A-45-91
Her Majesty the Queen in Right of Canada
(Appellant) (Defendant)
v.
Herbert Langille, Eric Langille, Leon Langille,
Paul Langille, Langille Farms, a registered
partnership and H. & L. Langille Enterprises, a
registered partnership (Respondents) (Plaintiffs)
INDEXED AS: LANGILLE V. CANADA (MINISTER OF
AGRICULTURE) (C.A.)
Court of Appeal, Marceau, Stone and Linden
JJ.A.—Halifax, February 17, 1992.
Crown — Torts — Appeal from Trial Division order dis
missing application to strike out pleading under R. 419(1)(b),
(c) and (d) and for judgment under R. 341 — Claims for dam
ages arising from destruction of cattle suspected of having bru-
cellosis — Three of respondents adjudged bankrupt and subse
quently discharged — Motions Judge ruling neither
bankruptcy nor Crown Liability Act, s. 4(1) barring continua
tion of action — Whether action barred in that compensation
paid — S. 4(1) must be interpreted in light of allegations in
statement of claim — Motions Judge wrong in holding claim
not barred by Crown Liability Act, s. 9 — Words "in respect
of" in s. 4(1) of very broad import — Compensation paid to
respondents was "in respect of" damage or loss resulting from
destruction of animals — Claim herein "in respect of" saine
"damage or loss" — Act, s. 4(1) absolute bar to continuation
of action — Appeal allowed in part.
Animals — Cattle destroyed under Animal Disease and Pro
tection Act on suspicion of having brucellosis — Action claim
ing damages for negligence — Barred by Crown Liability Act,
s. 4(1) as compensation already paid out of Consolidated Rev
enue Fund.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Animal Disease and Protection Act, R.S.C. 1970, c. A-13
(as am. by S.C. 1974-75-76, c. 86, s. 2), s. 11 (as am.
idem, s. 8).
Crown Liability Act, R.S.C. 1970, c. C-38, s. 4(1).
Federal Court Rules, C.R.C., c. 663, RR. 341, 419
(1 )(b),(c),(d).
CASES JUDICIALLY CONSIDERED
APPLIED:
Attorney General of Canada v. Inuit Tapirisat of Canada
et al., [1980] 2 S.C.R. 735; (1980), 115 D.L.R. (3d) 1; 33
N.R. 304; Nowegijick v. The Queen, [1983] 1 S.C.R. 29;
(1983), 144 D.L.R. (3d) 193; [1983] 2 C.N.L.R. 89;
[1983] CTC 20; 83 DTC 5041; 46 N.R. 41.
REVERSED:
Langille v. Canada (Minister of Agriculture), T-2088-80,
MacKay J., order dated 8/1/91, F.C.T.D., not yet reported.
COUNSEL:
A. R. Pringle and Michael J. Butler for appellant
(defendant).
David W T. Brattston for respondents (plain-
tiffs).
SOLICITORS:
Deputy Attorney General of Canada for appel
lant (defendant).
David W T. Brattston, Lunenburg, Nova Scotia,
for respondents (plaintiffs).
The following are the reasons for judgment ren
dered in English by
STONE IA.: This is an appeal from an order of the
Trial Division [T-2088-80, MacKay J., order dated
8/1/91, not yet reported] dismissing the appellant's
application for relief pursuant to Rule 419(1)(b), (c)
and (d) [Federal Court Rules, C.R.C., c. 663] and for
an order pursuant to Rule 341 that there be judgment
dismissing the action as a whole. The claims asserted
in the statement of claim are for loss or damage aris
ing from the destruction in 1978 of cattle owned by
the respondents and also in respect of subsequent acts
or omissions on the part of the appellant, its servants
or agents.
The prayer for relief in paragraph 16(a) of the
statement of claim reads:
16. The plaintiffs therefore claim as follows:
(a) general damages for the following:
(i) loss of income;
(ii) loss of cattle;
(iii) loss of offspring of cattle;
(iv) loss of R.O.P. records;
(v) loss of Nova Scotia Crop & Livestock Insurance pro
ceeds; and
(vi) loss of Holstein Friesian Association Membership.
The record shows that three of the respondents,
Herbert and Leon Langille and H. & L. Langille
Enterprises, a partnership, were adjudged bankrupt in
October 1983, and that these individual bankrupts
were discharged on December 22, 1987. The trustee
in bankruptcy was himself discharged on January 20,
1988. It is also clear that neither the trustee nor any
of the bankrupts' creditors elected to proceed with or
assume this action.
The learned motions Judge was of the opinion that
the supervening bankruptcy did not necessarily bar
Herbert and Leon Langille and H. & L. Langille
Enterprises from continuing the action and that sub
section 4(1) of the Crown Liability Act, R.S.C. 1970,
c. C-38, (now R.S.C., 1985, c. C-50, section 9) was
not a bar to the proceedings.
Since the order below was made, the Supreme
Court of Nova Scotia in Bankruptcy, by order dated
December 10, 1991, vested the former rights of
action in the discharged bankrupts. As a result of that
order, counsel for the appellant at the opening of his
argument informed the Court that at this time he was
abandoning his contention that the bankruptcy barred
those parties from proceeding with the action.
Counsel for the appellant also informed the Court
that he is not now seeking to have struck those
paragraphs of the statement of claim which relate to
alleged acts or omissions of the appellant subsequent
to the destruction of the animals and which are
pleaded in paragraphs 9, 10, 11, 12, 13, 14, 15,
16(a)(iv), (v) and (vi) and 16(b). Paragraphs 1, 2, 3
and 4 should also be allowed to stand.
We turn then to the question whether the respon
dents are barred from continuing the action in respect
of compensation for the destroyed animals by reason
of subsection 4(1) of the Crown Liability Act, which
reads:
4. (1) 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.
