Knight v. Imperial Tobacco Canada Ltd. et al., (2009) 280 B.C.A.C. 160 (CA)

• Judge: Hall, Saunders, Lowry, Tysoe and D. Smith, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: December 08, 2009
• Jurisdiction: British Columbia
• Citations: (2009), 280 B.C.A.C. 160 (CA);2009 BCCA 541

Knight v. Imperial Tobacco (2009), 280 B.C.A.C. 160 (CA);

    474 W.A.C. 160

MLB headnote and full text

Temp. Cite: [2009] B.C.A.C. TBEd. DE.024

Kenneth Knight (respondent/plaintiff) v. Imperial Tobacco Canada Limited (appellant/defendant) and Her Majesty the Queen in Right of Canada (respondent/third party)

(CA035214; 2009 BCCA 541)

Indexed As: Knight v. Imperial Tobacco Canada Ltd. et al.

British Columbia Court of Appeal

Hall, Saunders, Lowry, Tysoe and D. Smith, JJ.A.

December 8, 2009.

Summary:

Knight sued Imperial Tobacco Ltd. alleging that in the course of marketing cigarettes as "mild" and "light", Imperial engaged in deceptive acts or practices in contravention of the Trade Practice Act and the Business Practices and Consumer Protection Act (B.C.). He sought a refund of the monies expended to purchase the cigarettes. Imperial brought a third party notice, alleging that Canada developed and promoted the strains of tobacco used in light and mild cigarettes and that Canada dictated the warnings printed on the cigarette packages, and sought to recover from Canada monies it might be found liable to pay to Knight (and other class members). Canada applied under rule 19(24)(a) of the Rules of Court (B.C.) to strike the third party notice.

The British Columbia Supreme Court, in a decision reported at [2007] B.C.T.C. Uned. D68, allowed the application and struck the third party notice. Imperial appealed.

The British Columbia Court of Appeal, Hall and Lowry, JJ.A., dissenting, allowed the appeal in part by substituting an order striking only the portions of the amended third party notice relating to the claims of Imperial that (i) it was entitled to contribution and indemnity from Canada on the basis that the Trade Practice Act and Business Practices and Consumer Protection Act applied to Canada, (ii) Canada owed it a duty of care with respect to the design of the tobacco strains used in light and mild cigarettes, and (iii) it was entitled to be indemnified by Canada on the basis of the doctrine of equitable indemnity.

Consumer Law - Topic 5

General - Application of consumer protection legislation - Knight sued Imperial Tobacco Ltd. alleging that in the course of marketing cigarettes as "mild" and "light", Imperial engaged in deceptive acts or practices in contravention of the Trade Practice Act and the Business Practices and Consumer Protection Act (B.C.) - He sought a refund of the monies expended to purchase the cigarettes - Imperial brought a third party notice, alleging that Canada developed and promoted the strains of tobacco used in light and mild cigarettes and that Canada dictated the warnings printed on the cigarette packages, and sought to recover from Canada monies it might be found liable to pay to Knight (and other class members) - Imperial asserted that, inter alia, Canada was a supplier within the meaning of the Trade Practice Act and was at fault with respect to the deceptive acts or practices alleged by Knight, and, as a result, Imperial was entitled to contribution and indemnity from Canada pursuant to the provisions of the Negligence Act - Canada applied under rule 19(24)(a) of the Rules of Court (B.C.) to strike the third party notice - The chambers judge struck the third party notice - The Trade Practice Act did not apply to Canada - The British Columbia Court of Appeal affirmed the chambers judge's decision on this issue - Under s. 14(1) of the Interpretation Act (B.C.), Canada continued to enjoy the common law immunity from the operation of statutes enacted in British Columbia - As the Trade Practice Act did not expressly name Canada and as Canada was not bound by necessary implication, it was plain and obvious that the Trade Practice Act did not apply to Canada - See paragraphs 26 to 29.

