On September 4, 2026, in Paradis Honey Ltd. v Canada, 2026 FCA 150, the Federal Court of Appeal upheld the Federal Court's determination that the Canadian Food Inspection Agency (CFIA) did not owe a private law duty of care to the appellants, commercial beekeepers, because neither the regulatory scheme under the Health of Animals Act (the Act) nor the interactions between the parties created sufficient proximity.
Regulators acting in accordance with broad public purpose legislation will not likely be found to owe a duty of care to a regulated person, unless that person can clearly show that their relationship with the regulator is more direct than that of other members of the public who might be affected by the regulator's exercise of its powers.
Overview of the Case and Procedural History
In 2012, the appellants commenced a class action against the federal government (Canada) seeking compensation for economic losses they claimed to have suffered as a result of a de facto prohibition on the importation of honeybee packages (i.e., a small colony of bees) from the continental United States (the Prohibition).
Honeybee packages allow beekeepers to quickly replace bee colonies lost to cold winter temperatures. Alternative means of colony replacement, such as importing individual queen bees, are more time-consuming and expensive. The Prohibition was originally enacted through the Act and the Honeybee Importation Prohibition Regulations (HIPR) in response to the threat of varroa mites which were prevalent in and detrimental to American bee colonies. The HIPR expired in 2006; however, the CFIA has and continues to refuse to grant permits for the importation of honeybee packages. The importation of individual queen bees is permitted as they are hand-picked and can be individually inspected for overall health and the presence of pests.
This case is no stranger to the courts. Prior to certification, Canada brought a motion to strike the negligence claim, arguing that it was not a proper cause of action. In 2015, this motion was dismissed by the Federal Court of Appeal who found that it was not "plain and obvious" that the claims for negligence would fail. In that decision, the Federal Court of Appeal set a new framework for determining the liability of public authorities, holding that when assessing the liability of public authorities, principles of public law apply, specifically the principles of judicial review.
The Federal Court certified nine common issues for the class of honeybee keepers who kept more than 50 bee colonies for commercial purpose and these issues were heard on their merits in 2024. The Federal Court ultimately concluded that the negligence claim was not supported as the CFIA did not owe the class of commercial beekeepers a duty of care. The Federal Court of Appeal unanimously agreed.
Duty of Care Analysis
In order to succeed on a claim of negligence, a plaintiff must first establish that a duty of care was owed to it by the defendant. There are certain established categories of relationships between a plaintiff and defendant that are generally recognized by the courts as creating a duty of care. If the relationship between the plaintiff and defendant does not fall into one of those recognized categories, such as the relationship between the regulator and beekeepers seen here, then the court must determine whether a novel duty of care exists through application of the two-part Anns/Cooper test, which considers:
- whether the harm was a reasonably foreseeable consequence of the defendant's conduct and whether there is a relationship of proximity in which the failure to take reasonable care might foreseeably cause loss or harm to the plaintiff; and
- whether there are residual policy concerns outside the parties’ relationship that should negate the prima facie duty of care.
This case ultimately turned on proximity. Canada did not substantively challenge the claim that the CFIA was aware that continuing to prohibit import of honeybee packages could harm commercial beekeepers, and the Federal Court accepted that foreseeability was established.
At trial, the Federal Court found that the beekeepers failed to demonstrate that they had a sufficiently proximate relationship with the CFIA to establish a duty of care for two reasons, thereby finding that the first part of the Anns/Cooper test was not met:
- The purpose of the Act and the regulations promulgated under it is to enable the federal government to protect the health of Canadian animals. Nothing in either the Act or the Health of Animals Regulations suggests that a second purpose is to protect the economic interests of individual farmers. Therefore, the legislative scheme did not give rise to, and implicitly foreclosed, a private law duty of care.
- Despite the 20+ years of interactions between the beekeepers and the CFIA, the CFIA did not enter into a special relationship with the beekeepers that was sufficient to establish proximity for a duty of care to arise. The relationship between the beekeepers and the CFIA was within the range of expected interactions between a regulated party and a regulator.
While this conclusion may have ended any further analysis, the Federal Court proceeded to consider the second stage of the Anns/Cooper test, namely, to assess, if the relationship were sufficiently proximate, whether there were policy reasons why a duty of care should not be found. The Federal Court considered the factors set out by the Supreme Court of Canada in the case of Marchi, the issue of indeterminacy, the potential chilling effect on regulatory consultation, and the conflict between the overarching public purpose of the legislative scheme and the proposed purpose of protecting individuals' economic interests, finding that these all favoured negating any potential duty of care.
The Federal Court of Appeal agreed with the reasoning of the lower court with respect to its conclusion that proximity and, therefore, a duty of care, had not been established. It did not agree, however, that the Act implicitly foreclosed a finding of proximity based on specific conduct and interactions. The Federal Court of Appeal expressly refrained from commenting on the Federal Court's finding in the second stage of the Anns/Cooper analysis that the decision‑making surrounding the maintenance or enforcement of the de facto prohibition on the importation of US honeybee packages was a matter of policy and should be shielded from liability.
As of the date of posting, no application for leave to appeal to the Supreme Court of Canada has been filed by the appellants. Under the Supreme Court Act, the appellants have 60 days from the decision to file such a notice.
Key Takeaways
- Regulators may still have a duty of care to members of a regulated industry, though the proximity threshold is high. The Federal Court of Appeal is clear that this case should not be taken to mean that regulators will never owe a duty of care to the members of a regulated industry. This analysis will continue to be based on a case-by-case application of the Anns/Cooper test. However, this case does confirm that one of the key factors in determining regulatory liability under private duties of care will be, "whether the facts point to a relationship with the regulated industry that is more direct than the relationship between the regulator and other members of the public who might be affected by the exercise of those regulatory powers" [emphasis added].
- Consultations do not automatically create proximity. The Federal Court of Appeal drew a clear line between routine regulatory consultation and the kind of specific, direct interactions that might ground a private law duty of care. Engagement by regulators with stakeholders through consultation will not on its own transform the regulator-industry relationship into one capable of supporting a private duty of care.
- Broad public purpose statutes resist private duties of care. The Federal Court of Appeal reaffirmed that statutes aimed at protecting the public good, such as the Act, will "rarely give rise to coexistent private duties of care to a particular segment of the population". The legislative scheme of the Act does not, expressly or by implication, protect the economic interests of individual beekeepers.
Conclusion
Paradis helpfully consolidates the jurisprudence on when a regulator may owe a private duty of care to the individuals it regulates and confirms that there is a high bar to clear in proving the proximity requirement in the Anns/Cooper analysis when the alleged negligent party is a regulator acting in accordance with its mandate.
Bennett Jones’ Food & Agribusiness group stays at the forefront of legal and regulatory developments affecting Canada’s food and agribusiness sector. Our team works with businesses across the industry to help them understand emerging developments, navigate evolving challenges and identify opportunities for growth.
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.
[View Source]
