Paradis Honey Ltd. v. Canada (Attorney General)

Paradis Honey Ltd. v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2014-03-05
Neutral citation
2014 FC 215
File numbers
T-2293-12
Decision Content
Date: 20140305
Docket:
T-2293-12
Citation: 2014 FC 215
Ottawa, Ontario, March 5, 2014
PRESENT: The Honourable Mr. Justice Scott
BETWEEN:
PARADIS HONEY LTD.,
HONEY BEE ENTERPRISES LTD. AND
ROCKLANE APIARIES LTD.
Plaintiffs
(Respondents)
and
THE ATTORNEY GENERAL OF CANADA
Defendant
(Applicant)
REASONS FOR ORDER AND ORDER
I. Introduction
[1] The Defendant has brought a motion pursuant to Rules 369 and 221(1)a) of the Federal Courts Rules, SOR/98-106 [the FCR] for an order striking the statement of claim, in its entirety, without leave to amend, on grounds that it discloses no reasonable cause of action.
[2] At the onset the Court has changed the style of cause, as the Plaintiffs’ claim is based on section 23 of the Crown Liability and Proceedings Act, RSC 1985, c C-50.
[3] The Defendant submits that the claim is deficient in that:
a) It advances a tort claim based on an alleged breach of statute which is a tort not known at law;
b) The claim is framed as one of direct liability against the Crown; it does not identify a Crown servant; and
c) The facts do not give rise to a private law duty of care.
[4] The Plaintiffs’ statement of claim seeks to obtain damages based on:
1) The Defendant’s negligence in imposing or enforcing a prohibition on, or denying import permits for, the importation into Canada of live honeybee packages from the continental United States after December 31, 2006 to the present day, thereby breaching his duty of care; and
2) The Defendant’s acting without lawful authority by imposing a prohibition on, and denying import permits for, the importation into Canada of live honeybee packages from the continental United States after December 31, 2006 to the present day and abdicating his authority to an improper third party to make decisions on improper considerations.
II. The facts
[5] The import of live bees into Canada from the US was restricted in the late 1980s due to concerns about the presence of mites and other pests on such bees. From that time on until 2004, imports from the US of live bees (whether of a queen honeybee or a package of honeybees) were prohibited by the Honeybee Prohibition Order, 1987, SOR/87-607 and successor orders that were enacted pursuant to subsection 20(1) of the Animal Disease and Protection Regulations, CRC c 296 [the ADPR], as well as the Honeybee Prohibition Regulations, 1991, SOR/92-24 and its successor regulations, enacted pursuant to section 14 of the Health of Animals Act, SC 1990, c 21 [the HAA].
[6] These restrictions were based on risk assessments conducted by the Canadian Food Inspection Agency [the CFIA]. The CFIA is responsible for the administration and enforcement of the HAA (see the Canadian Food Inspection Agency Act, SC 1997, c 6, subsection 4(1) [CFIAA]). The last risk assessment and industry consultation regarding the risks of disease or toxic substances resulting from allowing the importation of live bees from the US was conducted in 2003. At that time, the prohibition on live bee imports from the US was continued by the Honeybee Importation Prohibition Regulations, 2004, SOR/2004-136 [the HIPR-2004], enacted pursuant to section 14 of the HAA, subject to an exception which allowed the Minister to issue an import permit to import queens.
[7] The Minister’s authority to issue a permit arises pursuant to section 64 of the HAA and sections 12 and subsection 160(1.1) of the Health of Animals Regulations, CRC, c 296 [the HAR]. Subsection 160(1.1) of the HAR specifies that if the Minister is satisfied that the issuance of the permit “would not, or would not be likely to, result in the introduction into Canada, the introduction into another country from Canada or the spread within Canada, of a vector, disease or toxic substance”, he may grant it.
[8] Between 2004 and 2006 the Minister exercised his discretion under subsection 160(1.1) of the HAR to grant such permits for the importation of queens from the US, however the importation of packages of honeybees remained subject to the prohibition. The prohibition under HIPR-2004 expired on December 31, 2006 and has not been renewed by Regulation or formal Ministerial Order or Directive. Notwithstanding the expiry of the HIPR-2004 prohibition, the Defendant has continued to enforce a complete prohibition on the import of honeybee packages from the US, but has continued to grant permits for the importation of US queens pursuant to subsection 160(1.1) of the HAR.
