Canada: Agricultural Law NetLetter - Thursday, May 7, 2015 - Issue 323

** HIGHLIGHTS ** *

A Justice of the Alberta Court of Appeal has held that a secured creditor (Farm Credit Canada) was entitled to recover its contractual solicitor and client costs, as well as the principal and interest owed on its secured debt, from the sale proceeds of secured hogs, in priority to the claim of another secured creditor. (Champion Feed Services Ltd. v Hospers, CALN/2015-011, [2015] A.J. No. 422, Alberta Court of Queen's Bench)

A majority decision of the Federal Court of Appeal has allowed a number of Canadian beekeepers to proceed with a class action against the Federal Government for $200 million. The beekeepers alleged that a blanket policy implemented by the Minister of Agriculture to prohibit the importation of "packages" of bees from the United States was illegal and that the Minister of Agriculture and the CFIA owed a duty of care to consider import permits on an individual basis, as required by the Regulations under the Health of Animals Act, rather than relying on the Minister's blanket policy. (Paradis Honey Ltd. v. Canada (Attorney General), CALN/2015-012, [2015] F.C.J. No. 399, Federal Court of Appeal)

** NEW CASE LAW **

Champion Feed Services Ltd. v Hospers; CALN/2015-011, Full text: [2015] A.J. No. 422; 2015 ABQB 259, Alberta Court of Queen's Bench, T.D. Clackson J., April 17, 2015.

Secured Creditors -- Security for Contractual Solicitor and Client Costs.

A Justice of the Alberta Court of Queen's Bench had previously found that Farm Credit Canada ("FCC") had priority over a feed supplier, Champion Feed Services Ltd. ("Champion") to the proceeds from the sale of the hogs from their debtor, David Hospers (2014, ABQB 410) CALN/2014-030, [2014] A.J. No. 914.

FCC applied for an Order allowing it to recover its contractual solicitor and client costs from the sale proceeds.

Decision: Clackson, J. held [at para. 3 and 6] that FCC was entitled to be paid its contractual solicitor and client costs out of the sale proceeds by virtue of its Security Agreement with Hospers. FCC's claim to priority for the costs followed from its priority for the rest of its claim [at para. 4].

Paradis Honey Ltd. v. Canada (Attorney General); CALN/2015-012, Full text: [2015] F.C.J. No. 399; 2015 FCA 89, Federal Court of Appeal, Nadon, Pelletier and Stratas JJ.A., April 8, 2015.

Health of Animals Act -- Importation of Animals into Canada -- Liability of the Minister of Agriculture and the CFIA.

A group of commercial beekeepers (the "Beekeepers") sought leave to bring a class action against Her Majesty the Queen, the Minister of Agriculture and Agri-Food (the "Minister") and the Canadian Food Inspection Agency (the "CFIA").

Canadian Beekeepers make up their winter losses by importing new bees. New bees are either imported as a "package", which is a cereal box size container holding a small colony, including a Queen, or as a Queen in a matchbox size container holding a Queen bee and a few attendant bees. It is more efficient to replace an existing colony with a package rather than importing a Queen bee, as importing a Queen bee requires more inputs and carries more risk.

Section 14 of the Health of Animals Act, S.C. 1990, c. 21 (the "Act") authorizes the Minister of Agriculture to make regulations prohibiting the importation of animals and things into Canada. It provides:

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.

In the absence of a specific regulation, s. 160 of the Health of Animals Regulations (the "Regulations") allows applicants to seek permits or licenses to import animals and things. Section 160 of the Regulations provides:

160(1)

Any application for a permit or licence required under these Regulations shall be in a form approved by the Minister.

(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 where 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, or spread within Canada, of a vector, disease or toxic substance.

Between the late 1990's and December 31, 2006, the Minister of Agriculture made a series of Regulations prohibiting the importation of honey bees into Canada for various periods of time. These prohibitions were designed to prevent the spread in Canada of the tracheal mite bee pest. These Regulations prohibited the importation of "packages" but not the importation of "Queens". This Regulation expired at the end of 2006 and was not replaced.

The CFIA continued to allow "Queens" to be issued pursuant to permits issued under s. 160 of the Regulations. Instead of making a new regulation dealing with the importation of "packages" the Minister adopted a policy that no permits would be issued for the importation of "packages".

The Beekeepers commenced an action alleging that the Minister's policy with respect to packages constituted "a defacto Ministerial Order or directive for which there was no lawful authority".

The Beekeepers also alleged that the Minister and the CFIA owed them a duty of care with respect to the importation of bees from the United States which arose, among other things, from the statutory scheme; that this duty of care was breached, and that the Beekeepers had sustained damages as a result in the sum of $200 million.

A Federal Court Judge granted the application of the Minister and the CFIA to strike the claim on the grounds that they owed no duty of care to the Beekeepers.

The Beekeepers appealed to the Federal Court of Appeal.

Decision: Stratas, J.A., Nadon, J.A. concurring and Pelletier, J.A. dissenting, allowed the Beekeepers' appeal at para. 154.

Stratas, J.A. concluded that the allegations as alleged in the Beekeepers' Statement of Claim, together with proposed amendments, must be accepted as being true, and if true, supported both a claim in negligence and bad faith [at para. 77].

Stratas, J.A. concluded [at para. 88 to 90] that the pleadings disclosed conduct and interactions supporting the relationship of proximity and that the legislation did not foreclose a finding of proximity.

Stratas, J.A. considered whether there was a policy bar to the duty of care, having regard to the fact that the Minister and the CFIA maintained it had a public duty to protect beekeepers from disease [at para. 92].

Stratas, J.A. rejected the notion that there is a public policy bar [at para. 94], observing, among other things:

- Section 160 of the Health of Animals Regulations provide that permits "shall" be granted on a case by case basis. This provision favours a public

duty to consider importation applications in certain cases [at para. 95].

- The Minister could have exercised his jurisdiction to consider permits on a case by case basis rather than setting a blanket policy [at para. 99].

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions