



COURT OF APPEAL FOR ONTARIO

CITATION: Vancise v. Canada (Attorney General), 2018 ONCA 3

DATE: 20180103

DOCKET: C63683

Pepall, Benotto and Paciocco JJ.A.

BETWEEN

John Vancise

Plaintiff (Appellant)

and

Attorney General of Canada and the Minister of
    Agriculture and Agri-food

Defendants (Respondents)

Brad Teplitsky, for the appellant

Wendy Wright, for the respondents

Heard: December 14, 2017

On appeal from the judgment of Justice Freya Kristjanson of
    the Superior Court of Justice, dated March 20, 2017.

Paciocco J.A.:

[1]

In 1996, the appellant imported four Hereford cattle from the United
    States, three of which were later discovered to be infected with anaplasmosis. American
    health documentation certifying the animals to be disease free had been
    falsified. At the time, anaplasmosis was considered to be a foreign animal
    disease, and the Canadian governments policy was to destroy any infected
    animals.

[2]

After their condition was discovered, the four imported animals were
    sent back to the United States. The appellants original herd was quarantined
    at the appellants farm by order of the respondents as an infected place.
    During the quarantine, seven of the appellants cattle became infected and were
    ordered destroyed by the respondents. The appellant was also required to treat
    all of his animals to eradicate the disease.

[3]

The Minister exercised discretion under ss. 51 and 53 of the
Health
    of Animals Act
, S.C. 1990, c. 21, to pay compensation to the appellant.

[4]

Section 51 provides, in relevant part:

(1) The Minister may order compensation to be paid
    from the Consolidated Revenue Fund to the owner of an animal that is

(a) Destroyed under this Act

(2) Subject to subsections (3) and (4), the amount of
    compensation shall be

(a) the market value, as determined by the
    Minister, that the animal would have had at the time of its evaluation by the
    Minister if it had not been required to be destroyed

minus

(b) the value of its carcass, as determined by the
    Minister.

[5]

Section 53 empowers the Minister to give compensation with respect to
    treatment required to eradicate or prevent the spread of a disease.

[6]

The appellant received approximately CDN$12,900 in compensation under ss.
    51 and 53, calculated based on the market value of the destroyed animals and
    the costs of eradication treatment for his herd.

[7]

The appellant also sued the United States Department of Agriculture in
    July 1998 but discontinued his action. He sued the veterinarian who produced
    the fraudulent certificate and obtained a settlement of US$59,508. On July 30,
    1996, he raised the negative effect of the anaplasmosis outbreak and quarantine
    on his business with Agriculture and Agri-Food Canada and the Canadian
    Government. From the fall of 1998 until April 2012, he demanded compensation
    from the Canadian Government.

[8]

Ultimately, in 2012, the appellant commenced the action against the
    respondents that is now before us. He pleads that the respondents were
    negligent in not guarding against the importation of anaplasmosis, and in
    imposing an inadequate quarantine on his farm. He claims that his reputation
    and business have been damaged as a result and he demands compensation for
    these losses.

[9]

The respondents brought a motion for summary judgment. The motion judge
    granted the motion, dismissing the appellants action. She held that s. 9 of
    the
Crown Liability and Proceedings Act
, R.S.C. 1985, c. C-50 (the
    CLPA) barred the appellants action. Section 9 states:

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.

[10]

The
    appellant appeals, claiming that s. 9 does not apply because his claim is not
    for the destruction of the cattle, for which he agrees he was compensated. He
    argues that his action falls outside of s. 9.

[11]

I
    do not agree.

[12]

Section
    9 is not simply a bar on double recovery. Its effect is to prevent actions for
    recovery where a government scheme has already provided a form of compensation
    in relation to the death, injury, damage or loss that is relied on in the
    action.

[13]

The
    reach of s. 9 is settled. Section 9 has been interpreted to bar actions for
    additional compensation for the same death, injury, damage or loss for which
    compensation has been received, even where different heads of compensation are
    claimed:
Langille v. Canada (Minster of Agriculture)
, 140 N.R. 304; and
Begg v. Canada (Minister of Agriculture)
, 2005 FCA 362, 261 D.L.R.
    (4th) 36. It has also been interpreted to bar compensation that arises from
    the same factual basis as the action:
Sarvanis v. Canada
, 2002 SCC
    28, [2002] 1 S.C.R. 921, at para. 28.

[14]

In
Sarvanis
, at para. 22, Iacobucci J. confirmed for the Supreme Court of
    Canada that the words in respect of used in s.9 are words of the widest
    possible scope. At para. 25, he described death, injury, damage or loss as
    events, and then said, for the Court, that s. 9 envisions pensions and
    compensation paid because of an event of death, injury, damage or loss. He
    then said, at para 29:

All damages arising out of the incident which entitles the
    person to a pension [or compensation] 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.

[15]

The
    framing of the appellants action as a damage claim for negligence regarding
    the importation of the cattle and the ensuing quarantine of the herd, as
    distinct from the destruction of the diseased animals and treatment of the herd,
    does not place this case outside the restrictive sweep of s. 9 of the CLPA.
    Bluntly put, at its core the appellants complaint is not about the negligent
    importation of the diseased cattle
per se
, or even the allegedly
    negligent imposition of the involuntary quarantine measures. It is about the
    importation of the diseased cattle that led to the anaplasmosis outbreak on the
    farm, an occurrence for which the appellant has already been compensated.

[16]

Claims
    similar to the appellants were advanced by the plaintiffs in
Langille

and
Vona v. Canada (Minister of Agriculture)

(1994), 20
    O.R. (3d) 589 (Gen. Dov.), affd (1996) 30 O.R. (3d) 786 (C.A.) to no avail.
    Further, in
Begg
, s. 9 was held to preclude claims for alleged
    negligence in allowing diseased animals to be admitted to Canada. In our view,
    these cases, together with
Sarvanis
, are dispositive of the issues
    raised on this appeal.

[17]

Section
    9 of the CLPA operates in this case to bar the appellants claims.
    Consequently, there was no genuine issue requiring a trial arising from the
    claims now sought to be advanced by the appellant.

[18]

Accordingly,
    I would dismiss the appeal with costs fixed in the agreed amount of CDN$4,400
    inclusive of disbursements and all applicable taxes.

Released: January 3, 2018 (D.P.)

David M. Paciocco J.A.

I agree. S.E. Pepall J.A.

I agree. M.L. Benotto J.A.


