Adams v. Borrel,

• Jurisdiction: New Brunswick
• Judge: Daigle, Deschênes and Robertson, JJ.A.
• Neutral Citation: 2008 NBCA 62
• Citation: 2008 NBCA 62,(2008), 336 N.B.R.(2d) 223 (CA),336 NBR (2d) 223,297 DLR (4th) 400,60 CCLT (3d) 161,[2008] CarswellNB 424,[2008] NBJ No 327 (QL),169 ACWS (3d) 916,(2008), 336 NBR(2d) 223 (CA),336 N.B.R.(2d) 223,297 D.L.R. (4th) 400,[2008] N.B.J. No 327 (QL),336 NBR(2d) 223
• Date: 18 September 2008
• Court: Court of Appeal (New Brunswick)

Adams v. Borrel (2008), 336 N.B.R.(2d) 223 (CA);

    336 R.N.-B.(2e) 223; 862 A.P.R. 223

MLB headnote and full text

Sommaire et texte intégral

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2008] N.B.R.(2d) TBEd. SE.034

Renvoi temp.: [2008] N.B.R.(2d) TBEd. SE.034

Brian Adams et al. (Les Fermes Gervais Inc., François Ouellette, Ouellette Seed Farm Ltd., and Albright Farms Ltd.) (plaintiffs/appellants) v. Ben Borrel, John MacDonald and the Attorney General of Canada (defendants/respondents)

(52/07/CA; 2008 NBCA 62)

Indexed As: Adams et al. v. Borrel et al.

Répertorié: Adams et al. v. Borrel et al.

New Brunswick Court of Appeal

Daigle, Deschênes and Robertson, JJ.A.

September 18, 2008.

Summary:

Résumé:

The plaintiffs were potato growers in northwestern New Brunswick. They alleged that they suffered losses and damage in 1990, 1991 and 1992, because of the federal government's (AgCan's) negligence in relation to an infestation of PVYn virus. By agreement of the parties, the trial proceeded in respect of four of the named plaintiffs ("the plaintiffs").

The New Brunswick Court of Queen's Bench, Trial Division, in a decision reported at 318 N.B.R.(2d) 3; 821 A.P.R. 3, dismissed the action. The court held that all of AgCan's impugned actions qualified as "policy" and not "operational" decisions and, therefore, any prima facie duty of care that existed between the parties was negated such that the federal government was immune from liability. Alternatively, none of AgCan's impugned conduct qualified as "negligence". The court declined the invitation to make a provisional assessment of damages, noting only that it preferred the "loss analysis" of the plaintiffs' experts. The plaintiffs appealed.

The New Brunswick Court of Appeal allowed the appeal in part. The court held that AgCan owed the plaintiffs a prima facie duty of care to conduct a timely investigation with respect to identifying the source of the virus. Further, that duty was not negated either by overriding policy considerations (such as unlimited liability to an unlimited class), or by the application of the policy/operational dichotomy. Correlatively, AgCan breached the applicable standard of care and was liable in damages. The court remitted the assessment of damages to the trial judge.

Courts - Topic 583

Judges - Duties - Re reasons for decisions (incl. notes) - A trial judge failed to provide sufficient reasons to permit meaningful appellate review - The New Brunswick Court of Appeal stated that "When asked to rule on whether a duty of care exists and the trial judge rules in the negative, it is incumbent on that judge to deal alternatively and fully with the issues of 'breach of the standard of care' and 'damages'. I do recognize that in some cases it may be wise to sever the issues of damages and liability because of the complexity of the task of calculating damages without knowing which of the allegations of negligence will be sustained and why. This eliminates the need for expert witnesses to prepare a series of financial opinions based on a series of assumptions. But for this exception, and subject to what the parties may agree to, the trial judge has no choice but to deal with all of the alternative issues in order to permit meaningful appellate review in the event the finding on the duty of care issue is reversed on appeal." - See paragraph 25.

Courts - Topic 599

Judges - Duties - Duty to render judgment within reasonable time - A trial judge failed to deliver her reasons within six months of the trial as provided for by s. 7.2 of the Judicature Act - The New Brunswick Court of Appeal stated that while Queen's Bench judges had the right to ask for an extension of time from the Chief Justice of that court, by implication, the request had to be made before the expiration of the six months - If the extension was granted the Chief Justice might also relieve the judge of his or her other judicial duties until the judgment was completed - See paragraph 20.

Courts - Topic 599

Judges - Duties - Duty to render judgment within reasonable time - A trial judge failed to deliver her reasons within six months of the trial as provided for by s. 7.2 of the Judicature Act - While the trial judge had the right to ask the Chief Justice of the Queen's Bench for an extension, there was no evidence that she had requested or been granted one - Over 20 months had elapsed between the receipt of post-trial submissions and her reasons - On appeal, the plaintiffs submitted that while deference was owed to a trial judge's findings of fact, any presumption of deference was "weakened" by the delay in rendering judgment, the trial judge's failure to deal with certain issues as pleaded and argued, and continuing confusion over certain factual issues - Moreover, the plaintiffs pointed out that the 18 week trial was conducted over 16 months - Thus, it took nearly three years to go from trial to judgment - The New Brunswick Court of Appeal stated that the applicable standard of review should not be tied to the length of the delay in rendering reasons for judgment - If the delay led to memory lapses, misunderstandings or confusion, those failings would be reflected in the trial judge's analysis or lack thereof - See paragraphs 20 and 21.

Crown - Topic 1563

Torts by and against Crown - Negligence by Crown - Breach of statutory duty - The plaintiffs were potato growers in northwestern New Brunswick - They alleged that they suffered losses and damage in 1990, 1991 and 1992, because of the federal government's (AgCan's) negligence in relation to an infestation of PVYn virus - On appeal, the New Brunswick Court of Appeal stated that if one turned to the legislative framework from which AgCan derived its mandate, notably s. 2 of the Plant Protection Act, its statutory obligation was clear: "... to protect plant life and the agricultural ... [sector] of the Canadian economy by preventing ... the spread of pests" through the adoption of either control or eradication measures - The court held that AgCan owed the plaintiffs a prima facie duty of care to conduct a timely investigation with respect to identifying the source of the virus - Further, that duty was not negated either by overriding policy considerations (such as unlimited liability to an unlimited class), or by the application of the policy/operational dichotomy - Correlatively, AgCan breached the applicable standard of care and was liable in damages - See paragraphs 26 to 70.

Crown - Topic 1566.1

Torts by and against Crown - Negligence by Crown - Negligent agricultural disease control - [See Crown - Topic 1563 ].

Crown - Topic 1566.1

Torts by and against Crown - Negligence by Crown - Negligent agricultural disease control - The plaintiffs were potato growers in northwestern New Brunswick - They alleged that they suffered losses and damage in 1990, 1991 and 1992, because of the federal government's (AgCan's) negligence in relation to an infestation of PVYn virus - The plaintiffs claimed, inter alia, that AgCan owed them a duty of care and breached that duty by adopting a "bioassay testing protocol" that led to a "misdiagnosis" of the presence of the virus in seed potatoes being tested (false positives) - The plaintiffs alleged false positives caused AgCan to abandon its 1991 Plan and replace it with the 1992 Plan, which did not provide for compensation to affected farmers and adopted buffer zones of up to five kilometres rather than the 200-metre zone found in the 1991 Plan - On appeal, the New Brunswick Court of Appeal held, inter alia, that AgCan owed the plaintiffs a prima facie duty of care respecting negligent testing, but it was negated by valid policy considerations - The court stated that "the day has not come where the law should recognize that government actors are liable for the formulation and implementation of discretionary policy decisions that are based in whole or in part on inaccurate information gathered in a negligent manner" - This was a case in which the government changed its mind about paying compensation in circumstances where it was under no duty to provide compensation - See paragraphs 71 to 74.

Crown - Topic 1567

Torts by and against Crown - Negligence by Crown - Negligent investigation (incl. preparation of reports, criminal prosecutions, etc.) - [See Crown - Topic 1563 ].

Crown - Topic 1645

Torts by and against Crown - Actions against Crown - Defences, bars or exclusions - Policies or "policy" decisions - [See Crown - Topic 1563 ].

