and a substantially identical design was later used for

the board, clearly this would be circumstantial evidence the drawing was the source

of the design.

[521] The corporate defendant also makes an argument based on the Industrial

Design Act.

[522] Mr. Swann, in his letter to Werner of March 20, 1980 suggested the possibility

of obtaining Industrial Design registration “for the particular appearance of the

board,” adding, “the scope of such protection will be fairly narrow given the

similarity ...” to another board that apparently had received patent protection.

[523] The corporate defendant was successful in obtaining Industrial Design

registration for the “game board”, described as:

a wheel-shaped pattern on a game board in which the wheel-shaped pattern

comprises an outer circular path, an inner equilateral polygon centrally of and

presenting a plurality of planar faces to said outer circular path, and a plurality of

straight spoke-like passages extending from the planar faces of the inner polygon to

the outer circular path.

[524] The registration pursuant to the Industrial Design Act, R.S.C. 1970, c. I-8,

contained a “top plan view” and a “side view” of the board.

[525] The corporate defendant refers to the Industrial Design Act, claiming that

holding an industrial design designation for the game board is evidence of design

and ownership “in the absence of proof to the contrary.” Subsection 7(3) of the

Industrial Design Act provides that a certificate of registration:

in the absence of proof to the contrary, is sufficient evidence of the design, of the

originality of the design, of the name of the proprietor, of the person named as

proprietor being proprietor, of the commencement and term of registration, and of

compliance with this Act.

[526] Before June 8, 1988, the Copyright Act did “not apply to designs capable of

being registered under the Industrial Design Act, except designs that, though capable

of being so registered, are not used or intended to be used as models or patterns to be

multiplied by any industrial process”: Copyright Act, R.S.C. 1985, c. C-42, s. 64(1).

Page 152

Section 64 was subsequently re-enacted in essentially its current form: R.S.C. 1985

(4^thSupp.), C. 10, s. 11. The revised version was assented to on June 8, 1988. The

prior version applies to designs created before that date: see Milliken & Co. v.

Interface Flooring Systems (Canada) Inc. (2000), 5 C.P.R. (4th) 209 (Fed. C.A.) at

para. 6.

[527] The corporate defendant submits that its own Industrial Design Registration

demonstrates that “a wheel shaped pattern on a game board” is capable of

registration as an industrial design. As such, the drawing the Plaintiff says was made

by the driver would have been capable of registration. The corporate defendant says

the Plaintiff’s evidence makes it clear that he hoped to market and sell the game,

which would imply manufacture by an “industrial process.” As such, the game board

would not fall within the exception provided by the former wording for “designs

that, though capable of being so registered, are not used or intended to be used as

models or patterns to be multiplied by any industrial process.” Consequently, since

the board was capable of being registered under the Industrial Design Act, the

Copyright Act in force at the time did not apply.

[528] Abbott and Haney were successful in obtaining a Certificate of Registration of

copyright in the “Rules of Play and Cards”. Neither appear on the drawing made by

the driver, as recalled by Wall. A trademark registration was obtained on June 1,

1984 for the name “Trivial Pursuit.

5. Conclusion on Copyright

[529] Recognizing that the original drawing by the driver no longer exists, it is

admittedly difficult to conclude whether it contained sufficient detail to suggest the

design of the “game board” of Trivial Pursuit is nothing more than a copy of the

essential features of the drawing made by the driver at the direction of Wall. Wall

says the drawing is “... what I can remember of what was done that night.” If there

was more, then undoubtedly the passage of time between the alleged encounter and

his initiating this proceeding has contributed to his lack of recall. As earlier

observed, the delay to instituting this lawsuit, is no one’s fault, but his own.

[530] Certainly the copies of the various “patents” attached to the letter received by

Mr. Swann from the Attorneys he hired in Washington, D.C. contain sketches and

descriptions far more detailed than what Wall recalls of the drawing made by the

Page 153

driver. Although not necessarily determinative of this issue, the following opinion

by Mr. Swann appears in his letter to Werner, of March 20, 1980:

Concerning the board itself, the Gilmore, Quine, Collett, and Skelton patents each

show a board of generally similar nature to that proposed by Mr. Haney. Although

it might be possible to obtain Industrial Design registration for the particular

appearance of board, the scope of such protection will be fairly narrow given the

similarity to the Gilmore board. The differences between Mr. Haney’s board and

those of the prior patents will probably prevent any patent being obtained to the

board itself.

[531] Although Mr. Swann suggested there might be a chance of obtaining a

Canadian patent, if, as an example, the board and cards were taken together, no such

application was apparently made.

[532] Counsel did not address how the difficulties with obtaining patent protection

would relate, if at all, to any application for copyright registration. However, on the

evidence submitted and after considering the law and argument advanced by

counsel, I am not satisfied, on a balance of probabilities, that what, if anything, was

drawn by the driver on King’s Road, was capable of copyright registration in

Canada.

[533] Besides setting out general principles of copyright law, the cases cited by the

defendants are of little assistance. The essence of the defence, leaving aside the

principal defence, the denial that Wall and Haney ever met, is that Wall had nothing

but an idea for a board game based on trivia, which would not attract copyright

protection. If Wall’s account of his meeting with Haney is accepted, he could be

regarded as at least a co-author or co-creator, having made a substantial original

contribution to the form of significant elements of the game, such as the board

design, and the identification of some of the categories. In other words, if Wall’s

account is correct, his contribution went beyond offering a general idea that there

should be “a board game based on trivia”; his contributions would be substantial and

original.

[534] More difficult is the question of whether the ideas allegedly discussed by

Wall and Haney took on a sufficiently fixed material form. It appears the board

design, at least, was put on paper, and “may be” worthy of industrial design

protection, although apparently not copyright registration. If that is the case, then

Wall may be entitled to a Declaration that any industrial design is held in trust for

Page 154

him. Beyond that, it seems that nothing arose from the meeting between Wall and

Haney but ideas, albeit fairly specific ones, about how the game should be played.

To that extent, the Defendants’ submissions about “ideas” versus “expression”

appears well-taken.

[535] The Plaintiff has referred, in the Amended Statement of Claim and in his brief,

to a claim for ownership of “trademarks and other intellectual property in the Game

and its derivatives”. If the Plaintiff were to establish a cause of action because of

the defendants’ misappropriation of his ideas, this may entitle him to a declaration

the defendants hold the intellectual property in the game as constructive trustees. He

may then be the beneficial owner of the trademark, although it should be noted that

according to the plaintiff’s own evidence, the name “Trivial Pursuit”was originally

suggested by Campbell. However, as already observed, issues of damage and

remedy are for any hearing that may be required following the determination of the

validity of the Plaintiff’s claim against the Defendants.

[536] Although the Plaintiff has requested a declaration, in respect to “copyright,

trademarks and other intellectual property in the Game and its derivatives ...”, these

claims first necessitate a finding of liability on one or both of the Defendants.

[537] I have already decided the Plaintiff has no claim for copyright infringement.

The Plaintiff has apparently never sought Trade Mark or any other intellectual

property registration. He could only be entitled to a Declaration if he successfully

established a cause of action against one or other of the Defendants. As such, the

determination of entitlement to a Declaration is more appropriately to be addressed

on any hearing to assess damages and remedies.

H.

