Date: 20040505
Docket: T-39-94
Citation: 2004 FC 659
Toronto, Ontario, May 5th, 2004
Present: The Honourable Mr. Justice Campbell
BETWEEN:
CLIFF BEGG, ROLLIE BEGG, BENTLEY BROWN,
DALE CONACHER, KEITH CONACHER, LAURIE CONACHER,
MILTON CONACHER AND MILES JOHNSON
Plaintiffs
(Respondents on the Summary Judgment Motion)
and
HER MAJESTY THE QUEEN IN THE RIGHT OF CANADA,
AS REPRESENTED BY THE MINISTER OF AGRICULTURE
FOR CANADA
Defendant
(Applicant on the Summary Judgment Motion)
REASONS FOR ORDER AND ORDER
[1] In 1991, 253 elk in the Plaintiffs' herd located on a farm site in the District of Mervin, Saskatchewan, were eradicated by the Defendant due to tuberculosis ("m. bovis"); the central feature of the present action is that, as compensation paid according to law, the Defendant did not pay the Plaintiffs the market value of the animals destroyed. Seen in legal and factual context, the Plaintiffs consider this failure to pay as manifestly unreasonable and unfair. The Plaintiffs' primary objective in bringing this action is to not only obtain the full market value of the animals destroyed, but also to obtain elk ranching profits lost due to the eradication.
[2] To achieve their objective, the Plaintiffs have generated a two pronged attack: allegations of negligence on the part of the Defendant in failing in its disease control efforts; and an argument that the law limiting the amount of compensation paid is of no force and effect.
[3] In answer to the attack, the Defendant has brought a motion for summary judgment pursuant to Rule 213(2) of the Federal Court Rules 1998 requesting a dismissal of the claim for damages based on the negligence allegations on the ground that it presents no genuine issue for trial. In the same motion, an order is also requested pursuant to Rule 221(1) striking out the claim for declaratory relief respecting the legal limitation on compensation on the ground that it discloses no reasonable cause of action.
[4] The principles governing summary judgment in the Federal Court are set out in Granville Shipping Co. v. Pegasus Lines Ltd., [1996] 2 F.C. 853 (T.D.) at para. 8 as follows:
1. the Federal Court Rules on summary judgment are intended to summarily dispense of cases which present no genuine issue for trial;
2. the test is whether the case is so doubtful it deserves no further consideration;
3. each case must be interpreted in its own context;
4. provincial practice can aid in interpretation of the Federal Court Rules;
5. questions of fact and law may be determined on the motion;
6. summary judgment cannot be granted if necessary facts cannot be found; and
7. where there are serious issues of credibility, the matter should go to trial.
[5] By these Reasons for Order and Order as set out below, I agree with the arguments presented by the Defendant and grant the orders requested.
A. The course of proceedings
[6] The action was commenced by Statement of Claim dated April 1, 1993, and was first amended on February 2, 1998, and finally amended by the Second Amended Statement of Claim dated April 16, 1999 ("the Statement of Claim"). The Defendant's motion for summary judgment was filed on June 30, 1999 ("the Motion").
[7] The Motion first came on for hearing on April 28, 2003. At that time the Respondent argued that s.9 of the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50 ("the CLPA") operates as a complete bar to the Plaintiffs' action for further compensation arising out of the destruction of the elk herd. A question arose at the hearing as to whether a legal claim for the intentional tort of "misfeasance in public office", as opposed to a claim framed in "simple negligence", was also barred by s.9 of the CLPA. The question also arose as to whether the Plaintiffs could provide an evidentiary basis for their allegations against government officials of deliberate wrongdoing and abuse of power.
[8] With the consent of all parties, the summary judgment motion was adjourned to allow the Plaintiffs to perfect their evidentiary record relating to the allegations of misfeasance in public office. Following the Plaintiffs' filing of affidavit evidence and examinations thereon, the Plaintiffs explicitly abandoned all claims against government officials for misfeasance in public office, and agreed that the Statement of Claim should be read as amended accordingly.
B. The legal and factual context
1. The legal context
[9] In fact, compensation in the present case was paid under two distinct pieces of legislation. As mentioned above, compensation for the eradication of 253 elk was not paid on the basis of market value; however, market value was paid for a few other animals as detailed below. As the failure to pay full compensation is the important feature of the present action, it is first useful to set out the legal context in which compensation was paid, and then to express how this context was applied to the facts which are not in dispute.
