Date: 20051103
Docket: IMM-1669-05
Citation: 2005 FC 1484
BETWEEN:
BAZ SINGH MOMI; DR. PARVEZ ALI
KHAN;
DR. ARCHANA PARIKH; PAIMAN HAIBODI;
N. MAGPOC RAMOS; PANKAJ SHARMA;
JIGNESH T. SHAH; VA VING TENG;
CHENCG HUA CHU; HSUEH WEI PAN
HUNG CHIH CHEN
Plaintiffs
and
HER MAJESTY THE QUEEN AS
REPRESENTED BY HER
AGENT, THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Defendant
REASONS FOR
ORDER
HARRINGTON J.
[1]
Baz
Singh Momi and the other 10 named plaintiffs each submitted an application after
31 March 1994 to permanently reside in Canada and paid the
prescribed fees. They think the fees were excessive and propose a class action
on behalf of all those during the same period who either applied for permanent
resident visas, for work permits, student permits, temporary resident visas or to
renew temporary status. Each member of the proposed class paid a service fee.
[2]
It
is alleged that, based on annual reports submitted to Parliament by the
Department of Citizenship and Immigration, the fees generated exceeded cost by
not less than 711.3 million dollars.
[3]
They
not only allege that the fees were excessive, but also that Her Majesty had no
legal authority to charge them to the extent she did because section 19(2) of
the Financial Administration Act provides that a service fee may not
exceed its cost.
[4]
They
seek restitution based on unjust enrichment or alternatively, on the basis of
mutual mistake, money had and received, or negligence.
[5]
The
defendant, whom I shall call “the Minister”, has moved to strike out the entire
statement of claim and to have the action dismissed on the grounds that the
claim is without legal foundation because the fees were validly levied and
collected in virtue of Regulations enacted under the Immigration Act
and, since its repeal in 2002, under the Immigration and Refugee Protection
Act (IRPA). Even if those regulations were invalid, Federal law does not
entitle the plaintiffs to a refund. He also moved that the statement of claim
be struck on the grounds of time bar and because it is an abuse of process of
the Court as it attempts to relitigate an issue which the Federal Court has
already determined.
ISSUES
[6]
The
issues are:
a.
Were
the Regulations under which the fees were prescribed and collected
valid? If so, it is plain and obvious that no plaintiff can succeed and the
entire statement of claim should be struck with an attendant dismissal of the
action.
b.
If
the Regulations were invalid, does Federal law nevertheless bar
recovery?
c.
If
it is not plain and obvious that the Regulations were valid, or that
recovery of the fees is nevertheless barred, then the four alleged causes of
action must be analysed to ascertain whether it is plain and obvious that they
cannot succeed.
d.
To
the extent one or more causes of action still survive, is the statement of
claim an abuse of process of the Court because it attempts to relitigate an
issue which this Court has already determined?
e.
Alternatively,
or in any event, should some individual claims be struck on the grounds that
the governing Statute of Limitations is six years as set out in section 39 of
the Federal Courts Act?
MOTION TO STRIKE
PLEADINGS
[7]
Rule
221 of the Federal Courts Rules provides:
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221. (1) On motion, the Court may, at any time, order
that a pleading, or anything contained therein, be struck out, with or
without leave to amend, on the ground that it
(a) discloses no
reasonable cause of action or defence, as the case may be,
(b) is immaterial or
redundant,
(c) is scandalous,
frivolous or vexatious,
(d) may prejudice or
delay the fair trial of the action,
(e) constitutes a
departure from a previous pleading, or
(f) is otherwise an
abuse of the process of the Court,
and may order the
action be dismissed or judgment entered accordingly.
Evidence
(2) No evidence shall be
heard on a motion for an order under paragraph (1)(a).
