Date: 20060712
Docket: T-1599-99
Citation: 2006 FC 872
BETWEEN:
FERME
AVICOLE KIAMIKA INC.
Plaintiff by counterclaim
and
HER
MAJESTY THE QUEEN
Defendant to counterclaim
AND BETWEEN:
Docket: T-1374-00
FERME AVICOLE
KIAMIKA INC.
Plaintiff
and
HER MAJESTY
THE QUEEN
Defendant
REASONS FOR ORDERS
HUGESSEN J.
[1]
The
defendant Crown filed two motions to strike pursuant to Rule 221(1)(a)
of the Federal Courts Rules, one motion in T-1599-99 (in relation to the
counterclaim) and the other in T‑1374‑00. These two motions were
heard jointly at the same hearing and these reasons will apply to both cases
jointly.
FACTS
[2]
The
plaintiff Ferme Avicole Kiamika Inc. (Kiamika) operates
a table egg business.
[3]
In
early June 1996, Agriculture Canada issued orders pursuant to section 48 of the
Health of Animals Act (1990, c. 21) directing Kiamika to destroy the
chickens found in coops 1 and 2 and all eggs produced during the period from
May 31 to June 12, 1996.
[4]
The
defendant quarantined the Kiamika facilities. The flock and the eggs were
destroyed.
[5]
In
August 1996, the quarantine was lifted and Kiamika was authorized to restock
its coops. Kiamika subsequently decided to temporarily deny Agriculture Canada
inspectors and merchants access to its facilities.
[6]
On September 17, 1996, an inspector appeared at
the Kiamika egg station (placement station) and was denied entry.
[7]
As a result of this, approval for the placement
station was suspended by the Crown and a very large number of eggs seized and
destroyed together with their packaging.
[8]
Pursuant to section 51 of the Health of Animals Act, compensation was paid.
[9]
Before
the assessor Tremblay-Lamer J., Kiamika challenged the compensation paid
following the destruction orders. On July 7, 1998, she dismissed their claim.
No further action was taken in relation to her decision.
[10]
In 1999, Kiamika commenced an action (case
T-1599-99) by way of a counterclaim, pursuant to the Crown Liability and
Proceedings Act (R.S.C. 1985, c. C-50), for all the damage and loss it
alleged it had sustained as a result of the June 1996 destruction orders and
other wrongful acts by the Crown. (The outcome of the principal application in
case T-1599-99 is not relevant to these reasons).
[11]
In the first action, Kiamika alleged that its
claim was specifically based on the liability of the defendant’s employees for
their failure to act and refusal to intervene in December 1995, when for the
first time in Canada an Enteridis Type IV salmonella contamination occurred in
an extremely large incubator in Quebec involving laying hens.
[12]
In
case T-1374-00, the second action, Kiamika alleged that Her Majesty’s liability
was based on the following five separate grounds:
1. the fault of
Agriculture Canada inspectors in wanting to inspect the placement station when
Kiamika had given them notice that all its facilities would be temporarily
closed and inaccessible;
2. the illegal
decision to suspend approval for the placement station;
3. the illegal
decision to seize the eggs and packaging;
4. the defamatory
statements made by an employee of Her Majesty at an appearance before the Court
of Quebec on July 29, 1997; and
5. the wrongful criminal prosecution, subsequently
withdrawn, initiated before the Court of Quebec.
I. CASE T-1599-99
[13]
Citing recent judgments of the Federal Court of
Appeal in Grenier v. Canada, [2005] F.C.J. No. 1778, 2005 FCA 348, and Tremblay
v. Canada, [2006] F.C.J. No. 354, 2006 FCA 90, the Crown claimed that, in
an action brought pursuant to section 17 of the Federal Courts Act, the
Federal Court lacks the necessary jurisdiction to review an administrative
decision made by a federal board, commission or other tribunal which has not
previously been quashed in a judicial review proceeding, pursuant to section 18
of that Act.
[14]
The damages claimed by Kiamika resulted
exclusively and directly from the destruction of poultry and eggs carried out
pursuant to orders by Agriculture Canada: those orders have never been quashed
by any competent authority and still stand.
[15]
I note in passing that in fact this argument raises
a procedural, as opposed to jurisdictional, issue. The Court has full and
exclusive power to review the administrative decisions of federal boards,
commissions or other tribunals pursuant to section 18 of the Federal Courts
Act (R.S.C. 1985, c. F-7).
[16]
However, the same provision conferring
jurisdiction also sets out the procedure to be followed; section 18(1) states
what remedy may be obtained on an application for judicial review.
