Paradis Honey Ltd. v. Canada (Agriculture and Agri-Food)

Paradis Honey Ltd. v. Canada (Agriculture and Agri-Food)
Court (s) Database
Federal Court Decisions
Date
2024-11-29
Neutral citation
2024 FC 1921
File numbers
T-2293-12
Decision Content
Date: 20241129
Docket: T-2293-12
Citation: 2024 FC 1921
Ottawa, Ontario, November 29, 2024
PRESENT: The Honourable Madam Justice Strickland
BETWEEN:
PARADIS HONEY LTD., HONEYBEE ENTERPRISES LTD. AND ROCKLAKE APIARIES LTD.
Plaintiffs
and
HIS MAJESTY THE KING as represented by THE MINISTER OF AGRICULTURE AND AGRI-FOOD and THE CANADIAN FOOD INSPECTION AGENCY
Defendants
JUDGMENT AND REASONS
Table of Contents
Overview 6
Procedural matters 13
A. Litigation history 13
i. Statement of claim 13
ii. Motion to strike 13
iii. Certification as a class action 13
iv. The common issues 14
v. The “stipulations” 15
B. Partial Agreed Statement of Facts 18
C. Agreement on Protocol for Admission of Documents at Trial/Joint Book of Documents 18
D. The Plaintiffs’ challenge to the qualification of Dr. Winston as an expert witness 20
i. Dr. Winston’s independence 23
E. The Defendants’ motion challenging read-ins proposed by the Plaintiffs 36
Witnesses 41
A. Plaintiffs’ witnesses 41
B. Defendants’ witnesses 42
PART I 45
A. The parties 45
i. The Representative Plaintiffs 45
ii. The Defendants 46
B. Other entities 47
C. Legislative scheme 47
i. HA Act and CFIA Act 47
ii. HA Regulations 51
iii. Import Reference Document 53
D. Importation process 54
PART II 56
A. Honeybee health and diseases 56
i. Varroa mite and rVar 56
ii. American foulbrood (AFB) and rAFB 57
iii. Small hive beetle (SHB) 58
iv. Africanized honeybee (AHB) 58
B. Honeybee management models 59
PART III 61
Chronology of events 61
A. Border closure in 1987 61
B. 2003 Risk Assessment 63
C. 2003 to 2014 64
D. 2013 Risk Assessment 65
E. 2014 to 2023 68
i. Applications for US package importation permits and responses to those applications …………………………………………………………………………………………68
ii. Call for Information 69
PART IV 70
Common Issue #1 - Whether any or all of the Defendants owed the proposed Class a duty of care to not be negligent in the maintenance or enforcement of the de facto prohibition, including a duty to identify risk mitigation options in the 2003 and 2013 Risk Assessments. 70
A. General principles – Anns/Cooper test 70
i. First stage of the Anns/Cooper test 71
ii. Second stage of the Anns/Cooper test 73
B. Stage one Anns/Cooper test 74
i. Are the alleged duties of care novel? 74
ii. Foreseeability 84
iii. Proximity 85
(a) Preliminary issue – Paradis FCA findings 85
(b) Does the legislative scheme give rise to, or foreclose, a finding of proximity? 88
(c) No positive duty to identify risk mitigation 103
(d) Was there a close and direct relationship? 104
(i) Interactions with the Defendants 104
(ii) Plaintiffs’ Evidence 107
Mr. Gibeau 107
Mr. Paradis 111
Mr. Lockhart 116
Mr. Ash 117
(iii) Preliminary observations 131
(iv) Nature of Communications with the Plaintiffs 132
(v) CAPA and the Provincial Apiculturists 138
(vi) Meetings with CAPA 141
(vii) Other Meetings 144
(viii) No commitment to annually review US honeybee health 147
(ix) Interactions with and reliance on CHC 149
(x) Case law concerning industry consultations 163
(xi) Conclusion on interactions 169
(e) Conclusion - First Stage of the Anns/Cooper test 170
C. Second stage of the Anns/Cooper test 171
i. Scope of the duty 172
(a) Plaintiffs’ position 172
(b) Defendants’ position 176
(c) What is the decision or conduct at issue? 177
ii. Policy decision or operational decision? 184
(a) Legal framework 184
(b) Application of the Marchi factors 189
(c) Conclusion on the Marchi factors 203
iii. Other residual policy concerns 204
(a) Indeterminacy 205
(b) Chilling effect 212
(c) Conflict between the public duty and the asserted private law duty of care 215
(d) International relations 218
(e) Conclusion on residual policy concerns 219
iv. Second stage Anns/Cooper test – conclusion 220
Common Issue #2 - Whether any or all of the Defendants breached the requisite standard of care 221
A. What is the standard of care? 221
B. The alleged breaches of the standard of care 223
i. The maintenance and enforcement of the regulatory scheme 224
ii. The prevailing risk assessment standard and was it breached? 227
(a) The SPS Agreement and OIE Code do not create private law rights or obligations ……………………………………………………………………………………227
(i) Admissibility of Dr. Zagmutt’s evidence concerning international law 234
(b) The SPS Agreement and OIE Code inform the standard of care 244