Consumer Law - Topic 5

General - Application of consumer protection legislation - Knight sued Imperial Tobacco Ltd. alleging that in the course of marketing cigarettes as "mild" and "light", Imperial engaged in deceptive acts or practices in contravention of the Trade Practice Act and the Business Practices and Consumer Protection Act (B.C.) - He sought a refund of the monies expended to purchase the cigarettes - Imperial brought a third party notice, alleging that Canada developed and promoted the strains of tobacco used in light and mild cigarettes and that Canada dictated the warnings printed on the cigarette packages, and sought to recover from Canada monies it might be found liable to pay to Knight (and other class members) - Imperial asserted that, inter alia, Canada was a supplier within the meaning of the Trade Practice Act and was at fault with respect to the deceptive acts or practices alleged by Knight, and, as a result, Imperial was entitled to contribution and indemnity from Canada pursuant to the provisions of the Negligence Act - Canada applied under rule 19(24)(a) of the Rules of Court (B.C.) to strike the third party notice - The chambers judge struck the third party notice - The Trade Practice Act did not apply to Canada in light of s. 14(1) of the Interpretation Act (B.C.) - Imperial appealed, asserting that "effect should not be given to the definition of 'government' in the Interpretation Act of the 1996 Revised Statutes of British Columbia. Reference was made to the Interpretation Act as it was most recently enacted as a whole in 1974 (c. 42), where s. 13, the predecessor to s. 14(1), made reference to 'Her Majesty' instead of the 'government' and where 'Her Majesty' was defined to mean 'the Sovereign of the United Kingdom, Canada, and Her other realms and territories, and Head of the Commonwealth'. It is argued the Chief Legislative Counsel may only make minor amendments and the change in the 1996 Revised Statutes of British Columbia on this point was substantive, with the result that the definition of 'government' continues to include Canada" - The British Columbia Court of Appeal rejected the assertion - See paragraphs 30 to 33.

Consumer Law - Topic 5

General - Application of consumer protection legislation - Knight sued Imperial Tobacco Ltd. alleging that in the course of marketing cigarettes as "mild" and "light", Imperial engaged in deceptive acts or practices in contravention of the Trade Practice Act and the Business Practices and Consumer Protection Act (B.C.) - He sought a refund of the monies expended to purchase the cigarettes - Imperial brought a third party notice, alleging that Canada developed and promoted the strains of tobacco used in light and mild cigarettes and that Canada dictated the warnings printed on the cigarette packages, and sought to recover from Canada monies it might be found liable to pay to Knight (and other class members) - Imperial asserted that, inter alia, Canada was a supplier within the meaning of the Trade Practice Act and was at fault with respect to the deceptive acts or practices alleged by Knight, and, as a result, Imperial was entitled to contribution and indemnity from Canada pursuant to the provisions of the Negligence Act - Canada applied under rule 19(24)(a) of the Rules of Court (B.C.) to strike the third party notice - The chambers judge held that it was not plain and obvious that Canada was immune from liability under the Trade Practice Act, but concluded that Canada did not fit within the definition of "supplier" in the Trade Practice Act because regulating an industry did not equate to "supplying, soliciting, offering, advertising or promoting a product in the course of its business" (s. 1) - The British Columbia Court of Appeal affirmed the chambers judge's decision on this issue - It was alleged that Canada developed strains of tobacco for incorporation into light and mild cigarettes and promoted the use of the cigarettes - While the alleged activities of Canada could fall within the category of promotion under clause (b) of the definition, the activities were not done in the course of business - The encouragement given to smokers to use light and mild cigarettes was alleged to have been done by Health Canada out of health considerations - It was not alleged to have been done by Canada in the course of a business carried on for the purpose of earning a profit - See paragraphs 34 to 36.

Crown - Topic 1576

Torts by and against Crown - Negligence by Crown - Negligent advice or misrepresentation - [See all Fraud and Misrepresentation - Topic 2508 ].