Crown - Topic 1645

Torts by and against Crown - Actions against Crown - Defences, bars or exclusions - Policies or "policy" decisions - The plaintiffs were potato growers in northwestern New Brunswick - They alleged that they suffered losses and damage in 1990, 1991 and 1992, because of the federal government's (AgCan's) negligence in relation to an infestation of PVYn virus - The plaintiffs claimed, inter alia, that AgCan owed them a duty of care and breached that duty by adopting a "bioassay testing protocol" that led to a "misdiagnosis" of the presence of the virus in seed potatoes being tested (false positives) - On appeal, the New Brunswick Court of Appeal held that AgCan owed the plaintiffs a prima facie duty of care respecting negligent testing - Respecting whether or not that duty was negated by policy considerations, the trial judge had found that the "bioassay protocol" had been accepted by a Bi-National Panel (representatives of AgCan and the United States Department of Agriculture) - The court found that the evidence did not support that finding - Alternatively, even if the Panel had given formal approval to the testing protocol, the court was not persuaded that such a decision would qualify as a policy decision of the kind that could immunize AgCan from liability - See paragraph 72.

Crown - Topic 1645

Torts by and against Crown - Actions against Crown - Defences, bars or exclusions - Policies or "policy" decisions - The New Brunswick Court of Appeal stated that "the day has not come where the law should recognize that government actors are liable for the formulation and implementation of discretionary policy decisions that are based in whole or in part on inaccurate information gathered in a negligent manner. Taken to its logical conclusion, this proposition gives resonance to the notion of unlimited liability to an unlimited class. In my view, recognition of a private law duty of care in cases of negligent information-gathering is simply too unwieldy. Too many government decisions are based on information that is later proven to have been conceived in error. Until today, no one has suggested that government authorities should be held accountable in negligence because a discretionary decision to adopt a solution to a pressing problem is infused with factual error." - See paragraph 74.

Crown - Topic 1646

Torts by and against Crown - Actions against Crown - Defences, bars or exclusions - Statutory authority - The New Brunswick Court of Appeal stated that misinterpretation of a statute as to one's authority is not an actionable tort unless grounded in the tort of "misfeasance in office" - The court stated that, at the very least, the plaintiff would have to plead negligent misinterpretation and it was difficult to see how one would go about establishing such an allegation - The court stated that misinterpretation of a statutory provision as to the scope of one's authority did not give rise to actionable negligence unless it could be shown that the government failed to exercise due care in the interpretive process - See paragraphs 78 and 82.

Damages - Topic 531

Limits of compensatory damages - Remoteness - Torts - Recoverable damages - Purely economic loss - The plaintiffs were seed potato growers in northwestern New Brunswick - They alleged that they suffered losses and damage in 1990, 1991 and 1992, because of the federal government's (AgCan's) negligence in relation to an infestation of PVYn virus - The virus was ultimately found to have originated from Prince Edward Island seed potatoes - On appeal, the New Brunswick Court of Appeal held that AgCan was liable for failing to pursue a timely investigation into the source of the virus, and as the trial judge had made no provisional assessment, the issue of damages had to be remitted to her - However, the court made the following comments - As the plaintiffs would not have purchased and planted infested seed potatoes but for AgCan's negligence, they were entitled to damages tied to the 1990 crop year - The issue of causation related to the 1991 and 1992 crops was to be decided by the trial judge, as were the applicability of the statutory bar in s. 9 of the Crown Liability and Proceedings Act and failure to mitigate - However, the court addressed the issue of pure economic loss - The court found three types of pure economic loss in this case, being i) the loss sustained by seed potato farmers when the United States closed the border to Canadian imports for about three weeks in February of 1991; ii) the loss sustained by New Brunswick potato farmers from the spillover effect when the Prince Edward Island potatoes, no longer exportable, were diverted into New Brunswick's non-seed potato markets; and iii) the loss suffered by New Brunswick seed potato farmers who had to dispose of their potatoes in the same markets - The court held that all three types were clearly recoverable - See paragraphs 66 to 70.

