Bertram S. Miller Ltd. v. Canada, (1986) 69 N.R. 1 (FCA)

• Judge: Hugessen, Ryan and Heald, JJ.
• Court: Federal Court of Appeal (Canada)
• Case Date: June 19, 1986
• Jurisdiction: Canada (Federal)
• Citations: (1986), 69 N.R. 1 (FCA)

Miller Ltd. v. Can. (1986), 69 N.R. 1 (FCA)

MLB headnote and full text

Bertram S. Miller Ltd. v. Canada

(A-515-85)

Indexed As: Bertram S. Miller Ltd. v. Canada

Federal Court of Appeal

Hugessen, Ryan and Heald, JJ.

June 19, 1986.

Summary:

Plaintiff imported nursery stock from the U.S. By common agreement the stock was inspected at the plaintiff's premises rather than at the border. The inspection was consensual. The inspectors found that some of the trees contained larvae which were later identified to be Gypsy Moth larvae. The inspectors thought that there was a reasonable danger that the whole shipment was or would be infected by the parasite. The inspectors confiscated the trees and ordered the plaintiff to destroy them. The order was not obeyed and, after a delay of four days, the inspectors destroyed the trees themselves. The plaintiff brought an action for illegal trespass to and destruction of property. The trial judge found that the provisions of the Plant Quarantine Act contravened s. 8 of the Charter and ordered that the Crown pay damages in the amount of $13,439.02. The Crown appealed.

The Federal Court of Appeal allowed the appeal. The court found that the provisions of the Plant Quarantine Act did not authorize an unreasonable search and seizure. The standard provided by s. 9(4) of the Plant Quarantine Act was premised on an emergency and was a reasonable standard. The court also found that the principle stating that a person whose property is taken by the Crown in the exercise of a statutory power is entitled to compensation was not applicable. Heald, J., dissenting, would have dismissed the appeal based on this last principle.

Administrative Law - Topic 288

The hearing and decision - Denial of right to a hearing - Emergency situations - Government inspectors pursuant to the Plant Quarantine Act conducted a warrantless search and seized plants they believed to be infested with a dangerous parasite - The plants were later destroyed - The Federal Court of Appeal stated that the inspector's order to destroy was made in an "emergency situation" - There was a duty to act fairly, but in an emergency situation that duty did not extend to a duty to grant a hearing - See paragraph 101.

Civil Rights - Topic 1503

Property - General principles - Deprivation of property - The Federal Court of Appeal stated that the presumption that Parliament does not intend to deprive the citizen of his lawfully held property without compensation can only apply where the property is lawfully held - See paragraph 24.

Civil Rights - Topic 1503

Property - General principles - Deprivation of property - Compensation - The Federal Court of Appeal stated that where a statute authorized the Crown to take property there was a presumption that a right to compensation was implicit in the statute which could be displaced by clear words only - In this case a statutory right in the Minister to "... order compensation to be paid in respect of any plant or other matter destroyed ..." was inconsistent with a general statutory right to compensation existing apart from a Minister's order - It was a clear indication that the statute was not intended implicitly to provide compensation - See paragraphs 104 to 106.

Civil Rights - Topic 1506

Property - General principles - Charter - Application of - Inspectors carried out a warrantless search pursuant to ss. 6(1)(a) and 9(4) of the Plant Quarantine Act - The trial judge found that these provisions contravened the Charter - The Crown appealed - The Federal Court of Appeal stated that ss. 6(1)(a) and 9(4) contained their own requirement of reasonableness because the inspector's action had to be founded on reasonable belief - This did not foreclose a finding that the provisions were rendered inoperable under the Charter but it was a factor to be considered - If the inspectors had acted unreasonably, their action was illegal for that reason and the citizen had his recourse without any need to call the Charter in aid - See paragraph 12.

Civil Rights - Topic 1506

Property - General principles - Charter - Application of - The Federal Court of Appeal stated that while "security of property" was deliberately omitted from s. 7 of the Charter, it was not a necessary consequence that a particular aspect of a property owner's interest in his property might not be afforded Charter protection - S. 8, in its very terms, did afford protection to a particular interest in property: The interest a person has in being secure against an unreasonable seizure of his property - See paragraph 80.