[17]
The point is of some significance: when the
issue is one of jurisdiction, the Court cannot intervene, whereas in procedural
matters, the Court, in appropriate circumstances, can cure defects.
[18]
However, the point is purely academic in the
case at bar because Kiamika did not ask to have the actions as brought
rectified or varied.
[19]
Therefore, it seems beyond question that,
consistent with Grenier and Tremblay, supra, Kiamika could not,
by way of an ordinary action, claim the damages resulting from the destruction
of poultry and eggs pursuant to court orders without first having made an
application for judicial review and having had the said orders quashed.
Accordingly, the Crown is entitled to ask that the action be struck out.
[20]
Then,
the Crown argued that the immunity mentioned in section 50 of the Health
of Animals Act and section 9 of the Crown Liability and Proceedings Act
is a bar to Kiamika’s action.
[21]
Section
50 of the Health of Animals Act reads as follows:
50. Where a person
must, by or under this Act or the regulations, do anything, including provide
and maintain any area, office, laboratory or other facility under section 31,
or permit an inspector or officer to do anything, Her Majesty is not liable
(a) for any
costs, loss or damage resulting from the compliance; or
(b) to
pay any fee, rent or other charge for what is done, provided, maintained or
permitted.
[22]
Section
9 of the Crown Liability and Proceedings Act states that:
9. 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.
[23]
In
a recent case, Begg v. Canada, [2005] F.C.J. No. 1819, 2005 FCA 362, the Federal Court of Appeal
interpreted these provisions in the light of an abundant case-law and thus
dismissed the action of a litigant whose herd had been destroyed pursuant to
orders made pursuant to the Health of Animals Act and who had received compensation
under that Act.
[24]
The
case is especially relevant as the appellants in Begg, as in Kiamika,
had argued that their claim was based not only on the alleged illegality of the
destruction order, but primarily on the alleged prior negligence of the servants
of Her Majesty.
[25]
The
Federal Court of Appeal disposed of this argument, per Nadon J.A., as
follows:
[27]
Before the trial Judge and before us on this appeal, the
appellants submit that section 9 of the Crown Liability Act does not bar
the action which they have instituted on the grounds of negligence.
Specifically, they argue that section 9 only prohibits actions against agents
or servants of the Crown in the course of carrying out their normal duties. The
normal duties covered by section 9 would be, for example, ascertaining the
presence of tuberculosis in a herd and, as a consequence, the destruction of
animals, where required. However, the appellants submit that section 9 does not
apply to cases where the alleged negligence consists in not having taken all
reasonable steps to prevent the entry of tuberculosis into Canada in the first
place, as well as in having failed to take all reasonable steps to eradicate
the disease when first discovered.
[28]
The Judge was of the view that the distinction sought to
be made by the appellants was not a valid one. I agree.
. . .
[32]
Like Campbell J., I cannot see how it can be argued that the factual
basis of the compensation and the action differ. In my view, they are one and
the same. Whether the destruction of the appellants’ animals results from the
negligence of officials in failing to prevent the entry of tuberculosis into
Canada or by reason of any other ground of negligence, is, in my respectful
view, irrelevant. The plain fact is that both the compensation received and the
recovery sought by way of the appellants’ action result from the same
occurrence, i.e. the destruction of their herd.
[26]
As
Kiamika has received the compensation provided for by the Health of Animals
Act, its action for damages from the destruction of the poultry and eggs is
not admissible and must be struck out.
[27]
Finally,
the Crown argued that case T-1599-99 is an abuse of process.
[28]
In
an action brought in the Superior Court of Quebec, Kiamika sued the supplier of
its chicks, the Coopérative Fédérée du Québec (the Co-op). The latter in turn
sued the Crown in right of Canada in warranty.
[29]
One of the allegations against the supplier, and
hence against the Crown, was a failure to inform and warn Kiamika of the
presence of salmonella.
[30]
At
the conclusion of a lengthy and complicated trial Vézina J. (as he then was)
found as follows:
[translation]
IV
Obligation to Inform the Co-op
or Test of December 95
[157] Test not disclosed in
January 1996.
[158] The Fermes argued
that the Co-op had failed to carry out their duty of informing them by not
disclosing an SE positive test in December 1995 on its Arthabaska hatchery.
What actually happened?
[159] The contaminated chicks were
sold to Kiamika in mid-November 1995. In the following month, the hatchery made
the 16 tests required every six weeks. On January 22, the laboratory results
were received. There was one SE positive, that in hatchery No. 16, where
the incubated eggs came from two breeding flocks, the Houde flock owned by the
Co-op and the Hutchinson flock. Agriculture Canada at once followed the
procedure applicable to such cases.