[9] The Plaintiffs allege that after the prohibition lapsed, imports of US packaged honeybees became subject to the same administrative scheme (sections 12 and 160 of the HAR) that governed US queen bee imports and live animal imports in general, but that the Defendant imposed a de facto prohibition notwithstanding this change (see the Plaintiffs’ Statement of Claim of December 28, 2012, page 7). The Plaintiffs argue that by prohibiting and denying them an opportunity to obtain permits for the importation of US honeybee packages the Defendant has breached his duty of care and acted without lawful authority.
III. Points in issue
A. Is it plain and obvious that the Plaintiffs’ claim for acting without lawful authority is bound to fail?
B. Is it plain and obvious that Plaintiffs’ claim in negligence is bound to fail? and
C. Should costs be awarded?
IV. Parties’ position
A. The Defendant’s position
[10] The Defendant, in his reply representations, claims that the Plaintiffs cannot amend their statement of claim because the pleadings have been closed since February 8, 2013, when they filed their statement of defence (see Rule 202 of the FCR). The Defendant argues that the Plaintiffs’ proposed amended statement of claim is improper and should be struck or wholly disregarded, as should any paragraphs referring to it in the Plaintiffs’ response written representations (see the Defendant’s reply to motion record at page 3, para 10). The Defendant bases his position on Rules 200 and 202 of the FCR that Plaintiffs could not amend as of right; they are required to seek leave of this Court by way of motion.
[11] The Defendant argues that the Plaintiffs, having failed to bring forward a motion to amend their pleadings, cannot purport to do so by tendering the Proposed Amended Claim in response to the Defendant’s motion to strike. Furthermore, the Defendant submits that the Plaintiffs are estopped from amending because the proceeding is case managed and the issue of scheduling interlocutory motions addressed by the parties at the case management conference on October 1, 2013. Moreover, the Defendant claims that the Plaintiffs have admitted that the proposed amendments are not new matters of which they had just become aware (see Defendant’s reply to motion record at page 4, para 12).
[12] The Defendant contends that the Plaintiffs are attempting to tender an amended claim after receiving the full benefit of the Defendant’s argument on his motion. The Defendant also submits that Rule 75(2) of the FCR provides that no amendment is to be allowed during a hearing and argues that since the motion is in writing, the parties are in a hearing. The Defendant submits that the Federal Court has rejected attempts to file amended pleadings in response to motions to strike without leave to amend and held that no steps can be taken that could affect the rights of a moving party. The Defendant relies on the Direction of a prothonotary which cited Bruce v John Northway & Sons Ltd, [1962] OWN 150. The Defendant also notes that the Plaintiffs relied on Los Angeles Salad Company Inc v Canadian Food Inspection Agency et al, 2013 BCCA 34 [Los Angeles Salad Company], but this case could be distinguished because a formal application for leave to amend had been made.
[13] As to Plaintiffs’ reference to Simon v Canada, 2011 FCA 6 at paragraph 14 [Simon] and Collins v Canada, 2011 FCA 140 at paragraph 26 [Collins], the Defendant argues that the pleadings in those cases had not been closed. The defendants had not filed their statement of defence prior to bringing their motions to strike; therefore, in both cases, they were entitled to amend as of right. Finally, the Defendant argues that the cases relied upon by the Plaintiffs do not appear to have been under case management where the parties would have committed to expressly address the issue of all interlocutory motions to be heard prior or concurrently with the Plaintiffs’ certification motion.
[14] The Defendant also emphasizes that contrary to the Plaintiffs’ submission, he did not receive the proposed amended statement of claim on September 25, 2013. Rather, it was first seen on November 29, 2013, when he received the Plaintiffs’ motion record in response to his motion to strike without leave to amend.
