Paradis Honey Ltd. v. Canada

Paradis Honey Ltd. v. Canada
Court (s) Database
Federal Court Decisions
Date
2017-02-17
Neutral citation
2017 FC 199
File numbers
T-2293-12
Notes
A correction was made January 31, 2018
Reported Decision
Decision Content
Date: 20170217
Docket: T-2293-12
Citation: 2017 FC 199
Ottawa, Ontario, February 17, 2017
PRESENT: The Honourable Mr. Justice Manson
BETWEEN:
PARADIS HONEY LTD., HONEY BEE ENTERPRISES LTD., AND ROCKLAKE APIARIES LTD.
Plaintiffs
and
HER MAJESTY THE QUEEN, THE MINISTER OF AGRICULTURE AND AGRI-FOOD AND THE CANADIAN FOOD INSPECTION AGENCY
Defendants
JUDGMENT AND REASONS
I. Introduction and Issues 2
A. Issues 4
B. Results 4
II. Background – Honeybees 5
III. Background – Procedural History 7
IV. Analysis of Rule 334.16(1) Conditions 9
A. Do the pleadings disclose a reasonable cause of action? 9
B. Is there an identifiable class of two or more persons? 9
(1) Class definition 12
(2) Is the criteria objective and independent of the merits of the Action? 13
(3) Is there a rational connection to the common issues? 17
(4) Is there conflict within the Class? 18
(a) Nixon v Canada (Attorney General) 22
(b) Paron v Alberta (Environmental Protection) 23
(5) Conclusion 24
C. Do the claims of the proposed class members raise common questions of law or fact, whether or not those common questions predominate over questions affecting only individual members? 24
(1) Do common issues exist? 27
(2) Are issues 1 to 9 common issues? 31
D. Is a class proceeding the preferable procedure for the just and efficient resolution of the common questions of law and fact? 33
E. Is there an appropriate representative plaintiff? 41
V. Costs 44
I.
Introduction and Issues
[1] This is a motion to certify this action (the “Action”) as a class action on behalf of an estimated 1,400 Canadian beekeepers. The subject matter of the underlying Action is the ban on importation of honeybees from the United States, which has been in effect, in various forms, since 1987.
[2] The Plaintiffs are Paradis Honey Ltd., Honeybee Enterprises Ltd., and Rocklake Apiaries Ltd. (collectively, the “Beekeepers” or the “Plaintiffs”). The Defendants are Her Majesty the Queen in right of Canada, the Minister of Agriculture and Agri-Food (the “Minister”) and the Canadian Food Inspection Agency (“CFIA”) (collectively, the “Federal Crown” or the “Defendants”).
[3] The Beekeepers, on their own behalf and on behalf of all class members (the “Class”), assert that the Federal Crown negligently, or through abusive administrative action, denied commercial beekeepers in Canada their lawful right to seek import permits for honeybee “packages”, and failed to perform evidence-based assessments the of pest and disease risk associated with importing honeybees from the United States, to support the blanket prohibition on the importation of bee “packages”, that has been in existence since 2006. They seek damages payable to the Class members for the losses and damages they sustained as a result of the Federal Crown’s actions.
[4] The Federal Crown denies any alleged non-compliance with their public law duties, and also denies that it was either negligent or took any abusive administrative actions. Further, or in the alternative, the Federal Crown states, that by virtue of Crown sovereignty and Crown prerogative, the Federal Crown has the lawful authority and the right to control Canada’s borders. Finally, the Federal Crown pleads and relies on the defence of statutory authority, as well as immunity to liability, under sections 8 and 10 of the Crown Liability and Proceedings Act, RSC, 1985, c C-50.
A. Issues
[5] The only issue in this motion is whether the five conditions of Rule 334.16(1) of the Federal Courts Rules, SOR/98-106 are satisfied, such that the Action should be certified as a class proceeding:
1) Do the pleadings disclose a reasonable cause of action?
2) Is there an identifiable class of two or more persons?
3) Do the claims of the proposed class members raise common questions of law or fact, whether or not those common questions predominate over questions affecting only individual members?
