Case information

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Crown law - Crown liability - Torts - Negligence - Duty of care - Whether breach of a statutory duty by the Defendant obviates the need for the Anns duty of care analysis? - Whether a claim may be struck for “policy” reasons at stage two of the Anns test in the absence of evidence? - Whether a claim may be struck for “policy” reasons at stage two of the Anns test when recklessness, carelessness and bad faith on the part of the statutory Defendant have been pleaded in detail?

The Appellant, Holland, is a game farmer, who raises elk, and is the proposed representative plaintiff in an action against the Saskatchewan government. The action involves the regulatory regime aimed at the spread of chronic wasting disease (“CWD”) in domestic cervids, including elk. Holland had received a game farm licence pursuant to The Animal Products Act, R.S.S. 1978, c. A-20.2 (the “Act”) in 1992 and complied with the Minister’s surveillance program aimed at establishing a CWD-free status for the province’s game industry. Until 2003, Holland complied with the applicable regulations and was issued herd status certificates that indicated his herd was free of CWD. In 2003, the Saskatchewan certification program was combined with the national one established by the Canadian Food Inspection Agency pursuant to which farmers were required to sign a “green form” that included a broadly worded release and indemnification clause which precluded claims of any sort against Canada, the Province or their respective employees in connection with the program. Holland, like many other elk farmers, refused to sign the form containing this clause and as a result, he was excluded from enrollment in the program and the status of his herd was reduced to “surveillance”, the lowest possible level of compliance. This greatly affected his ability to sell elk and dramatically reduced the value of his herd. In 2004, Holland and several other game farmers brought an application for judicial review, attacking the validity of the indemnification and release clause. Gerein C.J.Q.B. held that the clause was invalid and that the “surveillance” status had been wrongly assigned to Holland’s herd. The ruling was not appealed but the Minister did not restore the herd status of the game farmers who had refused to sign the form. In 2005, Holland as the proposed representative plaintiff, brought an action based on the torts of misfeasance in public office, negligence and intimidation against the government of Saskatchewan. The Minister responded by bringing an application to strike the claims as disclosing no reasonable cause of action. The applications judge struck the claim based on the tort of intimidation but refused to strike the claim based on negligence. On appeal, the negligence claim was also struck.