Federal Court of Appeal Decisions

Date: 20051103

Docket: A-290-04

Citation: 2005 FCA 362

CORAM:        NADON J.A.

SEXTON J.A.

MALONE J.A.

BETWEEN:

                                 CLIFF BEGG, ROLLIE BEGG, BENTLEY BROWN,

                                 DALE CONACHER, KEITH CONACHER, LAURIE

                                         CONACHER, MILTON CONACHER AND

                                                              MILES JOHNSON

                                                                                                                                          Appellants

                                                                           and

                              HER MAJESTY THE QUEEN IN RIGHT OF CANADA

                                       AS REPRESENTED BY THE MINISTER OF

                                                  AGRICULTURE FOR CANADA

                                                                                                                                        Respondent

                                Heard at Saskatoon, Saskatchewan, on September 26, 2005.

                              Judgment delivered at Ottawa, Ontario, on November 03, 2005

REASONS FOR JUDGMENT BY:                                                                                NADON J.A.

CONCURRED IN BY:                                                                                                  SEXTON J.A.

                                                                                                                                    MALONE J.A.

Date: 20051103

Docket: A-290-04

Citation: 2005 FCA 362

CORAM:        NADON J.A.

SEXTON J.A.

MALONE J.A.

BETWEEN:

                                 CLIFF BEGG, ROLLIE BEGG, BENTLEY BROWN,

                                 DALE CONACHER, KEITH CONACHER, LAURIE

                                         CONACHER, MILTON CONACHER AND

                                                              MILES JOHNSON

                                                                                                                                          Appellants

                                                                           and

                              HER MAJESTY THE QUEEN IN RIGHT OF CANADA

                                       AS REPRESENTED BY THE MINISTER OF

                                                  AGRICULTURE FOR CANADA

                                                                                                                                        Respondent

                                                    REASONS FOR JUDGMENT

NADON J.A.

[1]                This is an appeal from a decision of Campbell J. of the Federal Court, 2004 FC 659, May 5, 2004, which allowed the respondent's motion for summary judgment and dismissed the appellants' action. By their action, the appellants claim damages against the respondent for the loss which they suffered as a result of the destruction of their herd of elk by Agriculture Canada between April 19 and June 26, 1991. The mandatory destruction followed the discovery of tuberculosis in one of their animals.

[2]                The main issue before Campbell J. and before this Court is whether section 9 of the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50 (the "Crown Liability Act") prevents the appellants from pursuing their claim for damages by reason of the fact that they have received compensation under a statutory compensation scheme, namely, the Animal Disease and Protection Act, R.S.C. 1982, c. A-11 (the "former Act") and the Health of Animals Act, S.C. 1990, c. 21 (the "Act") and the Regulations enacted thereunder, the Maximum Amounts for Destroyed Animals Regulations, SOR\91-22 (the "Regulations").

[3]                A second issue is the applicability of these Acts to the loss suffered by the appellants.

[4]                Before turning to the relevant facts, a few words concerning the legislative provisions at issue will be helpful. Under the former Act, the Minister of Agriculture was empowered to order the destruction of animals affected, or suspected of being affected, with an infectious or contagious disease. The former Act also gave the Minister the discretion to pay compensation to the owners of the animals destroyed, provided that compensation was to be based on market value, as determined by the Minister. It also allowed the Minister to pay compensation based on less than market value only as regards horses, cattle and sheep. In other words, whenever elk were destroyed under the provisions of the former Act, and the Minister exercised his discretion to pay compensation, such compensation would be based on market value at the time of destruction.

