The Supreme Court of Canada's latest pronouncement on
government liability for negligence has muddied the waters. It is
now more difficult than ever to determine whether particular
government conduct falls within the protected realm of policy,
foreclosing any negligence claim.
R. v. Imperial Tobacco Canada Ltd., 2011
SCC 42 arose from two lawsuits against tobacco companies
alleging wrongful conduct towards smokers in British Columbia. A
central plank of the lawsuits was that the tobacco companies
communicated to smokers that low-tar cigarettes were safer than
regular cigarettes when they allegedly were not.
While denying the allegations against them, the tobacco
companies made third-party claims against the government of Canada.
The companies alleged that Health Canada had told them, and
smokers, that low-tar cigarettes were safer and had urged smokers
to switch to those cigarettes. It had also told the companies when
and how to warn smokers about the risks of smoking. For its part,
Agriculture Canada had designed, manufactured, promoted and
licensed new breeds of tobacco for use in low-tar cigarettes.
The federal government moved to strike the third-party claims on
the basis that they had no reasonable prospect of success. On
appeal, one major question for the Supreme Court was whether the
third-party claims attacked policy decisions. Since Kamloops v.
Nielsen,  2 S.C.R. 2, the law in Canada's common law
provinces has been that the government owes no duty of care with
respect to policy decisions, but that the implementation of those
decisions – so-called operational conduct – is
actionable, if not done with reasonable care.
Writing for the court, Chief Justice McLachlin began by
describing the "elusiveness of a workable test" for
identifying policy decisions. After reviewing jurisprudence from
the United Kingdom, Australia and the United States, the Chief
Justice defined policy decisions as "decisions as to a course
or principle of action that are based on public policy
considerations, such as economic, social and political factors,
provided they are neither irrational nor taken in bad
Applying that definition to the third-party claims, the Chief
Justice said it was plain and obvious that the government had, out
of concern for the health of Canadians and the costs associated
with tobacco-related disease, made a policy decision to encourage
smokers to switch to low-tar cigarettes. Since the government's
impugned conduct was all "part and parcel of,"
"integral to" or "relate[d] to" that policy
decision, none of it was actionable in negligence.
McCarthy Tétrault Notes
On its own, Imperial Tobacco's new definition of
policy decisions is nothing remarkable; more than two decades ago,
in Just v. British Columbia,  2 S.C.R. 1228, the
Supreme Court similarly endorsed the view that policy decisions
"involve or are dictated by financial, economic, social or
political factors or constraints."
However, by situating all of the government's impugned
conduct within the policy realm, Imperial Tobacco blurs
the scope of the government's immunity for negligence.
It may be plausible to describe a high-level government strategy
to reduce the risks of smoking as a policy decision driven by on
the one hand, concerns about health and, on the other, societal
acceptance of smoking's risks, and the importance of taxes on
cigarettes to the public purse. However, it is doubtful that the
choice to promote low-tar cigarettes to implement this strategy was
itself public policy. It seems more likely that this choice was
driven by scientific and expert judgments as to the health
qualities of those cigarettes and their palatability to smokers.
Under Just, the choice would have been operational conduct
and subject to a duty of care.
It is also a significant development to treat government conduct
as immune from liability in tort to the extent that it is part and
parcel of, integral to or related to a policy decision. As a result
of this development, the viability of a negligence claim against
government may no longer depend on the old distinction between
policy and its implementation. The central debate may now concern
the strength of the link between policy and the government conduct
In light of Imperial Tobacco, parties who wish to sue
the government, for negligence in the absence of clear
irrationality or bad faith will need to closely consider whether
the government conduct in question is a policy decision or perhaps
just integral to one. They must be prepared to deal with increased
uncertainty in the event that they bring suit.
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In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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