Fraud and Misrepresentation - Topic 2508

Misrepresentation - General principles - Negligent misrepresentation - Knight sued Imperial Tobacco Ltd. alleging that in the course of marketing cigarettes as "mild" and "light", Imperial engaged in deceptive acts or practices in contravention of the Trade Practice Act and the Business Practices and Consumer Protection Act (B.C.) - He sought a refund of the monies expended to purchase the cigarettes - Imperial brought a third party notice, alleging that Canada developed and promoted the strains of tobacco used in light and mild cigarettes and that Canada dictated the warnings printed on the cigarette packages, and sought to recover from Canada monies it might be found liable to pay to Knight (and other class members) - Imperial asserted that, inter alia, Canada owed a duty of care to consumers purchasing light and mild cigarettes, and breached the duty of care giving rise to liability in negligent misrepresentation and, as a result, Imperial was entitled to contribution and indemnity from Canada under the Negligence Act on the basis that the loss of the class members was caused by the fault of both Canada and Imperial - Canada applied under rule 19(24)(a) of the Rules of Court (B.C.) to strike the third party notice - The chambers judge concluded that the actions of officials of Canada were not justiciable because the actions constituted the making of policy decisions, and no duty of care existed when a government body made policy decisions - Imperial appealed - The British Columbia Court of Appeal allowed the appeal on this issue - A prima facie duty of care would exist if the five elements in Queen v. Cognos Inc. (S.C.C. 1993) were present and the damages suffered by the representee were reasonably foreseeable to the representor - In that regard, the requirement for a "special relationship" would be satisfied if (a) the representor ought reasonably to foresee that the representee would rely on his or her representation, and (b) reliance by the representee would be reasonable - Negligent misstatement was one of the recognized categories of proximity - In the present case, it was not plain and obvious that the allegations made by Imperial failed to establish the existence of a prima facie duty of care owed by Canada to the class members because it was not plain and obvious that Imperial would be unable to prove that the five elements set out in Cognos with respect to representations made by Canada to consumers were satisfied and that the harm suffered by the consumers was reasonably foreseeable by Canada - See paragraphs 37 to 47.

Fraud and Misrepresentation - Topic 2508

Misrepresentation - General principles - Negligent misrepresentation - Knight sued Imperial Tobacco Ltd. alleging that in the course of marketing cigarettes as "mild" and "light", Imperial engaged in deceptive acts or practices in contravention of the Trade Practice Act and the Business Practices and Consumer Protection Act (B.C.) - He sought a refund of the monies expended to purchase the cigarettes - Imperial brought a third party notice, alleging that Canada developed and promoted the strains of tobacco used in light and mild cigarettes and that Canada dictated the warnings printed on the cigarette packages, and sought to recover from Canada monies it might be found liable to pay to Knight (and other class members) - Imperial asserted that, inter alia, Canada owed a duty of care to consumers purchasing light and mild cigarettes, and breached the duty of care giving rise to liability in negligent misrepresentation and, as a result, Imperial was entitled to contribution and indemnity from Canada under the Negligence Act on the basis that the loss of the class members was caused by the fault of both Canada and Imperial - Canada applied under rule 19(24)(a) of the Rules of Court (B.C.) to strike the third party notice - The chambers judge concluded that the actions of officials of Canada were not justiciable because the actions constituted the making of policy decisions, and no duty of care existed when a government body made policy decisions - Imperial appealed - The British Columbia Court of Appeal allowed the appeal on this issue - It was alleged that Canada made the decision to develop strains of tobacco that were less harmful to smokers than the strains of tobacco then being utilized (which could fairly be categorized as a policy decision) but it developed strains of tobacco that were actually more hazardous to the health of smokers, and it made misrepresentations to smokers about the relative safety of cigarettes containing the strains of tobacco - It was also alleged that Canada was paid licensing fees and royalties in respect of the tobacco strains it developed - The potential liability of Canada flowing from breaches of the duty of care would not appear to be indeterminate because the affected persons were identified as those who purchased the light and mild cigarettes (i.e., the class members) - The concerns about conflicting duties and the government becoming an insurer of another's product would not appear to apply - Without the benefit of evidence at trial to assist in the examination of the considerations, none of the policy considerations were determinative to negate the prima facie duty of care - On the basis of the pleadings alone, it was not plain and obvious that the prima facie duty of care owed by Canada to the class members should be negated - See paragraphs 50 to 55.