4) Is a class proceeding the preferable procedure for the just and efficient resolution of the common questions of law and fact?
5) Is there an appropriate representative plaintiff?
[6] If the Action is certified, the following issues need to be determined:
1) What are the common issues to be determined in the class proceeding?
2) In what manner should notice of certification and progress in the proceeding be provided to the Class?
3) When is the deadline and what is the form for opting out of the Class?
4) Is the litigation plan appropriate?
B. Results
[7] Based upon the evidence before the Court, I find that:
1) The pleadings disclose reasonable causes of action;
2) There is an identifiable class of two or more persons, and there are no disqualifying conflicts between members of the Class;
3) There are common issues, the resolution of which will advance the claims of all Class members. The resolution of these common issues will help the Court avoid duplication of fact-finding and/or legal analysis. The common issues predominate over questions affecting only individual members;
4) A class proceeding is the preferable procedure for the just and efficient resolution of the common questions of law and fact. A class proceeding will achieve all three principles underpinning class actions (i.e., judicial economy, behavioural modification, and access to justice) more effectively than any alternative procedures;
5) Mr. Paradis, Mr. Gibeau, and Mr. Lockhart are appropriate representative plaintiffs.
[8] Therefore, contingent upon the Beekeepers updating their litigation plan and submitting it to the Court for approval, I grant the motion to certify the Action as a class proceeding. Additionally, I find that the nine common issues proposed by the Plaintiffs should be certified as common issues.
[9] The following questions are to be determined by the case management judge:
1) In what manner should notice of certification and progress in the proceeding be provided to the Class?
2) When is the deadline and what is the form for opting out of the Class?
3) What changes should be made to the litigation plan?
II. Background – Honeybees
[10] Canada’s winter climate, especially in the northern regions, is hostile to bees. As a result, Canadian beekeepers regularly experience a significant loss of bees every winter due to the cold. This bee mortality is compounded by other factors, such as pests and disease. Data from the Canadian Association of Professional Apiculturists (“CAPA”) shows that, from 2008-2012, commercial beekeepers had annual average wintering losses of 15% to 35% of their honeybee colonies.
[11] These losses mean that commercial beekeepers need to find a method of replacing colonies every year. The CAPA data indicates that colony loss due to winter is not uniform across Canada, and that beekeepers in Alberta, Saskatchewan, and Manitoba are disproportionately burdened with the need to replace colonies, because beekeepers in these provinces have, on average, the greatest number of dead colonies year-to-year.
[12] Options to replace lost colonies include (1) trying to grow replacement colonies from existing colonies, (2) purchasing bees from domestic suppliers, and (3) importing bees from international suppliers. The purchase of bees can take either of two forms: “packages” and “queens”. A “package” contains a queen bee and thousands of worker bees, sufficient to form a viable colony as soon as it is introduced into a beehive. A “queen” contains a queen and a small number of attendant bees that keep the queen alive during transportation. “Queens” can be used to grow a new colony; however, this usually takes at least a year.
[13] In 1987, the Federal Crown closed the Canada-United States border to the importation of both “packages” and “queens”, as an emergency response to the discovery of varroa mite in certain beekeeping regions in the United States. From 1987 to 2006, the Federal Crown continued the prohibition on honeybee imports from the United States (with the exception of imports from the State of Hawaii, starting in 1991) by means of orders and regulations. The last of this series of regulations, the Honeybee Importation Prohibition Regulations, 2004, SOR/2004-136 (HIPR 2004), permitted the importation of “queens” from the United States, but continued the prohibition against “packages”. HIPR 2004 expired, without renewal, on December 31, 2006; however, it was not formally repealed until June 11, 2015. There have been no orders, regulations, or legislation enacted in HIPR 2004’s place.
[14] Prior to enacting HIPR 2004, the Federal Crown conducted a risk assessment (the “2003 Risk Assessment”) that focused on the economic and biological risks to the Canadian beekeeping industry from four specific bee pests found in American bee populations: (1) varroa mite, (2) small hive beetle, (3) American foulbrood, and (4) Africanized honeybee. Based upon the findings in the 2003 Risk Assessment, the Federal Crown decided to lift the import prohibition against “queens” but not “packages”. In the Regulatory Impact Analysis Statement that accompanies HIPR 2004, the Federal Crown acknowledged that the animal health status of Canadian honeybees was changing, and that there were differences in opinion among commercial beekeepers regarding whether maintaining the border prohibition was appropriate.