[10] In 1990, animal protection was governed by the old Animal Disease and Protection Act, R.S.C, 1985, c.A-11 ("the old Act"). The old Act allowed the Minister to destroy an animal if affected, or suspected of being affected, with an infectious or contagious disease, gave the Minister a discretion to pay compensation to the owners of animals destroyed, provided that the compensation is to be market value as determined by the Minister, and, most importantly, only provided authority to cap the compensation to a lesser value than market value for horses, cattle, and sheep. Therefore, if elk were destroyed under the old Act, and the Minister chose to pay compensation, that compensation would be market value.
[11] The old Act was replaced by the Health of Animals Act, S.C. 1990, c.21, which was brought into force January 1, 1991, and which permitted the promulgation of regulations to provide compensation maximums for all types of animals required to be slaughtered, thus including elk.
[12] Even though the Health of Animals Act came into force on January 1, 1991, its regulations respecting compensation were not promulgated until some three months later. It is important to note that in the interim period an important decision was made; on February 1, 1991, the Defendant placed a moratorium on the slaughter of domestic elk, by which the slaughtering of elk was postponed until further notice, and was not lifted until after the regulations were promulgated.
[13] The Relevant provisions of the Health of Animals Act read as follows:
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48. (1) The Minister may dispose of an animal or thing, or require its owner or any person having the possession, care or control of it to dispose of it, where the animal or thing
(a) is, or is suspected of being, affected or contaminated by a disease or toxic substance;
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48. (1) Le ministre peut prendre toute mesure de disposition, notamment de destruction, -- ou ordonner à leur propriétaire, ou à la personne qui en a la possession, la responsabilité ou la charge des soins, de le faire -- à l'égard des animaux ou choses qui :
a) soit sont contaminés par une maladie ou une substance toxique, ou soupçonnés de l'être;
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(b) has been in contact with or in close proximity to another animal or thing that was, or is suspected of having been, affected or contaminated by a disease or toxic substance at the time of contact or close proximity; or
(c) is, or is suspected of being, a vector, the causative agent of a disease or a toxic substance.
Compensation to owners of animals
51. (1) The Minister may order compensation to be paid from the Consolidated Revenue Fund to the owner of an animal that is
(a) destroyed under this Act or is required by an inspector or officer to be destroyed under this Act and dies after the requirement is imposed but before being destroyed;
(b) injured in the course of being tested, treated or identified under this Act by an inspector or officer and dies, or is required to be destroyed, as a result of the injury; or
(c) reserved for experimentation under paragraph 13(2)(a). |
b) soit ont été en contact avec des animaux ou choses de la catégorie visée à l'alinéa a) ou se sont trouvés dans leur voisinage immédiat;
c) soit sont des substances toxiques, des vecteurs ou des agents causant des maladies, ou sont soupçonnés d'en être.
Indemnisation : animal
51. (1) Le ministre peut ordonner le versement, sur le Trésor, d'une indemnité au propriétaire de l'animal :
a) soit détruit au titre de la présente loi, soit dont la destruction a été ordonnée par l'inspecteur ou l'agent d'exécution mais mort avant celle-ci;
b) blessé au cours d'un examen ou d'une séance de traitement ou d'identification effectués, au même titre, par un inspecteur ou un agent d'exécution et mort ou détruit en raison de cette blessure;
c) affecté à des expériences au titre du paragraphe 13(2). |
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Amount of compensation
(2) Subject to subsections (3) and (4), the amount of compensation shall be
(a) the market value, as determined by the Minister, that the animal would have had at the time of its evaluation by the Minister if it had not been required to be destroyed
minus
(b) the value of its carcass, as determined by the Minister.
Maximum value
(3) The value mentioned in paragraph (2)(a) shall not exceed any maximum amount established with respect to the animal by or under the regulations.
Additional compensation
(4) In addition to the amount calculated under subsection (2), compensation may include such costs related to the disposal of the animal as are permitted by the regulations.