Fiduciary Duty

[538] The leading cases on fiduciary duty are Frame v. Smith, [1987] 2 S.C.R. 99

and Lac Minerals Ltd. v. International Corona Resources Ltd., [1989] 2 S.C.R. 574.

In Lac Minerals, Sopinka J. wrote the majority reasons on fiduciary duty. After a

discussion of traditional fiduciary relationships, such as corporate directorships and

trusteeships, at pp. 598-599, he stated:

... when confronted with a relationship that does not fall within one of the

traditional categories, it is essential that the Court consider: what are the essential

ingredients of a fiduciary relationship and are they present? While no ironclad

Page 155

formula supplies the answer to this question, certain common characteristics are so

frequently present in relationships that have been held to be fiduciary that they

serve as a rough and ready guide. I agree with the enumeration of these features

made by Wilson J. in dissent in Frame v. Smith.... The majority, although

disagreeing in the result, did not disapprove of the following statement, at pp.

135-36:

A few commentators have attempted to discern an underlying fiduciary

principle but, given the widely divergent contexts emerging from the case

law, it is understandable that they have differed in their analyses.... Yet there

are common features discernible in the contexts in which fiduciary duties

have been found to exist and these common features do provide a rough and

ready guide to whether or not the imposition of a fiduciary obligation on a

new relationship would be appropriate and consistent.

Relationships in which a fiduciary obligation have been imposed seem to

possess three general characteristics:

(1) The fiduciary has scope for the exercise of some discretion or

power.

(2) The fiduciary can unilaterally exercise that power or discretion

so as to affect the beneficiary's legal or practical interests.

(3) The beneficiary is peculiarly vulnerable to or at the mercy of the

fiduciary holding the discretion or power.

It is possible for a fiduciary relationship to be found although not all of

these characteristics are present, nor will the presence of these ingredients

invariably identify the existence of a fiduciary relationship.

The one feature, however, which is considered to be indispensable to the

existence of the relationship, and which is most relevant in this case, is that

of dependency or vulnerability....

[539] Justice Sopinka added, at p. 600, that “the presence of conduct that incurs the

censure of a court of equity in the context of a fiduciary duty cannot itself create the

duty.” In other words, the duty must pre-exist the wrongful conduct. As to the

misuse of confidential information, Justice Sopinka. At pp. 600-60, he said:

... applying the same principle, the fact that confidential information is obtained and

misused cannot itself create a fiduciary obligation. No doubt one of the possible

incidents of a fiduciary relationship is the exchange of confidential information and

Page 156

restrictions on its use. Where, however, the essence of the complaint is misuse of

confidential information, the appropriate cause of action in favour of the party

aggrieved is breach of confidence and not breach of fiduciary duty.

[540] The facts in Lac Minerals were that the plaintiff, a junior mining company,

having shared confidential geological information with the defendant, a senior

mining company, alleged that the defendant breached a fiduciary duty when it used

that information for its own benefit. The trial and appeal courts had found in favour

of the plaintiff on the issue. Justice Sopinka took the view that the courts below had

overemphasized certain considerations, while giving insufficient attention to the

“vital ingredient” of dependency or vulnerability. At pp. 606-607, he rejected the

notion that there was

... a kind of physical or psychological dependency here which attracted fiduciary

duty. Illustrations of this type of dependency are not difficult to find. They include

parent and child, priest and penitent and the like. Clearly, a dependency of this type

did not exist here. While it is perhaps possible to have a dependency of this sort

between corporations, that cannot be so when, as here, we are dealing with

experienced mining promoters who have ready access to geologists, engineers and

lawyers. The fact that they were anxious to make a deal with a senior mining

company surely cannot attract the special protection of equity. If confidential

information was disclosed and misused, there is a remedy which falls short of

classifying the relationship as fiduciary. In Frame v. Smith, supra, Wilson J. dealt

with this indicia of fiduciary duty in the following language (at pp. 137-38):

This vulnerability arises from the inability of the beneficiary (despite his or

her best efforts) to prevent the injurious exercise of the power or discretion

combined with the grave inadequacy or absence of other legal or practical

remedies to redress the wrongful exercise of the discretion or power.

Because of the requirement of vulnerability of the beneficiary at the hands

of the fiduciary, fiduciary obligations are seldom present in the dealings of

experienced businessmen of similar bargaining strength acting at arm's

length.... The law takes the position that such individuals are perfectly

capable of agreeing as to the scope of discretion or power to be exercised,

i.e., any ‘vulnerability’ could have been prevented through the more prudent

exercise of their bargaining power and the remedies for the wrongful

exercise or abuse of that discretion or power ... are adequate in such a case.

[541] It has been suggested that the majority reasons on fiduciary duty in Lac

Minerals “showed a marked disposition against the concept’s use in the mainstream”

and “relegated the theory of fiduciary obligation to a theory of vulnerability or

Page 157

dependency, where one party must be vulnerable to or dependent upon the other.”

(See M. V. Ellis, Fiduciary Duties in Canada (looseleaf), pp. 1/8.5-9.)

[542] The Court revisited fiduciary duty in Hodgkinson v. Simms, [1994] 3 S.C.R.

377, with La Forest J. writing for the majority. At p. 405, he commented:

From a conceptual standpoint, the fiduciary duty may properly be understood as but

one of a species of a more generalized duty by which the law seeks to protect

vulnerable people in transactions with others. I wish to emphasize from the outset,

then, that the concept of vulnerability is not the hallmark of fiduciary relationship

though it is an important indicium of its existence. Vulnerability is common to

many relationships in which the law will intervene to protect one of the parties. It

is, in fact, the ‘golden thread’ that unites such related causes of action as breach of

fiduciary duty, undue influence, unconscionability and negligent misrepresentation.

[543] In Amertek Inc. v. Canadian Commercial Corp. (2005), 256 D.L.R. (4th) 287,

at para 99, (Ont. C.A.) the Court referred to the line of decisions of the Supreme

Court of Canada, including Frame, Lac Minerals and Hodgkinson [1994] 3 S.C.R.

377 and stated:

... the court has described two categories of relationship. In the first category, which

includes such relationships as trustee-beneficiary, guardian-ward and

agent-principal, the court has identified an inherent vulnerability which gives rise to

the rebuttable presumption that one party has a duty to act in the best interests of

the other party. The second category is more open-ended than the first and

introduces the possibility of new or non-traditional legal relationships being

sheltered under the protective umbrella of 'fiduciary'. The essence, or sine qua non,

of this category is expressed by La Forest J. in Hodgkinson v. Simms at 409-10:

Thus, outside the established categories, what is required is evidence of a

mutual understanding that one party has relinquished its own self-interest

and agreed to act solely on behalf of the other party.

1. The Position of the Parties

[544] The Plaintiff argues that “notwithstanding the outcome in Lac Minerals ...

Chris Haney was a fiduciary to David Wall.” At the time of the meeting, Wall was a

teenager, while Haney was a 29-year-old photo editor at the Montreal Gazette.

Haney gave Wall “a distinct impression ... that he was in a position to assist him

bring his game to market.” Were it not for these considerations, Wall would not have

disclosed his idea, in confidence, to Haney. The Plaintiff submits that Haney

Page 158

incurred a fiduciary obligation when he agreed to assist Wall. He allegedly breached

this duty by “taking the game to market without Wall’s involvement and using

Wall’s idea without his permission (to take it to market)....” Elsewhere, the Plaintiff

submits that the facts are “on all fours” with Lac Minerals.