(c) The relevant content of the SPS Agreement, OIE Code and CFIA Protocols 246
(i) SPS Agreement 247
(ii) OIE Code 248
(iii) CFIA Protocols 250
C. Was there a breach of the standard of care? 256
i. Preliminary matter – risk assessment vs risk analysis 256
ii. The 2003 Risk Assessment 260
iii. The 2013 Risk Assessment 263
iv. Risk mitigation after the completion of a risk assessment 266
v. Did the 2003 Risk Assessment identify but reject risk management measures? 270
(a) Certification 271
(b) Zoning 276
(c) Risk reduction – separation of queens 277
i. Did the 2013 Risk Assessment identify but reject risk management measures? 279
ii. Other arguments 285
D. Ministerial abdication 286
E. Hazards appropriately considered 289
F. Conclusion on standard of care 291
Common Issue #3 – Whether or not recoverable loss or damages ensued as a result 292
A. Legal backdrop 292
B. Is Common Issue #3 concerned with general or specific causation? 297
C. Application of the “but for” test 305
i. Preliminary comment – stipulations/relevant evidence 307
ii. But for the Defendants’ negligence in failing to identify mitigation measures in the Risk Assessments, would the Plaintiffs have been able to import US honeybee packages?........................................ 308
(a) Zoning 308
(b) Certification 314
(c) Honeybee health experts’ evidence about migration, zoning and certification 316
(i) Dr. Pettis 316
(ii) Dr. Caron 321
(iii) Dr. Winston 324
(d) Significance of US migratory beekeeping 327
(e) Importation of queen bees from Northern California – certification and zoning requirements 327
(f) Have the Plaintiffs established that the same import conditions/mitigation measures applicable to US queen bees would be available for US honeybee packages? 332
(i) Applicability of the “apiary-wide” conditions 332
(ii) Dr. Zagmutt’s opinion that mitigation measures were available 335
(g) Mitigation of specific risks 339
(i) SHB 339
(ii) AHB 348
(iii) rAFB 351
(iv) rVAR 359
(v) Conclusion – mitigation options for the identified hazards 367
(vi) Evidence as to an altered risk level 368
(h) USDA-APHIS involvement/certification requirements 369
(i) Conclusion on factual causation 378
(j) Legal causation 378
iii. If the Plaintiffs had been able to import US honeybee packages but for the Defendants’ negligence in maintaining and enforcing the import prohibition, then have the Plaintiffs established that they suffered economic loss because US honeybee packages were less expensive and more productive than the alternative packages that were available to them? 379
(a) Overview of expert economic evidence 379
(i) Dr. Sumner 379
(ii) Dr. Nickerson 381
(iii) Dr. Sumner’s reply report 383
(b) Preliminary issue – the weight of the expert evidence 384
(i) Dr. Nickerson’s independence 384
(ii) Reliability of Dr. Sumner’s evidence 387
(c) Challenged assumptions 388
(d) Challenged assumptions ‒ comparative productivity 389
(i) New Zealand package productivity 389
(ii) Analysis on Productivity 395
(iii) Price 398
(e) Conclusion on the economic loss evidence 399
(f) Non-compliance with OIE obligations 400
Common Issue # 4: Whether sections 3, 8, or 10 of the CLPA grant any or all of the Defendants statutory immunity or otherwise limit the Defendants’ liability 400
A. Preliminary Point – non-reliance on s 8 400
B. Analysis - Sections 3 and 10 400
Common Issue #5: Whether section 50.1 of the HA Act applies to limit the liability of CFIA for any actions or omissions after February 27, 2015? 405
A. Legal backdrop 405
B. Parties’ positions 409
i. Plaintiffs’ position 409
ii. Defendants’ position 411
C. Preliminary points 412
i. Role of bad faith 412
ii. Misfeasance in public office has no application 413
iii. Purpose of legislation 415
D. Specific bad faith allegations 418
i. Statutory authority to consider AHB in the Risk Assessments 418
ii. Risk mitigation ‒ 2013 Risk Assessment 422
iii. Misrepresentation 424
iv. CFIA delegation to CHC 424
E. Conclusion – bad faith 424
PART V – Conclusion Overall 425
Costs 426
Table of Abbreviations 428
Overview [1] By way of this class action the Plaintiffs, who are commercial beekeepers, seek damages on their own behalf and on behalf of the other class members, which damages they allege were caused by the negligence of the Defendants in prohibiting the importation of live honeybee packages from the continental United States [US] after 2006, thereby causing them economic harm. Five common issues were to be determined at the common issues trial.