Fraud and Misrepresentation - Topic 2508

Misrepresentation - General principles - Negligent misrepresentation - Knight sued Imperial Tobacco Ltd. alleging that in the course of marketing cigarettes as "mild" and "light", Imperial engaged in deceptive acts or practices in contravention of the Trade Practice Act and the Business Practices and Consumer Protection Act (B.C.) - He sought a refund of the monies expended to purchase the cigarettes - Imperial brought a third party notice, alleging that Canada developed and promoted the strains of tobacco used in light and mild cigarettes and that Canada dictated the warnings printed on the cigarette packages, and sought to recover from Canada monies it might be found liable to pay to Knight (and other class members) - Imperial asserted that, Canada owed a duty of care to Imperial and breached the duty of care giving rise to liability in negligent misrepresentation and, as a result, Imperial was entitled to damages against Canada measured by the extent of any liability Imperial might have to the class members - Canada applied under rule 19(24)(a) of the Rules of Court (B.C.) to strike the third party notice - The chambers judge concluded that in light of s. 16 of the Tobacco Act it was incongruous for Imperial to plead that it was reasonably foreseeable to Canada that Imperial could come under statutory liability for breaches of the Trade Practice Act - She also commented that imposing a duty of care on Canada towards tobacco manufacturers would be highly inconsistent with the duty of Canada to protect the interests of the public at large - She concluded that Canada's decision to promulgate standards for information and content of toxic constituents of cigarettes was a policy decision for which Canada could not be liable - Imperial appealed - The British Columbia Court of Appeal allowed the appeal on this issue - Imperial asserted that Canada represented to it that the tobacco strains developed and licensed by Canada for use in light and mild cigarettes were less hazardous to the health of smokers than regular cigarettes - The class members were alleging that the same representation made to them by Imperial was deceptive and misleading, thereby contravening the Trade Practice Act - Imperial's position was that if the class members were correct, Canada should be liable to Imperial because Imperial's contravention of the Trade Practice Act was a consequence of its reasonable reliance on the representation made by Canada - It was not plain and obvious that Canada did not owe a prima facie duty of care to Imperial with respect to representations made by it to Imperial in connection with the tobacco strains developed for use in light and mild cigarettes - See paragraphs 61 to 66.

Fraud and Misrepresentation - Topic 2508

Misrepresentation - General principles - Negligent misrepresentation - Knight sued Imperial Tobacco Ltd. alleging that in the course of marketing cigarettes as "mild" and "light", Imperial engaged in deceptive acts or practices in contravention of the Trade Practice Act and the Business Practices and Consumer Protection Act (B.C.) - He sought a refund of the monies expended to purchase the cigarettes - Imperial brought a third party notice, alleging that Canada developed and promoted the strains of tobacco used in light and mild cigarettes and that Canada dictated the warnings printed on the cigarette packages, and sought to recover from Canada monies it might be found liable to pay to Knight (and other class members) - Imperial asserted that, Canada owed a duty of care to Imperial and breached the duty of care giving rise to liability in negligent misrepresentation and, as a result, Imperial was entitled to damages against Canada measured by the extent of any liability Imperial might have to the class members - Canada applied under rule 19(24)(a) of the Rules of Court (B.C.) to strike the third party notice - The chambers judge struck the third party notice - Imperial appealed - The British Columbia Court of Appeal allowed the appeal - It was not plain and obvious that Canada did not owe a prima facie duty of care to Imperial with respect to representations made by it to Imperial in connection with the tobacco strains developed for use in light and mild cigarettes - There was a tool in claims of negligent misrepresentation to address, in whole or in part, the concerns of indeterminate liability - The assessment of policy considerations relevant to the issue of whether the prima facie duty of care should be negated in these circumstances ought not be concluded at this early stage without the benefit of evidence exploring Canada's actions in developing the tobacco strains for which it had received licence fees and royalties - The court was not persuaded that it was plain and obvious that the prima facie duty of care for negligent misrepresentation should be negated at this stage of the proceeding - See paragraphs 86 to 89.