Regulations
55. The Minister may make regulations
(a) respecting the method of calculating the market value of animals for which the Minister considers there is no readily available market;
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Montant de l'indemnité
(2) Sous réserve des paragraphes (3) et (4), l'indemnité payable est égale à la valeur marchande, selon l'évaluation du ministre, que l'animal aurait eue au moment de l'évaluation si sa destruction n'avait pas été ordonnée, déduction faite de la valeur de son cadavre.
Plafond
(3) La valeur marchande ne peut dépasser le maximum réglementaire correspondant à l'animal en cause.
Indemnité supplémentaire
(4) L'indemnisation s'étend en outre, lorsque les règlements le prévoient, aux frais de disposition, y compris de destruction.
Règlements
55. Le ministre peut, par règlement:
a) régir le mode de calcul de la valeur marchande des animaux difficilement commercialisables selon lui;
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(b) establishing maximum amounts, or the manner of calculating maximum amounts, for the purpose of subsection 51(3) or section 52; and
(c) permitting compensation for any costs related to the disposal of animals and things and for determining the amounts of the compensable costs, including prescribing maximum amounts. |
b) fixer les plafonds des valeurs marchandes des animaux ou des choses ou leur mode de calcul;
c) autoriser l'indemnisation pour frais de disposition -- notamment par destruction -- d'animaux ou de choses et fixer soit le montant de celle-ci ainsi que le plafond, soit le mode de leur détermination. |
[14] On March 18, 1991, the Minister of Agriculture, pursuant to s.55(b) of the Health of Animals Act, made the Maximum Amounts for Destroyed Animals Regulations, SOR/91-222. Section 4 of these regulations imposed maximum amounts of compensation that could be paid to owners of elk required to be destroyed under the Health of Animals Act. The section reads as follows:
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4. The maximum amount that may be paid to the owner of an elk that is destroyed or required to be destroyed under paragraph 48(1)(a) or (b) of the Health of Animals Act is
(a) $3,500 for each such male elk; and
(b) $7,000 for each such female elk. |
4. Le plafond de la valeur marchande payable au propriétaire d'un wapiti devant être détruit en application des alinéas 48(1)a) or b) de la Loi sur la santé des animaux est de :
a) 3 500 $ pur un mâle;
b) 7 000 $ pur une femelle. |
[15] The Regulatory Impact Analysis Statement for the Maximum Amounts for Destroyed Animals Regulations indicates that the new maximums included in s.4 would result in compensation payments which are approximately 40 percent less than if no maximum was implemented, and also states that the rationale for imposing the maximums is that to continue to pay full market value "would be unfair both to the public and the owners of cattle since maximum amounts are imposed on compensation values for cattle which are far less than those imposed on elk."
2. The factual context
[16] The facts relevant to the motion for summary judgment are undisputed. As the owners of a herd of domestic elk, the following events form the basis of the Plaintiffs' claims in the present action:
1. On or about October 16, 1990, employees of Agriculture Canada were advised of the post mortem findings in an elk cow owned by the Plaintiffs which had died on or about October 9, 1990. As a result of this report, tuberculosis was suspected in the Plaintiffs' herd.
2. On October 17, 1990, acting under the authority of the old Animal Disease Protection Act, Agriculture Canada placed the herd under quarantine while the herd was under investigation to prevent any further spread of disease, should it be present. As part of the investigation, tissue samples from the dead elk cow were submitted to the laboratory for confirmatory culture. In the result, on January 18, 1991, Agriculture Canada confirmed the diagnosis of tuberculosis in the Plaintiffs' elk herd.
3. On October 17, 1990, the Plaintiffs' elk herd consisted of 258 elk that were placed under quarantine on October 17, 1990, and 2 elk located at another premises.
4. The Plaintiffs' elk herd, numbering 260, was disposed of as follows:
a) two were ordered destroyed and slaughtered on November 26, 1990;
b) two died from causes unrelated to the tuberculosis investigation while under quarantine, but before tuberculosis was confirmed in the Plaintiffs' elk herd;
c) three died after tuberculosis had been confirmed, but before they could be ordered destroyed;
d) 253 were ordered destroyed and slaughtered between April 19, 1991 and June 26, 1991.
5. The Plaintiffs were awarded compensation for the two animals that were ordered destroyed on November 26, 1990 pursuant to the old Animal Disease and Protection Act.