[15] Following the expiry of HIPR 2004, a beekeeper’s ability to import honeybees, both “queens” and “packages”, is determined under the general import permit system for live animal imports: sections 12 and 160(1.1) of the Health of Animals Regulations, CRC c 296, enacted pursuant to the Health of Animals Act, SC 1990, c 21. Section 12 allows a person to import live honeybees in accordance with an import permit, and section 160(1.1) requires the Minister to issue a permit if he is satisfied that the activity is not likely to result in the introduction into or spread in Canada of a vector, disease, or toxic substance.
III. Background – Procedural History
[16] This is the second motion to certify a class action based on allegations by the Beekeepers that:
1) Following the expiry of HIPR 2004, the Federal Crown denied the Beekeepers the right to seek import permits for “packages”, rejecting any applications for import permits without consideration;
2) The Federal Crown informed commercial beekeepers that the border remained closed to American “packages”, and the Federal Crown would not reconsider this policy until a new risk assessment was completed, which it represented would only be done following an “official request” from the Canadian Honey Council (“Honey Council”);
3) As a result of the Federal Crown’s unlawful extension of the prohibition against “package” imports, commercial beekeepers were forced to buy replacement bees from less desirable sources, and use more time-intensive and expensive measures to keep their bees alive over the winter. This resulted in aggregate losses for the Class of $200 million plus interest.
[17] The Action was originally commenced by Statement of Claim, filed December 28, 2012, with a Statement of Defence following on February, 8, 2013. The original Notice of Motion for Certification was filed on September 12, 2013; in which the Beekeepers claimed that the Federal Crown acted negligently.
[18] The Federal Crown moved to strike the Motion for Certification in its entirety, based upon failure to disclose a reasonable cause of action (i.e., condition (1) of Rule 334.16(1)). On March 5, 2014, Mr. Justice André Scott struck the motion, finding that it was plain and obvious that the Beekeepers’ claim of negligence based on lack of lawful authority would fail (Paradis Honey Ltd v Canada (Attorney General), 2014 FC 215 [Paradis Honey FC]).
[19] On April 8, 2015, Mr. Justice David Stratas, writing for the majority of the Federal Court of Appeal, reversed Mr. Justice Scott’s finding, and found instead that the “facts as pleaded support a claim in negligence and bad faith”, as well as a “claim for monetary relief in public law” (Paradis Honey Ltd v Canada (Attorney General), 2015 FCA 89 at para 77 [Paradis Honey FCA]). Leave to appeal to the Supreme Court of Canada was denied on October 29, 2015.
[20] Conditions (2) to (5) of Rule 334.16(1) were not addressed in Paradis Honey FC or Paradis Honey FCA.
IV. Analysis of Rule 334.16(1) Conditions
A. Do the pleadings disclose a reasonable cause of action?
[21] The Federal Court of Appeal has determined that the Beekeepers’ pleadings disclose reasonable causes of action in both regulatory negligence and a novel cause of action for abusive administrative action warranting monetary relief (Paradis Honey FCA, above, at paras 111 and 118).
B. Is there an identifiable class of two or more persons?
[22] The Supreme Court of Canada, in Western Canadian Shopping Centres Inc v Dutton, 2001 SCC 46 at paragraph 38 [WCSC], identified three rationales for requiring class actions to proceed only with an identifiable class: (1) to identify persons who have a potential claim for relief against the defendants; (2) to define the parameters of the lawsuit in order to identify those who are bound by the result; and (3) to describe who is entitled to notice for certification.
[23] In Hollick v Toronto (City), 2001 SCC 68 [Hollick], a case issued shortly after WCSC, above, the Supreme Court of Canada stated that there were three criteria for finding the existence of an “identifiable class”: (1) the class must be defined by objective criteria; (2) the class must be defined without reference to the merits of the action; and (3) there must be a rational connection between the common issues and the proposed class definition.