Practice - Topic 5205.2

Trials - General - Provisional assessment of damages where no liability found - [See Courts - Topic 583 ].

Practice - Topic 8800.2

Appeals - General principles - Duty of appellate court regarding findings of law - The plaintiffs were potato growers in northwestern New Brunswick - They alleged that they suffered losses and damage in 1990, 1991 and 1992, because of the federal government's (AgCan's) negligence in relation to an infestation of PVYn virus - The trial judge dismissed the action - First, she held that all of AgCan's impugned actions qualified as "policy", not "operational" decisions - Therefore, any prima facie duty of care that existed between the parties was negated making the federal government immune from liability - Alternatively, none of AgCan's impugned conduct qualified as "negligence" - The New Brunswick Court of Appeal held that the trial judge's determinations respecting whether AgCan owed the plaintiffs a prima facie duty of care and whether that duty was negated by policy considerations such as indeterminate liability to an indeterminate class, were largely questions of law for which the applicable review standard was correctness - The court was in as good a position as the trial judge to rule on whether the government was immune from liability for a particular decision or action - See paragraph 22.

Practice - Topic 8807

Appeals - General principles - Duty of appellate court regarding inferences and inferences from truthful evidence - The plaintiffs were potato growers in northwestern New Brunswick - They alleged that they suffered losses and damage in 1990, 1991 and 1992, because of the federal government's (AgCan's) negligence in relation to an infestation of PVYn virus - The trial judge dismissed the action - First, she held that all of AgCan's impugned actions qualified as "policy", not "operational" decisions - Therefore, any prima facie duty of care that existed as between the parties was negated such that the federal government was immune from liability - Alternatively, none of AgCan's impugned conduct qualified as "negligence" - The New Brunswick Court of Appeal stated that normally deference on the review standard of palpable and overriding error was owed to inferences drawn by trial judges' secondary findings of fact or conclusions of law (such as a finding that there was no negligence) - However, as the trial judge's analysis was not tied to specific allegations of negligence, there was no way to determine whether her reasons were infused with palpable and overriding error, and that standard could not be applied - See paragraph 22.

Practice - Topic 8817

Appeals - General principles - Duty of appellate court where trial judge fails to give or gives inadequate reasons for judgment - [See second Courts - Topic 599 and Practice - Topic 8807 ].

Practice - Topic 8817

Appeals - General principles - Duty of appellate court where trial judge fails to give or gives inadequate reasons for judgment - The New Brunswick Court of Appeal stated that in criminal cases, the failure to provide sufficient reasons to permit meaningful appellate review might result in a new trial - That option was also available in civil cases, but was less favoured because the cost of relitigation fell on the parties, and not the public purse - The court stated that the option of ordering a new trial within the civil context was one of last resort - See paragraph 23.

Practice - Topic 8817

Appeals - General principles - Duty of appellate court where trial judge fails to give or gives inadequate reasons for judgment - A trial judge failed to provide sufficient reasons to permit meaningful appellate review - The New Brunswick Court of Appeal stated that while a new trial might be appropriate in other circumstances, here both sides had expended considerable time and expense in pursuing an 18 week trial and it would be unfair to ask them to relitigate - In any event, neither side had sought such an order - Accordingly, the court could: i) remit the matter to the trial judge with directions to provide a complete set of reasons that dealt fairly with the issues that were properly pleaded and argued; or ii) itself reevaluate and reweigh the evidence together with any accepted findings of fact - The court held that meaningful appellate review was possible and, therefore, the option of remitting the matter to the trial judge for a fuller set of reasons was unwarranted - The parties' initial and supplemental submissions had canvassed the trial record and law in a manner that permitted the court to fairly address the legal issues raised on appeal - However, the court decided to resolve issues, if possible, by isolating determinative questions of law rather than addressing questions of fact that involved conflicting testimony and some of the 32,000 documents that comprised the record below - See paragraphs 23 and 24.

Practice - Topic 8818

Appeals - General principles - Duty of appellate court to remit to trial judge - [See Damages - Topic 531 ].

Practice - Topic 9220

Appeals - New trials - General - [See second Practice - Topic 8817 ].