[15] In the alternative, the Defendant submits that the Plaintiffs’ pleading in negligence is not cured by the amended statement of claim because the proper statutory construction and interpretation of the HAA and HAR do not create a private law duty of care to the individual Plaintiffs. The duties owed by the CFIA are to the public as a whole and not to any specific members of the public and the proposed amendments cannot alter this statutory intent.
i. Claim for acting without lawful authority
[16] The Defendant submits that this claim is bound to fail because there has been statutory authority to prohibit or refuse to grant a permit for the importation of US honeybee packages since January 1, 2007 to the present day. The HAA and the HAR expressly confer authority on the CFIA to make decisions on whether a “regulated animal” can be imported to Canada. The Defendant submits that this legislation generally prohibits the importation of animals unless certain conditions are met.
[17] The Defendant asserts that even if the Plaintiffs’ claim that the CFIA acted without lawful authority was construed as an allegation that the CFIA failed to act in accordance with the authorizing act and regulations, this would amount to a claim of breach of statutory duty and such a claim is not a cause of action recognized in law (see Holland v Saskatchewan, 2008 SCC 42 at paras 7-9 and 11 [Holland]). He also states that the civil consequences of breach of statute are subsumed under the law of negligence (R v Saskatchewan Wheat Pool, [1983] 1 SCR 205 at para 37 [Saskatchewan Wheat Pool]) and this aspect of the Plaintiffs’ claim is addressed in the context of the duty of care analysis.
ii. Claim in negligence
[18] The Defendant submits that the HAA and HAR do not impose on the CFIA a prima facie duty of care to protect the Plaintiffs from economic loss when performing its statutory duties and exercising its statutory powers related to the importation of animals into Canada. The Defendant claims that the public purpose of the legislative scheme to protect animal health is inconsistent with a private law duty to protect the private economic and commercial interests of any individual. Moreover, the Defendant argues that the conduct alleged in the claim does not rise to the level or type of interaction for which courts have found the existence of a close and direct relationship between the regulator and the claimant. Finally, the Defendant submits that these are core government policy decisions and the prospect of indeterminate liability would negate even a prima facie duty of care, if such a duty exists.
[19] The Defendant outlines the analysis for determining government liability in negligence as follows. The starting point is to determine whether there are analogous categories of cases in which such a duty has been identified (see Childs v Desormeaux, 2006 SCC 18 at para 15 [Childs]). If the facts amount to a claim within a category that has previously been identified by the jurisprudence, a duty of care is established and it is unnecessary to continue the analysis. If no analogous cases exist, the question is whether a new duty of care should be recognized in the circumstances based on a two stage test to establish liability in tort, as set out in Anns v Merton London Borough Council, [1978] AC 728 [Anns].
The test
[20] The first stage is to ask whether the facts disclose a sufficiently close and direct relationship between the parties, such that it is just and reasonable to obligate one party to take reasonable care to prevent foreseeable loss or harm to the other party. These foreseeable losses must be grounded in a sufficiently close, direct or proximate relationship (see R v Imperial Tobacco Canada Ltd., 2011 SCC 42 at para 41 [Imperial Tobacco] and Cooper v Hobart, 2001 SCC 79 at para 32 [Cooper]). In Imperial Tobacco, it was clarified that proximity may be established either through a statutory intent or through a series of specific interactions between the regulator and the claimant, or where it is based both on interactions between the parties and the government’s statutory duties. The Court stated, in paragraphs 44-46, that:
“44. The argument in the first kind of case is that the statute itself creates a private relationship of proximity giving rise to a prima facie duty of care. It may be difficult to find that a statute creates sufficient proximity to give rise to a duty of care. Some statutes may impose duties on state actors with respect to particular claimants. However, more often, statutes are aimed at public goods, like regulating an industry (Cooper), or removing children from harmful environments (Syl Apps). In such cases, it may be difficult to infer that the legislature intended to create private law tort duties to claimants. This may be even more difficult if the recognition of a private law duty would conflict with the public authority's duty to the public: see, e.g., Cooper and Syl Apps. As stated in Syl Apps, "[w]here an alleged duty of care is found to conflict with an overarching statutory or public duty, this may constitute a compelling policy reason for refusing to find proximity" (at para. 28; see also Fullowka v. Pinkerton's of Canada Ltd., 2010 SCC 5, [2010] 1 S.C.R. 132, at para. 39).