[24] The burden is on the proposed representative plaintiff to show that the class is defined sufficiently narrowly, such that it meets these criteria (Hollick, above at para 20). Interpreting the legislative history of class actions, the Supreme Court of Canada stated that class action legislation should be interpreted generously (Hollick at para 14); therefore, the representative’s burden is not an onerous one. The representative does not need to show that “everyone in the class shares the same interest in the resolution of the asserted common issue[s]”, only that the class is not “unnecessarily broad [emphasis in original]” (Hollick at para 21).
[25] Further, WCSC makes it clear that the criteria of a rational connection between the common issues and the proposed class is to be approached purposively, such that it is “not essential that that the class members be identically situated vis-à-vis the opposing party, but that the resolution of the common issues are necessary to the resolution of each class member’s claim” (WCSC at para 39).
[26] The identity of the class members can also be amended, should the Court find post-certification that a different class definition would be more appropriate. In Buffalo v Samson Cree Nation, 2010 FCA 165 at paragraph 12 [Buffalo], Mr. Justice Stratas stated:
I accept that in certification motions, and in the post-certification period, courts can be quite active, and flexible because of the complex and dynamic nature of class proceedings: for example, they must always remain open to amendments to such matters as the class definition, the common issues and the representative plaintiff’s litigation plan, and they can play a key role in case management.
[27] The Federal Crown argues that there is no identifiable class of two or more persons. They also state that the Class definition is based on subjective and merits based criteria.
[28] The Federal Crown asserts that the term “commercial” is subjective. On cross-examination, Mr. Paradis commented that a person who has only five colonies and makes $1000 may think that they are commercial, despite being a much smaller operation than what the Beekeepers would consider a commercial operation. Therefore, it would be impossible to define commercial in a way with which all beekeepers would agree.
[29] The Federal Crown further asserts that the most problematic, subjective feature of the Class definition is that each Class member needs to determine whether or not he or she is a member of the group of beekeepers who oppose opening the United States border to importing “packages” (the “Faction”). They argue that the members of the Faction have interests that are opposed to the Beekeepers and, therefore, that the some of the Class members would have their interests harmed by the relief sought by the Class. The Federal Crown submits that there is no objective means of determining whether any given beekeeper is a member of the Faction, making the class over-inclusive.
[30] Finally, and most importantly, the Federal Crown argues that the inclusion of beekeepers who are part of the Faction creates irresolvable conflicts within the Class, because some Class members will not have a claim and some will be negatively impacted by the relief sought by the Beekeepers.
[31] The Federal Crown submits five cases—Nixon v Canada (Attorney General), [2002] OJ No 1009; Paron v Alberta (Environmental Protection), 2006 ABQB 375; Asp v Boughton Law Corporation, 2014 BCSC 1124; Lacroix v Canada Mortgage & Housing Corp, [2003] OJ No 2610; and Kwicksutaineuk/Ah-Kwa-Mish First Nation v Canada (Attorney General), 2012 BCCA 193—in support of their argument that the Class is unidentifiable and there is clear conflict within the Class, making it uncertifiable. However, these cases are distinguishable from the facts here.
(1) Class definition
[32] The Beekeepers proposed the following Class definition in the Amended Notice for Motion for Certification:
All persons in Canada who keep or have kept more than 50 bee colonies at a time for commercial purposes since December 31, 2006 and who have been denied the opportunity to import live honeybee packages into Canada from the continental United States after December 31, 2006, as a result of the Defendants’ maintenance or enforcement of a de facto blanket prohibition on the importation of such packages.
[33] Although the Beekeepers argue that the phrase “and who have been denied the opportunity to import …” is only intended as a descriptor, and is not intended as language to narrow the class, in their Memorandum of Fact and Law, they propose that the Class definition be amended as follows:
All persons in Canada who keep or have kept more than 50 bee colonies at a time for commercial purposes since December 31, 2006.
[34] Changing the definition of a class at a hearing or developing a class definition is at the discretion of the Court (Buffalo, above, at para 15).