[5]                The former Act was replaced by the Act, which came into force on January 1, 1991. Like the former Act, the Act empowers the Minister to dispose of animals contaminated or suspected of being contaminated. The Act also gives the Minister discretion to pay compensation from the Consolidated Revenue Fund to the owners of animals destroyed under the authority of the Act. Section 51 of the Act provides the basis upon which owners of animals are to be compensated as follows:

[6]                Also of relevance is section 55 of the Act, which allows the Minister to make regulations respecting a method of calculating the market value of animals where the Minister is of the view that there is no readily available market. This section permits the Minister to establish maximum amounts or the manner for calculating such amounts, for the purpose of subsection 51(3) or section 52:

[7]                On March 18, 1991, pursuant to paragraph 55(b) of the Act, the Regulations came into force. Section 4 thereof fixes the maximum amount of compensation payable to the owner of an elk destroyed or required to be destroyed under paragraphs 48(1)(a) or (b) of the Act at $3,500 for a male elk and $7,000 for a female elk.

[8]                I now turn to the relevant facts which were summarized, as follows, by Campbell J. at paragraph 16 of his Reasons:

[16]         The facts relevant to the motion for summary judgment are undisputed. As the owners of a herd of domestic elk, the following events form the basis of the Plaintiffs' claims in the present action:

1.           On or about October 16, 1990, employees of Agriculture Canada were advised of the post mortem findings in an elk cow owned by the Plaintiffs which had died on or about October 9, 1990. As a result of this report, tuberculosis was suspected in the Plaintiffs' herd.

2.           On October 17, 1990, acting under the authority of the old Animal Disease Protection Act, Agriculture Canada placed the herd under quarantine while the herd was under investigation to prevent any further spread of disease, should it be present. As part of the investigation, tissue samples from the dead elk cow were submitted to the laboratory for confirmatory culture. In the result, on January 18, 1991, Agriculture Canada confirmed the diagnosis of tuberculosis in the Plaintiffs' elk herd.

3.           On October 17, 1990, the Plaintiffs' elk herd consisted of 258 elk that were placed under quarantine on October 17, 1990, and 2 elk located at another premises.

4.           The Plaintiffs' elk herd, numbering 260, was disposed of as follows:

a)           two were ordered destroyed and slaughtered on November 26, 1990;

b)           two died from causes unrelated to the tuberculosis investigation while under quarantine, but before tuberculosis was confirmed in the Plaintiffs' elk herd;

c)           three died after tuberculosis had been confirmed, but before they could be ordered destroyed;

d)           253 were ordered destroyed and slaughtered between April 19, 1991 and June 26, 1991.

5.           The Plaintiffs were awarded compensation for the two animals that were ordered destroyed on November 26, 1990 pursuant to the old Animal Disease and Protection Act.

6.           The Plaintiffs were awarded compensation for the 253 animals ordered destroyed between April 19, 1991 and June 26, 1991, and for the three animals that died after tuberculosis had been confirmed, but before they could be ordered destroyed, pursuant to the Health of Animals Act.

7.           In total, the Plaintiffs received compensation for 258 of their animals. The total amount awarded to the plaintiffs as compensation pursuant to both statutory schemes was $1,533,000.00.

[9]                To complete these facts, I should add that although confirmation of the presence of tuberculosis in the herd was made on January 18, 1991 and, as a result, it became certain that the remainder of the herd would have to be destroyed, a moratorium on the destruction of animals was imposed by Agriculture Canada on February 1, 1991. This apparently was done to allow government officials to enact the Regulations.

[10]            As appears from the foregoing facts, the appellants have received financial compensation in the sum of $1,533,000 for the loss of their animals. As this sum does not compensate them for their true losses, proceedings were commenced in the Federal Court, seeking, inter alia, the following remedies (See Second Amended Statement of Claim, paragraph 44):

44.           The Plaintiffs therefore claim:

a)             a declaration that the Animal Disease and Protection Act and the regulations thereunder apply to the destruction of and compensation for the Plaintiffs' elk;

b)             A declaration that the moratorium on the slaughter of diseased elk imposed by the Defendant's Minister of Agriculture was for an improper purpose and is therefore of no force or effect;

c)             In the alternative, a declaration that Section of the Maximum Amounts for Destroyed Animals Regulations is ultra vires the Health of Animals Act and is therefore of no force or effect;

d)             In the further alternative, a declaration that Section 4 of the Maximum Amounts for Destroyed Animals Regulations is invalid and of no force or effect because of its retroactive effect without being made expressly retroactive;