45. The second situation is where the proximity essential to the private duty of care is alleged to arise from a series of specific interactions between the government and the claimant. The argument in these cases is that the government has, through its conduct, entered into a special relationship with the plaintiff sufficient to establish the necessary proximity for a duty of care. In these cases, the governing statutes are still relevant to the analysis. For instance, if a finding of proximity would conflict with the state's general public duty established by the statute, the court may hold that no proximity arises: Syl Apps; see also Heaslip Estate v. Mansfield Ski Club Inc., 2009 ONCA 594, 96 O.R. (3d) 401. However, the factor that gives rise to a duty of care in these types of cases is the specific interactions between the government actor and the claimant
46. Finally, it is possible to envision a claim where proximity is based both on interactions between the parties and the government’s statutory duties”.
If such proximity is found there is a prima facie duty of care.
[21] When a prima facie duty of care is found, the second stage is to verify whether there are any countervailing policy considerations that would negate that duty (see Childs, cited above at para 13 and Imperial Tobacco, cited above at para 39).
Analogous cases
[22] The Defendant submits that no analogous cases have previously recognized that the government owes a private law duty of care to be mindful of an individual’s private economic interests when making a core policy decision to prohibit the importation of animals into Canada under the HAA and HAR. Neither have there been analogous cases recognizing that the CFIA owes such a duty when deciding whether or not to grant permits for the importation of animals under this legislation.
[23] Instead, the Defendant relies on the Berg v Saskatchewan, 2003 SKQB 456 [Berg] decision, which determined that there was no proximity, in circumstances that he claims are similar to the present matter. In this decision, import permits for elks were refused based on concerns that they would result in the introduction of disease in Saskatchewan pursuant to the Wildlife Act, 1997, SS 1997, c W-13.11 (now repealed) [the Wildlife Act 1997]. The Plaintiffs, in that case, alleged that the ban was negligent because made without verifying the factual circumstances and the absence of reasonable grounds for believing that the animals were or could be infected with disease. The Court concluded that the economic interests of a small group of people who may have been impacted by the operation of the Wildlife Act 1997 must be subordinated to the greater purpose of that act which benefits the public as a whole. It also stated that the statute was not concerned with the economic impact of the permit system (see Berg cited above at para 76). The Defendant submits that this case is persuasive given the similarity of the allegations and the legislative schemes.
[24] The Defendant also relies on the River Valley Poultry Farm Ltd v Canada (Attorney General), 2009 ONCA 326 [River Valley] case, in which the Ontario Court of Appeal reviewed the purpose and intent of the HAA and found that it did not create a private law duty of care to protect the plaintiff producer’s economic interests (see River Valley at paras 66-83).
[25] The Defendant distinguishes the Adams v Borrel, 2008 NBCA 62 [Adams] and Sauer v Canada (Attorney General), 2007 ONCA 454 [Sauer] cases, cited by the Plaintiffs which found either that the government owed a private law duty of care or that it was not plain and obvious that there was no duty of care, based on the legislative schemes at issue. The Defendant argues that the legislative schemes, the impugned actions and the relationship between the regulator and the claimants are not analogous to those alleged in the case at bar. In Adams, the Court determined that the scheme was intended to protect a limited class of producers, rather than to protect the public at large (see Adams at para 44). In Sauer, the impugned action was the failure to have taken appropriate measures to prevent the transmission of an outbreak of disease in the plaintiffs’ cattle through contaminated feed.
[26] Because no courts have recognized a duty of care in a case analogous to this claim, the Defendant submits that it is necessary to consider the two part test established in Anns, cited above.
Application of the Anns test to the facts at issue
a) Step one: proximity
1) Statutory intent
[27] The Defendant claims that there are no allegations that fall outside the regulator’s role and therefore if proximity exists it must arise from the governing statutes (Imperial Tobacco, cited above at para 49 and Cooper, cited above, at para 43).
[28] The Defendant argues that the HAA and HAR impose on the CFIA only duties to the public as a whole when carrying out or exercising its regulatory functions and authority. Concluding that Parliament intended there be a duty to safeguard the economic interests of individuals who wish to use imported animals in their commercial ventures would run counter to Parliament’s intention to entrust the CFIA with broad regulatory authority to protect animal health for the public good.