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221. (1) À tout
moment, la Cour peut, sur requête, ordonner la radiation de tout ou partie
d'un acte de procédure, avec ou sans autorisation de le modifier, au motif,
selon le cas :
a) qu'il ne révèle aucune cause d'action
ou de défense valable;
b) qu'il n'est pas pertinent ou qu'il est
redondant;
c) qu'il est scandaleux, frivole ou
vexatoire;
d) qu'il risque de nuire à l'instruction
équitable de l'action ou de la retarder;
e) qu'il diverge d'un acte de procédure
antérieur;
f) qu'il constitue autrement un abus de
procédure.
Elle peut
aussi ordonner que l'action soit rejetée ou qu'un jugement soit enregistré en
conséquence.
Preuve
(2) Aucune preuve
n'est admissible dans le cadre d'une requête invoquant le motif visé à
l'alinéa (1)a).
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[8]
The
leading case on whether a statement of claim fails to disclose a reasonable cause
of action is Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959, on appeal
from the Court of Appeal for British Columbia. The rule of Court in
that case, like Federal Court Rule 221, allowed the Court to strike out a pleading
“on the ground that it discloses no reasonable claim or defence, as the case
may be…” Nothing turns on the fact that the Federal Court Rule speaks to a
reasonable cause of action while the B.C. rule under consideration in Hunt
spoke to a “reasonable claim”. The Supreme Court held that the test to be
applied was whether it was “plain and obvious” that the statement of claim
disclosed no reasonable claim. “… If there is a chance that the plaintiff might
succeed, then the plaintiff should not be “driven from the judgment seat”.” It
is certainly not for the Court at this stage to weigh the plaintiffs’ chances
of success.
[9]
The
allegations in the statement of claim are disarmingly simple. Based on annual
reports submitted to Parliament by the Department of Citizenship and
Immigration, over the timeframe in question, it is alleged that the fees paid
by the proposed plaintiff class to the defendant exceeded the defendant’s costs
by not less than 711.3 million dollars. This constituted an unjust enrichment
in favour of the defendant and a corresponding deprivation to the plaintiff
class. There is no juristic reason for this enrichment because subsections
19(1) and (2) of the Financial Administration Act provide:
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19. (1)
The Governor in Council may, on the recommendation of the Treasury Board,
(a)
by regulation prescribe the fees or charges to be paid for a service or the
use of a facility provided by or on behalf of Her Majesty in right of Canada
by the users or classes of users of the service or facility; or
(b)
authorize the appropriate Minister to prescribe by order those fees or
charges, subject to such terms and conditions as may be specified by the
Governor in Council.
(2)
Fees and charges for a service or the use of a facility provided by or on
behalf of Her Majesty in right of Canada that are prescribed under subsection
(1) or the amount of which is adjusted under section 19.2 may not exceed the
cost to Her Majesty in right of Canada of providing the service or the use of
the facility to the users or class of users.
R.S.,
1985, c. F-11, s. 19; 1991, c. 24, s. 6.
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19. (1) Sur recommandation du Conseil du Trésor, le gouverneur en conseil
peut :
a) fixer par règlement, pour la prestation de services ou
la mise à disposition d'installations par Sa Majesté du chef du Canada ou en
son nom, le prix à payer, individuellement ou par catégorie, par les
bénéficiaires des services ou les usagers des installations;
b) autoriser le ministre compétent à fixer ce prix par
arrêté et assortir son autorisation des conditions qu'il juge indiquées.
(2) Le prix fixé en vertu du paragraphe (1) ou rajusté conformément à
l'article 19.2 ne peut excéder les coûts supportés par Sa Majesté du chef du
Canada pour la prestation des services aux bénéficiaires ou usagers, ou à une
catégorie de ceux-ci, ou la mise à leur disposition des installations.
L.R.
(1985), ch. F-11, art. 19; 1991, ch. 24, art. 6.
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[10]
The
documents referred to in the statement of claim were not attached thereto.