[545] Haney submits no fiduciary duty arises in these circumstances. Citing

Amertek , supra, counsel says there is no evidence the basic criteria for a fiduciary

relationship, as described in Lac Minerals, are met. Haney says there is no evidence

he relinquished his own self-interest and agreed to act solely on behalf of Wall, (as

in Hodgkinson v. Simms, per La Forest, J). Counsel for the individual defendant

suggests that, while there is no “comprehensive definition” of a fiduciary

relationship, a common aspect is the undertaking by one party, expressly or tacitly,

to act in the interest of another.

2. Conclusion on Fiduciary Duty

[546] The Plaintiff has alleged a fiduciary relationship existed, but has not

attempted to demonstrate such a relationship on the basis of the legal test for a

fiduciary duty. The basis of the claim appears to be an implied vulnerability; Wall

was younger than Haney, and unemployed, and so there must have been a fiduciary

duty.

[547] Having regard to Lac Minerals, supra and Hodgkinson, supra, it is clear,

even accepting the evidence of Wall, that there was no fiduciary relationship. The

fact Wall was younger and unemployed is not the basis of a relationship from which

a fiduciary obligation arises. Although not sophisticated business persons,

nevertheless the venture, as testified to by Wall, was no more than a business

venture to develop, produce and market a board game. Their relationship did not

contain the three general characteristics outlined by Sopinka, J. in Lac Minerals,

supra. There is no suggestion, even by Wall, that the driver agreed to relinquish his

own self-interest and act for Wall’s benefit.

3. Fiduciary Duty Between Joint Venturers

[548] Since the Plaintiff has not suggested the possibility of a fiduciary relationship

on any other basis, such as the notion that Wall and Haney were engaged in a “joint

Page 159

venture, “as was the case in Nova Scotia Drydock Ltd., supra, it would not be

appropriate to further consider whether the evidence of a “joint venture” would in

these circumstances create such a fiduciary relationship between Wall and the driver.

I.

Breach of Confidence

[549] The Plaintiff submits this case is “at its very core” one of breach of

confidence. The elements of breach of confidence were outlined by La Forest J. in

Lac Minerals, supra, at p. 635:

.. The test for whether there has been a breach of confidence is not seriously

disputed by the parties. It consists in establishing three elements: that the

information conveyed was confidential, that it was communicated in confidence,

and that it was misused by the party to whom it was communicated.

[550] Counsel for the Plaintiff says all of these elements are met here. He says the

information was conveyed in confidence, referring to Wall’s evidence that he would

not have told the individual defendant about his idea if he did not have an assurance

of confidence. Wall, he states, said Haney “promised me that he wouldn’t take it

from me” and “assured me he would not take it.” Further, counsel suggests, Wall did

not authorize the individual defendant’s use of the idea. As such, counsel argues, the

circumstances in which the information was conveyed imported an obligation of

confidence, which was acknowledged by the individual defendant, who then made

an unauthorized use of the confidential information, to the Plaintiff’s detriment.

[551] The Plaintiff cites Alberta Productions Corp. v. Canada Lands Co. (2001),

292 A.R. 8 (Q.B.) as authority for the proposition that a confidence agreement need

not be in writing, and may be an oral agreement. He cites Ben-Israel v. Vitacare

Medical Products Inc. (1999), 122 O.A.C. 57 as authority for the application of oral

confidence agreements in intellectual property cases. Plaintiff counsel also suggests

that “an agreement of confidentiality or non-disclosure can be oral or implied by the

circumstances”. The Defendants do not appear to take issue with this.

[552] The individual defendant notes the distinctions between confidence and

fiduciary duty, referencing the comments by La Forest J. in Lac Minerals Ltd. v.

International Corona Resources Ltd., supra, at pp. 657-658 that:

Page 160

... unlike fiduciary obligations, duties of confidence can arise outside a direct

relationship, where for example a third party has received confidential information

from a confidee in breach of the confidee's obligation to the confidor: see Liquid

Veneer Co. v. Scott (1912), 29 R.P.C. 639 (Ch.), at 644. It would be a misuse of the

term to suggest that the third party stood in a fiduciary position to the original

confidor. Another difference is that breach of confidence also has a jurisdictional

base at law, whereas fiduciary obligations are a solely equitable creation. Though

this is becoming of less importance, these differences of origin give to the claim for

breach of confidence a greater remedial flexibility than is available in fiduciary law.

Remedies available from both law and equity are available in the former case,

equitable remedies alone are available in the latter.

[553] The individual defendant submits that the elements of breach of confidence

have not been satisfied. Counsel says the information allegedly conveyed was not

confidential, given that (according to the Plaintiff) not only he, but also Campbell,

were present. On the second element, he says there is no evidence that the

information was conveyed expressly or implicitly in confidence. The driver

allegedly said the idea was “hot” and that he was going to make some calls, without

a request from the Plaintiff that he keep the information to himself. Finally, the

individual defendant submits, there is no evidence that he misused the alleged

communication. He says that “while the Plaintiff claims that he told the driver that

this was his game and his idea, the ... evidence as to the timing of the alleged

meeting and the fact that ... Donnie Campbell and Doug Reeves were present at the

Peridot Tavern cannot resolve the contradictions for the Plaintiff that such a meeting

took place.” It is further argued that “there is no evidence” that the individual

defendant was the driver of the car: “all the Court has heard was that the

individual’s last name may have been Haney or that the Plaintiff believed the last

name was Haney, but that he is unsure whether it was Christopher Haney.” Further,

the Plaintiff “could not even recognize Christopher Haney or describe how he

looked at the time of this incident.” On the third element, then, the individual

defendant essentially submits that the meeting never took place.

[554] It is pointed out, on behalf of the corporate defendant, that it was not

incorporated at the time of the alleged breach of confidence, and that there is no

evidence the Plaintiff communicated any information, confidential or otherwise, to

it.

[555] On the evidence of Wall, as to the discussion in the car, there was

undoubtedly the communication of confidential information in circumstances of

Page 161

confidence. On the version of events testified to by Wall, and in view of the

evidence of Haney and other of the defence witnesses, the development and

marketing of the game would amount to “a misuse” of this confidential information.

[556] Haney is a director and shareholder of the corporate defendant. It is not for

the corporate defendant to allege “innocence” in any misuse of confidential

information, when Haney was the individual who had breached the confidence. The

expediency of the corporate shell cannot be used to shield a corporation which

benefited from misdeeds of one of its directors and principal shareholders. Such a

position would be untenable, both in law and in equity.

J.

Equitable Fraud & Deceit

[557] The claim of “equitable fraud” is referred to in passing in the Plaintiff’s

submissions, and only under the heading of limitation of actions. It is not clear how

it is to be analyzed or substantiated. It does not appear to be pleaded against the

defendants. The term appears in the Amended Statement of Claim, at paragraph 40,

in the context of potential claims against theoretical investors in the game:

David Wall have no present direct knowledge of the original and subsequent

investors in the Game, but says that he anticipates that some of the individuals who

knew the true circumstances, that Chris Haney had stolen his idea and his game,

have profitted from investment in the Game, and as such, he hereby reserves his

right to maintain a claim against those individuals, as constructive trustees,

resulting from equitable fraud within the doctrine established in Derry v. Peeks.