e)             In the further alternative, a declaration that Section 4 of the Maximum Amounts for Destroyed Animals Regulations was made in bad faith, and/or for an improper purpose and/or based on irrelevant considerations and is therefore of no force or effect;

f)             Judgment against the Defendant for damages incurred by the Plaintiff for loss of property and loss of profits incurred as a result of the Defendant's negligence and/or gross negligence and/or intentional acts;

f (A)        Judgment against the Defendant for the fair market value of the elk destroyed as a result of the Defendant's negligent and/or improper actions, together with interest and damages for consequential business loss;

[...]

[11]            In support of their claim for damages, the appellants make numerous allegations of negligence against Agriculture Canada officials and, in particular, they allege that these officials were negligent in allowing tuberculosis to enter Canada. In addition, the appellants take the position that both Acts and the Regulations are of no force and effect. In their submission, compensation for the loss of their animals ought to have been paid pursuant to the former Act.

[12]            Campbell J. dismissed all of the appellants' arguments. Firstly, he held that section 9 of the Crown Liability Act was a complete bar to the appellants' claims based on negligence. Secondly, he held that both the Act and the Regulations, pursuant to which the appellants have been compensated, were proper and in force. Lastly, he held that the appellants were not entitled to compensation under the former Act. As a result, Campbell J. concluded that there was no genuine issue for trial and he dismissed the appellants' action.

[13]            For the reasons that follow, I am of the view that in so concluding, Campbell J. made no error of law, nor did he make any palpable or overriding error in making the factual findings on which his legal conclusions are premised.

[14]            I begin with the negligence point. The judge concluded that section 9 of the Crown Liability Act was a complete bar to the appellants' claims of negligence. That provision reads as follows:

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.                       [Emphasis Added]

9. Ni l'État ni ses préposés ne sont susceptibles de poursuites pour toute perte - notamment décès, blessure ou dommage - ouvrant droit au paiement d'une pension ou indemnité sur le Trésor ou sur des fonds gérés par un organisme mandataire de l'État.      [Non-souligné dans l'original]

[15]            In the Judge's opinion, since the loss suffered by the appellants by reason of the destruction of their animals is the same loss as that which they are trying to recover through their action in negligence, there could be no doubt that section 9 of the Crown Liability Act applied to the compensation received by the appellants.

[16]            In reaching this conclusion, the trial Judge relied on a number of cases, namely: Langille v. Canada (Minister of Agriculture (1991), 44 F.T.R. 60 (F.C.T.D.), affirmed [1992] 2 F.C. 208 (F.C.A.); Sarvanis v. Canada, [2002] 1 S.C.R. 921, and; Marsot v. Canada (Department of National Defence), [2002] 3 F.C. 569 (F.C.T.D.).

[17]            The most recent interpretation and application of section 9 of the Crown Liability Act is the decision of the Supreme Court of Canada in Sarvanis, supra. The facts in that case were that while working in a federal penitentiary, an inmate sustained personal injuries. As a result, he qualified for the Canada Pension Plan ("CPP") disability benefits, which are paid out of the Consolidated Revenue Fund. The inmate commenced proceedings in tort, claiming damages for his injuries, and the Crown moved for summary judgment on the ground that the action was barred by section 9. The trial Judge concluded that section 9 did not apply to the CPP disability benefits received by the inmate. This Court allowed the Crown's appeal, but that decision was reversed by the Supreme Court of Canada.

[18]            In interpreting section 9 of the Crown Liability Act, Iacobucci J., writing for a unanimous Supreme Court, acknowledged that the phrase "in respect of", found in section 9, was of broad import, but went on to state that the phrase could not be interpreted without looking to the context in which it was found. He explained that section 9 clearly envisioned pensions or compensation paid by reason of death, injury, damage or loss. As an example of this, he referred to the destruction of cattle in Langille, supra. Iacobucci J. went on to say that section 9 of the Crown Liability Act would constitute a complete bar to an action against the Crown where the factual basis of both the action and the pension or compensation paid was the same.

