Wendy J. Linden

The respondents, a corporation and four individual shareholders, sued the Crown for damages arising from two theories of liability: forced incorporation and failure to enforce.

Under the forced incorporation theory, the respondents alleged that Crown misconduct forced them to incorporate their partnership, resulting in tax liability they would have avoided as Indians under section 87 of the Indian Act.

Under the failure to enforce theory, they alleged the Crown failed to properly implement an anti-smuggling initiative, causing them to compete unfairly against unlicensed contraband manufacturers.

The Crown appealed a motion judge's decision refusing to strike the claims.

The Court of Appeal dismissed the forced incorporation appeal, allowing it to proceed to trial, but allowed the failure to enforce appeal in part by striking the fiduciary duty claims while permitting the negligence and misfeasance claims to proceed.

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.

The defendants, including the Attorney General of Canada, the CRA, and various Crown prosecutors and CRA investigators, brought a motion to strike the plaintiffs' jury notice and various causes of action in a 111-page statement of claim.

The plaintiffs' action arose from a lengthy tax evasion investigation and subsequent criminal charges that were ultimately discharged at a preliminary inquiry.

The court granted the motion, striking the jury notice because the action was against the Crown.

The court also struck the claims for negligence, malicious prosecution, breach of fiduciary duty, Charter breaches, misrepresentation, and conspiracy against the Crown prosecutors and CRA investigators for failing to disclose a reasonable cause of action, largely due to prosecutorial immunity and the lack of a private law duty of care.

Claims by the accounting firm BDO and Family Law Act claims by the plaintiffs' spouses were also struck.