Indeed, there is no need therefore. However, Rule 206 provides that documents
referred to shall be served with the pleading or within 10 days thereafter
unless waived, or the Court orders otherwise. Whether or not the Minister
waived service of documents generated by his own department is not clear. What
the Minister did do was by way of affidavit file in Court the documents in
question, which he says read in their entirety establish that the services in
question were actually provided at a loss. It is not necessary to decide
whether this tactic was a roundabout way to avoid the rule that no evidence
shall be heard on a motion to strike a statement of claim because it discloses
no reasonable cause of action. At this stage, the allegations of fact are taken
to be true. In any event, the reports give no detail of what is included in
cost and what is included in expenses, or whether expenses primarily incurred
by other departments, such as in maintaining embassies and consular offices, are
shared by Citizenship and Immigration Canada. These are matters for a statement
of defence and discovery; not matters relevant on a motion to strike. The main
thrust of the motion to strike is that the fees were validly levied and
collected in virtue of various Immigration Regulations, which prevail over the Financial
Administration Act.
VALIDITY OF THE
REGULATIONS
[11]
Some
of the plaintiffs paid fees in specific dollar amounts as set out in the Immigration
and Refugee Protection Regulations SOR/2002-227 published in the Canada
Gazette in June 2002. The registration provides:
Her
Excellency the Governor General in Council, on the recommendation of the
Minister of Citizenship and Immigration and the Treasury Board, pursuant to
section 5(1) of the Immigration and Refugee Protection Act and paragraphs
19(1)(a) and 19.1(a) and subsection 20(2) of the Financial Administration
Act, and, considering that it is in the public interest to do so,
subsection 23(2.1) of that Act, hereby makes the annexed Immigration and
Refugee Protection Regulations.
[12]
Section 19.1(a) of the Financial Administration Act states:
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19.1 The Governor in Council may, on the
recommendation of the Treasury Board,
(a) by regulation
prescribe the fees or charges to be paid for a right or privilege conferred
by or on behalf of Her Majesty in right of Canada, by means of a licence,
permit or other authorization, by the persons or classes of persons on whom
the right or privilege is conferred; or
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19.1
Sur recommandation du Conseil du Trésor, le gouverneur en conseil peut :
a) fixer par règlement, pour l'octroi par licence, permis ou autre forme
d'autorisation d'un droit ou avantage par Sa Majesté du chef du Canada ou en
son nom, le prix à payer, individuellement ou par catégorie, par les
attributaires du droit ou de l'avantage;
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The government could charge
what it likes for a privilege. However, at least at this stage, the Minister
does not contest the plaintiffs’ characterization of the fees as service fees, not
privileges.
[13]
It
should be noted that section 19(2) of the Financial Administration Act,
the subsection which limits service fees to the cost thereof was not cited in
the Regulation.
[14]
Other
proposed plaintiffs paid fees under the former Act and Regulations.
Although the language is slightly different, nothing turns thereon.
[15]
According
to section 5(1) of IRPA:
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5. (1) Except as otherwise provided, the
Governor in Council may make any regulation that is referred to in this Act
or that prescribes any matter whose prescription is referred to in this Act.
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5.
(1) Le gouverneur en conseil peut, sous réserve des autres dispositions de la
présente loi, prendre les règlements d'application de la présente loi et
toute autre mesure d'ordre réglementaire qu'elle prévoit.
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[16]
Section
89 of IRPA specifically allows that the Regulations “may govern
fees for services provided in the administration of this Act…”
[17]
The
Minister submits that even if the service fees exceeded the cost, which is
denied, section 5 of IRPA permits the enactment of Regulations contrary
to section 19(2) of the Financial Administration Act, particularly since
section 10(e) of the latter provides:
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10. Subject to any other Act of
Parliament, the Treasury Board may make regulations
…
(e) for the purposes of any provision of this Act
that contemplates regulations of the Treasury Board;
[Emphasis added]
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10. Sous
réserve des autres lois fédérales, le Conseil du Trésor peut prendre des
règlements :
(…)
e)
en vue de procéder à toute autre mesure d'ordre réglementaire prévue par la
présente loi;
(je souligne)
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[18]
The
plaintiffs for their part, in essence, submit that IRPA and the Financial
Administration Act can and must be read together. IRPA permits Regulations,
but any regulation relating to a service fee cannot exceed the cost thereof.