[29] The Defendant submits that the material time in the claim is from 2007 to the date the claim was filed and therefore only the construction and interpretation of the HAA and HAR after 2007 need be addressed.
[30] The construction of the statutory scheme is central to the question of whether or not there is sufficient proximity between the parties. The Defendant refers to the Nielson v Kamloops (City), [1984] 2 SCR 2 case in which it was stated that economic losses are recoverable only if, as a matter of statutory interpretation, it is the type of loss the statute intended to guard against (see pages 27 and 28 of the decision).
[31] The Defendant alleges that the HAA imposes obligations and prohibitions on persons in situations where animals are known or suspected of being infected with disease and grants authority to the regulator to take measures to remedy or mitigate concerns with public safety, life, health, property or the environment (see HAA, cited above, sections 22-28). The Defendant claims that the general provisions of the HAA and HAR are directed to the mandate of protecting animal health. As to the specific provisions regulating the importation of honeybee packages found in the HAA, HAR and Import Reference Document, the Defendant submits that they do not disclose a legislative intent to create a private law duty of care.
[32] For example, section 14 of the HAA provides that the Minister may make regulations prohibiting the importation of any animal into Canada for the purpose of preventing a disease from being introduced into or spread within the Country. Section 12 of the HAR enacts a general prohibition on the importation of regulated animals unless certain conditions are met, such as obtaining a permit. These provisions state:
Section 14 of the HAA:
“14. The Minister may make regulations prohibiting the importation of any animal or other thing into Canada, any part of Canada or any Canadian port, either generally or from any place named in the regulations, for such period as the Minister considers necessary for the purpose of preventing a disease or toxic substance from being introduced into or spread within Canada”.
Section 12 of the HAR:
“12. (1) Subject to section 51, no person shall import a regulated animal except
(a) in accordance with a permit issued by the Minister under section 160; or
(b) in accordance with subsections (2) to (6) and all applicable provisions of the import reference document”.
Subsection 160(1.1) of the HAR, during the applicable period, provides for an exception to prohibitions on imports and reads as follows:
“160. (1.1) The Minister may, subject to paragraph 37(1)(b) of the Canadian Environmental Assessment Act, issue a permit or licence required under these Regulations if the Minister is satisfied that, to the best of the Minister’s knowledge and belief, the activity for which the permit or licence is issued would not, or would not be likely to, result in the introduction into Canada, the introduction into another country from Canada or the spread within Canada, of a vector, disease or toxic substance”.
[33] The Defendant submits that if the Minister or the CFIA are not satisfied to the best of their knowledge and belief, they are not authorized to issue a permit to import animals into Canada since Parliament gave broad discretion to the Minister in order to give effect to a public duty to protect animal health in Canada. Public duties of this nature are not aimed at protecting private interests of specific individuals and do not give rise to a private law duty of care (see Wellington v Ontario, 2011 ONCA 274 at para 44). The Defendant rejects the Plaintiffs’ argument that the HAR require the decision to issue or not to issue a permit be based on formal risk assessments conducted by the CFIA. The Defendant submits that the HAA and HAR do not contain provisions requiring risk assessments on the importation of regulated animals nor do they restrict or prescribe the kind of information upon which the Minister’s or the CFIA’s “knowledge and belief” is to be based. The Defendant also notes that subsection 160(1.1) of the HAR does not direct the Minister or the CFIA to consider the private or commercial or economic interests of individual industry participants when exercising this discretion, nor do the HAA or HAR in general.
[34] According to the Defendant, the HAA contemplates that individual industry participants may suffer economic loss as a result of the enforcement of or the duty to comply with the statutes and provides for statutory compensation in certain cases. The Defendant argues that it is clear, from this compensation scheme, that there is no legislative intent to create a private law duty of care.
[35] The Defendant also relies on section 50 of the HAA which provides for immunity and limits the Crown’s liability for loss or damage suffered by persons as a result of complying with their obligations under the HAA and HAR. This statutory immunity was referred to in River Valley, cited above, and the Court concluded that when read together with the legislative purpose of the HAA, it showed an absence of proximity (see para 83). In that decision, the Court also distinguished the Adams case, cited above, which had found a prima facie duty of care to potato producers. The Court concluded that contrary to the Plant Protection Act, SC 1990, c 22, the HAA showed no legislative purpose to protect the interests of individual farmers (see para 81).