[35] In this case, it is not clear that the phrase “who have been denied the opportunity to import live honeybee packages…” narrows the Class definition. This phrase can be interpreted in two ways. The Federal Crown argues that it describes only beekeepers who applied for permits, or expressed some interest in importing “packages”, and were, or felt they were, denied by the Minister. Conversely, the Beekeepers assert that it describes all commercial beekeepers in Canada, who by virtue of the prohibition have been denied the opportunity to import, and is not a description that narrows who is included in the Class.
[36] Based upon the causes of action disclosed in the pleadings, a generous and purposive interpretation of the Class definition favours the Beekeepers’ position. If the trial judge determines that the Federal Crown acted negligently or in a manner that was an abusive administrative action, then it follows that all commercial beekeepers in Canada will have been denied the opportunity to import honeybees from the United States, during the relevant time.
[37] Since the original Class definition and the proposed amended Class definition encompass the same beekeepers: commercial beekeepers, who have had more than 50 colonies since December 31, 2006. I find that the amendment to the Class definition should be allowed.
(2) Is the criteria objective and independent of the merits of the Action?
[38] The Federal Crown argues that (1) setting the minimum number of colonies at 50 colonies is an arbitrary restriction with no objective boundaries; and (2) the term commercial is subjective.
[39] The Beekeepers assert that there are an estimated 1,400 commercial beekeepers in Canada, and that the Class is identifiable by objective criteria that are independent of the merits of the Action. Both the time limitation of December 31, 2006, and the number of colonies are clearly objective criteria. The Beekeepers submit that data regarding the number of colonies a beekeeper would have had during the period between December 31, 2006 and the present is readily accessible in provincial records. They also argue that the commercial nature of any beekeeper’s activities is also objectively discernable, using common legal definitions of commercial activity and commercial purpose.
[40] On their website, the Honey Council states that commercial beekeepers in Eastern Canada and British Columbia operate small to medium sized operations of 50-50,000 colonies. Mr. Gibeau, one of the proposed representative plaintiffs, testified that a person needs to have at least 50 colonies to significantly augment their income, and to qualify for most federal or provincial government agricultural safety net programs. Mr. Gibeau explained that, in setting the minimum number, the Beekeepers were trying to ensure that hobbyists were excluded from the Class, because they have different interests from commercial beekeepers. Therefore, the Beekeepers assert that the minimum of 50 colonies is logical, and is neither over- nor under-inclusive.
[41] I find the Federal Crown’s argument that the number of colonies is an arbitrary cut-off unpersuasive. As the Beekeepers show, the number 50 is tied to both representations made by the Honey Council about the size of commercial beekeeping operations in the Eastern Provinces and British Columbia, and government assistance programs that require a beekeeper to have at least 50 colonies to qualify. The Beekeepers acknowledge that requiring beekeepers to have 50 or more colonies may prevent some commercial beekeepers from taking part in the Action. However, as Madam Justice Martine St-Louis said recently, in Rae v Canada (National Revenue), 2015 FC 707 at paragraph 56, “over-inclusion and under-inclusion are not fatal to the certification as long as they are not illogical or arbitrary”. In this case, I find that setting the cut-off for the Class at 50 colonies is both logical and non-arbitrary.
[42] Similarly, the Federal Crown’s assertion that each beekeeper would have to subjectively assess whether or not they were a “commercial beekeeper” is not reasonable. There exist clear, objective criteria that can be used to determine whether a beekeeper has a commercial operation. The Beekeepers provide examples of cases where a court had to make a determination as to whether an activity was commercial in nature: Clevite Development Ltd v Minister of National Revenue, [1961] EX CR 296; McIntosh v Royal & Sun Alliance Insurance Company of Canada, 2007 FC 23; and Université de Sherbrooke v The Queen, 2007 TCC 229 [Sherbrooke].