[Emphasis added.]

[558] The case referred to would appear to be Derry v. Peek (1889), 14 A.C. 337, a

classic decision on the law of deceit and fraudulent misrepresentation.

[559] One of the plaintiff’s authorities on limitations refers to a definition of

“equitable fraud” approved by the Supreme Court of Canada in Guerin v. R., [1984]

2 S.C.R. 335, where Wilson, J. cited Kitchen v. Royal Air Force Association et al,

[1958] 1 W.L.R. 563 per Lord Evershed M.R. at p. 573: “conduct which, having

regard to some special relationship between the two parties concerned, is an

unconscionable thing for the one to do towards the other.”

[560]

The individual defendant points out that the Amended Statement of Claim

includes the allegation that “in addition or in the alternative that Chris Haney

Page 162

fraudulently and intentionally deceived and mislead [sic.] the consuming public as to

the true ownership of the Game and its derivatives....” This, counsel submits, is not

equitable fraud, which “does not mean, or is not confined to, deceit.” The individual

defendant cites Halsbury’s Laws of England, (4^thed. Reissue, Vol. 16(2)), at para.

416, where it is stated:

Fraud in its equitable context does not mean, or is not confined to, deceit; it means

an unconscientious use of the power arising out of the circumstances and conditions

of the contracting parties. It is victimisation, which can consist either of the active

extortion of a benefit or of the passive acceptance of a benefit in unconscionable

circumstances.

[561] The corporate defendant, noting the comment in Snell’s Equity, (31^sted.

London: Sweet & Maxwell, 2005) at p. 197 that “it is impossible to provide a

complete definition or classification of equitable fraud”, says “it is unclear

specifically what the plaintiff asserts amounts to equitable fraud and whether it is

anything different from the other causes of action asserted,” such as breach of

confidence and breach of fiduciary duty. The corporate defendant submits that,

whatever else may be required, equitable fraud requires improper conduct, of which

there is no such evidence against it.

[562] As with equitable fraud, it does not appear that the Plaintiff has pleaded the

more conventional claim of deceit (or fraud, or fraudulent misrepresentation) against

the Defendants. The Amended Statement of Claim, at paragraph 32, refers to the

individual defendant’s “theft and fraud” in the context of an explanation of the

Plaintiff’s delay in commencing the action,:

It was not until approximately the Fall of 1993, that he became aware that it was

possible to proceed with a legal suit on a contingency basis and thereafter diligently

pursued legal representation to expose Chris Haney’s theft and fraud.

[563] The subsequent allegations against the Defendants do not refer to fraud or

deceit with respect to the Plaintiff. They do, at paragraph 41, include the following,

however:

David Wall repeats the foregoing and says in addition or in the alternative that

Chris Haney fraudulently and intentionally deceived and mislead [sic.] the

consuming public as to the true ownership of the Game and its derivatives, causing

significant loss and damage to David Wall together with depriving him of the

Page 163

recognition that Chris Haney and his co-defendants unlawfully claimed for

themselves.

[564] The individual defendant denies that the elements of deceit (which, in the

circumstances, appears to encompass fraud) have been made out, citing the

following test from 3Com Corp. v. Zorin International Corp. (2006), 211 O.A.C.

222 (Ont. C.A.), at para 7:

(1) The defendant has made a false representation or statement;

(2) Which was knowingly false;

(3) Was made with the intention to deceive the plaintiff;

(4) Which materially induced the plaintiff to act; and

(5) Resulted in damage to the plaintiff.

[565] The individual defendant says there is no evidence he made any false

representations or statements to the Plaintiff. The Plaintiff's evidence, it is submitted,

is that the individual defendant called the Plaintiff, told him that he was going to

bring Trivial Pursuit to market, and provided him with an opportunity to invest in

the game. There is no indication that false representations or statements were made

in respect to the driver's expressed intentions with respect to the game. The

individual defendant says the driver never told the Plaintiff he would not discuss

with others the ideas that were discussed in the vehicle during the alleged

hitchhiking incident. The Plaintiff indicated the driver said he thought the idea for

the game was "hot" and he was going to try to generate interest in the game and

bring it to market. Consequently, the individual defendant submits, there has been

no evidence supporting a finding of deceit against him.

[566] The corporate defendant says it is unclear how deceit or fraud has any

application to the Plaintiff’s claim. It submits that deceit or fraud requires “a

misrepresentation to the plaintiff ... as to existing facts or circumstances.” As such, a

promise respecting future actions does not fall within its ambit, belonging rather to

the law of contract.

[567] The corporate defendant’s submission is that there is no evidence that the

driver – or the corporate defendant – made representations as to existing facts or

Page 164

circumstances. As to “deceiving the consuming public,” the corporate defendant

argues that this does not give rise to a separate cause of action.

[568] To the extent that equitable and/or legal fraud and deceit are alleged against

any of the Defendants, I am not satisfied the necessary elements have been

established by the Plaintiff. There was no misrepresentation by Haney to Wall. To

the extent Haney is alleged to have made misrepresentation to others, that is for them

to pursue, not Wall. There is no “unconscious use of power”, no “extortion” nor an

“unconscionable acceptance of benefit”. Neither have the requirements for “deceit”

as outlined 3 Com Corp, supra, been made out in the evidence.

IX

CREDIBILITY, FACT-FINDING AND THE BURDEN OF PROOF

[569] As to credibility and fact finding, in White v. The King, [1947] S.C.R. 268, at

p. 272, Estey, J. commented:

The issue of credibility is one of fact and cannot be determined by following a set

of rules that it is suggested have the force of law and, in so far as the language of

Mr. Justice Beck may be so construed, it cannot be supported upon the authorities.

Anglin J. (later Chief Justice) in speaking of credibility stated:

by that I understand not merely the appreciation of the witnesses' desire to

be truthful but also of their opportunities of knowledge and powers of

observation, judgment and memory - in a word, the trustworthiness of their

testimony, which may have depended very largely on their demeanour in the

witness box and their manner in giving evidence. Reymond v. Township of

Bosanquet [(1919) 59 Can. S.C.R. 452, at 460.].

The foregoing is a general statement and does not purport to be exhaustive. Eminent

judges have from time to time indicated certain guides that have been of the greatest

assistance, but so far as I have been able to find there has never been an effort made

to indicate all the possible factors that might enter into the determination. It is a

matter in which so many human characteristics, both the strong and the weak, must

be taken into consideration. The general integrity and intelligence of the witness,

his powers to observe, his capacity to remember and his accuracy in statement are

important. It is also important to determine whether he is honestly endeavouring to

tell the truth, whether he is sincere and frank or whether he is biassed, reticent and

evasive. All these questions and others may be answered from the observation of

the witness' general conduct and demeanour in determining the question of

credibility.

Page 165

[570] These comments on the assessment of credibility continue to be referred to

by Canadian courts. (See, for instance, R. v. Sparks, 2006 NSPC 45 at para 20 and R.

v. Al Jamail, 2006 ABPC 292 at para 34).