[19]
Although
“subject to” normally means “subordinate to”, it is not plain and obvious to me
that, by permitting fees under IRPA to be fixed by regulations, Parliament
intended that services fees could exceed cost, the whole in violation of
section 19(2) of the Financial Administration Act. If section 89 of IRPA
said something like “notwithstanding paragraph 19(2) of the Financial
Administration Act”, the Regulations “may govern fees for services
provided” the matter would be quite different.
[20]
IRPA
and
the Regulations thereunder are to be interpreted in context. In Glykis
v. Hydro-Québec, [2004] 3 S.C.R. 285, Deschamps J. said at paragraph 5:
The approach to statutory interpretation is well-known (Bell
ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, 2002 SCC 42). A
statutory provision must be read in its entire context, taking into
consideration not only the ordinary and grammatical sense of the words, but
also the scheme and object of the statute, and the intention of the
legislature. This approach to statutory interpretation must also be followed,
with necessary adaptations, in interpreting regulations.
[21]
The
long title of IRPA is “An Act respecting immigration to Canada and the
granting of refugee protection to persons who are displaced, persecuted or in
danger”. It is not plain and obvious that Parliament intended necessary
services to be provided on more than a cost recovery basis. More explicit
language is necessary. The Financial Administration Act is “an Act
to provide for the financial administration of the Government of Canada, the
establishment and maintenance of the accounts in Canada and the
control of Crown corporations.” It is a multipurpose Statute. I am not prepared
to accept on a motion to strike that section 19(2) of the Act can be
circumvented by a regulation under another Act, unless Parliament specifically
so provided. The general principle is that Statutes should, if possible, be
read together. The recent decision of the Manitoba Court of Appeal in Menzies
v. Manitoba Insurance Corp. (2005) M.B.C.A. 97, 2005 M.J. No. 313 (QL),
which commented on the decision of the Supreme Court of Canada in Murphy v.
Welsh; Stoddard v. Watson, [1993] 2 S.C.R. 1069, illustrates the interplay
between subordination and coordination. Freedman J.A. said at paragraphs 41-44:
¶41
Stoddard was an appeal from the Ontario Court of Appeal decision in Murphy v.
Welsh; Stoddard v. Watson (1991), 81
D.L.R. (4th) 475. The Court of Appeal had to determine whether s. 180(1) of
the Ontario Highway Traffic Act (the H.T.A.), R.S.O. 1980, c. 198 required an
action to be brought within two years of the accident or whether, because the
injured party was an infant, the action was permitted by s. 47 of the
Limitations Act, R.S.O. 1980, c. 240 to be brought within two years of his
attaining majority. The H.T.A. provision then read:
180(1) Subject
to subsections (2) and (3), no action shall be brought ... after the expiration
of two years ...
The Limitations Act provision
read:
47. Where
a person ... is ... a minor, ... the period within which the action may be
brought shall be reckoned from the date when such person became of full age ...
¶ 42
The appellate court said that the question was whether the only exceptions to
the two-year limitation in s. 180(1) were those in subs. (2) and (3). In
construing "subject to," the court said (at pp. 481-82):
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The meaning of the
expression "subject to" in statutes was, in my opinion, correctly
stated by the late Professor Driedger in The Composition of Legislation, 2nd
ed. (1976), at pp. 139-40, as follows:
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Subject to - Used to assign
a subordinate position to an enactment, or to pave the way for
qualifications.
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Where two sections
conflict, and one is not merely an exception to the other, the subordinate
one should be preceded by subject to; this reconciles the conflict and serves
as a warning that there is more to come.