Civil Rights - Topic 1610

Property - Search warrants - Emergencies - Government inspectors conducted a warrantless search and seized plants which they believed to be infested with a dangerous parasite - At trial, it was held that the provision of the Act authorizing the warrantless search contravened s. 8 of the Charter - The Crown appealed - The Federal Court of Appeal stated that in "emergency situations" where prompt action is required, a warrant is not necessary for a "seizure", if such a seizure is authorized by statute and the terms of the statute are in themselves reasonable - In this case, the fact that the inspectors were only able to confiscate the plants four days after having discovered the parasite because of the long weekend did not detract from the "emergency situation" - See paragraphs 87 and 88.

Civil Rights - Topic 1641

Property - Search and seizure - General - The Federal Court of Appeal stated that distinctions had to be drawn between a "search and seizure" in a criminal law context and a "seizure" effected in the course of administering the Plant Quarantine Act, which is a step in an administrative process - See paragraph 70.

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - The Federal Court of Appeal stated that the test of what is "unreasonable" for the purposes of applying s. 8 of the Charter will vary from case to case - Factors to be considered include the purpose of the statutory scheme authorizing the search and seizure, the nature of the property or the things seized, the character of the premises where the search and seizure may normally be expected to be carried out, the legitimate interests and expectations not only of the public at large but also of the person who is subject to the search and seizure - See paragraph 13.

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - Government inspectors conducted a warrantless search and confiscated plants which they believed to be infested with a dangerous parasite - The trial judge found that the provisions of the Act authorizing the warrantless search contravened s. 8 of the Charter - The Crown appealed - The Federal Court of Appeal stated that once, as a result of the search, plant material was found to be infested and to constitute a hazard, the public interest in its seizure and destruction forthwith outweighed any interest whose protection was envisaged by s. 8 of the Charter - See paragraph 18.

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - The Federal Court of Appeal stated that the interests protected by the guarantee of security against unreasonable search and unreasonable seizure were not identical even though they could often overlap - A seizure is usually made in the course of a search - Unreasonable search impairs one's right to privacy - Unreasonable seizure impairs one's right to undisturbed possession - See paragraph 72.

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - The Federal Court of Appeal stated that in determining whether a seizure is unreasonable, it was not pertinent whether or not the statute authorizing it provided compensation for a loss incurred as a result - "Reasonableness" in the section did not embrace such inquiries as whether or not the policy upon which the legislation was based was good or bad - See paragraph 93.

Civil Rights - Topic 8302

Canadian Charter of Rights and Freedoms - General - Effect of - The Federal Court of Appeal stated that in evaluating the impact of the Charter and, in particular, of s. 8 upon any given statutory provision, regard must be had both to the text and to the context of that provision - See paragraph 11.

Cases Noticed:

Stein v. Ship "Kathy K", [1976], 2 S.C.R. 802; 4 N.R. 381, appld. [para. 4].

Donovan v. Dewey (1981), 452 U.S. 594; 101 S. Ct. 2534, refd to. [paras. 15, 71].

R. v. Rao (1984), 12 C.C.C.(3d) 97, refd to. [para. 16].

Re Belgoma Transportation Ltd. and Director of Employment Standards (1985), 51 O.R.(2d) 509, refd to. [para. 16].

Manitoba Fisheries Limited v. Canada, [1979] 1 S.C.R. 101; 19 N.R. 208, refd to. [paras. 21, 33, 116].

R. v. Harrison, [1977] 1 S.C.R. 238; 8 N.R. 47, refd to. [para. 62].

R. v. Rao (1984), 12 C.C.C.(3d) 97, appld. [para. 70].

Hunter v. Southam Inc., [1984] 2 S.C. R. 145; 55 N.R. 241; 55 A.R. 291; 27 B.L.R. 297; 33 Alta. R.(2d) 193; 9 C.R.R. 355; 14 C.C.C.(3d) 97; 11 D.L.R.(4th) 641; 2 C.P.R.(3d) 1; [1984] 6 W.W.R. 577; 41 C.R.(3d) 97; 84 D.T.C. 6467, refd to. [para. 71].

Camara v. Municipal Court of the City and County of San Francisco, 387 U.S. 523, refd to. [para. 84].

White v. Redfern (1879), 5 Q.B.D. 15, appld. [para. 101].

