Court of Appeal for Ontario

Date: January 3, 2018 Docket: C63683

Judges: Pepall, Benotto and Paciocco JJ.A.

Between

John Vancise Plaintiff (Appellant)

and

Attorney General of Canada and the Minister of Agriculture and Agri-food Defendants (Respondents)

Counsel

Brad Teplitsky, for the appellant

Wendy Wright, for the respondents

Heard

December 14, 2017

On Appeal

On appeal from the judgment of Justice Freya Kristjanson of the Superior Court of Justice, dated March 20, 2017.

Decision

Paciocco J.A.:

[1] Background and Facts

[1] In 1996, the appellant imported four Hereford cattle from the United States, three of which were later discovered to be infected with anaplasmosis. American health documentation certifying the animals to be disease free had been falsified. At the time, anaplasmosis was considered to be a foreign animal disease, and the Canadian government's policy was to destroy any infected animals.

[2] After their condition was discovered, the four imported animals were sent back to the United States. The appellant's original herd was quarantined at the appellant's farm by order of the respondents as an "infected place". During the quarantine, seven of the appellant's cattle became infected and were ordered destroyed by the respondents. The appellant was also required to treat all of his animals to eradicate the disease.

[2] Compensation Received

[3] The Minister exercised discretion under ss. 51 and 53 of the Health of Animals Act, S.C. 1990, c. 21, to pay compensation to the appellant.

[4] Section 51 provides, in relevant part:

(1) The Minister may order compensation to be paid from the Consolidated Revenue Fund to the owner of an animal that is

(a) Destroyed under this Act …

(2) Subject to subsections (3) and (4), the amount of compensation shall be

(a) the market value, as determined by the Minister, that the animal would have had at the time of its evaluation by the Minister if it had not been required to be destroyed

minus

(b) the value of its carcass, as determined by the Minister.

[5] Section 53 empowers the Minister to give compensation "with respect to treatment required" to eradicate or prevent the spread of a disease.

[6] The appellant received approximately CDN$12,900 in compensation under ss. 51 and 53, calculated based on the market value of the destroyed animals and the costs of eradication treatment for his herd.

[3] Subsequent Actions and Claims

[7] The appellant also sued the United States Department of Agriculture in July 1998 but discontinued his action. He sued the veterinarian who produced the fraudulent certificate and obtained a settlement of US$59,508. On July 30, 1996, he raised the negative effect of the anaplasmosis outbreak and quarantine on his business with Agriculture and Agri-Food Canada and the Canadian Government. From the fall of 1998 until April 2012, he demanded compensation from the Canadian Government.

[8] Ultimately, in 2012, the appellant commenced the action against the respondents that is now before us. He pleads that the respondents were negligent in not guarding against the importation of anaplasmosis, and in imposing an inadequate quarantine on his farm. He claims that his reputation and business have been damaged as a result and he demands compensation for these losses.

[4] Motion for Summary Judgment

[9] The respondents brought a motion for summary judgment. The motion judge granted the motion, dismissing the appellant's action. She held that s. 9 of the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50 (the "CLPA") barred the appellant's action. Section 9 states:

No proceedings lie against the Crown or a servant of the Crown in respect of a claim if a pension or compensation has been paid or is payable out of the Consolidated Revenue Fund or out of any funds administered by an agency of the Crown in respect of the death, injury, damage or loss in respect of which the claim is made.

[10] The appellant appeals, claiming that s. 9 does not apply because his claim is not for the destruction of the cattle, for which he agrees he was compensated. He argues that his action falls outside of s. 9.

[5] Court of Appeal Analysis

[11] I do not agree.

[12] Section 9 is not simply a bar on double recovery. Its effect is to prevent actions for recovery where a government scheme has already provided a form of compensation in relation to the death, injury, damage or loss that is relied on in the action.

[13] The reach of s. 9 is settled. Section 9 has been interpreted to bar actions for additional compensation for the same death, injury, damage or loss for which compensation has been received, even where different heads of compensation are claimed: Langille v. Canada (Minister of Agriculture), 140 N.R. 304; and Begg v. Canada (Minister of Agriculture), 2005 FCA 362, 261 D.L.R. (4th) 36. It has also been interpreted to bar compensation that arises from "the same factual basis as the action": Sarvanis v. Canada, 2002 SCC 28, [2002] 1 S.C.R. 921, at para. 28.

[14] In Sarvanis, at para. 22, Iacobucci J. confirmed for the Supreme Court of Canada that the words "in respect of" used in s. 9 are words of the "widest possible scope". At para. 25, he described "death, injury, damage or loss" as "events", and then said, for the Court, that "s. 9 envisions pensions and compensation paid because of an event of death, injury, damage or loss." He then said, at para. 29:

All damages arising out of the incident which entitles the person to a pension [or compensation] will be subsumed under s. 9, so long as that pension or compensation is given "in respect of", or on the same basis as, the identical death, injury, damage or loss.

[15] The framing of the appellant's action as a damage claim for negligence regarding the importation of the cattle and the ensuing quarantine of the herd, as distinct from the destruction of the diseased animals and treatment of the herd, does not place this case outside the restrictive sweep of s. 9 of the CLPA. Bluntly put, at its core the appellant's complaint is not about the negligent importation of the diseased cattle per se, or even the allegedly negligent imposition of the involuntary quarantine measures. It is about the importation of the diseased cattle that led to the anaplasmosis outbreak on the farm, an occurrence for which the appellant has already been compensated.

[16] Claims similar to the appellant's were advanced by the plaintiffs in Langille and Vona v. Canada (Minister of Agriculture) (1994), 20 O.R. (3d) 589 (Gen. Div.), aff'd (1996) 30 O.R. (3d) 786 (C.A.) to no avail. Further, in Begg, s. 9 was held to preclude claims for alleged negligence in allowing diseased animals to be admitted to Canada. In our view, these cases, together with Sarvanis, are dispositive of the issues raised on this appeal.

[6] Conclusion

[17] Section 9 of the CLPA operates in this case to bar the appellant's claims. Consequently, there was no genuine issue requiring a trial arising from the claims now sought to be advanced by the appellant.

[18] Accordingly, I would dismiss the appeal with costs fixed in the agreed amount of CDN$4,400 inclusive of disbursements and all applicable taxes.

Released: January 3, 2018

"David M. Paciocco J.A."

"I agree. S.E. Pepall J.A."

"I agree. M.L. Benotto J.A."