[2] Broadly speaking, this action concerns the maintenance or enforcement of what is referred to in the first common issue as a de facto prohibition on the importation of honeybee packages from the US. Notably, it concerns the conduct of two assessments undertaken to determine the risk associated with such importation: Risk Assessment on Honey Bees from the United States, dated October 10, 2003 [2003 Risk Assessment], and Risk Assessment on the Importation of Honey Bee (Apis mellifera) Packages from the United States of America, dated January 2014 [2013 Risk Assessment]. Together, these will be referred to as the Risk Assessments.
[3] The first common issue asks whether any or all of the Defendants owed the proposed Class a duty of care to not be negligent in the maintenance or enforcement of the de facto prohibition, including a duty to identify risk mitigation options in the 2003 and 2013 Risk Assessments. This issue raises the question of whether a private law duty of care should be imposed on the Defendants, which necessitates the analysis known as the Anns/Cooper test (Anns v Merton London Borough Council, [1978] AC 728 [Anns]; Cooper v Hobart, 2001 SCC 79 [Cooper]).
[4] The first question to be addressed when engaging that analysis is whether the duties of care asserted by the Plaintiffs are novel. That is, whether the relationship between the parties falls within, or is analogous to, a previously established category of duty of care. In this matter, I have found that both asserted duties ‒ the duty not be negligent in the maintenance or enforcement of the import prohibition, and the duty to identify mitigation measures in the Risk Assessments ‒ are novel (although I have also found that, in fact, the former encompasses the latter). Accordingly, a full analysis under the two-stage Anns/Cooper framework was required.
[5] The first stage of the Anns/Cooper test concerns foreseeability and proximity. On the evidence, and given the Defendants did not substantively address the question, I have found that it was reasonably foreseeable to the Defendants that the continued prohibition on the importation of US honeybee packages could potentially have negative economic consequences on some commercial beekeepers, which would include some members of the Class, as a result of the increased cost of importing packages from other countries and of overwintering. However, foreseeability alone is not sufficient to establish that a duty of care was owed to the Class. There must also be proximity. In that regard, I have found that in this case the legislative scheme, the Health of Animals Act, SC 1990, c 21 [HA Act] and Health of Animals Regulations, CRC, c 296 [HA Regulations], does not give rise to, and implicitly forecloses, a private law duty of care owed to the Plaintiffs. Even if that were not the case, the communications and interactions between the Canadian Food Inspection Agency [CFIA] and the Class properly fall within the regulator’s role and do not give rise to a private law duty of care to protect the Class’ economic interests with respect to the importation of US honeybee packages. In the absence of proximity, the Plaintiffs have not met their burden of establishing the existence of a prima facie duty of care.
[6] On this basis alone, the Plaintiffs’ claim cannot succeed. As the Plaintiffs have failed to establish proximity between the Class and the Defendants, there is no duty of care owed and no negligence (Taylor v Canada, 2020 ONSC 1192 at para 594 [Taylor 2020]). Without a duty of care, there is no need to consider if there are residual policy considerations that would “trump” its existence (Fullowka v Pinkerton’s of Canada Ltd, 2010 SCC 5 at para 57 [Fullowka]). This is the determinative issue in this case.
[7] Accordingly, there is no need to proceed further with this decision.
[8] However, given the time and effort expended at trial, and in the event that I have erred in this finding, I have also addressed the second stage of the Anns/Cooper test.