DeVerteuil v. Knaggs, [1918] A.C. 557, appld. [para. 101].

A.M. Smith & Company Limited v. Canada, [1982] 1 F.C. 153; 36 N.R. 206, refd to. [para. 104].

British Columbia Medical Association v. R. in Right of British Columbia, Medical Services Commission and Bolton (1984), 58 B.C.L.R. 361, refd to. [para. 105].

Skapinker v. Law Society of Upper Canada, [1984] 1 S.C.R. 357; 53 N.R. 169, refd to. [para. 116].

Attorney General v. De Keyser's Royal Hotel Ltd., [1920] A.C. 508, appld. [para. 116].

Central Control Board (Liquor Traffic) v. Cannon Brewery Company Limited, [1919] A.C. 744, refd to. [para. 121].

Tener v. British Columbia, [1985] 1 S.C.R. 533; 59 N.R. 82, refd to. [para. 121].

Lever Brothers v. Bell, [1931] 1 K.B. 557, refd to. [para. 123].

Re Vandervell's Trusts (No. 2), [1974] 1 Ch. 269, refd to. [para. 123].

Karas v. Rowlett, [1944] S.C.R. 1, refd to. [para. 124].

Dhalla v. Jodrey (1985), 16 D.L.R.(4th) 732, refd to. [para. 124].

Statutes Noticed:

Canadian Bill of Rights, R.S.C. 1970, sect. 1(a), sect. 1(b) [para. 100]; sect. 2(e) [paras. 20, 101].

Canadian Charter of Rights and Freedoms, 1982, sect. 7 [paras. 80, 102, 123]; sect. 8 [paras. 3, 9, 10, 11, 13, 15, 18, 29, 31, 32, 33, 52, 53, 67, 69, 71, 74, 78, 79, 89, 90, 93, 99, 116, 123]; sect. 15 [para. 102]; sect. 24(1) [para. 11].

Federal Court Rules, rule 408(1), rule 412(1) [para. 123].

Interpretation Act, R.S.C. 1970, c. I-23, sect. 26(7) [para. 58].

Narcotic Control Act, R.S.C. 1970, c. N-1, sect. 3(1) [para. 24].

Plant Quarantine Act, R.S.C. 1970, c. P-13, sect. 3(2) [paras. 106, 121]; sect. 4(b) [para. 106]; sect. 6(1)(a) [paras. 8, 9, 12, 31, 51]; sect. 9(4) [paras. 8, 9, 10, 12, 30, 52, 55, 56, 58, 60, 67, 87, 88, 90, 91, 92, 94, 99, 114, 121]; sect. 9(5) [paras. 56, 121]; sect. 9(5)(b) [para. 57]; sect. 10(1), sect. 10(3) [para. 74].

Plant Quarantine Act Regulations, sect. 4 [para. 35]; sect. 5(1) [paras. 35, 38]; sect. 7 [paras. 38, 39, 46, 50, 51]; sect. 7(3) [para. 39]; sect. 7(6) [para. 121]; sect. 22 [paras. 57, 59, 60, 61, 63, 65, 88].

Authors and Works Noticed:

deSmith, Judicial Review of Administrative Action (4th Ed.), p. 307 [para. 14].

Reid and Young, Administrative Search and Seizure Under the Charter (1985), 10 Queen's L.J. 392 [para. 71].

Rosenberg, Unreasonable Search and Seizure: Hunter v. Southam Inc. (1985), 19 U.B.C.L. Rev. 271 [para. 93].

Counsel:

Derek Aylen, Q.C., and A.R. Pringle, for the appellant;

Mark M. Yeoman, Q.C., for the respondent.

Solicitors of Record:

Frank Iacobucci, Q.C., for the appellant;

Yeoman, Savoie, LeBlanc & Assoc., for the respondent.

This case was heard on January 8 and 9, 1986, at Fredericton, New Brunswick, before Hugessen, Ryan and Heald, JJ., of the Federal Court of Appeal.

On June 19, 1986, the judgment of the Federal Court of Appeal was delivered and the following opinions were filed:

Hugessen, J. - see paragraphs 1 to 28;

Ryan, J., concurring - see paragraphs 29 to 109;

Heald, J., dissenting - see paragraphs 110 to 125.