Practice - Topic 1138

Parties - Third party or subsequent party procedure - Third party notice - Striking out of - [See all Consumer Law - Topic 5 , all Fraud and Misrepresentation - Topic 2508 and all Torts - Topic 4332 ].

Torts - Topic 77

Negligence - Duty of care - Relationship required to raise duty of care - [See first and third Fraud and Misrepresentation - Topic 2508 and first Torts - Topic 4332 ].

Torts - Topic 78

Negligence - Duty of care - Effect of statutory or policy precautions or safeguards on the scope of the duty of care - [See second and fourth Fraud and Misrepresentation - Topic 2508 and third Torts - Topic 4332 ].

Torts - Topic 4332

Suppliers of goods - Negligence - Manufacturers - Defective design or manufacture - Knight sued Imperial Tobacco Ltd. alleging that in the course of marketing cigarettes as "mild" and "light", Imperial engaged in deceptive acts or practices in contravention of the Trade Practice Act and the Business Practices and Consumer Protection Act (B.C.) - He sought a refund of the monies expended to purchase the cigarettes - Imperial brought a third party notice, alleging that Canada developed and promoted the strains of tobacco used in light and mild cigarettes and that Canada dictated the warnings printed on the cigarette packages, and sought to recover from Canada monies it might be found liable to pay to Knight (and other class members) - Imperial asserted that, inter alia, Canada owed a duty of care to consumers purchasing light and mild cigarettes, and breached the duty of care giving rise to liability in negligent design and, as a result, Imperial was entitled to contribution and indemnity from Canada under the Negligence Act on the basis that the loss of the class members was caused by the fault of both Canada and Imperial - Canada applied under rule 19(24)(a) of the Rules of Court (B.C.) to strike the third party notice - The chambers judge concluded that the actions of officials of Canada were not justiciable because the actions constituted the making of policy decisions, and no duty of care existed when a government body made policy decisions - Imperial appealed - The British Columbia Court of Appeal allowed the appeal on this issue - It was trite that a manufacturer of a product owed a duty to purchasers of the product to take reasonable care in the manufacture of the product - Similarly, a person who designed a product intended for sale to the public owed a prima facie duty of care to the purchasers of the product - On the issue of foreseeability, a designer of a product ought reasonably to have purchasers of the product in contemplation as persons who would be affected by its design - On the issue of proximity, the relationship between a designer of a product and a purchaser of a product had been identified as a recognized category of sufficient proximity giving rise to a duty of care - Hence, it was not plain and obvious that Canada did not owe a prima facie duty of care to the class members in connection with the development of the strains of tobacco used in light and mild cigarettes - See paragraphs 47 to 49.

