Cervinus Inc. v. Canada (Minister of Agriculture)
2002 FCA 398, Noël J.A., Linden J.A. dissenting in part
Appeal of two Trial Division decisions allowing actions for damages against Queen as represented by Minister of Agriculture--Trial Judge finding Queen liable for some damages on basis of negligent acts of servants--Issue decision under Health of Animals Act (Act), s. 18(1)(b) ordering removal of deer herds imported from New Zealand by respondents on basis herds could have Elaphostrongylus cervi (E-cervi)--As costs of transport much too high, herds destroyed, respondents alleging decisions ordering deer removal negligent--Trial Judge concluding removal of herds unlawful as decision made on unreasonable grounds and result of reckless, negligent decision making--Orders based on finding of spiny larvae in deer prior to conducting necropsy--Trial Judge failing to consider import permits and protocol providing herds could be destroyed if any animal tested spiny larvae-positive--Trial Judge misconstruing terms of protocol--Internal departmental memorandum (Memorandum) stating if high percentage of herd tested positive for E-cervi, herd would be destroyed--Trial Judge erroneously concluding Memorandum part of protocol-- Relevance of import permits and protocol stemming from authorization of Minister, by Act, s. 14, to make regulations prohibiting importation of animals and Barnett v. Canada (Minister of Agriculture and Agri-Food) (1996), 208 N.R. 69 (F.C.A.), stating breach of conditions of permit breach of Regulations--Statute and protocol allowing Minister to order imported deer disposed of without compensating owner-- Minister, servants neither breaching standard of care owed respondents nor acting negligently-- Pursuant to Act, s. 18(1)(a), when one or more animals testing spiny larvae-positive, herds subject to lawful removal, foreclosing finding negligence--Protocol not limiting power of Minister to order destruction of only those deer testing positive-- Protocol not modified by Memorandum--Trial Judge's decision ignoring terms of protocol, statutory standards and misconstruing standard of care in holding Minister could not order removal of herds without first using necropsy--Act, s. 18(1)(b) requiring reasonable belief animals were or could be affected not requiring necropsy--That approach espoused by Memorandum neither "fair" nor "reasonable" not reason to deny winning party costs--Appeal allowed, actions dismissed with costs--Dissent on costs issue--Dissent finding Memorandum misled respondents and insurers as to risk involved--Dissent finding confusion and uncertainty created by Memorandum sufficient to disallow costs award--Health of Animals Act, S.C. 1990, c. 21, ss. 14, 18(1)(a), (b).