[9] The second stage of the Anns/Cooper test asks whether there are residual policy concerns, outside the relationship of the parties, that may negate the imposition of the duty of care. In this case, I have found that, had a prima facie duty of care been found at the first stage of the analysis, it would be negated by policy considerations. Specifically, the decision-making around the maintenance or enforcement of the prohibition on the importation of US honeybee packages was part of a course of conduct undertaken by CFIA in the interests of animal health and is immune from liability, as it is a matter of policy. Even if that were not the case, residual policy considerations, notably the conflict between CFIA’s public duty and the proposed private duty to protect the economic interests of commercial beekeepers, but also concerns around indeterminate liability and a potential chilling effect on government consultations, would negate the duty. I have found that in these circumstances there was no discrete duty to identify risk mitigation options in the 2003 and 2013 Risk Assessments; however, even if there were, it would be encompassed by these residual policy considerations.
[10] The second common issue asks whether any or all of the Defendants breached the requisite standard of care. I have found that, in this case, the applicable standard is that of a reasonable regulator in similar circumstances.
[11] Several documents and entities are relevant to this analysis. The World Trade Organization [WTO] was formed by the Marrakesh Agreement Establishing the World Trade Organization, 15 April 1994, 1867 UNTS 3 (entered into force 1 June 1995) [WTO Agreement]. Annexed to the WTO Agreement is the Agreement on the Application of Sanitary and Phytosanitary Measures [SPS Agreement]. A second relevant entity is the World Organization for Animal Health [WOAH], formerly the Office International des Epizooties [OIE]. This body will be referred to as the OIE in these reasons. It publishes the World Organization for Animal Health Terrestrial Animal Health Code, or the WHOA Code. This document was formerly known as the OIE Code, and it will be referred to as such in these reasons.
[12] The Plaintiffs assert that the SPS Agreement and the OIE Code established the standard of care to be met by the Defendants. However, I have found that these cannot be relied upon to impose a private law duty of care owed by CFIA to the Plaintiffs or to legally impose a standard of care on the Defendants with respect to the Plaintiffs. As is obvious from their terms, those documents are concerned with international trade between Member states, and trade disputes are dealt with as between those Member states. In this matter, there is no evidence that the US has commenced a trade dispute with Canada with respect to the prohibition on the importation of US honeybee packages. Further, in my view, Pfizer Inc v Canada (TD), [1999] 4 FC 441, 1999 CanLII 8291, aff’d Pfizer Inc v Canada, [1999] FCJ No 1598, 1999 CarswellNat 2125 (FCA) [Pfizer] makes it clear that the World Trade Organization Agreement Implementation Act, SC 1994, c 47 [WTO Agreement Implementation Act] precludes a private law duty of care arising from the WTO Agreement. Therefore, nor can the SPS Agreement, which is part of the WTO Agreement, give rise to a private law duty of care to identify risk mitigation options. In the absence of a private law duty of care, and because the SPS Agreement and OIE Code are not legally binding as between the Defendants and the Plaintiffs (who are not a WTO Member), the risk assessment standards associated with the SPS Agreement and OIE Code are not legally binding on CFIA. Accordingly, there would be no legal requirement to take the OIE standards into account pursuant to Article 5.1 of the SPS Agreement. On that basis, the Plaintiffs’ argument that the OIE Code sets the standard of care, and that the breach by the Defendants was the failure to consider mitigation in the Risk Assessments in accordance with those standards, rendering the Risk Assessments “invalid,” cannot succeed.
[13] However, the SPS Agreement and the OIE Code are relevant to the content of the standard of care, even if they are not legally binding and applicable as between the Defendants and the Plaintiffs. This is because the process for conducting a risk analysis, which process includes risk assessment, as described in the SPS Agreement and OIE Code, is indicative of best practices and is reflected in the “CFIA Protocols” (the 2001, 2005 and 2009 versions of this document are in evidence). As such, they serve to inform the standard of care.
[14] To meet that standard of care, CFIA risk managers, as reasonable regulators, were required to engage in mitigation option evaluation following the Risk Assessments. This did not necessarily require a formal re-entry into the Risk Assessments. However, with respect to the 2003 Risk Assessment, there is a lack of evidence that the risk managers actually grappled with risk mitigation options in terms of the importation of US honeybee packages or that they took steps or made determinations reaffirming that certification, as a risk mitigation option, was not possible and that zoning was not feasible. Accordingly, I have found that the Defendants did not meet the standard of a reasonable regulator respecting the 2003 Risk Assessment. However, the evidence does establish that the Defendants met the standard of care respecting the 2013 Risk Assessment. Dr. Connie Rajzman, a risk manager with CFIA, attempted to identify risk mitigation options (the first step of option evaluation). She found that none could be proposed, either internally by CFIA or by the Provincial Apiculturists, who were specifically consulted on that issue.