Practice - Topic 9228

Appeals - New trials - Grounds - Reasons for judgment insufficient - [See second Practice - Topic 8817 ].

Practice - Topic 9256

Appeals - Judgments by appeal court - Remittal to lower court - When appropriate - [See Damages - Topic 531 and third Practice - Topic 8817 ].

Torts - Topic 9162

Duty of care - Particular relationships - Claims against public officials, authorities or boards - Misfeasance in or abuse of public office - [See Crown - Topic 1646 ].

Torts - Topic 9167

Duty of care - Particular relationships - Claims against public officials, authorities or boards - Regulators (e.g., Registrar of Mortgage Brokers, Department of Motor Vehicles, Canadian Food Inspection Agency, etc.) - [See Crown - Topic 1646 ].

Couronne - Cote 1563

Délits civils par et contre la Couronne - Négligence par la Couronne - Violation d'une obligation légale - [Voir Crown - Topic 1563 ].

Couronne - Cote 1566.1

Délits civils par et contre la Couronne - Négligence par la Couronne - Négligence dans la lutte contre les maladies agricoles - [Voir Crown - Topic 1566.1 ].

Couronne - Cote 1567

Délits civils par et contre la Couronne - Négligence par la Couronne - Négligence dans les enquêtes (y compris la préparation de rapports, les poursuites pénales, etc.) - [Voir Crown - Topic 1567 ].

Couronne - Cote 1645

Délits civils par et contre la Couronne - Actions contre la Couronne - Défenses, obstacles ou exclusions - Décisions de politique générale - [Voir Crown - Topic 1645 ].

Couronne - Cote 1646

Délits civils par et contre la Couronne - Actions contre la Couronne - Défenses, obstacles ou exclusions - Autorité légale - [Voir Crown - Topic 1646 ].

Délits civils - Cote 9162

Devoir de diligence - Relations particulières - Poursuites contre les fonctionnaires, les responsables ou les organismes publics - Malfaisance ou abus relatif à une charge publique - [Voir Torts - Topic 9162 ].

Délits civils - Cote 9167

Devoir de diligence - Relations particulières - Poursuites contre les fonctionnaires, les responsables ou les organismes publics - Organismes de réglementation créés par la loi (par ex. le Régistrateur des courtiers en hypothèques) - [Voir Torts - Topic 9167 ].

Dommages-intérêts - Cote 531

Limites aux dommages-intérêts compensatoires - Éloignement - Délits civils - Dommages donnant lieu à indemnisation - Perte purement économique - [Voir Damages - Topic 531 ].

Procédure - Cote 5205.2

Procès - Généralités - Évaluation provisoire des dommages-intèrêts en l'absence d'une conclusion de responsabilité - [Voir Practice - Topic 5205.2 ].

Procédure - Cote 8800.2

Appel - Principes généraux - Devoir de la Cour d'appel relativement aux conclusions de droit - [Voir Practice - Topic 8800.2 ].

Procédure - Cote 8807

Appels - Principes généraux - Devoir de la Cour d'appel relativement aux inférences et aux inférences tirées d'une preuve véridique - [Voir Practice - Topic 8807 ].

Procédure - Cote 8817

Appels - Principes généraux - Devoir de la Cour d'appel lorsque le juge du procès ne donne pas de motifs de jugement - [Voir Practice - Topic 8817 ].

Procédure - Cote 8818

Appels - Principes généraux - Devoir de la Cour d'appel de renvoyer l'affaire au juge du procès - [Voir Practice - Topic 8818 ].

Procédure - Cote 9220

Appels - Nouveaux procès - Généralités - [Voir Practice - Topic 9220 ].

Procédure - Cote 9228

Appels - Nouveaux procès - Motifs - Insuffisance des motifs du juge du procès - [Voir Practice - Topic 9228 ].

Procédure - Cote 9256

Appels - Jugements de la Cour d'appel - Remise au tribunal de première instance - Conditions d'ouverture - [Voir Practice - Topic 9256 ].

Tribunaux - Cote 583

Juges - Devoirs - Motifs de décision (y compris notes) - [Voir Courts - Topic 583 ].

