In a two-one split decision1, the Federal Court of Appeal set aside a lower court ruling2 that had struck out a Statement of Claim as failing to disclose a cause of action in a proposed class action against the Crown. In doing so, Justice David Stratas, writing for the majority, sought to loosen the restrictions on negligence claims against the Crown, and in asurprising move, established a damages remedy in public law.
The action was launched in the Federal Court Trial Division seeking damages on behalf ofclass members who had been denied import permits for honey bee packages3 from the United States since December 31, 2006. The proposed plaintiff class was all Canadians who kept 50 or more bee hives since December 31, 2006 and who had, since that date, been denied import permits for bee packages. The claim described the various regulations that had banned the importation of bee packages from the United States from the late 1980's until December 31, 2006, when the last such regulation expired on its face. Thereafter, import permits could be obtained for either bee packages or queen bees under the Health of Animals Regulations.4 The Federal Government however had established a "guideline" prohibiting the granting of permits for bee packages. The "guidelines" were not established pursuant to any statute or regulation.
The Statement of Claim sought "damages ... in an amount equal to the losses and damages" the class members sustained as a result of the defendants "negligence" and their having acted "without lawful authority". The claim pleaded that the defendants owed the plaintiffs a duty of care, that this duty had been breached and that the defendants knew or ought to have known that their negligence and the "improper" continuation of the prohibition on imports would cause loss and damage.
Justice Pelletier, writing for the minority, accepted the lower court's finding that the plaintiffs "could not establish liability since it is settled law that a breach of statutory duty is not, in and of itself, negligence." He then turned to the issue of whether the defendants had a duty of care to the plaintiffs under the Anns v. Merton London Bureau Council5 test again accepting the lower court's analysis that the "broad purpose" of the regulatory scheme excluded any private duty of care to protect the economic interests of the plaintiffs.
Justice Stratas, writing for the majority, concluded that the facts alleged by the plaintiffs, if proven, could lead to a variety of remedies. In the context of the negligence claim, Justice Stratas found that the relationship between the Crown and the plaintiff bee keepers was sufficiently close to create a duty "at least to the extent of making rationale, evidence based decisions following proper legislative criteria." He then went on to reject the various policy arguments advanced to extinguish the duty of care finding that there was no inconsistency between the Crown's private law duty of care to the plaintiffs and its public law duty to permit imports if they would not bring disease into Canada. Justice Stratas rejected the lower court's finding that imposing a duty of care "could have" a chilling effect on the Crown's performance of its public duty finding that "could have" set the bar too low.
Finally, in the context of the negligence claim, Justice Stratas turned to the Crown's argument that decisions made under a "general public duty, government policy or core policy are protected from negligence claims" rejecting the suggestion that the Supreme Court of Canada's decision in Imperial Tobacco6 established such a hard and fast rule. Parsing the language of Imperial Tobacco, Justice Stratas found that the Supreme Court's apparent prohibition on private law attacks on decisions made as part of general public duty or policy was likely "chimerical" and that the court had provided no guidance on how to identify the type of decisions that should be protected. In the result he found that it was not plain and obvious that the plaintiffs' negligence claim would fail.
Justice Stratas then turned his attentionto whether a monetary award might be available on public law principles. Reading the pleadings generously, he found that in substance "the bee keepers allege they are victims of abusive administrative action warranting monetary relief". He acknowledged that a claim for such relief was novel but found that one could draw a line between novel claims that were based on "responsible, incremental extension[s] of legal doctrine achieved through accepted pathways of legal reasoning" and other proposed claims "divorced from doctrine, spun from settled preconceptions, ideological visions or free standing opinion about what is just, appropriate and right." Under the heading of "Seeing a better way forward", Justice Stratas writes that "despite the best efforts of the Supreme Court ... the doctrine governing the liability of public authorities remains chaotic and uncertain, with no end in sight." Rejecting the application of the private law analytical framework to public authorities, Justice Stratas found "the law of liability for public authorities should be governed by principles on the public law side of the divide, not on the private law side."
Justice Stratas reached back to two Supreme Court of Canada decisions, one a hundred years old and the other nearly fifty years old to support his conclusion that monetary damages should be available for breach of a public duty. In applying principles of administrative law, His Honour determined that where a public decision falls outside the range of acceptability or is indefensible, the court can then turn to examine what remedies should be available. Faced with the provisions of the Crown Liability and Proceedings Act that only permit actions against the Federal Crown for torts or breach of duty attaching to property, Justice Stratas found that the word tort "cannot be read as including only named torts in private law such as negligence but instead must extend to any legally – recognized fault." In the result, Justice Stratas found that it is not plain and obvious that a court, if the allegations contained in the claim were proven, would not exercise its discretion to award monetary relief.
The decision will be read by some as Justice Stratas' "throwing down the gauntlet" to the Supreme Court. Those working in Crown law offices will be left shaking their heads at what is coming next. Those who are students of legal history will no doubtbe surprised that the foundation for such a sea change in public law is to be found in a hundred year old decision involving the dismissal of a marine pilot allegedly for political reasons7 and Maurice Duplessis' notorious persecution of a Jehovah Witness supporter.8 In the words of the latter's lawyer, "I looked the sun straight in the eye. He put on dark glasses."9
 Paradis Honey et al v. Her Majesty the Queen, 2015 FCA 89.
 Paradis Honey et al v. The Attorney General of Canada, 2015 FC 215.
 A honey bee package is a package containing one live queen bee and several thousand worker bees and is to be distinguished from a queen bee who is accompanied by only a few worker bees.
 s.160, Health of Animals Regulations, C.R.C.,c.96.
 Anns v. Merton London Bureau Council,  UKHL 4.
 R v. Imperial Tobacco Canada Ltd., 2011 S.C.C. 42.
 McGillivray v. Kimber (1915), 52 S.C.R. 146.
 Roncarelli v. Duplessis (1959), S.C.R. 121.
 F.R. Scott, Eclipse.
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