[43] Sherbrooke, above, in particular, points towards a relevant set of criteria for determining whether an operation is commercial: the Excise Tax Act, RSC 1985, c E-15 [ETA]. In the ETA, a “taxable supply” is defined as “a supply that is made in the course of a commercial activity”. “Commercial activity” of a person is defined as follows in section 123(1) of the ETA:
commercial activity of a person means
(a) a business carried on by the person (other than a business carried on without a reasonable expectation of profit by an individual, a personal trust or a partnership, all of the members of which are individuals), except to the extent to which the business involves the making of exempt supplies by the person,
(b) an adventure or concern of the person in the nature of trade (other than an adventure or concern engaged in without a reasonable expectation of profit by an individual, a personal trust or a partnership, all of the members of which are individuals), except to the extent to which the adventure or concern involves the making of exempt supplies by the person, and
(c) the making of a supply (other than an exempt supply) by the person of real property of the person, including anything done by the person in the course of or in connection with the making of the supply;
…
[44] Subsection (b) of the definition of “commercial activity” states that any adventure or concern in the nature of trade is a commercial activity. The Court is experienced at determining whether an activity is in the nature of trade, or done as part of the normal course of trade. This Court, in particular, regularly evaluates whether certain activities are “ordinary and bona fide” commercial and is prepared to set out objective criteria to determine whether a beekeeper’s activities are commercial (for example, see the Trade-marks Act, RSC 1985, c T-13, section 10).
[45] The definition of “commercial activity” in the ETA “implicitly recognizes that a business may exist without a reasonable expectation of profit, but states that a business without a reasonable expectation of profit is not a ‘commercial activity’” (Bowden v Canada, 2011 FCA 218). Mr. Gibeau testified that a beekeeper with around 50 colonies could expect to make between $25,000 and $50,000 annually, from both the sale of honey and pollination services. Therefore, it is appropriate to define a commercial beekeeper as a beekeeper who has a reasonable expectation of making a profit from his or her beekeeping activities.
[46] Whether a person has a reasonable expectation of profit is an objective determination (Moldowan v Canada, [1978] 1 SCR 480 [Moldowan], overruled in Canada v Craig, 2012 SCC 43 on a different point of law). The Supreme Court of Canada, in Moldowan, above, listed the following as part of a non-exhaustive list of factors that should be considered when determining whether there is a reasonable expectation of profits: the profit and loss experience in past years, the taxpayer’s training, the taxpayer’s intended course of action, and the capability of the venture as capitalized to show a profit after charging capital loss allowance.
[47] As noted above, the Beekeepers have deliberately designed a class definition that excludes hobbyist beekeepers. Therefore, limiting the class to beekeepers who reasonably expect to make profits from their beekeeping activities is logical, and is neither over- nor under-inclusive. Therefore, I find that it is appropriate to define “commercial beekeeper” for the purpose of the Action as a beekeeper who has made commercial sales in the ordinary course of business. The Class definition—all persons in Canada who keep or have kept more than 50 bee colonies at a time for commercial purpose since December 31, 2006— is objective and independent of the merits of the Action.
(3) Is there a rational connection to the common issues?
[48] The Beekeepers argue that the Class as defined is rationally connected to the common issues. The time limit relates to the claim that the Federal Crown acted negligently or took abusive administrative action after HIPR 2004 expired. The commerciality requirement relates to the duty of care the Federal Crown owes to the commercial beekeepers, based on its knowledge that the beekeepers were being asked to sacrifice their near-term economic well-being for the long-term good of the industry. The commerciality requirement is also connected to the Federal Crown’s representations that they would continuously monitor and assess how the imports would affect the Canadian honeybee industry, and the damages that the Beekeepers and other members of the Class suffered because of lack of access to American “packages”.
[49] Regarding damages, the Beekeepers acknowledge that not every Class member may be able to recover damages. They state that the case is similar to Markson v MBNA Canada Bank, 2007 ONCA 334 [Markson], a case where the Ontario Court of Appeal certified a class consisting of all holders of a specific type of credit card, even though the card holders who could ultimately recover damages were only a small fraction of the class. In Markson, above, all of the class members could have been affected by the policies of MBNA Canada Bank; however, only a few had actually paid the criminal interest rates. In the Action, all Class members could have been affected by the de facto prohibition. I agree with the Beekeepers that there is a rational connection between the common issues and the Class.
(4) Is there conflict within the Class?