[19]            The relevant passages of Iacobucci's Reasons are found at paragraphs 25 to 29, which read as follows:

25.      With this approach in mind, I take note that s. 9 refers to pensions and compensations that are made in respect of "death, injury, damage or loss". The fact that the broad phrase "in respect of" is tied to this enumeration of events is of some significance. The ordinary sense of this list of words indicates that they are specific events to which liability could, but for the operation of s. 9, attach. That is, s. 9 envisions pensions and compensation paid because of an event of death, injury, damage or loss. This is consistent with, for instance, the destruction of cattle in Langille, supra. The compensation paid by the government in that case was in settlement of the loss of cattle suffered by the plaintiffs. The fact that the plaintiffs sought compensation of the same loss in tort was sufficient to show identity between the subject of the attempted claim and the subject of the compensation.

26.      This example is consistent with a reading of the words "in respect of" in the context of the clause in which they appear. The fact that a pension must be in respect of some event of "death, injury, damage or loss" gives us a fuller understanding of the import of the words. What this broad, yet in itself imprecise, phrase means, can be understood by asking what kind of a thing the pension must be in respect of. We will have a different view of the precise scope of the phrase in this context from, for example, the context of the clause which follows in s. 9. The latter clause refers to "death, injury, damage or loss in respect of which the claim is made". The breadth of the words "in respect of" when attached to the concept of a "claim" may be different from the breadth of the same words when attached to a series of events.

27.      This interpretation is also consistent with the French version of the section. Actions that are barred are actions "pour toute perte", or "for any loss", "notamment décès, blessures ou dommages," that is, "in particular, for death, injury or damage" where such a loss also gives rise to ("ouvrant droit") the payment of a pension or compensation. In both the French and English versions of the statute, the key is to recognize that the loss the recovery of which is barred by the statute must be the same loss that creates an entitlement to the relevant pension or compensation. The enumeration of events as clearly explicates the meaning of "perte" in the French text as it does the meaning of "in respect of" in English.

28.      In my view, the language in s. 9 of the Crown Liability and Proceedings Act, though broad, nonetheless requires that such a pension or compensation paid or payable as will bar an action against the Crown be made on the same factual basis as the action thereby barred. In other words, s. 9 reflects the sensible desire of Parliament to prevent double recovery for the same claim where the government is liable for misconduct but has already made a payment in respect thereof. That is to say, the section does not require that the pension or payment be in consideration or settlement of the relevant event, only that it be on the specific basis of the occurrence of that event that the payment is made.

29.      This breadth is necessary to ensure that there is no Crown liability under ancillary heads of damages for an event already compensated. That is, a suit only claiming for pain and suffering, or for loss of enjoyment of life, could not be entertained in light of a pension falling within the purview of s. 9 merely because the claimed head of damages did not match the apparent head of damages compensated for in that pension. All damages arising out of the incident which entitles the person to a pension will be subsumed under s. 9, so long as that pension or compensation is given "in respect of", or on the same basis as, the identical death, injury, damage or loss.

                                                                                                                  [Emphasis Added]

[20]            In the case before him, Iacobucci J. found that CPP disability benefits did not fall within the scope of section 9 of the Crown Liability Act, as the payment thereof had not been made on the "same factual basis" as the one asserted by the inmate in his proceedings against the Crown. At paragraph 38 of his Reasons, Iacobucci J. sets forth his determination as follows:

38.      Simply put, s. 9 of the Crown Liability and Proceedings Act establishes Crown immunity where the very event of death, injury, damage or loss that forms the basis of the barred claim is the event that formed the basis of a pension or compensation award. The CPP, a contributory plan not contingent on death, injury, damage or loss, but rather on physical condition and on adequate quantum and duration of contribution, is a significantly different animal.

[21]            In Langille, supra, a decision which was referred to with approval by the Supreme Court in Sarvanis, supra, at paragraph 25 of the Court's Reasons, the matter before the Court was a claim for damages by reason of the destruction of cattle and for subsequent acts or omissions on the part of the Crown servants or agents. In answer to the claim, the Crown brought an application to strike on the basis of section 4 of the Crown Liability Act (now section 9).