[36] Referring to allegations of law in paragraph 25 of the Plaintiffs’ statement of claim, as to what the stated purpose of the restrictions on importations of bees has been, the Defendant submits that the Court is not obliged to assume that these allegations are true in a motion to strike. He also notes that there is no indication in the legislative scheme of an intention to protect the economic interests of the industry. Even if it were accepted that the purpose of the legislative scheme is to protect the economic interests of the Canadian beekeeping industry, the Defendant argues that the policy choice as to how to protect these interests is via the power to not allow possibly diseased animals to be imported rather than to allow possibly diseased animals to be imported into the Country. And even if this proposition was broadly construed as serving the economic interests of the Canadian beekeeping industry, this does not disclose a legislative intent to protect the private economic interests of individual industry participants like the Plaintiffs (see River Valley, cited above, at paras 66-73 and Berg, cited above, at paras 76-77).
[37] The Defendant, in his reply, further refutes the Plaintiffs’ submission that the legislative scheme is primarily concerned with the industry’s economic interests. Noting that not all insects are regulated under the HAA, the Defendant underlines that honeybees are, because they generate a product for human consumption, but equally because of their potential impact on human health and the whole of the agricultural sector. The regulator must balance diverging interest in performing its functions and the primary interest is the public concern for the health of animals and the prevention of animal diseases in Canada.
[38] As to the Plaintiffs’ reliance on the regulatory impact analysis statements [RIASs], which the Defendant qualifies as exclusive reliance, the Defendant submits that these RIASs are associated with specific regulations which were no longer in force during the material time of the Plaintiffs’ complaint. The relevant period being January 1, 2007 to December 28, 2012, the Defendant argues that the RIASs are irrelevant as they were not applicable during the period. Moreover, although courts have received RIASs in the context of statutory construction, the Defendant emphasizes that the delegated legislation has to be interpreted in a manner consistent with the overall purpose and intent of the governing statute, in this case the HAA (see Bristol-Myers Squibb Co v Canada (Attorney General), 2005 SCC 26 at para 38 [Bristol-Myers]).
[39] The Defendant underlines that the RIASs relied on by the Plaintiffs do not support their argument that the purpose of the HAA and HAR is the protection of the economic interests of the industry. The Defendant claims that they disclose a public interest which goes well beyond the beekeeping industry and refers to the RIASs of December 12, 1991 in which it is stated that the regulations control the importation of animals into Canada to prevent the introduction of diseases.
2) Interactions between the parties
[40] Referring to the Imperial Tobacco case, cited above, the Defendant submits it is the basis for the principle that governing statutes are relevant to the analysis of the interaction between the parties (see para 45). The Defendant argues that no specific interactions between the CFIA and the Plaintiffs were alleged in the claim and furthermore, no allegation was made that any of the Plaintiffs even applied for a permit to import bee packages from the US. The only interactions enumerated in the Claim were with the “industry”, such as consultations and annual reviews of the health of Canadian bees. Defendant concludes that such interactions do not create a close and direct relationship with the Plaintiffs and points to the Imperial Tobacco case that establishes that the test of proximity requires specific interactions that show that the regulator “[…] through its conduct, entered into a special relationship with the plaintiff sufficient to establish the necessary proximity for a duty of care” (see para 45).
[41] The Defendant also relies on the Taylor v Canada (Attorney General), 2012 ONCA 479 case, at paragraphs 94-95 and 97, which found that the prevailing jurisprudence applies a detailed analysis of proximity instead of a single conclusory observation such as in the Sauer case, cited above. In the Sauer case, the numerous “public representations” declaring the intention to protect cattle farmers was sufficient to conclude that it was not plain and obvious that the claim of a prima facie duty of care would not succeed. However, subsequent cases such as Imperial Tobacco and Attis v Canada (Ministry of Health), 2008 ONCA 660 [Attis] addressed the requirement in detail. In Attis, the Ontario Court of Appeal distinguished actions of government regulators in the interest of the public good and other instances where it directly interacted with specific, identifiable individuals (see para 65). When regulatory control over a product was enforced through a policy for the benefit of the public, it was concluded that there was no close and direct relationship with individual participants even though that policy might have impacts on some individuals.