The answer to this question requires the interpretation
of that subsection in the light of the allegations con
tained in the statement of claim. It is well established
that, for the purposes of an application to dismiss an
action or to strike out a claim, "all the facts pleaded
in the statement of claim must be deemed to have
been proven" and that the claim should be struck or
the action dismissed "only in plain and obvious cases
and where the court is satisfied that 'the case is
beyond doubt' ... " (Attorney General of Canada v.
Inuit Tapirisat of Canada et al., [1980] 2 S.C.R. 735,
per Estey J., at page 740).
According to the respondents' pleading, the order
for the destruction of the cattle followed on the
results of tests which had been conducted by agents
or servants of the appellant on 466 animals out of a
total of 614 animals which were kept at the respon
dents' farms in the County of Annapolis in the Prov
ince of Nova Scotia. It is apparent that these actions
were purportedly taken pursuant to the provisions of
section 11 of the Animal Disease and Protection Act,
R.S.C. 1970, c. A-13 [as am. by S.C. 1974-75-76, c.
86, ss. 2 and 8) and the regulations made thereunder.
The tests revealed the positive presence of brucellosis
in some of the animals and a suspicion of that same
disease in some of the others.
The statement of claim alleges that the destruction
of the respondents' animals in respect of which mon
etary compensation is claimed was caused by the
negligence of the appellant, particulars of which are
pleaded in paragraph 8:
8. During the months of January, February and March, 1978,
the Plaintiffs' entire herd was slaughtered at the insistence of
the Defendant which resulted in loss to the Plaintiffs. Such loss
occurred as a result of the Defendant's negligence, particulars
of which are as follows:
(a) ordering the depopulation of the entire herd without any
or sufficient cause;
(b) failure to designate blood samples taken from vaccinated
cattle or cattle with health disorders not related to brucello-
sis;
(c) failure to conduct further tests on blood samples taken;
(d) refusal to take further blood samples;
(e) failure to give adequate consideration to the results of
milk ring tests conducted on milk samples taken periodically
from the Plaintiffs' cattle throughout the period from
December 28, 1977 to April 4, 1978;
(f) improper handling of feed samples, foetus and blood
samples taken from the Plaintiffs' cattle and incorrect
recording of results from the tests;
(g) failure to properly monitor the abortion rate of Plaintiffs'
herd;
(h) improperly directing the Plaintiffs to house aborted cattle
from the quarantined Langille farm on the Phinney farm
which had not been quarantined; and
(i) insisting that the depopulation order be carried out
despite the clear lack of evidence to indicate a brucellosis
infection.
According to the appellant, subsection 4(1) of the
Crown Liability Act constitutes an absolute bar to the
continuation of the action because, as the record also
discloses, subsequent to the destruction of these ani
mals, in July and August, 1978, sums aggregating
$149,491.60 were paid to the respondents out of the
Consolidated Revenue Fund as compensation for the
animals which were destroyed. The learned motions
Judge rejected this contention, at pages 7-8 of his rea
sons, when he stated:
Yet here the nature of the plaintiffs' claims is said not to
relate merely to the question of compensation for cattle
destroyed. Counsel submits that the claims, so far as they con
cern loss from destruction of the cattle, are based on the plain
tiffs' contention that the necessary basis for action under the
Animal Disease and Protection Act, i.e., the existence of evi
dence of brucellosis, was not here established so that the action
taken was not properly within the discretion of the Minister or
his delegate under section 11 of the Act. Even though that dis
cretion is described in very broad terms and proving that dis-
cretion exercised was unlawful may be difficult, it seems to me
that issue is not precluded by section 9 of the Crown Liability
Act. The defendant cannot avoid liability for tort, if such is
established, under paragraph 3(a) of the same Act merely
because compensation has been paid as if the acts of her
officers had been lawful and in accord with the Animal Disease
and Protection Act. Where the claim is that their actions are
not so authorized, and loss is caused, the claim is simply a
claim in tort. Proceedings to establish that claim are not barred
by section 9 of the Crown Liability Act and the limitations on
compensation provided under the Animal Disease and Protec
tion Act and Regulations may not be applicable to a damage
award for the loss, if wrongdoing on the part of the Crown's
officers is established.
With respect, we are unable to agree. Subsection
4(1) outlaws a proceeding "in respect of a claim
if ... compensation has been paid ... out of the Con
solidated Revenue Fund ... in respect of .. damage
or loss in respect of which the claim is made". The
words "in respect of' are words of very broad import.
Indeed, in Nowegijick v. The Queen, [1983] 1 S.C.R.
29, at page 39, Dickson J. (as he then was), described
the same words in another federal statute in these
terms:
The words "in respect of" are, in my opinion, words of the
widest possible scope. They import such meanings as "in rela
tion to", "with reference to" or "in connection with". The
phrase "in respect of" is probably the widest of any expression
intended to convey some connection between two related sub
ject matters.
It seems to us that the broad reach of subsection
4(1) does include the damage or loss for which the
respondents here claim on account of their destroyed
animals. The compensation was paid "in respect of'
"damage or loss" resulting from the destruction of the
animals and the claim in the present action is also "in
respect of' that same "damage or loss". The only dif
ference here is that respondents, by way of this action
in tort, are seeking to enhance recovery in respect of
that destruction beyond the level of the compensation
they were paid in 1978 out of the Consolidated Reve
nue Fund. In our view, subsection 4(1) of the Crown
Liability Act bars them from doing so.
The appeal will be allowed in part. Paragraphs 5,
6, 7 and 8 of the statement of claim will be struck and
the action for general damages with respect to the
destruction of cattle as pleaded in subparagraphs
16(a)(î), (ii) and (iii) will be dismissed. No costs
being requested, none will be ordered.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.