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The phrase "subject
to" always has a counterpart. In other words, the section containing the
phrase will always specify the enactment or qualification to which it is
subordinate. In s. 180(1), the words "subject to" are followed only
by a reference to s-ss. (2) and (3). In my opinion, the ordinary
interpretation of this provision is that s. 180(1) is subordinate only to
s-ss. (2) and (3). Had the legislature intended to restrict the operation of
s. 180(1) further, it could have included s. 47 of the Limitations Act or any
other statutory provision in the exceptions named after the words
"subject to": see Hinton Electric Co. v. Bank of Montreal (1903), 9
B.C.R. 545 at p. 550. It did not do so and, therefore, I find that the
operation of s. 180(1) is not subject to s. 47 of the Limitations Act.
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[Emphasis
added]
¶ 43
The court struck out the infant's claim which had been filed after two years
after the accident (but within two years of attaining majority). The Supreme
Court reversed this decision.
¶ 44
Framing the issue as whether s. 47 postpones the s. 180(1) limitation period,
the Supreme Court said (at pp. 1078-79):
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.... The respondents argue
that the opening words of s. 180(1) define this relationship and exclude the
application of s. 47: "Subject to subsections (2) and (3), no action
shall be brought....". However, to find that subsections (2) and (3) are
the sole exceptions to s. 180(1) means reading s. 180(1) as "subject
only to subsections (2) and (3)". Statutory interpretation presumes
against adding words unless the addition gives voice to the legislator's
implicit intention. ....
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In determining the
legislator's intention there is a presumption of coherence between related
statutes. Provisions are only deemed inconsistent where they cannot stand
together. Sections 180(1) and 47 are not prima facie inconsistent. Section
180(1) sets the length of the limitation period. Section 47 states when the
limitation period begins to run. Their co-existence does not lead to absurd
results. ....
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[22]
Applying
Murphy, supra, I have come to the view that absent statutory language to
the contrary, the Regulations must conform to the requirements of the Financial
Administration Act.
[23]
The
plaintiffs suggest that the Regulation be read down so as to reflect the
actual cost. Logically, if the service fees exceeded the cost thereof, contrary
to the provisions of the Financial Administration Act, then the
“constitutional validity, applicability or operability” of a regulation made
under an Act of Parliament is in question. Section 57 of the Federal
Courts Act stipulates that such a regulation shall not be judged to be
invalid, inapplicable or inoperable until notices have been served on the
Attorney General of Canada and the Attorney General of each province. That
notice needs not to be given in the statement of claim, but must be given
before the constitutional question is to be argued.
REFUND OF FEES INVALIDLY
COLLECTED
[24]
The
Minister goes on to submit that even if the Regulations were invalid,
the plaintiffs are not entitled to a refund. He cites a number of cases, the
lynchpin being Air Canada v. British Columbia, [1989] 1 S.C.R. 1161. That
case dealt with whether a provincial tax first levied on an original purchaser
of gasoline and then amended to apply to the ultimate consumer was ultra
vires. The case is to be considered with some care as only six judges
participated in the judgment. After deciding that the original statute was ultra
vires, the Court then had to deal with taxes invalidly collected. La Forest,
with whom Lamer and L’Heureux-Dubé J.J. concurred, disposed of the unjust
enrichment argument advanced by Air Canada on the grounds that the
airlines had suffered no loss because the burden of the tax was passed on to
their customers: “The law of restitution is not intended to provide windfalls
to plaintiffs who have suffered no loss. Its function is to ensure that where a
plaintiff has been deprived of wealth that is either in his possession or would
have accrued for his benefit, it is restored to him…This alone is sufficient to
deny the airlines’ claim.” (pp. 1202-1203).