[50] Finally, based on the nature of the pleadings and relief sought by the Beekeepers, I am not persuaded that there is a clear conflict within the Class, such that some members neither have a claim nor are connected to the common issues. Similarly, I do not agree with the Federal Crown that the relief sought would be detrimental to any member of the Class.
[51] The Supreme Court of Canada in Hollick, at paragraph 21, stated that “the representative need not show that everyone in the class shares the same interest in the resolution of the asserted common issue”. It is possible that some of the Class members will not gain significant monetary benefits from the resolution of the common issues, should the Beekeepers succeed in the Action, because their business practices never depended on imports from the United States. However, the Federal Crown’s assertion that they either have no claim or would be negatively impacted by the resolution of the common issues in the Beekeepers’ favour mischaracterizes the nature of the pleadings.
[52] The Beekeepers assert that the Federal Crown negligently denied commercial beekeepers the opportunity to import “packages”, and/or took abusive administrative action. The core of these two related causes of action, as described by Mr. Justice Stratas, in Paradis Honey FCA, is that the government behaved such that they did not fulfil a clear and specific duty to act. Regarding the potential new tort of abusive administrative action, he explains (at para 145):
Courts have awarded monetary relief against public authorities where … using the language of public law, the failure to act was unacceptable or indefensible in the administrative law sense and there are circumstances of specific undertakings, specific reliance or known vulnerability of specific persons that trigger or underscore an affirmative duty to act.
(citations omitted)
[53] Applying his legal analysis to the facts Mr. Justice Stratas continues (at para 148):
Taking the allegations in the claim as proven, Canada’s officials took it upon themselves to create and enforce an unauthorized, scientifically unsupported blanket policy preventing the beekeepers from exercising their legal right to apply for importation permits on a case-by-case basis under section 160 of the Health of Animals Regulations, above. This gives rise to a number of grounds for finding unacceptability and indefensibility: see paragraph 85 of my reasons, above.
[54] Paragraph 85 of Paradis Honey FCA lists four potential grounds for finding unacceptability and indefensibility:
1. The guideline should have been passed as a regulation.
2. The guideline conflicts with the law on the books.
3. The guideline is unreasonable, as it is not supported by any scientific evidence of a risk of harm due to importation.
4. A faction of commercial beekeepers captured the bureaucracy; thus, the guideline was enacted for an improper purpose.
[55] The Beekeepers’ claims are that the Federal Crown acted negligently or abusively through use of guidelines that were not supported by scientific assessments and regulations, not that the Federal Crown made any particular decision regarding imports.
[56] The Federal Crown argues that some of the commercial beekeepers “clearly do not have a claim for relief based upon the allegations in the Amended claim (sic)… and should not be a part of the class”. However, the issue of whether the Federal Crown acted or failed to act improperly affects all commercial beekeepers in Canada, because each beekeeper has an interest in the government enacting policies legally, and based on scientific evidence. The Beekeepers have asked for relief in the form of damages based on the Federal Crown’s conduct, rather than relief tied to the individual circumstances of each Class member. What form the damages take (e.g., aggregate, sub-class, or individual), and how each Class member’s loss is to be quantified are issues that will need to be resolved, but are not determinative of the overriding common interest of all commercial beekeepers to have lawful Federal regulation of the importation of bee “packages” into Canada.
[57] The Beekeepers have admitted that there is a Faction within the Honey Council that is opposed to reopening the border to “packages” from the United States. I agree that this is not fatal to their certification as a class, because resolution of the common issues would not negatively impact any beekeepers who are members of the Faction. A successful outcome for the Beekeepers on the merits of the Action would not adversely affect any member of the Class, because it does not follow that the United States border would be opened to “packages”. I also agree with the Beekeepers that it is ridiculous to suggest that the Faction’s conflict with the Beekeepers is in effect to maintain an unlawful prohibition on importation of “packages”.
[58] The results of the Action would not be contentious, because the relief requested does not harm any member of the Class. A decision by the Federal Crown, following a proper review of the current state of honeybee health in Canada and the United States, to open the border to imports would not be sufficiently connected to the Action for the results of the Action to have harmed any Class member.