[160] Dr. Dufour, who handled the case
for the Co-op, and the Agriculture Canada official responsible for the matter,
Jean Dion, both came to the conclusion in early February that there was no need
to take further action: “The case is closed”.
[31]
Vézina
J. then undertook a detailed review of all evidence heard on the matter, and
found that :
[translation]
[200] In conclusion, the Co-op’s decision not to publicize the
December 95 positive test in January 1996 does not constitute fault. In April,
the presence of SE at Kiamika became known and the information would not have
changed anything: regardless of the source of contamination, the measures to be
taken and the urgent need for action were the same.
[32]
Vézina
J.’s conclusion on this point was not challenged by Kiamika on appeal.
[34]
What
useful purpose would be served by the holding of a second trial in the case at
bar? Both parties argued the same issues of fact before Vézina J., and although
they played different parts and the Vézina judgment is not strictly speaking res
judicata in this Court, it did give a final and definitive answer to all
the questions which Kiamika is now seeking to raise again.
[35]
If a Federal Court judge came to a different
conclusion from that of his colleague in Quebec the two courts would be in
conflict, and that would be clearly contrary to the best interests of justice.
[36]
On
the other hand, at the end of the day, if the two judges were to agree, the
result would hardly be better, since both the parties and the Court would have
wasted their time and resources in vain.
[37]
I
will follow the comments of the Supreme Court of Canada in Toronto (City) v.
Canadian Union of Public Employees, Local 79, [2003]
3 S.C.R. 77, 2003 SCC 63, per Arbour J. about abuse of process, at paragraph
51:
Rather than focus on the motive
or status of the parties, the doctrine of abuse of process concentrates on the
integrity of the adjudicative process. Three preliminary observations are
useful in that respect. First, there can be no assumption that
relitigation will yield a more accurate result than the original
proceeding. Second, if the same result is reached in the subsequent proceeding,
the relitigation will prove to have been a waste of judicial resources as well
as an unnecessary expense for the parties and possibly an additional hardship
for some witnesses. Finally, if the result in the subsequent proceeding
is different from the conclusion reached in the first on the very same issue,
the inconsistency, in and of itself, will undermine the credibility of the
entire judicial process, thereby diminishing its authority, its credibility and
its aim of finality.
[38]
On
this basis, I find that, in the circumstances, Kiamika’s action is an abuse of
process and should be dismissed on this ground as well.
II. CASE T-1374-00
[39]
On the second motion to strike, the Crown
challenged Kiamika’s first three arguments on grounds essentially similar to
those it had relied on in its motion to strike the first action (see
paragraph 14).
[40]
In each case, the alleged illegal decision by
Agriculture Canada has not been previously challenged by way of an application
for judicial review; accordingly, it must be assumed to be legal. Kiamika
maintained that an application for judicial review would have been pointless
because the decisions in question had already been carried out and the damage
done. I am not persuaded by that argument: there is no rule of law allowing a
litigant to challenge an administrative decision which has already been
implemented on the basis of different grounds applicable to a completely
different decision of the same type.
[41]
For the reasons set out above, I agree with the
Crown. The allegations in the statement of claim in support of the first three
causes of action will be struck out.
[42]
As to the fourth cause of action, the alleged
defamation on July 29, 1997, the prescription period set out in article 2929 of
the Civil Code of Québec is one year.
[43]
Article
2929 reads as follows:
An action
for defamation is prescribed by one year from the day on which the defamed
person learned of the defamation.
[44]
Since
the action was filed in Federal Court on July 26, 2000, defamation as a cause
of action is obviously prescribed and inadmissible and must be dismissed.
[45]
Finally, Kiamika alleged no facts in support of
its alleged fifth cause of action to exclude the relative immunity enjoyed by
anyone bringing a criminal action on behalf of the State (see Nelles v.
Yukon Territory, [1996] Y.J. No. 7, and Proulx v. Quebec
(Attorney General), [2001] 3 S.C.R. 9, 2001 SCC 66).
[46]
In
the absence of such allegations, the action is destined to fail and must be
struck out at this stage of the proceedings.
[47]
Apart
from the allegations dealing exclusively with the five causes of action listed
above, the other allegations in the statement of claim only provide a
background and offer no basis for an order in the applicant’s favour. The other
allegations must also be struck out.
CONCLUSION
[48]
I
rule that the Crown’s two motions should be allowed and Kiamika’s two actions
dismissed with costs.
“James
K. Hugessen”
Ottawa,
Ontario
July
12, 2006
Certified
true translation
François
Brunet, LLB, BCL
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