[22]            The appellants in Langille, supra, argued that because the compensation received for the loss of their animals did not compensate them for their full loss, they were entitled to pursue their claim. That contention was dismissed by this Court. At page 213 of his Reasons for the Court, Stone J.A. explained the Court's reasoning in the following terms:

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 Consolidated 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 relation 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 subject 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 difference 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 Revenue Fund. In our view, subsection 4(1) of the Crown Liability Act bars them from doing so.

[23]            I need only refer to one further case, namely, Vona v. Canada (Minister of Agriculture) (1994) 20 O.R. (3d) 589; (1996), 30 O.R. (3d) 686 (Ont. CA). In that case, the Department of Agriculture, in January 1991, placed the plaintiffs' herd of elk, deer and sheep under quarantine, and advised the plaintiff that the herd would be destroyed as part of a program to eradicate tuberculosis under the Act. The destruction of the plaintiffs' herd began in September 1991 and was completed in November of that year. Compensation was paid to the plaintiffs in March 1992 only.

[24]            The plaintiffs, who operated a restaurant, commenced proceedings, claiming that the delay in receiving compensation had resulted, inter alia, in the loss of their restaurant, as the animals were the stock in trade for their restaurant. The Attorney General moved for an order striking out the plaintiffs' Statement of Claim, on the ground that section 9 of the Crown Liability Act constituted a complete bar to the action.

[25]            The plaintiffs' action, framed in the tort of negligence, was premised on the allegation that had they been compensated in a timely manner, their losses, including the loss of their restaurant, would not have resulted. The claim was struck by the trial Judge as disclosing no cause of action and, on appeal to the Ontario Court of Appeal, that Court confirmed the trial decision and dismissed the appellants' claim for loss of profits and mental anguish, thus confirming that the words of the section, "in respect of", were words of the widest possible scope.

[26]            At pages 689 and 690 of its decision, the Ontario Court of Appeal dealt with and dismissed the appellants' submission that since compensation under the Act was limited to compensating the owner of an animal for the actual loss of his animal, section 9 of the Crown Liability Act did not prohibit actions resulting, for example, from the negligence of an agent or servant of the Crown in carrying out his or her duty under the Act. The Court wrote as follows:

In this court, as before the motions judge, the appellants submitted that the scheme of the compensation sections of the Health of Animals Act is aimed at compensation of the owner for the actual loss of the animal. It was contended that as compensation under that Act has to do with the assessed value of each animal it had nothing to do with any other loss or damage such as damage resulting from the negligence of a servant or agent of the Crown in carrying out his or her duty under the Act. Relying on the authorities referred to, MacDonald J. rejected this submission.

MacDonald J., after considering a number of authorities in which the section had been in issue, gave effect to the respondent's submission: see Langille v. Canada (Minister of Agriculture), [1992] 2 F.C. 208, 140 N.R. 304, Nowegijick v. R., [1983] 1 S.C.R. 29 at p. 39, 144 D.L.R. (3d) 193. She held that the action was barred as compensation was paid "in respect of damage or loss" resulting from the destruction of the animals. On the facts of this case we agree with her application of s. 9 of the Crown Liability and Proceedings Act.

[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.

[29]            The question to be asked as a result of the Supreme Court of Canada's decision in Sarvanis, supra, is whether the factual basis of the compensation received by the appellants and that of the action which they have commenced against the respondent is the same. If the answer to that question is a yes, then the action cannot continue.

[30]            The factual basis of the compensation received by the appellants is the destruction of their animals and the loss which results therefrom. As to the factual basis of the appellants' action, it appears to me to be undistinguishable from that of the compensation which they received. It is clear from paragraph 44 of the second amended Statement of Claim that what the appellants seek to recover from the respondent is the fair market value of their animals, together with interest and damages for consequential business losses.