Tribunaux - Cote 599

Juges - Devoirs - Devoir de rendre jugement dans un délai raisonnable - [Voir Courts - Topic 599 ].

Cases Noticed:

H.L. v. Canada (Attorney General) et al., [2005] 1 S.C.R. 401; 333 N.R. 1; 262 Sask.R. 1; 347 W.A.C. 1; 2005 SCC 25, refd to. [para. 22].

R. v. Sheppard (C.), [2002] 1 S.C.R. 869; 284 N.R. 342; 211 Nfld. & P.E.I.R. 50; 633 A.P.R. 50; 2002 SCC 26, refd to. [para. 23].

Nova, An Alberta Corp. v. Guelph Engineering Co. et al. and Daniel Valve Co. et al. (1989), 100 A.R. 241 (C.A.), refd to. [para. 23].

Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.), refd to. [para. 34].

Murphy v. Brentwood District Council, [1991] 1 A.C. 398; 113 N.R. 81 (H.L.), refd to. [para. 34].

Nielsen v. Kamloops (City) and Hughes, [1984] 2 S.C.R. 2; 54 N.R. 1, refd to. [para. 34].

Just v. British Columbia, [1989] 2 S.C.R. 1228; 103 N.R. 1, refd to. [para. 34].

Cooper v. Hobart - see Cooper v. Registrar of Mortgage Brokers (B.C.) et al.

Cooper v. Registrar of Mortgage Brokers (B.C.) et al., [2001] 3 S.C.R. 537; 277 N.R. 113; 160 B.C.A.C. 268; 261 W.A.C. 268; 2001 SCC 79, appld. [para. 34].

Edwards et al. v. Law Society of Upper Canada et al., [2001] 3 S.C.R. 562; 277 N.R. 145; 153 O.A.C. 388; 2001 SCC 80, refd to. [para. 34].

Design Services Ltd. et al. v. Canada (2008), 374 N.R. 77; 2008 SCC 22, appld. [para. 36].

Ingles v. Tutkaluk Construction Ltd. et al., [2000] 1 S.C.R. 298; 251 N.R. 63; 130 O.A.C. 201; 2000 SCC 12, appld. [para. 41].

Brown v. British Columbia (Minister of Transportation and Highways), [1994] 1 S.C.R. 420; 164 N.R. 161; 42 B.C.A.C. 1; 67 W.A.C. 1, refd to. [para. 46].

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241, refd to. [para. 50].

R. v. J.-L.J., [2000] 2 S.C.R. 600; 261 N.R. 111; 2000 SCC 51, refd to. [para. 50].

Mustapha v. Culligan of Canada Ltd. (2008), 375 N.R. 81; 328 O.A.C. 130; 2008 SCC 27, refd to. [para. 51].

Hanke v. Resurfice Corp. et al., [2007] 1 S.C.R. 333; 357 N.R. 175; 404 A.R. 333; 394 W.A.C. 333; 2007 SCC 7, refd to. [para. 67].

Odhavji Estate et al. v. Woodhouse et al., [2003] 3 S.C.R. 263; 312 N.R. 305; 180 O.A.C. 201; 2003 SCC 69, refd to. [para. 78].

Comeau's Sea Foods Ltd. v. Canada (Minister of Fisheries and Oceans), [1995] 2 F.C. 467; 179 N.R. 241 (F.C.A.), appld. [para. 78].

Comeau's Sea Foods Ltd. v. Canada (Minister of Fisheries and Oceans), [1997] 1 S.C.R. 12; 206 N.R. 363, refd to. [para. 81].

Authors and Works Noticed:

Linden, Allen M., and Feldthusen, Bruce, Canadian Tort Law (8th Ed. 2006), c. 10 [para. 67].

Counsel:

Avocats:

John C. Friel, Q.C., and Thomas G. O'Neil, Q.C., for the appellants;

David H. Hooley, Q.C., and Edward W. Keyes, for the respondents.

This appeal was heard on February 26-28, 2008, by Daigle, Deschênes and Robertson, JJ.A., of the New Brunswick Court of Appeal. Robertson, J.A., delivered the following decision for the court in both official languages on September 18, 2008.