Cervinus Inc. v. Canada (Minister of Agriculture), (2000) 198 F.T.R. 187 (TD)

• Judge: O'Keefe, J.
• Court: Federal Court (Canada)
• Case Date: December 20, 2000
• Jurisdiction: Canada (Federal)
• Citations: (2000), 198 F.T.R. 187 (TD)

Cervinus Inc. v. Can. (2000), 198 F.T.R. 187 (TD)

MLB headnote and full text

Temp. Cite: [2001] F.T.R. TBEd. JA.069

Cervinus Inc. (plaintiff) v. Her Majesty the Queen, in Right of Canada Represented by the Minister of Agriculture (defendant)

(T-2690-92)

Coldstream Deer Group Ltd. (plaintiff) and Her Majesty the Queen in Right of Canada Represented by the Minister of Agriculture (defendant)

(T-2691-92)

Indexed As: Cervinus Inc. v. Canada (Minister of Agriculture)

Federal Court of Canada

Trial Division

O'Keefe, J.

December 20, 2000.

Summary:

The plaintiffs, Coldstream Deer Group Ltd. and Cervinus Inc., imported Red Deer from New Zealand into Canada. Because of the fear of a viral condition known as Elaphostrongylus cervi (E. cervi), Agriculture Canada's import permits stipulated that the deer had to be quarantined in New Zealand and Canada and undergo testing for E. cervi at regular intervals, all with no evidence of spiny larvae. While the deer were quarantined in Canada, one Cervinus deer (of 235) was tested as shedding one larva and two Coldstream deer (of 285) were tested as shedding larvae. An Order to Remove was issue to both parties. Thereafter both herds were slaughtered. The plaintiffs unsuccessfully sought compensation from the Agriculture Minister under s. 51 of the Health of Animals Act. The plaintiffs commenced an action for damages against the Department of Agriculture.

The Federal Court of Canada, Trial Division, allowed the action and calculated the damages owed to each plaintiff accordingly.

Animals - Topic 2425

Diseased animals - Regulation and control - Duty of Crown - The plaintiffs commenced an action against the Minister of Agriculture for ordering the removal of over 500 Red Deer from Canada, resulting in their subsequent slaughter - In allowing the action, the Federal Court of Canada, Trial Division, reviewed s. 18 of the Health of Animals Act which gave an inspector the authority to order the removal of an animal, if he or she believed, on "reasonable grounds", that the animals were, or could be infected by a disease - See paragraphs 79 to 112.

Animals - Topic 2430

Diseased animals - Regulation and control - Imports - General - The plaintiffs, Coldstream Deer Group Ltd. and Cervinus Inc., imported Red Deer from New Zealand into Canada - Because of the fear of a viral condition known as Elaphostrongylus cervi (E. cervi), Agriculture Canada's import permits stipulated that the deer had to be quarantined in New Zealand and Canada and undergo testing for E. cervi at regular intervals, all with no evidence of spiny larvae - While the deer were quarantined in Canada, one Cervinus deer (of 235) was tested as shedding one larva and two Coldstream deer (of 285) were tested as shedding larvae - An Order to Remove was issue to both parties - Thereafter both herds were slaughtered - The plaintiffs unsuccessfully sought compensation from the Agriculture Minister under s. 51 of the Health of Animals Act - The plaintiffs commenced an action for damages against the Department of Agriculture - The Federal Court of Canada, Trial Division, allowed the action - The court held that although Agriculture Canada had reasonable grounds to believe that the three deer that actually shed larvae were, or could have been, infected by a disease pursuant to s. 18, there were no reasonable grounds for believing that the rest of the herd were, or could have been, infected with the disease - The court calculated damages owed to each plaintiff accordingly.

Animals - Topic 2431

Diseased animals - Regulation and control - Imports - Forfeiture and removal - [See Animals - Topic 2430 ].

Animals - Topic 2521

Diseased animals - Compensation - General - [See Animals - Topic 2430 ].

Crown - Topic 1561

Torts by and against Crown - Negligence by Crown - General - The Federal Court of Canada, Trial Division, outlined the principles of Crown liability as follows: "liability for damage due to a governmental act does not result if the action was valid and lawful. Even in the event that the act was unlawful, liability does not result in the absence of a specific actionable tort under which that damage can properly be characterized. It is these types of actions which would most properly be the subject of an application for judicial review. But if the government action is invalid and unlawful, and the decision was made negligently or deliberately, liability for damage under the tort of negligence can result" - See paragraphs 93 and 94.

Crown - Topic 1566.1

Torts by and against Crown - Negligence by Crown - Negligent agricultural disease control - [See Animals - Topic 2430 ].

Crown - Topic 2441

Liability of Crown arising out of the enforcement of statutes - When liable - General - [See Animals - Topic 2430 ].

Words and Phrases

Reasonable grounds - The Federal Court of Canada, Trial Division, discussed the meaning of "reasonable grounds" as used in s. 18(1) of the Health of Animals Act, S.C. 1990, c. 21 - See paragraphs 79 to 112.

Cases Noticed:

Maple Lodge Farms Ltd. v. Canada et al., [1982] 2 S.C.R. 2; 44 N.R. 354, refd to. [para. 85].

Armstrong Commercial Investigators of Canada Ltd. and Turner, Re (1975), 9 O.R.(2d) 284 (H.C.), refd to. [para. 87].

Canadian Imperial Bank of Commerce v. Canada (Attorney General), [1962] O.R. 253 (C.A.), refd to. [para. 87].

Kohl v. Canada (Minister of Agriculture) (1995), 185 N.R. 149 (F.C.A.), refd to. [para. 88].

Griffin et al. v. Canada (Minister of Agriculture) (1989), 26 F.T.R. 185 (T.D.), refd to. [para. 89].

A.G. v. British Columbia (Superintendent of Family and Child Services) (1989), 61 D.L.R.(4th) 136 (B.C.C.A.), refd to. [para. 95].

Hunt (David) Farms v. Canada (Minister of Agriculture), [1994] 2 F.C. 625; 167 N.R. 116 (F.C.A.), refd to. [para. 97].

Statutes Noticed:

Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50, sect. 3 [para. 92].

Health of Animals Act, S.C. 1990, c. 21, sect. 18 [para. 80]; sect. 50 [para. 96].

Authors and Works:

Hogg, Peter W., Liability of the Crown (2nd Ed. 1989), pp. 18, 131 [para. 91].

Counsel:

Russell Kronick, Q.C., and Barry Garland, for the plaintiffs;

Frederick Woyiwada and Lysanne Lafond, for the defendant.

Solicitors of Record:

Goldberg Shinder & Kronick, Ottawa, Ontario, for the plaintiffs;

Morris A. Rosenberg, Deputy Attorney General, Ottawa, Ontario, for the defendant.

These actions were heard at Ottawa, Ontario, on November 1 to 5, 8 to 10, 12, 15, 16 to 19, 26, 1999, before O'Keefe, J., of the Federal Court of Canada, Trial Division, who delivered the following decision on December 20, 2000.