[31]            The present matter is clearly distinguishable from the facts before the Supreme Court in Sarvanis, supra. In that case, the CPP benefits were payable to any person who became disabled from working, irrespective of the cause of his or her disability. Hence, it could not be said that death, injury, damage or loss had triggered the payment of the benefits.

[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.

[33]            I therefore conclude that Campbell J. made no error in holding that section 9 of the Crown Liability Act constituted a bar to the appellants' action in tort and that, as a consequence, there was no genuine issue for trial raised by the allegations of negligence contained in the Statement of Claim.

[34]            I now turn to the appellants' submission that the Act and the Regulations are of no force and effect. Specifically, they say that the moratorium imposed on February 1, 1991, was for an improper purpose and that section 4 of the Regulations was made in bad faith, for an improper purpose and/or based on irrelevant considerations and, hence, of no force and effect.

[35]            Campbell J. found the Regulations to be valid. In so concluding, he relied on his decision in Abel v. Canada (Minister of Agriculture), 2001 FCT 1378, December 13, 2001, where he found, in circumstances similar to the present one, that the Minister had acted in good faith and with proper motive in enacting the Regulations. At paragraphs 14 and 15 of his Reasons in Abel, supra, Campbell J. stated:

[14]             Nevertheless, on the evidence, I find that the Minister did have significant regard for the market value of elk in making the compensation determination contested in the present action. It is also clear that political and economic considerations were properly in play in the exercise of the Minister's discretion. These conclusions are based on the extensive description of the process, including consultation with elk owners, used to reach the compensation decision, as described in the "Regulatory Impact Analysis Statement" appended to the Regulations under consideration.

[15]             It appears that in exercising the ample discretion available to the Minister under the Act and Regulations, the Minister chose to transfer the health risk of elk ranching to the ranchers, instead of absorbing it entirely through use of public funds. I find that by the Act and Regulations the Minister was entitled so to do. I respect the Plaintiffs' attempt to have the Minister account for the authority used, but find that the action taken, while unpalatable to them, was legal.

[36]            The Judge then made it clear that there was no evidence before him, as in Abel, supra, which could support the appellants' contention of bad faith and improper motive. I see no reason to disturb these findings.

[37]            In any event, it is not open to the appellants to challenge the policy reasons which led to the enactment of the Regulations. In my view, it is irrelevant whether the Minister was motivated by public opinion or economic considerations, whether of a budgetary nature or otherwise. This position was made abundantly clear by Mr. Justice Dickson (as he then was) in Thorne's Hardware v. The Queen, [1983] 1 S.C.R. 106, where at pages 111 and 112, he states:

The appellants attack the Order in Council expanding the harbour limits on the basis that it was passed for the sole purpose of increasing the National Harbour Board's revenues. They say this amounts to "bad faith" on the part of the Governor in Council. They also argue that harbour expansion for this reason is not within the scope of the jurisdiction conferred on the federal Cabinet by s. 7(2) of the Act and is therefore ultra vires.

The Federal Court of Appeal answered this submission in these words (at p. 395):

The reasons the Governor in Council may have had for exercising this authority, in addition to being unknown to us, are of little importance, since I do not see how they could affect the validity of the Order. I would add that a desire to increase the revenues of a harbour appears to me to be a justifiable reason for extending the harbour's boundaries.

       Counsel for the appellants was critical of the failure of the Federal Court of Appeal to examine and weigh the evidence for the purpose of determining whether the Governor in Council had been motivated by improper motives in passing the impugned Order in Council. We were invited to undertake such an examination but I think that with all due respect, we must decline. It is neither our duty nor our right to investigate the motives which impelled the federal Cabinet to pass the Order in Council, Attorney-General for Canada v. Hallet & Carey Ltd., [1952] A.C. 427, at p. 445; Reference re Chemical Regulations, [1943] S.C.R. 1, at p. 12. The position is as stated by Audette J. in R. v. National Fish Co. (supra, at pp. 80-81):

... the Parliament of Canada has undoubtedly full and plenary power to legislate both in respect of the provisions contained in the Act and in the Regulations, even if in the result the tax or fee imposed were excessive, prohibitive, oppressive or discriminative. The suggestion made in this case that the regulations are oppressive and prohibitive is not one that would induce a Court of law to inquire into the power of Parliament to authorize the making of such regulations, or to place any limitation upon the ability of Parliament to tax either oppressively or benignantly. The supreme legislative power of Parliament in relation to any subject-matter is always capable of abuse, but it is not to be assumed that it will be improperly used; if it were, the only remedy is an appeal to those by whom the legislature is elected.