6. The Plaintiffs were awarded compensation for the 253 animals ordered destroyed between April 19, 1991 and June 26, 1991, and for the three animals that died after tuberculosis had been confirmed, but before they could be ordered destroyed, pursuant to the Health of Animals Act.
7. In total, the Plaintiffs received compensation for 258 of their animals. The total amount awarded to the plaintiffs as compensation pursuant to both statutory schemes was $1,533,000.00.
3. Observations
[17] An important fulcrum point in the legal and factual context is that, on January 18, 1991, Agriculture Canada confirmed the diagnosis of tuberculosis in the herd. While the Plaintiffs received full compensation under the old Act for two elk destroyed before January 1, 1991, and even though by January 18th there was no question that the balance of the herd would need to be destroyed, because of the moratorium imposed on February 1st , no action was taken to do so until April. It is during this hiatus period that the Maximum Amounts for Destroyed Animals Regulations were put into place which had the effect of greatly diminishing the compensation the Plaintiffs expected to receive, given the course of paying full compensation conduct under the old Act.
[18] It is not difficult to understand why the actions taken respecting the change to the allowable compensation have resulted in allegations by the Plaintiffs of bad faith and unfair practice against the Defendants.
C. The allegations of negligence
[19] As a result of the course of proceedings in the present action, and the consequent narrowing of the issues as described above, the claim for negligence is that stated in amended paragraphs 43 and 43(a) of the Statement of Claim as follows:
43. In the alternative, the Plaintiffs state that their losses were occasioned by the negligence of the Defendant, as represented by the Minister of Agriculture for Canada, or by the negligent misrepresentation of the said Minister.
43(a). The Plaintiffs further state that the Defendant's conduct was so outrageous, callous and high-handed, and carried out with such reckless disregard and wanton carelessness, as to give rise to a claim of exemplary and/or punitive damages.
[20] As a result, the following relief is claimed in para. 44 of the Statement of Claim:
44(f). Judgment against the Defendant for damages incurred by the Plaintiff for loss of property and loss of profits incurred as a result of the Defendant's negligence and/or gross negligence and/or intentional acts;
44(f)(A). Judgment against the Defendant for the fair market value of the elk destroyed as a result of the Defendant's negligent and/or improper actions, together with interest and damages for consequential business loss;
44(f)(B). Punitive and/or exemplary damages.
1. Section 9 of the Crown Liability and Proceedings Act ("the CLPA")
[21] At common law, there was no cause of action against the federal Crown in tort; that liability was imposed by statute, and in its current form, is created and defined in Part I of the CLPA. Section 3 of the CLPA, which creates the liability of the Crown in tort, reads as follows:
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3. The Crown is liable for the damages for which, if it were a person, it would be liable
(a) in the Province of Quebec, in respect of
(i) the damage caused by the fault of a servant of the Crown, or
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3. En matière de responsabilité, l'État est assimilé à une personne pour :
a) dans la province de Québec :
(i) le dommage causé par la faute de ses préposés,
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(ii) the damage resulting from the act of a thing in the custody of or owned by the Crown or by the fault of the Crown as custodian or owner; and
(b) in any other province, in respect of
(i) a tort committed by a servant of the Crown, or
(ii) a breach of duty attaching to the ownership, occupation, possession or control of property. |
(ii) le dommage causé par le fait des biens qu'il a sous sa garde ou dont il est propriétaire ou par sa faute à l'un ou l'autre de ces titres;
b) dans les autres provinces :
(i) les délits civils commis par ses préposés,
(ii) les manquements aux obligations liées à la propriété, à l'occupation, à la possession ou à la garde de biens. |
[22] The liability of the Crown in tort is elaborated and qualified by other provisions of the CLPA. Section 10, for example, elaborates the nature of vicarious liability of the Crown under s.3(a)(i) or s.3(b)(i):
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10. No proceedings lie against the Crown by virtue of subparagraph 3(a)(i) or (b)(i) in respect of any act or omission of a servant of the Crown unless the act or omission would, apart from the provisions of this Act, have given rise to a cause of action for liability against that servant or the servant's personal representative or succession. |