Torts - Topic 4332

Suppliers of goods - Negligence - Manufacturers - Defective design or manufacture - Knight sued Imperial Tobacco Ltd. alleging that in the course of marketing cigarettes as "mild" and "light", Imperial engaged in deceptive acts or practices in contravention of the Trade Practice Act and the Business Practices and Consumer Protection Act (B.C.) - He sought a refund of the monies expended to purchase the cigarettes - Imperial brought a third party notice, alleging that Canada developed and promoted the strains of tobacco used in light and mild cigarettes and that Canada dictated the warnings printed on the cigarette packages, and sought to recover from Canada monies it might be found liable to pay to Knight (and other class members) - Imperial asserted that, Canada owed a duty of care to Imperial and breached the duty of care giving rise to liability in negligent design and, as a result, Imperial was entitled to damages against Canada measured by the extent of any liability Imperial might have to the class members - Canada applied under rule 19(24)(a) of the Rules of Court (B.C.) to strike the third party notice - The chambers judge concluded that in light of s. 16 of the Tobacco Act it was incongruous for Imperial to plead that it was reasonably foreseeable to Canada that Imperial could come under statutory liability for breaches of the Trade Practice Act - She also commented that imposing a duty of care on Canada towards tobacco manufacturers would be highly inconsistent with the duty of Canada to protect the interests of the public at large - She concluded that Canada's decision to promulgate standards for information and content of toxic constituents of cigarettes was a policy decision for which Canada could not be liable - Imperial appealed - The British Columbia Court of Appeal held that it was not plain and obvious that Canada did not owe a prima facie duty of care to Imperial with respect to the design of the tobacco strains developed for use in light and mild cigarettes - If sufficient proximity existed in the relationship between a designer of a product and a purchaser of the product, it followed that there was sufficient proximity in the relationship between the designer of a product and a manufacturer who used the product in goods sold to the public - See paragraph 67.

Torts - Topic 4332

Suppliers of goods - Negligence - Manufacturers - Defective design or manufacture - Knight sued Imperial Tobacco Ltd. alleging that in the course of marketing cigarettes as "mild" and "light", Imperial engaged in deceptive acts or practices in contravention of the Trade Practice Act and the Business Practices and Consumer Protection Act (B.C.) - He sought a refund of the monies expended to purchase the cigarettes - Imperial brought a third party notice, alleging that Canada developed and promoted the strains of tobacco used in light and mild cigarettes and that Canada dictated the warnings printed on the cigarette packages, and sought to recover from Canada monies it might be found liable to pay to Knight (and other class members) - Imperial asserted that, Canada owed a duty of care to Imperial and breached the duty of care giving rise to liability in negligent design and, as a result, Imperial was entitled to damages against Canada measured by the extent of any liability Imperial might have to the class members - Canada applied under rule 19(24)(a) of the Rules of Court (B.C.) to strike the third party notice - The chambers judge struck the third party notice - Imperial appealed - The British Columbia Court of Appeal dismissed the appeal on this issue - While it was not plain and obvious that Canada did not owe a prima facie duty of care to Imperial with respect to the design of the tobacco strains developed for use in light and mild cigarettes, policy reasons negated the duty of care - Imperial's claim for recovery of pure economic loss from Canada gave rise to indeterminate liability, and this consideration was sufficient to negate the prima facie duty of care found to be owed by Canada - Evidence at trial would not affect this conclusion, and a decision could be made on the claim at this stage of the proceedings - See paragraphs 68 to 85.

Cases Noticed:

Hunt v. T & N plc et al., [1990] 2 S.C.R. 959; 117 N.R. 321; 74 D.L.R.(4th) 321, refd to. [para. 20].

Hunt v. Carey Canada Inc. - see Hunt v. T & N plc et al.

Adbusters Media Foundation v. Canadian Broadcasting Corp. et al. (2009), 269 B.C.A.C. 95; 453 W.A.C. 95; 92 B.C.L.R.(4th) 9; 2009 BCCA 148, leave to appeal refused (2009), 400 N.R. 398 (S.C.C.), refd to. [para. 21].

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, refd to. [paras. 22, 101].

Syl Apps Secure Treatment Centre v. B.D. - see B.D. et al. v. Children's Aid Society of Halton Region et al.

B.D. et al. v. Children's Aid Society of Halton Region et al., [2007] 3 S.C.R. 83; 365 N.R. 302; 227 O.A.C. 161; 2007 SCC 38, refd to. [paras. 22, 106].

