Immediately following the landmark decision of Worcester v. Georgia, 31 U.S. (6 Pet.) 515 [1832], by the United States Supreme Court, then president Andrew Jackson reportedly said, “[Chief Justice] John Marshall has made his decision, now let him enforce it.”1 Such audacity appears to have been based on the general understanding that courts have no effective means of independently enforcing their decisions, but for the expectation of respect for the rule of law and adherence to the Constitution.

In the Supreme Court of Canada (SCC) decision of Holland v. Saskatchewan [2008], SCC 42 (CanLII), the SCC appears to have resolved the challenge faced by Chief Justice Marshall and, indirectly, provided an additional mechanism to Canadian citizens to encourage our government to respect the Constitution and adhere to the decisions of our courts: sue for negligence. More specifically, bring an action claiming that the government agency or body refusing to yield to the mandate of the higher court has negligently failed to implement an adjudicative decree.

In Holland, the plaintiff was an elk rancher who represented a group of approximately 200 game farmers who had refused to register in a federal program2 aimed at preventing chronic wasting disease (CWD) in domestic cervids.3 The plaintiff and the class he represented objected to a broadly worded indemnification and release clause found in a new registration form for the program. This indemnification and release clause had not been included in the registration form for the same program operated by a provincial body.4 The plaintiff class had earlier achieved and maintained a “CWD-free” certification level through conformance with the provincial program. The refusal to complete the federal registration form, following the merging of the provincial and federal programs, caused the loss of such CWD-free certification as well as the downgrading of the certification status of the plaintiff class’s herds to the lowest status possible. The result was an obvious and marked reduction of both the market price of their product and their ability to sell such product.

In reply to the downgrading of their herd status, the plaintiff class successfully sought judicial review of the inclusion of the indemnification and release clauses in the registration form. Characterizing such clauses as “broad in the extreme,” Gerein C.J.Q.B. held that the Minister of the Environment had no legislative authority to make acceptance of these clauses a condition of participation in the CWD program. Unfortunately for the plaintiff class, Justice Gerein declined to order that the plaintiff class’s herd status be restored. He instead opted to leave it to the government to reinstate such status if the plaintiff class’s herds met the program conditions for such renewed status. The government did not appeal, but neither did it take any steps to consider reinstating the farmers’ certification or to compensate them for the revenue lost through the wrongful cancellation of their certification level. In essence, the government challenged the plaintiff class to enforce Justice Gerein’s judgment. In the result, the plaintiff class commenced a class action, claiming damages on the grounds of (i) the tort of misfeasance in public office, (ii) the tort of intimidation, and (iii) the tort of negligence.

In defence of this new action, the government immediately applied to strike out the plaintiff class’s claims. At first instance, Laing C.J. struck the intimidation claim for lack of evidence of any threat, granted leave to amend the statement of claim with regard to the misfeasance claim and denied the motion on the negligence claim. On appeal, the Saskatchewan Court of Appeal allowed the government’s appeal from the ruling on negligence, holding that no action lies against a public authority for negligently acting outside their lawful mandates. The SCC considered the question of whether the Court of Appeal erred in striking out the appellant’s negligence claim in its entirety.

McCarthy Tétrault Notes:

In general, the SCC agreed with the decision of the Saskatchewan Court of Appeal, in that the plaintiff class’s claims for negligently acting outside the law, or breach of statutory duty, cannot succeed. This decision was based on the well-established principle that a mere breach of a statutory duty does not constitute negligence,5 and that to recognize this new instance of negligence would involve a fundamental shift away from the general policy considerations that negate recognition of such liability.

However, the SCC specifically recognized and carved out the plaintiff class’s claim for what it defined as “negligent failure to implement an adjudicative decree.” This central assertion in this claim, according to the SCC, was the allegation that the Minister of the Environment was under a duty to implement the judicial decree of Gerein C.J.Q.B., thus remedying the wrongful reduction of the plaintiff class’s herd status. The SCC held that this claim “stands on a different footing” from the claim for negligent breach of statute in that it is an “operational” decision and not a “policy” decision:

“… once a decision to act has been made, the government may be liable in negligence for the manner in which it implements that decision.” 6

As such, the SCC has confirmed that public authorities are expected to implement a judicial decision, and that implementation would be an “operational” act, for which failure may lead to liability in negligence.