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Crown Liability (fed) - No Proceeding Against Crown Where Pension Payable [CLPA s.9]. McQuade v. Canada (Attorney General)
In McQuade v. Canada (Attorney General) (Fed CA, 2025) the Federal Court of Appeal allowed a class plaintiffs' certification motion appeal, this where they "sought certification of a class proceeding, as representative plaintiffs, on behalf of a class of current and former regular members of the RCMP with an Operational Stress Injury".
Here the court focussed on the main issue in this ruling, which was whether the federal CLPA s.9 ['Special Provisions respecting Liability - No proceedings lie where pension payable'] applied to bar some or all of the class proceeding - though only on the 'some basis in fact' [the obverse of the 'plain and obvious' that it would fail standard] class certification standard:[2] The appellants claimed that the RCMP was systemically negligent in delivering Mental Health Services to members of the proposed Class (terms defined in the second fresh as amended statement of claim). They also claimed that the RCMP discriminated in delivering Mental Health Services to proposed Class members, when compared to services provided to persons with physical injuries, in violation of subsection 15(1) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (Charter). The damages sought were not for the Operational Stress Injuries but for the "“separate event”" of the alleged RCMP systemic negligence and Charter breach in delivering or failing to deliver Mental Health Services.
[3] Each of the proposed representative plaintiffs received a disability pension pursuant to section 32 of the Royal Canadian Mounted Police Superannuation Act, R.S.C. 1985, c. R-11 (RCMP Superannuation Act). The central issue on the certification motion was whether the claims for systemic negligence or under subsection 15(1) of the Charter were barred pursuant to section 9 of the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50 (CLPA). Section 9 of the CLPA bars a claim against the Crown if a pension or other compensation is paid or 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.
[4] On the certification motion, the Federal Court concluded that the claims were barred by section 9 of the CLPA for proposed Class members entitled to receive a disability pension, including the proposed representative plaintiffs, such that there was no suitable representative plaintiff. The motion for certification was dismissed with leave to amend the statement of claim: 2023 FC 1083 (per Fothergill J.) (Reasons).
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[22] The Federal Court then considered whether section 9 of the CLPA applied, citing the Supreme Court of Canada’s decision in Sarvanis v. Canada, 2002 SCC 28, [2002] 1 S.C.R. 921 [Sarvanis] and subsequent decisions interpreting and applying section 9. In Sarvanis, the Supreme Court held that section 9 of the CLPA 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”" (at para. 38).
[23] The Federal Court noted that in Greenwood v. Canada, 2020 FC 119, aff’d 2021 FCA 186, [2021] 4 F.C.R. 635 [Greenwood], Marsot v. Canada (Department of National Defence), 2002 FCT 226, 217 F.T.R. 232 [Marsot], aff’d 2003 FCA 145, 303 N.R. 282 and Brownhall v. Canada (National Defence) (2007), 87 O.R. (3d) 130, 2007 CanLII 31749 (S.C.J. (Div. Ct.)) [Brownhall], there was insufficient evidence to assess whether the pension or other compensation arose from the same factual basis as the civil claim. ....
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[45] The appellants claim that the Crown was systemically negligent in implementing the Mental Health Services for the proposed Class. The Federal Court correctly stated the elements of the tort of negligence and applied the legal framework to the claim. Assuming the pleaded facts to be true, the Federal Court concluded that it was not "“plain and obvious”" that there was no reasonable cause of action for a systemic negligence claim. I agree with this conclusion, and it is not contested. The dispute in this appeal is about the Federal Court’s determination that section 9 of the CLPA barred the claim.
[46] The interpretation of section 9 of the CLPA is a question of law, reviewable for correctness. The application of section 9, absent an extricable legal error, is a question of mixed fact and law, reviewable on a standard of palpable and overriding error: Lafrenière at paras. 30, 47; Bewsher v. Canada, 2020 FCA 216 at paras. 7, 15, aff’g 2019 FC 1350 at paras. 3-4.
[47] Section 9 of the CLPA bars an action against the Crown if a pension or compensation is paid or payable out of the Consolidated Revenue Fund or any funds administered by an agency of the Crown to the claimant in respect of the death, injury, loss or damage in respect of which the claim is made. In effect, section 9 of the CLPA bars double recovery where a government scheme provides a form of compensation in relation to the death, damage, injury or loss that is relied on in the action: Sarvanis at para. 28. Section 9 has been interpreted to provide Crown immunity where different heads of damages are claimed than those compensated by the pension or other compensation, on the basis that they both arose from "“the same factual basis”" or same event: Sarvanis at paras. 28-29, 38; Vancise v. Canada (Attorney General), 2018 ONCA 3 [Vancise] at para. 12; Lafrenière at paras. 45-46.
[48] The burden is on the Crown to establish that section 9 applies: Flying E Ranche Ltd. v. Attorney General of Canada, 2022 ONSC 601 at para. 496, aff’d 2024 ONCA 72 [Flying E Ranche]; Brownhall at para. 51; Marsot at paras. 61, 66. In my view, this holds true whether the Crown’s challenge arises in the context of a motion to strike brought before trial or on a certification motion where the reasonable cause of action criterion is in issue. The inquiry is the same—whether it is "“plain and obvious”" that section 9 of the CLPA bars the claim such that there is no reasonable cause of action.