[15] The third common issue asks whether or not recoverable loss or damages ensued as a result (of the breach of the standard of care). This requires that both factual causation, pursuant to the “but for” test, and legal causation be established.
[16] I have found that legal causation was made out because the nature of the losses the beekeepers allege they experienced ‒ that is, the actual injury ‒ is the precise loss that was foreseeable, namely economic loss as a result of the inability to access US packages.
[17] Respecting factual causation, the Plaintiffs submitted that this was a matter of general, rather than specific, causation. That is, the relevant question was whether the negligent conduct had the capacity to cause the harm alleged (relying on Levac v James, 2023 ONCA 73 [Levac] and Wise v Abbott Laboratories, Limited, 2016 ONSC 7275 [Wise]), rather than whether the harm was actualized. However, although causation in complex cases can be considered in terms of general and specific causation, I determined that this was not a case where causation should be divided. This is not a circumstance where establishing the capacity of the alleged negligence to cause the claimed losses involves complex scientific expert evidence or necessitates the drawing of an inference. Nor does the common issue, as stated, contemplate such a division.
[18] I agreed with the Defendants that, in order to prove causation, the Plaintiffs would have to establish two things: first, that the Class would have been able to import US honeybee packages if CFIA had assessed permit applications on a case-by case basis, or if mitigation measures had been included in the Risk Assessments; second, that compared to alternative methods of replacing winter losses, US honeybee packages would have been more productive or cheaper.
[19] I found that the Plaintiffs were unable to establish, but for the Defendants’ negligence, they would have been permitted to import US packages. In particular, upon review of the expert evidence, I found that the same import conditions that were available for US queen imports at the time of the 2003 Risk Assessment would not have been available for or effective with respect to US honeybee packages. On the evidence, I have determined that other conditions were similarly not available.
[20] Respecting this issue, both parties tendered an expert economist witness. The Plaintiffs tendered Dr. Daniel Sumner, and the Defendants tendered Dr. Peter Nickerson. In closing, the Plaintiffs challenged Dr. Nickerson’s independence, suggesting he had taken on the role of an advocate, a submission I have rejected.
[21] The Defendants challenged the reliability of Dr. Sumner’s evidence, as he created a complex mathematical model to calculate economic loss to the beekeepers but relied, as parameters for that model, on his own best judgment rather than on actual data. However, the experts agreed that the relevant data did not exist. I agreed with the Defendants that the unreliability of Dr. Sumner’s data may have impacted the probative value of his evidence were there to have been a subsequent trial on damages. However, I was not persuaded that Dr. Sumner’s overall conclusion ‒ economic loss to Canadian commercial beekeepers as a result of the import prohibition ‒ had no probative value.
[22] The fourth common issue asks whether ss 3, 8 or 10 of the Crown Liability and Proceedings Act, RSC 1985, c C-50 [CLPA] grant any or all of the Defendants immunity or otherwise limit their liability. The Defendants indicated in closing that they would not be relying on s 8. I have found that ss 3 and 10 do not offer immunity, but rather establish the statutory basis on which the Plaintiffs have the right to sue the Crown. The Crown may be vicariously liable for the tortious acts of its servants. CFIA is a servant of the Crown as defined by the CLPA, and the Crown is therefore vicariously liable for its negligence.
[23] The fifth common issue asks whether s 50.1 of the HA Act applies to limit the liability of CFIA for any actions or omissions after February 27, 2015. Section 50.1 provides immunity for conduct undertaken in good faith. There is no specific test for good/bad faith but jurisprudence has identified considerations that apply in assessing such claims. I had already found that CFIA’s purpose under the HA Act and HA Regulations is to protect animal and human health. I have found that the evidence did not establish that the Defendants acted with an alien purpose or that they were seriously careless or reckless with respect to that purpose. Upon review of the jurisprudence concerning bad faith in the context of the evidence in this matter, I have found that the Defendants did not act in bad faith, either in general or with respect to the Plaintiffs’ specific allegations.
[24] In the result, the Plaintiffs’ claim does not succeed.