[571] As to the potential pitfalls in relying upon demeanour, the Ontario Court of

Appeal in R. v. Norman (1993), 87 C.C.C. (3d) 153, at p. 172, observed:

Another significant feature to the expert evidence adduced at this trial is that the

appearance of honesty and integrity on the part of such witnesses as the

complainant gives us little assistance in assessing the reliability of their testimony.

As Dr. Carr stated, these witnesses believe in what they are saying, whether it is

accurate or not.

[572] Lord Bingham in “The Judge as Juror: The Judicial Determination of Factual

Issues,” The Business of Judging: Selected Essays and Speeches (Oxford University

Press, 2000), suggests, at p. 4, that judges are similar to historians, auditors, accident

investigators, loss adjusters and doctors in being asked to determine what happened

at some time in the past. However, he writes:

The common law judge, it is often said, unlike his counterpart in a civil law system

and unlike the other investigators I have mentioned, is not concerned with

establishing the truth of what did or did not happen on a given occasion in the past,

but merely with deciding, as between adversaries, whether or not the party upon

whom the burden of proof lies has discharged it to the required degree of

probability.

[573] He goes on to cite Lord Denning’s remark that “the due administration of

justice does not always depend on eliciting the truth. It often depends on the burden

of proof.” Nonetheless, Lord Bingham also notes that the reality of trial is an attempt

“to find out the truth, and to do justice according to law.” (Citing Lord Denning in

Jones v. National Coal Board , [1957] 2 Q.B. 55 at p. 63).

[574] The burden of proof in a civil case is a “balance of probabilities.” Saunders

J.A. (concurring in the result) made the following remarks in McCarthy v. Workers'

Compensation Appeals Tribunal (N.S.) et al. (2001), 193 N.S.R. (2d) 301 (CA):

It is trite law that in evidentiary matters the burden is upon the party who asserts a

proposition, to prove it. In this, a civil case, the standard of proof is said to be on a

preponderance of evidence, or a balance of probabilities. Such a standard is

obviously less stringent than proof beyond a reasonable doubt required in a criminal

case. Nonetheless, there is a well known grey area between those two standards. It

Page 166

has long been recognized that the seriousness of the allegation will dictate the

sufficiency of proof required to meet the requisite degree of persuasion demanded

in a civil case. That is to say, evidence that creates only suspicion, surmise or

conjecture is insufficient. It is essential that the quality and quantity of the evidence

be such as to lead the trier of fact - be it judge, or jury, or tribunal - acting carefully,

to be satisfied to that level of persuasion, commensurate with the seriousness of the

allegation. Lord Denning described the proper approach in Bater v. Bater, [1950] 2

All E.R. 458, at 459:

It is true that by our law there is a higher standard of proof in criminal cases

than in civil cases, but this is subject to the qualification that there is no

absolute standard in either case. In criminal cases the charge must be proved

beyond reasonable doubt, but there may be degrees of proof within that

standard. Many great judges have said that, in proportion as the crime is

enormous, so ought the proof to be clear. So also in civil cases. The case

may be proved by a preponderance of probability, but there may be degrees

of probability within that standard. The degree depends on the

subject-matter. A civil court, when considering a charge of fraud, will

naturally require a higher degree of probability than that which it would

require if considering whether negligence were established. It does not

adopt so high a degree as a criminal court, even when it is considering a

charge of a criminal nature, but still it does require a degree of probability

which is commensurate with the occasion.

Lord Denning's analysis was approved and applied by Chief Justice Laskin in

Continental Insurance Co. v. Dalton Cartage Co. et al., [1982] 1 S.C.R. 164; 40

N.R. 235. Immediately after quoting the extract from Denning, L.J.'s, judgment in

Bater, supra, the Chief Justice said at p. 171:

I do not regard such an approach as a departure from a standard of proof

based on a balance of probabilities nor as supporting a shifting standard.

The question in all civil cases is what evidence with what weight that is

accorded to it will move the court to conclude that proof on a balance of

probabilities has been established.

[575] The plaintiff has alleged or referenced serious misconduct on the part of the

defendants, including “conversion”, “theft”, and “fraud”. However, in the final

analysis, the issue remains, has the Plaintiff established on a balance of probabilities

that he met Haney while hitchhiking, and disclosed to him his idea for a “board

game” based on “trivia” resulting in the “virtual creation” of the game, “Trivial

Pursuit”, in Haney’s car?

Page 167

[576] In his essay on “The Judge as Juror”, Lord Bingham also discusses

probability, that is to say, “that one thing may be regarded as more likely to have

happened than another, with the result that the judge will reject the evidence in

favour of the less likely.” At p. 13 he cautions against the automatic dismissal of the

unlikely story:

In choosing between witnesses on the basis of probability, a judge must of course

bear in mind that the improbable account may nonetheless be the true one. The

improbable is, by definition, as I think Lord Devlin once observed, that which may

happen, and obvious injustice could result if a story told in evidence were too

readily rejected simply because it was bizarre, surprising or unprecedented....

[577] Also to be considered are the comments, albeit in the context of a criminal

case, of Best J. in R. v. Burdett, [1814-23] All ER Rep 80 at p. 84:

It has been said that there is to be no presumption in criminal cases. Nothing is so

dangerous as stating general abstract principles. We are not to presume without

proof. We are not to imagine guilt, where there is no evidence to raise the

presumption. But when one or more things are proved from which our experience

enables us to ascertain that another, not proved, must have happened, we presume

that it did happen as well in criminal as in civil cases. Nor is it necessary that the

fact not proved should be established by irrefragable inference. It is enough if its

existence be highly probable, particularly if the opposite party has it in his power to

rebut it by evidence and yet offers none, for then we have something like an

admission that the presumption is just. It has been solemnly decided, that there is no

difference between the rules of evidence in civil and criminal cases. If the rules of

evidence prescribe the best course to get at truth, they must be and are the same in

all cases, and in all civilised countries. There is scarcely a criminal case, from the

highest down to the lowest, in which courts of justice do not act upon this principle.

LORD MANSFIELD, in the Douglas case, gives the reason for this:

‘As it seldom happens that absolute certainty can be obtained in human affairs,

therefore, reason and public utility require that judges and all mankind, in forming

their opinions of the truth of facts, should be regulated by the superior number of

probabilities on one side and on the other.’

[578] The above quote from Lord Mansfield was attributed to Andrew Stuart’s

Third Letter to Lord Mansfield, p. 127. Canadian Courts have also taken note of

Lord Mansfield’s remarks. See R. v. Atkinson (1866), 17 U.C.C.P.R. 295 (U.C. Ct.

C.P.) at pp. 303-304 and R. v. Nerlich (1915), 34 O.L.R. 298 (Ont. S.C.A.D.) at pp.

313-314.

Page 168

[579] The Plaintiff has invited me to draw several adverse inferences on account of

evidence that he says the Defendants failed to produce. One of the requests relates

to the “Daily Journal” of Montreal Gazette photographers’ assignments for Sunday,

November 25 to Friday, November 30, 1979. Some entries up to and including

November 29 (but not November 30) are in the individual defendant’s handwriting.