       I agree with the Federal Court of Appeal that the government's reasons for expanding the harbour are in the end unknown. Governments do not publish reasons for their decisions; governments may be moved by any number of political, economic, social or partisan considerations. [...]

                                                                                                                  [Emphasis Added]

[38]            Before turning to the appellants' last submission, I should say that the appellants have already had occasion to challenge the sufficiency of the compensation which they received under the Act and the Regulations. In Begg v. The Minister of Agriculture, September 20, 1994, Court file P-14-91 (unreported), Reed J., sitting as an assessor pursuant to section 56 of the Act, concluded that the appellants had received full compensation for their loss. In so concluding, Reed J. made the following comments regarding the moratorium and the Regulations at page 3 of her Reasons:

On February 1, 1991, the Minister placed a moratorium on the slaughter of all elk. Dr. McLane therefore was required to cancel the evaluation arrangements he had made and the slaughter plans relating to the appellants' herd. The seventy-two animals who were suspected of having tuberculosis on the basis of the preliminary test continued therefore to be in contact with the other animals on the appellants' farm.

There is no direct evidence concerning the purpose of this moratorium but it is reasonable to conclude that it was imposed because the Minister was in the process of drafting new regulations which had not yet been finally prepared. On March 18, 1991, the Minister issued the Maximum Amounts for Destroyed Animals Regulations, SOR\91-222, pursuant to section 55 of the new Act. Section of those Regulations specifies maximum amounts payable for elk which are destroyed in the amount of $7,000 for each female and $3,500 for each male.

The moratorium in the slaughtering of elk was lifted and new arrangements were made for the disposal of the appellants' elk. [...] In all cases the appellants were awarded compensation according to the cap values set out in the new regulations. This was so despite the fact that the market value evaluations, which were placed in evidence before me, demonstrate that in many, many instances the appraised market value far exceeded the amounts which were paid.

Despite great sympathy for the appellants, I do not think that, as an assessor, it is within my jurisdiction to declare the amount of compensation as unreasonable when the legislation specifically authorizes the Minister to impose caps. [...]

I do not think it is open to an assessor to find that compensation which is awarded to the maximum level, provided for by the regulations which are issued pursuant to section 55, is unreasonable. Such an interpretation of the statutory provisions, it seems to me, would void the regulations making power given to the Minister under subsection 55(6) of all force and effect. That cannot have been intended.

                                                                                                                  [Emphasis Added]

[39]            I now turn to the appellants' last submission that they had a legitimate expectation of receiving compensation at fair market value, pursuant to the former Act. They also argue that paragraphs 43(b), (c) and (e) of the Interpretation Act, R.S., c. I-21, entitle them to rely on the former Act as compensation at fair market value for the destruction of their animals.

[40]            The Judge concluded that the appellants' submissions were without merit, since compensation had been properly made under the Act and the Regulations. In my view, the Judge did not err in reaching this conclusion.

[41]            Paragraph 51(1)(a) of the Act, like its predecessor, paragraph 12(1)(a) of the former Act, provides that the owner of an animal becomes entitled to compensation upon the destruction thereof. Notwithstanding this clear provision, the appellants submit that Campbell J. erred in not allowing them to be compensated under the former Act. I cannot agree with this submission.

[42]            In Elgersma v. Canada (Minister of Agriculture), March 25, 1993, Court File No. P-8-91 ([1993] F.C.J. No. 286 (F.C.T.D.)(Q.L.)), Pinard J., sitting as an assessor for the determination of compensation for the destroyed elk, considered a claim for compensation under the former Act in the face of the newly-enacted Act. The learned Judge concluded that the claimants were entitled to compensation under the Act, and not under the former Act, because the destruction of the animals had occurred at a time when the Act was in force.

