Court of Appeal Decision of the Week

Section 9 of the Crown Liability and Proceedings Act: What’s the Appropriate Scope of Crown Liability?

Case: Vancise v. Canada (Attorney General), 2018 ONCA 3 (CanLII)

Keywords: Proceedings Against the Crown

Synopsis:

The Appellant, John Vancise, imports four Hereford cattle from the United States. Three are infected with anaplasmosis (a disease spread by insect bites, or any instrument which can transmit blood). Once the condition is discovered, all four are returned to the United States.

Following an order made by the Respondents (the Attorney General of Canada and the Minister of Agriculture and Agri-food) designating the Appellant’s farm as an “infected place”, the original herd is quarantined. Seven of the Appellant’s cattle become infected and are ordered destroyed by the Respondents.

Pursuant to ss. 51 and 53 of the Health of Animals Act, S.C. 1990, c. 21, the Minister exercises its discretion to provide compensation to the Appellant. Compensation includes payments “with respect to treatment required” to eradicate the spread of the disease to other animals, in the amount of approximately $12,900 (the market value of the destroyed animals and associated treatment expenditures).

Citing negative effects the anaplasmosis outbreak and quarantine has on continued business with the Respondent Agriculture and Agri-Food Canada, the Appellant demands further compensation from the Canadian Government. The Respondents bring a motion for summary judgment, which the Motion Judge grants on the basis that since “compensation has been paid…in respect of the death, injury, damage or loss in respect of which the claim is made”, s. 9 of the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50 bars the Appellant’s action.

The Appellant appeals, arguing s. 9 does not apply, because his claim is not for the destruction of the cattle, but for damage to his reputation and business. The Court of Appeal does not agree, finding s. 9 operates in this case to bar the Appellant’s claims.

Importance:

This case is significant because it elucidates the meaning and purpose of s. 9 following the Supreme Court of Canada’s decision in Sarvanis v. Canada, 2002 SCC 28 (CanLII). Section 9 states:

No proceedings lie against the Crown or a servant of the Crown in respect of a claim if a pension or compensation has been paid or is payable out of the Consolidated Revenue Fund or out of any funds administered by an agency of the Crown in respect of the death, injury, damage or loss in respect of which the claim is made.

Citing Sarvanis at paras. 22-29, the Court of Appeal (Justice Paciocco writing for the Court) interpreted s. 9 to bar compensation arising from “the same factual basis as the action” (see para. 13) and quoted Iacobucci J. at para. 29 on the meaning of the section as follows:

All damages arising out of the incident which entitles the person to a pension [or compensation] will be subsumed under s. 9, so long as that pension or compensation is given “in respect of”, or on the same basis as, the identical death, injury, damage or loss. (See para. 14).

As the Court of Appeal wrote, “The reach of s. 9 is settled”. (See para. 13).

The Court of Appeal found the Appellant’s framing of the action as a damage claim for negligence (distinct from the destruction of the diseased animals and treatment of the herd), does not place this case outside the scope of s. 9:

Bluntly put, at its core the appellant’s complaint is not about the negligent importation of the diseased cattle per se, or even the allegedly negligent imposition of the involuntary quarantine measures. It is about the importation of the diseased cattle that led to the anaplasmosis outbreak on the farm, an occurrence for which the appellant has already been compensated. (See para. 15).

Citing Begg v. Canada (Minister of Agriculture), 2005 FCA 362 (CanLII), the Court of Appeal found s. 9 precludes claims for negligence in allowing diseased animals to be admitted to Canada. Since the Court of Appeal determined s. 9 of the Crown Liability and Proceedings Act operates to bar the Appellant’s claim, there was no genuine issue requiring a trial and the Motion Judge’s decision to grant summary judgment in favour of the Respondents was upheld. (See paras. 16-17).

Counsel for the Appellant: Brad Teplitsky

Counsel for the Respondents: Wendy Wright (Justice Canada, Toronto)

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Posted: Wednesday, January 10, 2018