10. L'État ne peut être poursuivi, sur le fondement des sous-alinéas 3a)(i) ou b)(i), pour les actes ou omissions de ses préposés que lorsqu'il y a lieu en l'occurrence, compte non tenu de la présente loi, à une action en responsabilité contre leur auteur, ses représentants personnels ou sa succession |
[23] The predecessor to s.9 in the CPLA was s.4(1) in the Crown Liability Act, R.S.C. 1952-53 which provided that:
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4. (1) No proceedings lie against the Crown or a servant of the Crown in respect of a claim if a pension or compensation has been paid or is payable out of the Consolidated Revenue Fund or out of any funds administered by an agency of the Crown in respect of the death, injury, damage or loss in respect of which the claim is made. |
4. (1) On ne peut exercer de recours contre la Couronne, ou un préposé de la Couronne, en raison d'un décès, de blessures, dommages ou autres pertes, si une pension ou une indemnité a été payée ou est payable (par prélèvement sur le Fonds du revenu consolide ou sur des fonds gérés par un organisme mandataire de la Couronne) relativement à ce décès, ces blessures, dommages ou autres pertes. |
Section 9, which is at issue in the present Motion, is the same in the English version as s.4(1), and qualifies and limits the liability of the Crown where a pension or compensation is payable as follows:
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9. No proceedings lie against the Crown or a servant of the Crown in respect of a claim if a pension or compensation has been paid or is payable out of the Consolidated Revenue Fund or out of any funds administered by an agency of the Crown in respect of the death, injury, damage or loss in respect of which the claim is made. |
9. Ni l'État ni ses préposés ne sont susceptibles de poursuites pour toute perte -- notamment décès, blessure ou dommage -- ouvrant droit au paiement d'une pension ou indemnité sur le Trésor ou sur des fonds gérés par un organisme mandataire de l'État.
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a. the jurisprudence
[24] The case law acknowledges that the purpose of s.9 of the CLPA is to prevent double recovery, or enhanced or different damages, for the same incident or injury or loss where pension or compensation has been paid under a no-fault scheme analogous to workers' compensation (See Langille v. Canada (Minister of Agriculture), 44 F.T.R. 60 (T.D.); [1992] 2 F.C. 208 (F.C.A.); Sarvanis v. Canada, [2002] 1 S.C.R. 921; Marsot v. Canada (Department of National Defence), [2002] 3 F.C. 579 (T.D.)).
[25] Prior to the enactment of the Crown Liability Act, double recovery was possible, as there was no bar to a suit for damages in respect of an injury or death for which an individual or his or her dependents were receiving, or were eligible to receive, a pension or compensation from the Crown. In the Supreme Court of Canada decision in Sarvanis, at paras. 28-29, Justice Iacobucci finds that s.9 reflects Parliament's intention to prevent double recovery:
In my view, the language in s. 9 of the Crown Liability and Proceedings Act, though broad, nonetheless requires that such a pension or compensation paid or payable as will bar an action against the Crown be made on the same factual basis as the action thereby barred. In other words, s. 9 reflects the sensible desire of Parliament to prevent double recovery for the same claim where the government is liable for misconduct but has already made a payment in respect thereof. That is to say, the section does not require that the pension or payment be in consideration or settlement of the relevant event, only that it be on the specific basis of the occurrence of that event that the payment is made.
This breadth is necessary to ensure that there is no Crown liability under ancillary heads of damages for an event already compensated. That is, a suit only claiming for pain and suffering, or for loss of enjoyment of life, could not be entertained in light of a pension falling within the purview of s. 9 merely because the claimed head of damages did not match the apparent head of damages compensated for in that pension. All damages arising out of the incident which entitles the person to a pension will be subsumed under s. 9, so long as that pension or compensation is given "in respect of", or on the same basis as, the identical death, injury, damage or loss.
[26] In the case of Langille, the Federal Court of Appeal determined that, where a plaintiff has been compensated for the destruction of his or her diseased livestock, s.9 precludes an action claiming that the decision to destroy the plaintiff's property was made in a negligent manner. Moreover, the Court held that a plaintiff cannot maintain an action challenging the amount or reasonableness of the compensation received.