[42] In sum, it is the Defendant’s position that the Claim is insufficient to establish a close and direct relationship between the CFIA and the individual commercial beekeepers.
b) Step two: policy considerations
[43] The Defendant submits that if a prima facie duty of care is found, such a duty is negated for broader policy reasons. The Defendant alleges that two countervailing policy reasons negate any such duty: 1) the risk of indeterminate liability; and 2) the immunity of government’s core policy decisions.
1) Indeterminate liability
[44] Finding that the CFIA owes a duty of care to protect the Plaintiffs’ private economic interests would expose it to indeterminate liability to an indeterminate class of people (Cooper, cited above, at para 37 and Bow Valley Husky (Bermuda) Ltd v Saint John Shipbuilding Ltd, [1997], 3 SCR 1210 at para 62 [Bow Valley Husky]). The Defendant submits that there must be a principled basis to apply the duty of care to some and not to others and no such principled basis exists in this case. The Defendant notes that if such a duty of care was recognized, the CFIA could also be found to owe a similar duty of care to others, involved in other industries. In the Attis case, cited above, it was determined that the spectre of indeterminate liability negated the imposition of government liability. Since the HAA and HAR do not solely affect the Canadian beekeeping industry and the regime is not confined to regulating the importation of one kind of animal, the Defendant has no control over the number or kind of individuals or industries that have an interest in importing a variety of animals into Canada for commercial or other purposes, and therefore has no control over the nature and extent of the losses that could be claimed.
[45] In his reply, the Defendant submits that the Plaintiffs, in their proposed amended claim, state that there are other factions in the industry that have divergent interests in the importation ban which is different from their interest (see paragraph 26 d.1 of the Proposed Amended Claim). The Defendant submits that by doing so, the Plaintiffs are actually supporting his argument that the recognition of a private law duty of care to protect the private economic interests of every participant in the industry would create an untenable conflict of duties and would come at the expense of animal health. The Defendant refers to Bow Valley Husky, paragraph 64, in which the Supreme Court stated:
“There must be something which, for policy reasons, permits the court to say this category of person can recover and that category cannot, something which justified the line being drawn at one point rather than another”.
[46] The Defendant argues that no such principled basis is disclosed in the Plaintiffs’ proposed amended claim or otherwise.
[47] The Defendant refutes the Plaintiffs’ submission that the Minister does not have any discretion to refuse import permits if he is satisfied that the conditions in subsection 160(1.1) of the HAR, as amended in 2012, have been met. The Defendant argues that these allegations amount to a claim of breach of statutory duty. He also submits that these allegations would need to be pursued through judicial review and refers to Holland and Saskatchewan Wheat Pool cited above.
2) Immunity
[48] According to the Defendant, the Plaintiffs’ claim challenges pure policy decisions which are immune from claims based on liability. Decisions of a political, social or economic nature do not give rise to a private law duty of care (see A.O Farms Inc v Canada, [2000] FCJ No 1771 [A.O Farms]). The Defendant refers to the Berg case, cited above, where the Court concluded that the complete ban imposed constituted a policy decision not giving rise to a duty of care (see para 78). Since the decision was general and not directed at a particular person and based on a broad consideration of public policy rather than facts pertaining to the individual, it was considered to have a legislative function (see Berg, cited above, at para 76).
[49] In his reply, the Defendant refutes the Plaintiffs’ allegation that the Crown’s regulatory decisions were not made in good faith. The Defendant notes that such allegations amount to a claim of misfeasance in public office or abuse of public office and the public officer allegedly responsible needs to be identified. The Defendant submits that the failure to identify the officer is fatal to the claim and relies on St. John’s Port Authority v Adventure Tours Inc, 2011 FCA 198 and Collins cited by the Plaintiffs at paragraph 33.