[25]
However,
he went on to say that even if the airlines could show that they suffered the
burden of the tax, he would deny recovery on principles of public policy. He
concluded at pages 1206 and 1207:
All and all, I have
become persuaded that the rule should be against recovery of ultra vires
taxes, at least in the case of unconstitutional statutes… This rule against the recovery of unconstitutional
and ultra vires levies is an exceptional rule, and should not be
construed more widely than is necessary to fulfill the values which support
it. Chief among these are the protection of the treasury, and a
recognition of the reality that if the tax were refunded, modern
government would be driven to the inefficient course of reimposing it either on
the same, or on a new generation of taxpayers, to finance the operations of government. Though
the drawing of lines is always difficult, I am persuaded that this rule should
not apply where a tax is extracted from a taxpayer through a
misapplication of the law. [Emphasis added]
[26]
It
appears to be common ground that the service fees in question were not taxes,
and I am not prepared to extend the principle to other moneys collected and
paid into the public treasury, at least not on a motion to strike. Furthermore,
Beetz J. and McIntyre expressly refrained from opining on this point,
and Wilson J., dissenting in part, was of the view that payments paid under a statute
subsequently found to be unconstitutional should be recoverable.
[27]
The
Minister further submits that the opinion of La Forest J. in Air Canada, supra, has been
extended to cover any funds collected under regulation. Reliance was placed on
the decision of the Quebec Court of Appeal on Télébec ltée v. Québec (Régie
des télécommunications), [1999] J.Q. No. 756. The Court followed La Forest
in Air Canada, supra, and did not allow the
recovery of monies received. However the fees in question were held to be taxes.
[28]
The
Supreme Court decision in Gladstone v. Canada (Attorney
General),
[2005] 1 S.C.R. 325 is not applicable either. Fisheries and Oceans had seized
and sold herring spawn which the respondents had allegedly harvested in
violation of the Fisheries Act. Proceedings against the respondents, who
were of the First Nations, were ultimately stayed and the net proceeds of the
sale of the herring spawn paid over to them. The issue was whether or not the
Crown was also obliged to pay interest. The Court held the Crown did not owe
interest. The Fisheries Act was a complete code dealing with the
disposition and return of seized property, and imposed no obligation to pay
interest.
[29]
I
have already expressed the view that the IRPA and the Regulations
thereunder are not a complete code. This is not to say that if the plaintiffs
succeed on the merits their recovery might be limited to principal, without interest.
[30]
We
must now turn to the alleged causes of action.
ALLEGED CAUSES OF ACTION
1. Unjust Enrichment
[31]
This
issue was recently canvassed by the Supreme Court in Garland v. Consumers’
Gas Co., [2004] 1 S.C.R. 629. There are three elements to an unjust
enrichment claim:
a.
Enrichment
of the defendant,
b.
A
corresponding deprivation of the plaintiff,
c.
An
absence of juristic reason for the enrichment.
[32]
The
defendant may have been enriched out of the pockets of the plaintiffs. However,
the plaintiffs must show that there is no juristic reason to deny recovery.
Established categories include a contract, a disposition of law, a donative
intent and other valid common-law equitable or statutory obligations. As it is
not plain and obvious that there was a juristic reason, then the plaintiffs
have made out a prima facie case. However, the Minister as defendant can
rebut by showing there are other juristic reasons such as reasonable
expectations of the parties or public policy. The minister has not yet filed a
statement of defence, and so it can hardly be said has rebutted a prima facie
case.
[33]
Let
it be clear that I am only referring to a “prima faice” case in
the context of unjust enrichment and the burden of proof should the case
proceed. At this stage, it is not necessary to go beyond the “plain and
obvious” test in Hunt v. Carey, supra
2. Money had
and received and 3. Mutual mistake
[34]
The
purpose of pleadings is to set out the facts, not to argue law. I do not think
it is desirable on a motion to strike to engage in an overall review of the law
of restitution, mistake of fact, mistake of law or money had and received, as
they all may bear some semblance to unjust enrichment.
