Lynne Margaret McArdle

Tobacco producers commenced a proposed class action alleging that federal and provincial governments failed to enforce tobacco taxation and excise legislation, allowing contraband tobacco markets to flourish and causing economic losses to lawful producers.

The plaintiffs advanced claims in misfeasance in public office and negligence, asserting that public officials deliberately failed to enforce statutory regimes to placate certain communities.

The defendants moved under Rule 21.01(1)(b) of the Rules of Civil Procedure to strike the amended statement of claim for disclosing no reasonable cause of action.

The court held that the pleading failed to allege the essential elements of misfeasance in public office, including deliberate unlawful conduct and bad faith by specific officials.

It further concluded that the statutory schemes governing tobacco regulation did not create a private law duty of care owed to tobacco producers and that recognizing such a duty would improperly subject government policy decisions to tort liability.

The amended statement of claim was struck and the action dismissed.

The self-represented applicant brought a motion before a panel of the Divisional Court to set aside an order of a single judge.

The single judge had struck several respondents, documents, an affidavit, and claims for damages from the applicant's application for judicial review of a decision by the Ontario Human Rights Commission.

The Divisional Court dismissed the motion, finding that the single judge was correct in all respects, as the struck respondents were not proper parties, the struck documents and affidavit were not before the Commission, and the Divisional Court lacks jurisdiction to award damages on judicial review.

The appellant filed a notice of appeal before the motion judge released his decision regarding the Crown defendants.

No steps were taken to remedy this deficiency for almost two years.

The Court of Appeal refused to extend the time to file a proper notice of appeal, finding no material to justify the extension and no merit to the appeal in light of s. 7(1) of the Proceedings Against the Crown Act.

The appeal was dismissed with no order as to costs.

The appellant appealed a decision striking a statement of claim.

The Court of Appeal dismissed the appeal, agreeing with the motion judge that the only factual allegation pleaded, which was perjury, cannot in law support any of the civil claims advanced against the respondent.