[27] In Langille, the plaintiffs brought an action against the Crown for damages after the Ministry of Agriculture destroyed diseased farm animals in order to prevent the spread of disease. Compensation was paid to the plaintiffs directly from the Consolidated Revenue Fund under the Animal Disease and Protection Act in settlement of their losses . The Court concluded that s.4(1) of the CPLA applied to the compensation paid and, therefore, barred the action. Justice Stone stated at para. 12 as follows:
It seems to us that the broad reach of subsection 4(1) does include the damage or loss for which the respondents here claim on account of their destroyed animals. The compensation was paid "in respect of" "damage or loss" resulting from the destruction of the animals and the claim in the present action is also "in respect of" that same "damage or loss". The only difference here is that respondents [sic], by way of this action in tort, are seeking to enhance recovery in respect of that destruction beyond the level of compensation they were paid in 1978 out of the Consolidated Revenue Fund. In our view, subsection 4(1) of the Crown Liability Act bars them from doing so.
b. the present motion
[28] In their Statement of Claim, the Plaintiffs allege that the destruction of their animals was caused by the negligence of the Defendant, and they claim damages or loss on account of their destroyed animals, although compensation has already been paid to them with respect to this matter.
[29] On the Motion, the Defendant argues that, without making an admission that there is any evidence of negligence, s.9 of the CLPA provides a statutory defence to any action on negligence that occurred.
[30] In response the Plaintiffs make the following argument:
The Plaintiffs recognize that Sec.9 of the Crown Liability and Proceedings Act may give protection under the normal eradication of a premise for m. bovis. The Plaintiffs' claim for loss is not entirely in respect of this requirement, but involves additional loss the defendant caused as a result of negligence, that of the existence of disease on our premise giving rise to the requirement to eradicate. [Emphasis added] (Further Supplementary Argument, filed October 30, 2003, p.8, para. 22)
[31] As I understand the distinction being made, the Plaintiffs argue that s.9 is only intended to provide a defence to negligent actions taken by government officials in the normal course of carrying out an eradication, whereas the negligence being sued upon is in allowing bovine tuberculosis to get into Canada in the first place, and then in not taking appropriate action to eradicate it when it was first detected.
[32] The Respondent relies on the law to say that this distinction does not make a difference. I agree.
[33] In my opinion, s.9 of the CLPA clearly applies to the compensation received by the Plaintiffs out of the Consolidated Revenue Fund pursuant to the Health of Animals Act. The loss that created their entitlement to compensation, namely the loss of their elk, is the same loss for which they now seek recovery in tort.
[34] Therefore, I find that s.9 of the CLPA bars any claim by the Plaintiffs in tort in respect of the injury, damage or loss arising from the destruction of their herd. Moreover, on the authority of Langille, the Plaintiffs cannot maintain an action challenging the amount or reasonableness of the compensation received.
[35] As a result, with respect to the allegations of negligence, I find that there is no genuine issue for trial.
2. Section 50 of the Health of Animals Act
[36] This provision reads as follows:
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LIMITATION ON LIABILITY
Her Majesty not liable
50. Where a person must, by or under this Act or the regulations, do anything, including provide and maintain any area, office, laboratory or other facility under section 31, or permit an inspector or officer to do anything, Her Majesty is not liable
(a) for any costs, loss or damage resulting from the compliance; or
(b) to pay any fee, rent or other charge for what is done, provided, maintained or permitted. |
RESTRICTION DE RESPONSABILITÉ
Non-responsabilité de Sa Majesté
50. Sa Majesté n'est pas tenue des pertes, dommages ou frais -- loyers ou droits -- entraînés par l'exécution des obligations découlant de la présente loi ou des règlements, notamment celle de fournir des terrains, locaux, laboratoires ou autres installations et d'en assurer l'entretien au titre de l'article |
[37] As an alternative to the position that s.9 of the CLPA provides a statutory defence, the Defendant argues that s.50 of the Health of Animals Act also acts to eliminate the Plaintiffs' damage claim for negligence. As I have accepted the Defendant's s.9 argument, I find there is no purpose in deciding the alternative argument.
3. Personal injury
[38] The Plaintiffs also make the following argument at para.46 of their Further Supplementary Argument:
46. The Plaintiffs, some more than others, and many others were exposed to m. bovis, and have the real lifelong possibility/expectation of life-threatening disease with the chance of passing it on to others and/or animals on our premise.
As no personal injury is claimed in the Statement of Claim, and no evidence has been advanced of any injury to any of the Plaintiffs, I find this is not a genuine issue for trial.