[35]
Sufficient
facts have been alleged. If there is a defect in the form of pleading, it can
be cured. As Lord Denning M.R. said in Letang v. Cooper, [1964] 2 All
E.R. 929 at p. 932:
I must
decline, therefore, to go back to the old forms of action in order to construe
this statute. I know that in the last century MAITLAND said “the forms of
action we have buried but they still rule us from their graves.” But we have
in this Century shaken off their trammels. These forms of action have served
their day. They did at one time form a guide to substantive rights; but they do
so no longer. Lord Atkin told us what to do about them:
“When these
ghosts of the past stand in the path of justice, clanking their medieval chains,
the proper course for the judge is to pass through them undeterred. See United
Australia, Ltd. v. Barclays Bank Ltd. [1940] 4 All E.R. 20 at p. 37”
4. Negligence
[36]
However,
quite different considerations come into play in paragraphs 8 and 14 of the statement
of claim, which allege that the defendant owed, and breached, a duty of care to
avoid charging and collecting service fees in excess of cost.
[37]
There
are two classes of persons who could be covered by those allegations, those who
played a role in enacting the Regulation and those who played a role in
administering the Regulation by collecting the fees before processing
the applications.
[38]
The
claim as thus framed is one in tort for pure economic loss. Furthermore, under
section 10 of the Crown Liability and Proceedings Act, no action lies
against the Crown unless it would also have given rise to a cause of action for
liability against a Crown servant.
[39]
To
first deal with those involved in the collection of the fees, fees which may or
may not have exceeded cost, I cannot possibly imagine that the collection clerk
owed a duty to inquire into the validity of Regulations promulgated
under IRPA and its predecessor Statute.
[40]
The
broader submission is that the Regulation would not have been enacted in
the first place had the Governor in Council paid closer attention to section 19(2)
of the Financial Administration Act.
[41]
Liability
in negligence of public authorities, as well as liability in negligence for
pure economic loss, is subject to the test set out by the House of Lords in Anns
v. Merton London Borough Council, [1978] AC 728 and applied in
Canada in such cases as Kamloops (City of) v. Nielsen, [1984] 2 S.C.R.
2. The Court must first determine whether there is sufficient proximity to give
rise to a duty of care, and then, if so, whether there are policy
considerations which negate that duty.
[42]
In
A.O. Farms Inc. v. Canada (2000), 28
Admin. L.R. (3d) 315; [2000] F.C.J. No. 1771 (QL), the plaintiff had entered
into a number of contracts for the sale of barley while certain amendments to
the Canadian Wheat Board Regulations were in force. They were
subsequently struck down as ultra vires. The plaintiff could only
fulfil its contracts at greater cost than if the Regulations had not
been struck down. It took action against the Crown for enacting ultra vires
Regulations. The Crown moved on summary judgment to have the action
dismissed. Hugessen J., after referring to Anns and Kamloops, supra, said:
[11] Here it seems to me that on both branches of the test
the action must fail. The relationship between the government and
the governed is not one of individual proximity. Any, perhaps most,
government actions are likely to cause harm to some members of the
public. That is why government is not an easy matter. Of
course, the government owes a duty to the public but it is a duty owed to the
public collectively and not individually. The remedy for those who
think that duty has not been fulfilled is at the polls and not before the
Courts.
[12] Very similar considerations,
it seems to me, apply to the second branch of the test. A public
authority must be free to make its choices with an eye only to their political
consequences, not to the possibility of being sued for damages. That
is the primary policy consideration underlying the Welbridge and
Guimond decisions with which I started these Reasons and they are equally
applicable here. Government, when it legislates, even wrongly, incompetently,
stupidly, or misguidedly is not liable in damages. That,
in essence, is what the plaintiff has alleged and it discloses, in my
view, no cause of action for trial.
[13] Accordingly, I conclude
that the motion must succeed and an Order will go dismissing the action with
costs.
[43]
A.O.
Farms, supra, was applied by von Finckenstein J. recently in Premakumaran
v. Canada, [2005] FC 1131, [2005] F.C.J. No. 1388 (QL).
[44]
To
conclude on this point, it is plain and obvious that an action sounding in
negligence cannot succeed.
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