Procedural matters A. Litigation history [25] This action has a long procedural history, the details of which largely need not be addressed in this decision. Below I have identified prior procedural matters and prior determinations that are relevant or that will add context to my reasons.
i. Statement of claim [26] This action was initially commenced by a statement of claim filed on December 28, 2012. A final, Amended Amended Statement of Claim was filed on April 6, 2017, subsequent to the certification of this matter as a class action.
ii. Motion to strike [27] On November 8, 2013, the Defendants brought a motion to strike the statement of claim for disclosing no reasonable cause of action. That motion was initially granted by this Court (Paradis Honey Ltd v Canada (Attorney General), 2014 FC 215). On appeal by the Plaintiffs, the Federal Court of Appeal overturned the motion judge’s decision striking out the action and permitted the matter to proceed (Paradis Honey Ltd v Canada (Attorney General), 2015 FCA 89 [Paradis FCA]). Leave to appeal to the Supreme Court of Canada was denied on October 29, 2015 (Canada v Paradis Honey Ltd, [2015] SCCA No 227). As will be discussed below, the Plaintiffs assert that the Federal Court of Appeal made certain findings in its decision overturning the motion to strike decision that are relevant to or binding on this Court.
iii. Certification as a class action [28] In his Judgment and Reasons dated February 17, 2017, Justice Manson certified this matter as a class action (Paradis Honey Ltd v Canada, 2017 FC 199 [Certification Decision]). Justice Manson also permitted an amendment proposed by the Plaintiffs to the definition of the proposed class. The class was therefore defined as “[a]ll persons in Canada who keep or have kept more than 50 bee colonies at a time for commercial purposes since December 31, 2006.”
iv. The common issues [29] The Certification Decision also found that it was appropriate, at that time, to certify all nine common issues proposed by the Plaintiffs, noting the Federal Courts Rules, SOR/98-106, Rule 334.19 [Federal Courts Rules], which permits the amending of a certification order (paras 70, 89). These were as follows:
Whether any or all of the Defendants owed the proposed Class a duty of care to not be negligent in the maintenance or enforcement of the de facto prohibition. Whether any or all of the Defendants breached the requisite standard of care. Whether or not recoverable loss or damages ensued as a result. What is the proper measure of damages, including:
a)whether or not aggregate damages are available, and, if so, on what basis and in what amount;
b)what are the appropriate criteria for the distribution of the aggregate damages among the members of the proposed Class;
c)alternatively, if individual damages are to be awarded, what is the framework or formula for the calculation of such damages?
Whether or not the cause of action arises “otherwise than in a province” pursuant to section 39(2) of the Federal Courts Act, RSC, 1985, c F-7, such that the applicable limitation period is six years from the time the cause of action arose. Whether sections 3, 8, or 10 of the Crown Liability and Proceedings Act grant any or all of the Defendants statutory immunity or otherwise limit the Defendants’ liability. Whether the Defendants’ acts or omissions as alleged in the Action fall within Crown sovereignty or the Crown prerogative such that no liability may attach to the Defendants. Whether the Defendants’ acts or omissions constitute abusive administrative action for which the Defendants should be liable for damages. If the Defendants’ acts or omissions constitute abusive administrative action for which the Defendants should be liable for damages, what is the proper measure of damages, including:
a)whether or not aggregate damages are available and, if so, on what basis and in what amount;
b)what are the appropriate criteria for the distribution of aggregate damages among the members of the proposed Class;
c)alternatively, if individual damages are to be awarded, what is the framework or formula for the calculation of such damage.
[30] However, shortly before trial, at the request of the Plaintiffs and as consented to by the Defendants, the Trial Management Judge, by Order dated August 15, 2023, ordered that the common issues to be determined at the common issues trial of this action are the following:
Whether any or all of the Defendants owed the proposed Class a duty of care to not be negligent in the maintenance or enforcement of the de facto prohibition, including a duty to identify risk mitigation options in the 2003 and 2013 Risk Assessments. Whether any or all of the Defendants breached the requisite standard of care. Whether or not recoverable loss or damages ensued as a result. Whether sections 3, 8, or 10 of the Crown Liability and Proceedings Act grant any or all of the Defendants statutory immunity or otherwise limit the Defendants’ liability. Whether s. 50.1 of the Health of Animals Act, SC 1990, c. 21 applies to limit the liability of CFIA for any actions or omissions after February 27, 2015.