D. The law limiting the amount of compensation
1. The Animal Disease and Protection Act argument
[39] As full compensation for two elk was paid under the old Animal Disease and Protection Act , the Plaintiffs argue that all compensation should have been paid under that repealed legislation as follows:
The Plaintiffs' pleadings of negligence involve activity that occurred prior to the promulgation of the Health of Animals Act and occurred under the Animal Disease and Protection Act. The alleged acts of negligence were the cause of our herd becoming infected with m. bovis. Therefore, the Plaintiffs rely on the Animal Disease and Protection Act. (Further Supplementary Argument, p.4, para.15)
As a result, in para. 44(a) of the Statement of Claim, the Plaintiffs claim a declaration that the old Animal Disease and Protection Act, and regulations thereunder, apply to the destruction of, and compensation for, the Plaintiffs' elk.
[40] As I have found that any negligence on the part of the Respondent is not actionable, and as the eradication of the Plaintiffs' elk, and compensation paid as a result, was under the authority of the Health of Animals Act, I find that this argument does not raise a genuine issue for trial.
2. The "no force and effect" argument
a. retroactive effect
[41] In para. 36 of the Statement of Claim, the Plaintiffs claim as follows:
36. The Plaintiffs state that Section 4 of The Maximum Amounts for Destroyed Animals Regulations is invalid and of no force or effect because it has had a retroactive effect without being made expressly retroactive.
The relief claimed in para. 44(d) of the Statement of Claim is for a declaration giving effect to the argument.
[42] This case is about a strict legislative scheme change. As described above, on January 1, 1991 the legislation changed, and on March 18, 1991, the compensation regulations changed. The Plaintiffs' action is based on personal objection to the changes, but, in the end result, I find that it has no legal basis. In my opinion, no retroactivity argument can be substantiated as a genuine issue for trial.
b. "ultra vires"
[43] In the Statement of Claim the Plaintiffs claim the following relief:
44(b). A declaration that the moratorium on the slaughter of diseased elk imposed by the Defendant Minister of Agriculture was for an improper purpose and is therefore of no force or effect;
44(c). In the alternative, a declaration that Section 4 of The Maximum Amounts for Destroyed Animals Regulations is ultra vires The Health of Animals Act and is therefore of no force or effect;
44(e). In the alternative, a declaration that Section 4 of The Maximum Amounts for Destroyed Animals Regulations was made in bad faith, and/or for an improper purpose and/or based on irrelevant considerations and is therefore of no force or effect.
[44] In Abel v. Canada (Minister of Agriculture) (2001), 215 F.T.R. 72 (T.D.) the findings made with respect to the Health of Animals Act and the Maximum Amounts for Destroyed Animals Regulations were that "[i]n passing the Act and Regulations, there is no question that the Minister exercised good faith and proper motive" (para. 9) , and "the Act and Regulations are of force and effect" (para. 15 ). Nevertheless, in the present Motion, the Plaintiffs have pressed the argument that these findings should be revisited and reversed on the basis that their cause of action arose before Abel was decided, and a different evidentiary base exists for finding bad faith and/or improper purpose.
[45] I find that the date that the supposed cause of action arose in the present case is irrelevant to the claims made. On the date of these Reasons for Order and Order, Abel is the law. I also find that there is no evidence in the present record, as there was none in the record in Abel, to substantiate the arguments made. On this basis, I find that this argument does not raise a genuine issue for trial.
E. Ancillary matters
1. Procedural issues
[46] Paragraphs 37 and 38 of the Statement of Claim read as follows:
37. The Plaintiffs state that the Defendant and the Minister of Agriculture owe a duty of fairness to the Plaintiffs not to affect their rights or to change the Defendant's regular practice respecting compensation for destroyed elk without prior reasonable notice to the Plaintiffs.
38. The Plaintiffs state that they have had a legitimate expectation that they would receive fair market value for destroyed elk and that they were unable to insure for or take precautions against risk of loss and compensation at less than fair market value, or otherwise mitigate their losses by making other arrangements, as a result of the Defendant's said actions through the Minister of Agriculture.
These procedural complaints are a reflection of the frustration and deflated expectations the Plaintiffs experienced, as commented upon in Section B(3) above. However, as I have found that the change in the legislation and regulations was lawful, I find that they do not raise a genuine issue for trial.