The page for November 29 includes an entry marked “before: 2:30.” If it is accepted

that this entry would not have been written much earlier than the time it refers to – as

was the evidence of and on behalf of the individual defendant, this would mean he

could not have driven to Cape Breton by 8 p.m. of the same day. I am prepared to

take judicial notice of the fact that the drive from Montreal to Sydney could not be

done between the early afternoon and 8 p.m. Counsel for the plaintiff estimated the

drive as “at least 14 to 19 hours”, and acknowledged that the individual defendant

could not have been in Sydney by 8 p.m. if he had left Montreal at “10 a.m.”

[580] According to the Plaintiff, the journal entries provided do not confirm where

the individual defendant was between November 29 and December 3, save for an

entry on “the morning of the 29^th.” The Plaintiff also suggests that there is evidence

that the latter entry could have been made the previous day. Although he does not

reference the evidence supporting this suggestion.

[581] The Plaintiff requests that an adverse inference be drawn “because that

journal [i.e. the journal for the following week] will confirm that Haney was no

where to be found on November 31^st[sic], December 1^st, 2^nd, and 3^rdwhen he was

attending and then travelling back from the Metro’s hockey tournament.” I decline to

make such an inference. While entries in the individual defendant’s handwriting

would be evidence that he was present in Montreal on that day, it does not follow

that the absence of his handwriting is evidence that he was not in the city, let alone

that he was in Cape Breton. The evidence of the Plaintiff is that the hitchhiking

encounter occurred on November 29^th. He did not testify it occurred the following

week. The Defendants cannot be expected to introduce evidence to dispute an

allegation that was never made. In any event, it was open to the Plaintiff to obtain

the evidence, if he believed it would support his claim.

[582] The Plaintiff also invites an adverse inference with respect to the Defendants’

conspiracy actions against Campbell and Reeves. He suggests that the motivation for

the actions was not cost recovery, but rather “to try to impede the ability of Donnie

Campbell and Doug Reeves to give evidence in the Wall matter or to intimidate

Page 169

other witnesses in the Wall matter from coming forward in fear that they might be

sued.” The actions alleged the conspirators agreed that Wall would receive half of

any recovery from a fraudulent action, with the rest divided among the other

conspirators. It was alleged that Reeves gave false statements to solicitors for Wall

and gave false evidence on discovery (in the Wall action) in Alberta. It was also

alleged that Campbell “admitted, in writing” that the Wall action was a “scam” from

which the conspirators intended to profit at the expense of the present defendants:

Horn Abbot Ltd. v. Reeves, 2000 NSCA 88, at para. 4. The Court of Appeal struck

out the action against Reeves pursuant to Rule 14.25 on the basis that “being based

solely upon his discovery evidence and his anticipated trial evidence ... it is in

violation of the witness immunity rule”: Reeves, supra, at para. 34. The Plaintiff

submits that the allegation of a “scam” allegedly acknowledged in writing by

Campbell was in issue at trial by virtue of a 1998 affidavit in which the allegations

were set out. At trial, Campbell denied involvement in any conspiracy. The Plaintiff

points out that he was not asked about the alleged signed note on cross-examination.

The Plaintiff suggests the Defendants “faked” evidence in an attempt to have the

action dismissed in 1998.

X

CONCLUSION

[583] There is nothing in the evidence presented by the Defendants, absent the

denial by Haney and the confirming denials by Sarah Haney and Abbott, that would

contradict Wall’s evidence that he met Haney and disclosed his idea for a game.

Although other defence witnesses, together with the Photographer’s Assignment

Book, purport to support Haney’s presence in the Montreal area until the end of

November, 1979, this evidence is, at best, suggestive and is certainly not conclusive.

[584] An unresolved question the defence evidence is the “unexplained” paper

Haney showed Mr. Mahoney that contained a “sketch of the game”. It appears

Haney showed this to Mahoney in the Fall or Winter of 1979. On cross-examination

Haney was questioned in respect to his discovery evidence about “notes” Abbott

made on December 15, 1979, and whether Haney recalled throwing them away. On

discovery he apparently said, according to Plaintiff’s counsel, that they went in the

garbage on December 15, while at trial he said:

Absolutely it went in the garbage at some point.

[585] Haney’s counsel interjected:

Page 170

Q.

Excuse me Mr. ... and the question is - and where that piece of paper of

ended up you’re not sure but you think it went into the garbage. Answer - I

knew it was long gone. Question -but you think it went into the garbage on

that day. And the answer is - Absolutely yes, I think it went in the garbage.

[586] Is the “unexplained paper” Haney showed Mr. Mahoney notes made by

Abbott which were apparently put in the garbage, or is it the sketch that Wall says

the driver drew the night of the hitchhiking encounter? There is no way to know.

Mr. Mahoney was not asked to compare the drawings made by Wall and Campbell,

from their recollections of the driver’s sketch, with his own recollection of what

Haney had showed him.

[587] However, the determination of the validity of the Plaintiff’s claim rests

primarily on the credibility and reliability of his, and his witnesses’, evidence. The

onus, as earlier referenced, is on the Plaintiff, on a balance of probabilities, to show

that the hitchhiking encounter with Haney occurred, resulting in the Defendant’s

misuse of his idea.

[588] A number of witnesses were called by the parties, besides those to whom I

have previously referred. Their evidence does not assist me, positively or

negatively, in deciding whether the plaintiff has established the allegation of the

hitchhiking encounter with Haney in late November or even early December 1979.

A good example was Donnie Bacich, the former owner/operator of an apparently

popular chip wagon in Sydney. Mr. Bacich was called by the Plaintiff and testified

to rumours he had heard of local people, some of whom Wall identified as persons

he believed had invested in the game, who made money from the sale of their

interests in “Trivial Pursuit”. As suggested to plaintiff’s counsel, these rumours

amounting, in effect, to gossip, are not evidence any of these people, or any other

resident of Cape Breton, ever invested in Trivial Pursuit. Plaintiff’s counsel appears

to acknowledge this in his submission of January 30, 2007

[589] Plaintiff’s counsel, saying that Mr. Bacich testified about being approached

to invest in the game, suggests:

... His recollection, even at discovery, as confirmed at trial was that he always felt

that the investment he had been approached on was ‘Trivial Pursuit’.

Page 171

[590] Mr. Bacich testified that in late 1979 or early 1980 he was approached by a

bricklayer, Robert Coco, inquiring on his opinion of the possibility of the now-

deceased bricklayer investing $5000.00 in a game. Mr. Coco had little information

in respect to the proposed investment and Mr. Bacich apparently was less than

positive in his review of the proposed investment. There was no evidence as to the

identity of the person who had proposed the investment to Mr. Coco. Neither, for

that matter, has Wall suggested he contacted Mr. Coco as a potential investor.

[591] Counsel’s reference to Mr. Bacich having “felt” it was in relation to “Trivial

Pursuit” confirms that this testimony is largely irrelevant, and of little weight, in

deciding whether Wall, in the first week of January 1981, approached persons to

invest in the game, following a phone call from Haney. Stronger evidence on this

point would, of course, suggest that the 1979 hitchhiking encounter was more likely,

than not, to have occurred.

[592] In the circumstances, however, such evidence, like that of rumours and

gossip, is not useful in resolving the essential issue in this trial.

[593] In his post-trial submissions of October 2006, plaintiff’s counsel says:

The exact date may never be known, but certainly before December 15, 1979 and

likely between November 29^thand December 3^rd, 1979.