R. v. Eldorado Nuclear Ltd.; R. v. Uranium Canada Ltd., [1983] 2 S.C.R. 551; 50 N.R. 120; 1 O.A.C. 243; 4 D.L.R.(4th) 193, refd to. [para. 27].

Phillips v. Nova Scotia (Commissioner, Public Inquiries Act) - see Phillips et al. v. Richard, J.

Phillips et al. v. Richard, J., [1995] 2 S.C.R. 97; 180 N.R. 1; 141 N.S.R.(2d) 1; 403 A.P.R. 1; 124 D.L.R.(4th) 129, refd to. [para. 36].

Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.), appld. [para. 39].

Nielsen v. Kamloops (City) and Hughes, [1984] 2 S.C.R. 2; 54 N.R. 1; 66 B.C.L.R. 273, refd to. [para. 39].

Hill et al. v. Hamilton-Wentworth Regional Police Services Board et al., [2007] 3 S.C.R. 129; 368 N.R. 1; 230 O.A.C. 260; 2007 SCC 41, refd to. [para. 40].

Donoghue v. Stevenson, [1932] A.C. 562 (H.L.), refd to. [para. 41].

Queen (D.J.) v. Cognos Inc., [1993] 1 S.C.R. 87; 147 N.R. 169; 60 O.A.C. 1; 99 D.L.R.(4th) 626, appld. [para. 44].

Hercules Management Ltd. et al. v. Ernst & Young et al., [1997] 2 S.C.R. 165; 211 N.R. 352; 115 Man.R.(2d) 241; 139 W.A.C. 241; 146 D.L.R.(4th) 577, refd to. [para. 45].

D.H. et al. v. British Columbia (2008), 255 B.C.A.C. 293; 430 W.A.C. 293; 81 B.C.L.R.(4th) 288; 2008 BCCA 222, refd to. [para. 47].

Gallant v. Beitz (1983), 42 O.R.(2d) 86; 148 D.L.R.(3d) 522 (H.C.), refd to. [para. 48].

Baker v. Suzuki Motor Co. et al., [1993] 8 W.W.R. 1; 143 A.R. 1; 12 Alta. L.R.(3d) 193 (Q.B.), refd to. [para. 48].

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; 112 D.L.R.(4th) 1, refd to. [para. 51].

Sauer v. Canada (Attorney General) et al. (2007), 225 O.A.C. 143; 31 B.L.R.(4th) 20; 49 C.C.L.T.(3d) 161; 2007 ONCA 454, leave to appeal refused (2008), 389 N.R. 393 (S.C.C.), refd to. [paras. 52, 98].

Eliopoulos et al. v. Ontario (Minister of Health and Long-Term Care) (2006), 217 O.A.C. 69; 82 O.R.(3d) 321; 276 D.L.R.(4th) 411 (C.A.), leave to appeal dismissed (2007), 372 N.R. 392; 239 O.A.C. 198 (S.C.C.), dist. [para. 56]; refd to. [para. 103].

Klein v. American Medical Systems Inc. et al. (2006), 219 O.A.C. 49; 84 O.R.(3d) 217; 278 D.L.R.(4th) 722 (Div. Ct.), dist. [para. 56].

Attis et al. v. Canada (Minister of Health) et al. (2008), 254 O.A.C. 91; 300 D.L.R.(4th) 415; 2008 ONCA 660, dist. [para. 56].

James v. British Columbia (2005), 210 B.C.A.C. 60; 348 W.A.C. 60; 38 B.C.L.R.(4th) 263; 2005 BCCA 136, refd to. [paras. 57, 98].

Taylor v. Canada (Attorney General) et al., [2007] O.T.C. 1960; 285 D.L.R.(4th) 296 (Sup. Ct.), affd. (2007), 233 O.A.C. 111; 289 D.L.R.(4th) 567 (Div. Ct.), agreed with [para. 58].