2. Liability for breach of contract
[47] In argument (filed March 19, 2002, Document 107, para.5-17), the Plaintiffs state that after m. bovis was confirmed in their herd, and to allow orderly destruction and scientific experimentation, the Defendant contracted with the Plaintiffs to pay full market value for the elk. Indeed, the Plaintiffs argue that it is undisputed that even after the Plaintiffs unilaterally postponed the destruction on February 1, 1991, and even after the new compensation regulations came into effect on March 18, 1991, the Defendant continued to assure the Plaintiffs that they would receive fair market value for their elk as previously promised. Of course, this did not occur.
[48] The Plaintiffs might very well have evidence of a contract as described, however, I agree with the Defendant that, as the Statement of Claim does not make mention of the contract, it does not form an issue for determination within the present action.
F. Conclusion
[49] For the reasons provided, I grant the Motion.
G. Costs
[50] The Defendant requests costs of the Motion. The Plaintiffs object saying that, given the legal and factual context of the case, their actions in bringing and maintaining their claim were understandable. Indeed, the Plaintiffs argue that, given this context, they were not only acting in their own interest, but also the public interest. I give this argument weight.
[51] In my opinion, a factor which must be taken into consideration is the fact that the Plaintiffs were self-represented in fighting the Motion, whereas the wealth of the Crown was behind bringing the Motion. While it is true that a great deal of effort was expended on litigating issues which have proved not to be genuine issues for trial, given the legal and factual context, I can certainly see why the Plaintiffs would fight as hard as they did to maintain the action. In my opinion, to award costs on the Motion to the Defendant would amount to punishment of the Plaintiffs, and I find that this would be unfair.
[52] As a result, I decline the Defendant's application, and make no order as to costs.
ORDER
THIS COURT ORDERS that:
Accordingly, for the reasons provided:
1. Pursuant to Rule 216(1) of the Federal Court Rules, 1998, the Motion for summary judgment is granted and the claims for damages are dismissed as they present no genuine issue for trial; and
2. Pursuant to Rule 221(1) of the Federal Court Rules, 1998, the claims for declaratory relief are struck out as they disclose no reasonable cause of action.
Although, as the successful party, the Defendant has requested an order for costs, for the reasons provided, I make no order as to costs.
"Douglas R. Campbell"
J.F.C.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: T-39-94
STYLE OF CAUSE: CLIFF BEGG, ROLLIE BEGG, BENTLEY BROWN, DALE CONACHER, KEITH CONACHER, LAURIE CONACHER,
MILTON CONACHER AND MILES JOHNSON
Plaintiffs
(Respondents on the Summary Judgment Motion)
and
HER MAJESTY THE QUEEN IN THE RIGHT OF
CANADA, AS REPRESENTED BY THE
MINISTER OF AGRICULTURE FOR CANADA
Defendant
(Applicant on the Summary Judgment Motion)
PLACE OF HEARING: SASKATOON, SASKATCHEWAN
DATE OF HEARING: APRIL 15, 2004
REASONS FOR ORDER
AND ORDER BY: CAMPBELL J.
APPEARANCES BY:
Mr. Dale Conacher
FOR THE PLAINTIFFS (On his own and their behalf)
Ms. Myra J. Yuzak
FOR THE DEFENDANT
SOLICITORS OF RECORD:
Mr. Dale Conacher
Mervin, Saskatchewan
FOR THE PLAINTIFFS(On his own and their behalf)
Morris Rosenberg
Deputy Attorney General of Canada
Saskatoon, Saskatchewan
FOR THE DEFENDANT
FEDERAL COURT
Date: 20040505
Docket: T-39-94
BETWEEN:
CLIFF BEGG, ROLLIE BEGG, BENTLEY BROWN, DALE CONACHER, KEITH
CONACHER, LAURIE CONACHER,
MILTON CONACHER AND MILES JOHNSON
Plaintiffs
(Respondents on the Summary Judgment Motion)
and
HER MAJESTY THE QUEEN IN THE RIGHT OF CANADA, AS REPRESENTED BY THE MINISTER OF AGRICULTURE FOR CANADA
Defendant
(Applicant on the Summary Judgment Motion)
REASONS FOR ORDER
AND ORDER