The need to reanalyze the questions posed in Paradis Honey Ltd v Canada
Since 2015, there has been a lack of progress in assessing whether a public body (such as the government) can be held liable for a tort. The case of Paradis Honey Ltd. v Canada, 2015 FCA 89 sought to answer arguably one of the most interesting administrative law questions of the last decade: “whether there can be sufficient proximity between a public actor and government entity can owe a private duty of care, that if breached would result in a tortious claim.”
To provide some context, the case concerns commercial beekeepers who lost profits brought on by a blanket ban on imports issued by the Minister of Agriculture and Agri-Food and the Canadian Food Inspection Agency. The ban inadvertently prevented the import of queen bees to the colony—resulting in a decrease in production and profits. The plaintiffs chose to commence a class action based on negligence. The case was successfully appealed to the Federal court where a new framework was considered for determining whether a public body should be liable in tort. Justice Statas (in obiter) argued for a new cause of action against the government for compensation if an individual is harmed by an administrative action. In effect, the change would allow a person to receive substantive monetary compensation.
As of right now, a private law cause of action does not allow an individual harmed by the state to seek monetary compensation. This is contrary to a private tort which often provides successful claimants with damage costs. Justice Strata proposed a new framework which consisted of first deliberating whether the government acted unlawfully in the carrying out of administrative mandates, followed by determining whether monetary relief would be justified.
Unfortunately, the Supreme Court ultimately denied leave in the case—leaving an important question unanswered in the administrative law context. Speculation suggests that Justice Strata’s opinions on whether a public law case can seek compensation rewards, were made in the obiter, and thus the court preferred to wait for a direct application to assess the question. However, seven years have passed since the court denied relief and the question remains unanswered. Arguably, it appears as though the court aided the government in avoiding accountability for public negligence. As Justice Stratas points out at the Federal court level; “The difference between private parties and public authorities does not matter… we have been using an analytical framework built for private parties, not public authorities.”
Monetary compensation for torts committed by public entities would uphold the rule of law, ensuring that individuals impacted by negative policy decisions would be offered fair justice. This would create a transformation in class actions, through the introduction of duty of care under legislation which would hold government bodies accountable for the negative laws they impose. Some may argue that it would simply place unprecedented burdens on the legislature to contemplate every possible scenario that could adversely affect the public. However, there is limited merit to such an argument. The duty of care would still operate based on the reasonableness standard, providing the courts with the discretion to determine whether a breach was met. With the current provincial conservative government constantly pushing the limits on acceptable legislative decision making, it is time for the courts to reconvene in deciding on this important administrative law question.