[31] It is undisputed that these five common issues are the only common issues now before the Court. The subject Order is found at Tab 25 of the Trial Record.
v. The “stipulations” [32] By way of letter to counsel for the Defendants dated October 17, 2023, counsel for the Plaintiffs indicated that they had delivered their Memorandum of Fact and Law (written opening submissions) and were writing in an attempt to clarify the issues and reduce the amount of witness testimony necessary for a very tightly scheduled trial.
[33] Counsel for the Plaintiffs stated that, as set out in their Memorandum of Fact and Law, their argument regarding the duty of care in relation to the 2003 and 2013 Risk Assessments relates solely to whether there was a duty of care to identify and assess risk mitigation options in those risk assessments. To the extent that the evidence of Canada’s witnesses, particularly that of Drs. James, Rajzman, Alexander, Rheault and Pernal, would relate to the adequacy of those two Risk Assessments in any other respect (i.e., in identifying relevant risks), counsel for the Plaintiffs stated their view that such evidence was not relevant to the common issues. They stated:
To resolve this issue, the Plaintiffs will stipulate at the commencement of the trial as follows:
- that reasonable people may disagree on the assessment of risk;
- that the Plaintiffs and the Class take no position on the findings that are contained within the 2003 & 2013 Risk Assessments, and challenge and impugn only what those two risk assessments are missing and what was omitted from them; and
- that the content of the 2003 & 2013 Risk Assessments is not at issue, except with respect to their failure to identify risk mitigation options, which, it is alleged, breached the standard of care.
[34] As to evidence regarding honeybee management practices, counsel for the Plaintiffs noted that Canada intended to call five beekeeper witnesses, whose “will say” statements indicated that they would provide evidence on the issues of honeybee management practices and their experiences with honeybee colonies developed from both splits and imported packages (which terms will be described later in these reasons). The letter states that the questions of whether Canadian beekeepers utilize a diverse variety of honeybee management practices, or whether they may have experienced different outcomes when developing honeybee colonies from splits and/or imported packages, are uncontroversial and not relevant to the common issues. Counsel for the Plaintiffs stated:
To resolve this issue, the Plaintiffs will stipulate at the commencement of the trial as follows:
• that the Class members use a variety of honeybee management practices, including a variety of overwintering, disease treatment, colony strength assessment, and breeding techniques;
• that a Class member’s choice to specialize in the provision of pollination services or honey production or both may impact the honeybee management practices that it uses; and
• that Class members have had variable experiences with developing honeybee colonies from splits and imported packages, including variable experiences regarding success rates and cost.
[35] Counsel for the Plaintiffs stated that they anticipated that these stipulations would obviate the need for much of the evidence of the above-named witnesses and potentially all of the evidence of the opt-out beekeeper witnesses. In light of these stipulations, counsel for the Plaintiffs asked counsel for the Defendants whether this would affect the Defendants’ intended witness list or the timing of their evidence.
[36] A second letter, dated October 27, 2023, from counsel for the Plaintiffs responds to a letter of the same date from counsel for the Defendants (which letter is not in evidence). Counsel for the Plaintiffs stated that the first and second stipulations did not amount to an admission that the risk assessments were conducted reasonably and that the Plaintiffs’ position is that they were not conducted reasonably because they failed to take into consideration mitigation measures that could be applied to the identified hazards. Counsel stated that the Plaintiffs would not be arguing that there are other omissions in the risk assessments. They further stated, with respect to the first stipulation, that the Plaintiffs would not be challenging the opinions expressed by the Canadian reviewers – these opinions were made to the program officer respecting the Risk Assessments, which the program officer was entitled to take into consideration – except insofar as any of them may have included submissions on the issue of mitigation, which remained in issue. Counsel for the Plaintiffs also stated that the Plaintiffs would be taking the position that the Defendants were negligent and failed to act in good faith by continuing to rely on the 2013 Risk Assessment over the following years.
[37] Counsel for the Plaintiffs also addressed the stipulations in their opening statements. The two stipulation letters were admitted into evidence as Exhibit 1.
[38] I note that while five Class opt-out beekeeper witnesses had originally been set to testify at trial, ultimately three opt-out beekeepers were called by the Defendants to give evidence.
B. Partial Agreed Statement of Facts [39] On October 24, 2023, the parties filed with the Court a Partial Agreed Statement of Facts upon which they rely in the trial of this action. A copy of the Partial Agreed Statement of Facts is found in the Trial Record.