D'Amato et al. v. Badger et al., [1996] 2 S.C.R. 1071; 199 N.R. 341; 79 B.C.A.C. 110; 129 W.A.C. 110; 137 D.L.R.(4th) 129, refd to. [para. 68].

Martel Building Ltd. v. Canada, [2000] 2 S.C.R. 860; 262 N.R. 285; 2000 SCC 60, refd to. [para. 68].

Canadian National Railway Co. et al. v. Norsk Pacific Steamship Co. and Tug Jervis Crown et al., [1992] 1 S.C.R. 1021; 137 N.R. 241; 91 D.L.R.(4th) 289, consd. [para. 70].

Hedley Byrne and Co. v. Heller and Partners Ltd., [1963] 2 All E.R. 575; [1964] A.C. 465 (H.L.), refd to. [para. 71].

Design Services Ltd. et al. v. Canada, [2008] 1 S.C.R. 737; 374 N.R. 77; 2008 SCC 22, refd to. [para. 72].

Bow Valley Husky (Bermuda) Ltd. et al. v. Saint John Shipbuilding Ltd. et al., [1997] 3 S.C.R. 1210; 221 N.R. 1; 158 Nfld. & P.E.I.R. 269; 490 A.P.R. 269; 153 D.L.R.(4th) 385, refd to. [para. 77].

Giffels Associates Ltd. v. Eastern Construction Co. et al., [1978] 2 S.C.R. 1346; 19 N.R. 298; 84 D.L.R.(3d) 344, refd to. [para. 97].

Just v. British Columbia, [1989] 2 S.C.R. 1228; 103 N.R. 1; 64 D.L.R.(4th) 689, refd to. [para. 99].

Hughes v. Sunbeam Corp. (Canada) Ltd. et al. (2002), 165 O.A.C. 68; 61 O.R.(3d) 433; 219 D.L.R.(4th) 467 (C.A.), leave to appeal dismissed (2003), 320 N.R. 193; 189 O.A.C. 200 (S.C.C.), refd to. [para. 104].

Williams v. Canada (Attorney General) et al. (2009), 249 O.A.C. 150; 95 O.R.(3d) 401; 2009 ONCA 378, refd to. [para. 105].

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. 106].

Authors and Works Noticed:

Ayres, I., and Braithwaite, J., Responsive Regulation: Transcending the Deregulation Debate (1992), pp. 21 to 27 [para. 14].

Feldthusen, Bruce, Economic Loss in the Supreme Court of Canada: Yesterday and Tomorrow (1990-91), 17 Can. Bus. L.J. 356, generally [para. 70].

Feldthusen, Bruce, Economic Negligence: The Recovery of Pure Economic Loss (5th Ed. 2008), pp. 2 [para. 70]; 207, 208 [para. 72].

Linden, Allen M., and Feldthusen, Bruce, Canadian Tort Law (8th Ed. 2006), p. 477 [para. 72].

Counsel:

J.K. McEwan, Q.C., D.A. Glendinning and B.B. Olthuis, for the appellant;

D. Lennox, for the respondent, Kenneth Knight;

J.S. Tyhurst, R.L. Hayley, P.B. Vickery and M. Lozinska-Legault, for the respondent, Her Majesty the Queen in Right of Canada;

G.H. Copley, Q.C., for the Attorney General of British Columbia.

This appeal was heard on June 5 and 8, 2009, at Vancouver, B.C., by Hall, Saunders, Lowry, Tysoe and D. Smith, JJ.A., of the British Columbia Court of Appeal. The judgment of the Court of Appeal was delivered on December 8, 2009, and included the following opinions:

Tysoe, J.A. (Saunders and D. Smith, JJ.A., concurring) - see paragraphs 1 to 92;

Hall, J.A., dissenting in part (Lowry, J.A., concurring) - see paragraphs 93 to 110.