[50] The Defendant responds to the Plaintiffs’ claim that the regulator refused to update its honeybee pest information without the approval of the Canadian Honey Council [CHC]. The Plaintiffs allege that the CHC is dominated by certain commercial beekeeping factions at their exclusion (see paragraphs 26 c.(vi), 26 d.1 and 26 d.2 of the Proposed Amended Claim). The Defendant relies on A.O Farms, cited above, in which this Court stated that the government owes a duty to the public, but it is to the public collectively. Therefore, the remedy for someone who thinks that the duty has not been fulfilled is not before the courts but rather at the polls (see A.O Farms at para 11).
B. The Plaintiffs’ position
[51] The Plaintiffs rely on sections 3 and 23 of the Crown Liability and Proceedings Act, cited above, as the basis for their claim in negligence. They submit that the Defendant owed them a duty of care with respect to restrictions he imposed on the importation of honeybees from the US which he breached on or after January 1, 2007 and continues to do so since then. They argue that the Defendant refuses to consider or make any decisions concerning applications for US packaged honeybee imports, imposing a de facto honeybee package prohibition. They also allege that Defendant knew or ought to have known that his negligence and the improper continuation of the prohibition would cause losses and damages to the Plaintiffs who relied on package imports to sustain and grow their beekeeping operations and business (see the Plaintiffs’ Statement of Claim of December 28, 2012, para 29).
[52] The Plaintiffs argue that if the Court decides to strike a pleading, it must determine whether said pleading may be cured by granting leave to the responding party to amend the pleadings (see Simon, cited above, at para 14). Leave to amend must be given unless the defect cannot be cured by amendment (see Collins, cited above, at para 26).
i. Claim for acting without lawful authority
[53] In their amended statement of claim, the Plaintiffs removed their allegations that the Defendant acted without lawful authority.
ii. Claim in negligence
Analogous cases
[54] The Plaintiffs submit that there are analogous categories of cases in which a duty of care has been identified. They rely on the Adams case, cited above, at paragraphs 43 to 44 in which the New Brunswick Court of Appeal concluded that the Federal Crown owed a prima facie duty of care to New Brunswick potato farmers based on the Plant Protection Act. They claim that the RIASs express an equivalent legislative intent; therefore it should suffice to establish a duty of care.
[55] The Plaintiffs refer to the Sauer case, cited above, in which public representations were made by the Crown with regards to protecting the economic interests of Ontario cattle farmers thereby establishing a prima facie duty of care. They submit that in the present case, the representations made by the Crown and its conduct provides a stronger basis for concluding that the Crown owed them such a duty. They also refute the Defendant’s argument claiming that the Court of Appeal in Taylor, cited above, appears to have retreated from Sauer. They argue that the Court did not overrule Sauer, but rather clarified that it does not accept the proposition that the Crown’s duty of care can be based “entirely on a regulator’s public acknowledgment of its public duties to those affected by its actions”. However, the Court found that they can form part of the “factual matrix” (see Taylor at paras 94 to 97).
[56] The Plaintiffs also respond to the Defendant’s allegation that their relationship with the Crown was more akin to that between the parties in Berg, River Valley and Los Angeles Salad Company. They argue that all three cases are negligent inspection cases which involve substantially different considerations. The Court, in these cases, found that the regulator had an overarching duty which conflicted with a duty to protect the economic interests of the producers being inspected (see Berg at para 76; River Valley at para 67; Los Angeles Salad Company at para 55). The Plaintiffs argue that in the present instance, the stated purpose of the statutory scheme and the interactions between the parties demonstrate that the Defendant’s duty in regulating honeybee imports was the protection of commercial beekeepers’ interests. This duty was, at times, superseded by the interest of the commercial beekeeping industry as a whole, but that “any interest of the public in factors relating to the bees are secondary in nature” (see Plaintiffs’ motion record at page 22).
[57] The Plaintiffs also submit that there is no statutory immunity provision that protects the Defendant from refusing or failing to implement his own statutory scheme, or acting for improper purposes outside of the statutory scheme. They conclude that even if the Court found that the HAA and HAR impose a general duty to act in the public interest; this would not conflict with the duty to regulate honeybee imports in the interests of commercial beekeepers and the ind