C. Agreement on Protocol for Admission of Documents at Trial/Joint Book of Documents [40] Prior to the commencement of trial, the parties entered into an Agreement on Protocol for Admission of Documents at Trial [Protocol], a copy of which is found in the Trial Record. This states that to facilitate the use of documents, streamline the proceeding and avoid where appropriate the costs and delay associated with calling witnesses to prove the authenticity or truth of the contents of documents at trial, the parties agreed to jointly file at the outset of trial a Joint Document Book [Joint Book of Documents] containing all the documents that the parties agreed may be entered into evidence without further proof, subject to the Protocol terms. The Joint Book of Documents was contemplated by the Protocol as being marked as Exhibit 1 on the first day of trial. The concluding paragraph of the Protocol states that it is subject to any directions and rulings of the Court.
[41] Although the Protocol anticipated entering all of the documents in the Joint Book of Documents as one exhibit in bulk, from the Court's perspective, logistically, the documents were best entered as evidence when put to a witness on an individual, exhibit-by-exhibit basis. This approach was initially confirmed by Plaintiffs’ counsel and adopted. However, later during the trial, different counsel for the Plaintiffs took the position that the Joint Book of Documents should be admitted. This counsel went further and submitted that it should not just be entered as a single exhibit, as set out in the Protocol, but that it was his expectation that every document contained in the Joint Book of Documents would be entered separately and given an exhibit number. However, and as I pointed out at the time, this was not what was contemplated by the Protocol agreed between the parties.
[42] Ultimately, I ruled that individual documents would continue to be entered into evidence as individual exhibits as they were put to witnesses. Additionally, the Joint Book of Documents could be entered as one exhibit as contemplated by the parties pursuant and subject to the Protocol. This determination was influenced by the view of the parties that they had agreed that all of the documents contained in the Joint Book of Documents would be entered into evidence in this manner, subject to the terms of the Protocol.
[43] However, I advised counsel that as there are 1,664 documents contained in the Joint Book of Documents, which counsel advised amounted to about 50,000 pages or 28 volumes of documents, it was my clear expectation that they would have their witnesses speak to the documents that the parties deemed most significant to their respective cases. In that regard, the process already being followed at trial was the normal one, being that as a witness had a document put to them, it was entered as evidence and given an exhibit number. And, although the Joint Book of Documents could be entered as a bulk exhibit, it remained the role of counsel to make their respective cases. The Court could not be expected, at the conclusion of the trial, to review the remaining thousands and thousands of pages of documents in the Joint Book of Documents that were not addressed by a witness in an effort to determine which of these documents may be relevant and significant to the parties' various positions put forward at trial.
[44] In other words, the Joint Book of Documents could not act as a document dump on the Court nor as grounds for a scavenger hunt, in the event of an appeal, for evidence not mentioned at trial.
[45] To address this, it was agreed, and I ruled, that any documents contained in the Joint Book of Documents that were not put to a witness and entered as individual exhibits at trial, but that a party felt should be referenced in their case, could be identified as such in their closing brief. More specifically, as each individual document has been entered in the Court’s eToolkit (an electronic trial document management system) and assigned an FC number, in their respective closing written submissions, the parties would identify the document by FC number and set out the significance of their reference to that document in a clear and meaningful way ‒ not make just a bare reference to a document. That is, why the document is relied upon and how it meets the admissibility requirements of the Protocol. The parties were also required to provide pinpoint references (line, paragraph, page), as many of the documents are lengthy.
[46] Needless to say, the admissibility and weight (if any) assigned to such a referenced document is a determination to be made by this Court.
[47] Ultimately, the parties entered into an Agreement Regarding Joint Book of Documents. This confirms that, because the Joint Book of Documents was too large to upload as one exhibit in the eToolkit, the agreement would be entered in its stead as Exhibit 471. Further, that the Joint Book of Documents is comprised of documents FC00001 to FC01553, FC01724 to FC01845, FC01853 and FC01854, as identified and listed in the eToolkit.
D. The Plaintiffs’ challenge to the qualification of Dr. Winston as an expert witness [48] Prior to the commencement of trial, counsel for the Plaintiffs indicated by letter to the Court dated November 1, 2023, that the Plaintiffs intended to challenge the admissibility of the expert evidence of Dr. Mark Winston and Dr. Dewey Caron. The Defendants sought to qualify Dr. Winston as “an expert on the biology and behaviour of honeybees (Apis mellifera), includi