[59] Should a court find that the Federal Crown acted negligently or by abusive administrative action, the Federal Crown would not be prohibited from subsequently reassessing the risks of “package” imports and enacting regulations preventing imports, if they find, using current scientific evidence, that the border should remain closed. No beekeeper is adversely impacted by another beekeeper being compensated for harm suffered, if found to be the case.
[60] Finally, the five cases relied upon by the Federal Crown are distinguishable. Nixon and Paron, which consider impermissible conflict within the class, are discussed in detail below.
(a) Nixon v Canada (Attorney General)
[61] Nixon is a class certification case involving a fire at Kingston Penitentiary, in which a number of inmates set fire to items in their individual cells and threw the flaming objects into an open area. The proposed class definition was “all inmates on ‘Range A’ of the Kingston Penitentiary on October 31, 1999”. The motion judge dismissed the motion for two reasons: (1) the class could not be defined because the class definition encompassed inmates who would not be a part of the class, and (2) the representative plaintiff was inappropriate.
[62] In finding that the class could not be defined, the motion judge stated that the class definition encompassed some class members who would not be a part of the class. Although all of the inmates were affected by the fires, the individuals responsible for setting the fires were prevented from recovery by reason of their wrongdoing and possibly liable in damages to the other inmates. The identity of these individuals was not known. Therefore, the proposed class could not be determined, without a preliminary finding on the merits.
[63] In this case, although the Beekeepers acknowledge that the interests of some potential Class members are being served by the current guidelines, and some have even lobbied for the border to remain closed, there is no evidence or allegations that certain members of the Class were actually responsible for the Federal Crown’s negligent or abusive actions.
(b) Paron v Alberta (Environmental Protection)
[64] Paron is a class action certification case involving approximately 600 cottage owners on the shores of Wabamun Lake. The representative plaintiff alleged that TransAlta Utilities Corporation’s Lakeshore electrical generating plant had affected, among other things, the level of the lake. The representative plaintiff was seeking damages, an injunction against TransAlta, and an order requiring Alberta to raise the lake level 18 inches. The proposed class included “all Alberta residents who claimed that, between 1996 and 2005, they owned residential lands contiguous to Wabamun Lake and that their use and enjoyment of the lands were adversely affected…”
[65] The motion judge found that the class definition was subjective because it included only residents who claimed that their enjoyment and use of their land was adversely affected. Further, not all of the class members would benefit from the lake waters being raised. In fact, some of the proposed class members would have their cottages and lands flooded.
[66] In the current motion, neither the original nor the amended Class definition suffers from the defect of subjectivity and a successful outcome would not result in a loss for any of the Class members. The Beekeepers have not framed the Action in a manner such that a successful outcome will effect a definite change in Canada’s stance towards the import of honeybees from the United States. Additionally, it makes little sense to argue that ensuring that the Federal Crown exercises its administrative power appropriately harms any of the Class members.
(5) Conclusion
[67] Therefore, I find that the proposed amended Class definition is based upon objective criteria, without reference to the merits, and there is sufficient evidence to show that the common issues are rationally connected to the Class definition.
C. Do the claims of the proposed class members raise common questions of law or fact, whether or not those common questions predominate over questions affecting only individual members?
[68] In WCSC, the Supreme Court of Canada set out the following test for determining the existence of a common issue (at para 39):
The underlying question is whether allowing the suit to proceed as a representative one will avoid duplication of fact-finding or legal analysis. Thus an issue will be “common” only where its resolution is necessary to the resolution of each class member’s claim … It is not essential that the class members be identically situated vis-à-vis the opposing party. Nor is it necessary that common issues predominate over non-common issues or that the resolution of the common issues would be determinative of each class member’s claim. However, the class members’ claims must share a substantial common ingredient to justify a class action. Determining whether the common issues justify a class action may require the court to examine the significance of the common issues in relation to individual issues.
[69] These comments were repeated by Mr. Justice Rothstein, in Pro-Sys Consultants Ltd. v Microsoft Corporation, 2013 SCC 57 at paragraph 108 [Pro-Sys], where he highlighted that the commonality question was to be approached purposively.
[70] The Beekeepers propose nine common issues:
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:
whether or not aggregate damag