[594] Later, in this submission:

In assessing whether or not Mr. Wall has proven his claim, Your Lordship will also

have to take cognizance of the Defence’s evidence as to when Trivial Pursuit was

claimed to have been “co-invented” by Chris Haney and Scott Abbott. There is

nothing that the Plaintiff is presently aware of that would suggest it was any other

date than December 15^th, 1979. By necessity therefore Mr. Wall’s meeting with

Chris Haney had to have been before December 15^th, 1979.

[595] Still later, he appears to concede Abbott, Sarah Haney and Haney’s evidence

that on December 15 and 16, 1979, they created their “initial mockup of the game:

Bearing in mind that the Plaintiff has always conceded (including in his opening

statement at Trial) that from December 15^th, 1979 forward, there should be little if

any of the Defendant’s claims that are not accurate. It is rather surprising that there

is a lack of detail of the Defences’ evidence and the significant number of

inconsistencies on some fairly key points. That said, given the passage of time,

Page 172

perhaps it is not too surprising that individuals would have honest but mistaken

beliefs on even material matters.

[596] In his further submission of January 30, 2007 he appears to acknowledge that

on December 15 and 16, 1979, Haney, Abbott and Sarah Haney made the “mock up”

from which an artist produced the prototype board. Presumably, therefore, unless he

continues to maintain that Haney somehow “implanted” into Abbott and Sarah

Haney the roles they testified to carrying out in the events of December 15, 16 and

later, (for example, Sarah Haney’s addition of the letter “L” to “trivia “ creating the

name “Trivial Pursuit”), they would have to have been co-participants in the theft of

Wall’s game. Effectively, counsel would be suggesting they were co-conspirators in

the misappropriation of Wall’s idea and his game.

[597] Nothing in the evidence of Abbott or Sarah Haney suggests they so acted. As

earlier observed, the inconsistencies and contradictions in their evidence are neither

substantial nor material to the issues in this trial, and, in fact, are no more than could

be reasonably be expected given the amount of time that has passed since these

events occurred before they gave evidence, whether at discovery or at trial.

[598] A review of Wall’s evidence, when compared with the evidence of all the

other witnesses, called by the Plaintiff and the Defendants, indicates that not a

single witness confirms the essential elements of Wall’s story of a hitchhiking

encounter in late November or early December 1979. Campbell recalls the event as

occurring the December before the wedding of Marie Bisson and Wayne Fennell,

when Reeves was back in Nova Scotia from out West. Neither of these events place

the hitchhiking in late November, or early December 1979. Reeves says it was not

1979, but 1980, when Campbell and Wall came into the Peridot and Campbell with

an account of being picked up hitchhiking and Wall telling the driver about his idea

for a game. Heidi Munroe (now Stevens) has no recollection of Wall saying

anything to her or of overhearing Wall telling her father of such an encounter, or for

that matter, of Wall ever speaking about his idea for a game based on trivia, although

they were dating at the time. Jerry Murphy says he was at the Peridot, although no

one else appears to remember him being there. He cannot place a year on the event,

but recalls Wall and Campbell coming in with a third person, to whom he was

introduced as the driver who picked them up. Wayne Fennell certainly does not

appear to recall the year he found Wall and Campbell in his house as 1979, and,

even more significantly, he says Wall and Campbell were already talking about the

Page 173

hitchhiking encounter, while both Wall and Campbell say it only occurred after they

left his house.

[599] There are also discrepancies that cause concern with respect to Wall’s

attempt to find investors. Lawrence Lewis places Wall in the apartment building on

Windsor Street before it was built, in view of the evidence of Mr. Kehoe, one of the

principals of JonelJim Construction, the builders of the apartment building. The

only thing Art Ells recalls, in respect to the various events Wall says he was

involved in, was Wall asking about his investing in a game, which he understood

Wall and his friends had developed while Wall was out West. Wall did not go out

West until January 1981.

[600] A number of Wall’s friends who testified said they never heard Wall talk of

his idea for a game, or that it had been stolen from him when he was picked up

hitchhiking, at least, prior to his going out West. When Wall was in British

Columbia, Mr. Pitt-Payne referred him to a newspaper article about the development

and marketing of Trivial Pursuit. Wall testified he never spoke to anyone about the

game and the hitchhiking encounter until he was referred to the newspaper article by

Mr. Pitt-Payne in 1982 or 1983. Yet, Paul MacLellan says he recalls an occasion in

the Summer or Fall of 1981 in Alberta, when Wall spoke to him of his idea for a

board game. In his evidence, he says Reeves and a number of other persons were

also present. Clearly they, as well as Wall, have no recollection of such a

discussion. Mr. MacLellan, in fact, is the only witness who testified to recalling

Wall discussing his idea for a game and any elements of the hitchhiking encounter,

prior to Wall’s and Mr. Pitt-Payne’s evidence of the article in the British Columbia

newspaper. In view of the publicity given to Wall’s claim over the years, together

with the lack of recollection of such a discussion by any of the other persons said to

be present, I am not satisfied that any discussion by Wall in 1981 can be separated

from what Mr. MacLellan may have subsequently learned from accounts of these

matters in the media. Obviously, he was familiar with at least some media accounts

of Wall’s claims, or had heard about them from other sources, since he was aware

that witnesses had been sued by the Defendants. Mr. Murphy acknowledged such a

confusion in respect to his recollections.

[601] There is, of course, also William Keough, who says Wall told him of his idea

for a board game that he said was going to be “huge”, and Wall’s use of the name

“Trivia or Trivial Pursuit”, while playing ping-pong in the basement of his parent’s

home. Wall, however, has no recollection of such a disclosure. I have already

Page 174

noted the lack of clarity as to when Mr. Keough is suggesting these disclosures

occurred.

[602] Also significant is the discrepancy in the evidence as to the circumstances of

the hitchhiking as testified to by a number of Wall’s friends, who recounted how and

where they understood the hitchhiking encounter had occurred from their

discussions with Wall. Admittedly, some indicated they had made assumptions as

to where the hitchhiking encounter occurred or by whom Wall had been picked up.

Nevertheless, the evidence is less than supportive of Wall’s version, in that each

recalled a circumstance that was in marked contrast to Wall’s version. Some had

Wall knowing the person or persons who picked him up, some indicated they did not

understand that Campbell or another person was with Wall, and others believed the

hitchhiking had occurred while he was out West. One of the witnesses said he

understood the driver was a salesman. In any event, none recalled circumstances of

the hitchhiking that matched Wall’s version at trial.

[603] There is also evidence by Wall and some members of his family, that various

of the Defendants have been sighted in Cape Breton. Not only did these Defendants

deny being in Nova Scotia on any of these occasions, but many of the persons with

whom they were alleged to be associating, testified to not knowing any of these

Defendants and either denied these meetings occurred, or, at the very least, had no

recollection of them.

[604] Since these alleged sightings were irrelevant to whether the hitchhiking event

ever occurred, it is difficult to understand why the Plaintiff, or his family, would

testify to them. In view of the number of alleged sightings, it is difficult to attribute

them to mistaken identity. On the question of credibility, the evidence certainly does

not support the Plaintiff. Nevertheless, I am left to ask, why tender such evidence?

