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Leave to appeal granted to determine if government law enforcement discretion can ground private law liability.
The defendant, the Attorney-General of Canada, sought leave to appeal an order dismissing its motion to strike the plaintiffs' claims for misfeasance in public office, negligence, and breach of fiduciary duty.
The claims arose from the federal government's alleged failure to enforce anti-smuggling laws regarding contraband tobacco on the Six Nations Reserve.
The court granted leave to appeal, finding that the correctness of the motion judge's decision was open to very serious debate and that the issues raised—specifically the extent to which government policy decisions and law enforcement discretion can be subject to private law duties—were matters of public importance warranting appellate review.
Partial success on Charter claim justified reduced costs award.
Following an application concerning the seizure of cigarettes under the Tobacco Tax Act, the applicant succeeded on a Charter challenge under s. 8 and obtained a remedy under s. 24(1) of the Charter requiring the return of seized cigarettes or payment of their value.
However, the respondents succeeded on the statutory interpretation issues under the Tobacco Tax Act.
The court considered costs pursuant to s. 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure.
Exercising its discretion to allocate costs by issue, the court declined to award costs for the statutory issues and limited recovery to the Charter portion of the proceeding.
An all‑inclusive costs award of $50,000 was ordered.