[43]            Upon an application for an order of certiorari and in quashing the order of Mr. Justice Pinard, Jerome A.C.J., in Elgersma v. Canada (Minister of Agriculture), May 24, 1994, Court file T-813-93 ([1994] F.C.J. No. 1661 (F.C.T.D.)(Q.L.)), considered the claimants' submissions, including a submission that they had "accrued" rights under section 43 of the Interpretation Act, and concluded that the right to compensation only arose upon the destruction of the animals. In so concluding, Jerome A.C.J. dismissed the claimants' arguments that their right to compensation either arose at the date of quarantine or at the time of subsequent testing for positive contagion. This Court, in Elgersma v. Canada (Minister of Agriculture), February 22, 1995, Court file A-271-94 ([1995 F.C.J. No. 306 (F.C.A.)(Q.L.)), dismissed the claimants' appeal from Jerome A.C.J.'s decision.

[44]            In the present matter, it is not disputed that the destruction of the appellants' herd, save for that of two elk destroyed on November 26, 1990, and for which the appellants' have been compensated on the basis of market value pursuant to the former Act, occurred between April 1991 and June 26, 1991, i.e. after the coming into force of both the Act and the Regulations. Thus, in my opinion, there can be no debate that the appellants were only entitled to be compensated under the Act and Regulations. The appellants' submission is one that was also made before Reed J. sitting as an assessor in Begg, supra. Madam Justice Reed disposed of the submission in the following terms at page 4 of her Reasons:

As I understand the appellants' position, there was also some suggestion that compensation was payable as of the date of notice to the owners that their animals were to be destroyed. It was argued that the appellants were given such notice on January 24, 1991. I do not read the relevant statutory provisions as having that effect. It seems clear to me that compensation becomes payable only on the destruction of the animal (refer section 51(1) of the Act). Whatever procedural steps might have been taken prior to that time, I cannot interpret them as being a trigger for the payment of compensation. Thus, in this case, compensation did not become payable until April 1991 and later, at which time the caps for elk were in place.

[45]            I cannot but agree with Justices Pinard, Jerome and Reed that compensation under the Act and the Regulations becomes payable only upon the destruction of the animals. Since the destruction of the appellants' animals occurred after March 18, 1991, compensation was therefore to be determined pursuant to the Act and the Regulations. Hence, in the circumstances, the appellants were not entitled to compensated under the provisions of the former Act.

[46]            As the appellants have not succeeded in persuading me that there is any basis to interfere with the conclusions reached by Mr. Justice Campbell, I would therefore dismiss the appeal with costs.

                                                                                         "M. Nadon"

                                                                                                      J.A.

"I agree.

J. Edgar Sexton J.A."

"I agree.

B. Malone J.A."

                          FEDERAL COURT OF APPEAL

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                                       A-290-04

(APPEAL FROM A JUDGEMENT OF THE FEDERAL COURT, DATED MAY 5, 2004, IN COURT FILE T-39-94.)

STYLE OF CAUSE:                                       Begg et al v. H.M.Q.

                                                     

PLACE OF HEARING:                                             Saskatoon, Saskatchewan

DATE OF HEARING:                                               September 26, 2005

REASONS FOR JUDGMENT:                                Nadon, J.A.

CONCURRED IN BY:                                              Sexton and Malone JJ.A.

DATED:                                                          November 03, 2005

APPEARANCES:

Mr. Dale Conacher	FOR HIMSELF AND OTHER APPELLANTS
Ms. Glennys Bembridge	FOR THE RESPONDENT

SOLICITORS OF RECORD:

Mr. Dale Conacher Mervin, Saskatchewan	FOR HIMSELF AND OTHER APPELLANTS
John H. Simms, Q.C. Deputy Attorney General of Canada	FOR THE RESPONDENT