To that question, there is, on the evidence and my reflections on it, no readily

apparent answer. To suggest the Defendants and each of these residents of Cape

Breton were involved in a “gigantic conspiracy” to hide the fact that in the 1980's

and 1990's some or all of the individual Defendants were in Cape Breton at various

times, in the company of different local residents, is pure speculation unsupported by

any tangible evidence presented during this trial. If these meetings had occurred, it

is difficult to see why there would have not been some corroboration of at least some

of them. If any of the Defendants had flown into Sydney airport on a private plane,

as suggested by Wall from what he says he was told, then there would undoubtedly

be a public record of such a landing. No such record was tendered.

Page 175

[605] Similarly, the evidence by Wall of local investors in the game is not only

unsupported by any corroborative evidence, it is denied by the Defendants, and

former individual defendants, as well as by many of the supposed investors. Again,

if there was any truth to this allegation, which might be circumstantially

confirmatory of a phone call to Wall from Haney, then there should have been some

independent corroborative evidence, either from at least one of these supposed

investors or documents in the corporate defendant’s records and filings.

[606] It is difficult to understand how, apart perhaps from his own family, Wall’s

seeking investors would mean he “... could still be part of Trivial Pursuit ...”. He

never clearly explained how this would happen. Stranger still, is the lack of

evidence of any attempt by Wall, after January 1981, to contact any of these persons

he once believed and/or still believes were investors, to confirm his belief they had

taken advantage of the opportunity he had given them. Nor on the evidence, did he

contact any of the present or former defendants to inquire of them whether any of the

persons he had approached had invested. In fact, on the evidence all he did in

respect to these investors is ask other persons if they know anything, during the

period he is preparing for his lawsuit and the trial. From January 1981 until he made

inquiries of these other persons, he seems to have forgotten that he had approached

these “investors” so that he “could still be a part of Trivial Pursuit”.

[607] Then there is Stott, the third person Wall says he told of his idea for a game

based on trivia, prior to the alleged hitchhiking encounter. Stott says he has no

recollection of Wall telling him of his idea for a game based on trivia, of being at the

Peridot Tavern when Wall and Campbell entered, or of making notes from a

business card Wall said he had been given by the driver. Stott’s evidence is hardly

confirmatory of any of the significant events testified to by Wall up to and including

the hitchhiking encounter and Wall and Campbell visiting the Peridot Tavern. There

is also his lack of recollection, as well as by Art Ells and William Keough, of any

incident at Smooth Hermans.

[608] What is clear, in considering all the evidence, is that apart from his family,

none of the remaining witnesses corroborate Wall’s version of events without, at

least, some significant contradictions and or inconsistencies. A great deal of time

has passed between these alleged events and the witnesses testifying in Court. It is

not for the Plaintiff to use this as a rationalization as to why his witnesses do not

recall these events as he does. In fact, his own evidence is inconsistent, in many

Page 176

respects, when compared to his evidence at discovery and in affidavits given on

earlier occasions.

[609] In various of his submissions plaintiff’s counsel attempts to rationalize and

speculate on possible explanations for some of the many inconsistencies and

contradictions in the plaintiff’s evidence. By way of example, in respect to Mr.

Fennell’s evidence of Wall and Campbell discussing a hitchhiking encounter in

which Wall told the driver of his idea for a game involving questions, counsel says:

Both Defendants suggests that Mr. Fennell’s evidence does not support Mr. Wall.

In particular, the fact that he remembers hearing from Donnie and David about the

game and hitchhiking. With respect there is two possible explanations for this.]

David and Donnie were talking about it prior to getting in the car with Mr. Haney

and simply don’t recall that and the hitchhiking that was being referred to was

hitchhiking from the Peridot where apparently they may have been sitting around

talking about the game even that morning before going out to Fennell’s and before

getting in the car with Mr. Haney.

The other possible explanation is that Mr. Fennel’s evidence was he met Mr. Wall

on two occasions. It’s possible that on the second occasion more information may

have been shared with him and there is a melding once again of two events. As to

which it is, is difficult to know; but, in either event both of these incidents would

have taken place prior to Mr. Wall leaving for Alberta on the second occasion in

September of 1981. It is possible that the second meeting with Mr. Fennell may

have taken place while Mr. Wall was home in the summer of 1981.

[610] In fact, the evidence is that Mr. Fennell did not meet or discuss the events

with Wall, or even Campbell, on any other occasion. Also, there is no evidence,

apart from Mr. Fennell’s suggesting the earlier discussion by Wall, and Campbell, of

himself, in the presence of himself, of the idea for a board game based on trivia.

[611] This, and other suggested rationalizations and speculations seeking to explain

the inconsistencies and contradictions reflect not the evidence presented during the

trial but highlight the deficiencies in the evidence. Although, there were deficiencies

in the evidence presented by the defendants, in the final analysis, the burden or onus

is on the plaintiff.

[612] The defendants are not required to prove that the game was created on

December 15, 1979 in Montreal; rather it is on the plaintiff to establish, at least that

Page 177

the “virtual creation” occurred in Sydney River, Cape Breton during an encounter

involving Wall, Campbell and Haney.

[613] The answer to who conceived of the popular game “Trivial Pursuit”, will be

found “on an assessment of the evidence, and lack of evidence, presented during the

course of this trial”. It is evident that the answer has been found more on an

assessment of the “lack of evidence” than on the “evidence”.

[614] The onus or burden of proving this claim is on the Plaintiff. Clearly, the

Plaintiff has not met it. It is not sufficient for the Plaintiff, through his counsel, to

present evidence and to rationalize the inconsistencies and contradictions as

evidence of the absence of a conspiracy by Wall and his witnesses to promote his

claims. Inconsistencies and contradictions are, of themselves, not necessarily fatal to

a witness or group of witnesses’ credibility. However, where the evidence is only

“consistent as to its inconsistencies”, it is difficult, if not impossible, to place “fact

finding weight” on it. Although the long delay in this matter proceeding to trial

may, in part, explain some of the inconsistencies, contradictions, and deficiencies in

the evidence, and, particularly the evidence of the plaintiff, the party bearing an onus

or burden is still required to tender sufficient evidence to satisfy the onus. The

passage of time may account for some of the “inconsistencies”; however, they occur

with such regularity as to suggest other conclusions.

[615] I have no doubt that Wall had an interest in trivia, at least sports trivia. He

may very well have thought that trivia could be the basis for a board game.

However, the cumulative evidence of the alleged encounter with the individual

defendant, is so marked with inconsistencies and contradictions as not to be credible.

It may very well be, that at some time, he did express to someone the idea for a game

based on trivia. What has not been established is that it was to the individual

defendant. As such, his claim cannot succeed.

[616] There is much evidence supporting aspects of Wall’s story. Reeves,

Campbell, Mr. Murphy and Mr. Fennell, although not supporting the timing as

suggested by Wall, testified to recollections that bear a similarity to some of Wall’s

account. It might well be observed of this case what was said by O’Halloran, J.A. in

Rex v. Findlay, [1944] 2 D.L.R. 773 (B.C.C.A.), at p. 776: “In a court case, one side

may win a decision by the narrowest of margins upon reasons which seem

preponderating, although they are not in themselves decisive. The Court's decision

may rest on the balance of probabilities ...” . This decision so rests.

Page 178

[617] Judgment accordingly.

J.