[49] Section 9 of the CLPA provides:"Special Provisions respecting Liability"
"Dispositions spéciales concernant la responsabilité"
"No proceedings lie where pension payable"
"Incompatibilité entre recours et droit à une pension ou indemnité"
"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."
"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." [50] In Sarvanis, the leading case on section 9 of the CLPA, the Supreme Court held that section 9 bars a tort claim against the Crown where a pension or other compensation is paid or payable "“in respect of”" or on the "“same factual basis”" as the death, injury, damage or loss as gives rise to the claim. Justice Iacobucci, writing for the Court, stated (at paras. 28-29):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 in original) [51] Section 9 of the CLPA has broad reach. As Justice Iacobucci observed, the words "“in respect of”" have a wide 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”": Sarvanis at para. 20, quoting Nowegijick v. The Queen, [1983] 1 S.C.R. 29 at p. 39, 1983 CanLII 18 (S.C.C.).
[52] The Federal Court correctly cited the decisions in Sarvanis, Greenwood, Marsot and Brownhall regarding the "“same factual basis”" framework. This was relevant to whether section 9 applied to bar the systemic negligence claim on a Class-wide basis—if a disability pension was paid or payable to proposed Class members on the same factual basis (or with respect to the same factual basis) as underlay the claim. ....
[53] .... I do not accept that it is "“plain and obvious”" at this stage that section 9 operates to bar a systemic negligence claim for all proposed Class members entitled to receive a disability pension.
[54] Section 9 of the CLPA is often dealt with in non-class proceedings in the context of a motion to strike before trial or a motion for summary judgment. See, for example: Bewsher at paras. 12-14; Lafrenière at paras. 36-47; North Bank Potato Farms Ltd. v. The Canadian Food Inspection Agency, 2019 ABCA 344 at paras. 16-26; Vancise at paras. 9-17. The factual basis for the claim in the proposed proceeding is lined up against the factual basis for the plaintiff’s entitlement to a government pension or compensation, applying Sarvanis to determine whether they are sufficiently linked such that section 9 applies. For example, as the Court in Brownhall expressed (at para. 37):Sarvanis makes it clear that the question to be asked is whether the factual basis for the pension and the action is the same. Does the same loss or injury underlie both? If it is plain and obvious, on the facts as pleaded, that the same loss underlies both, the action is barred by s. 9 of the CLPA. [55] There is a dearth of case law on the application of section 9 at the certification stage of class proceedings. In Greenwood, the Federal Court of Appeal upheld the Federal Court’s conclusion that it was premature to apply section 9 at certification. Notably, this was in the context of whether there was a suitable representative plaintiff and not whether the pleadings disclosed a reasonable cause of action. Indeed, the respondent could point to no case, other than the Federal Court’s decision in this proceeding, in which section 9 of the CLPA applied at certification on a class-wide basis.
[56] In applying a statutory limitations defence, a claim will not be barred for an entire class unless there is clear evidence of class-wide commonality. I consider a statutory limitations defence analogous to a section 9 bar which is also a statutory defence. Without class-wide commonality, the defence is an individual issue that requires separate adjudication after the common issues are determined: Krishnan v. Jamieson Laboratories Inc., 2021 BCSC 1396, 60 B.C.L.R. (6th) 369 at para. 95, aff’d 2023 BCCA 72; Smith v. Inco Limited, 2011 ONCA 628, 107 O.R. (3d) 321 at paras. 164-165; Martin v. Wright Medical Technology Canada Ltd., 2024 ONCA 1 at paras. 40-42.
[57] The respondent submits that there is evidence of Class-wide commonality that negates the need for individual assessment. They say that every proposed Class member has a persistent psychological injury that is connected to their RCMP service (an Operational Stress Injury). They say that "“on its face”" this means that a disability pension is paid or payable.
[58] I disagree. As the Federal Court acknowledged, a disability pension is only payable for formal medically diagnosed disabilities or disabling conditions, as informed by the Diagnostic and Statistical Manual of Mental Disorders, causing permanent impairment. This may not include every Operational Stress Injury. Although there was no evidence of a proposed Class member who was not entitled to a disability pension, there was no evidence that such a person did not exist. Thus, while each proposed Class member has an Operational Stress Injury, the respondent did not establish that every proposed Class member had a disability pension paid or payable.
[59] Further, and crucially, there was no evidence as to whether a proposed Class member would be entitled to any disability pension amount pursuant to section 32 of the RCMP Superannuation Act for or in respect of the same events that underlie the claim for systemic negligence. Section 32 provides that an award shall be granted if an injury or disease "“or the aggravation of the injury or disease”" resulting in the disability arose out of or was directly connected to service with the RCMP. We simply do not know if proposed Class members would be entitled to receive amounts under section 32 in respect of the events that underlie the systemic negligence claim including for "“the aggravation of”" an underlying injury.
[60] While the proposed representative plaintiffs were in receipt of increased pension amounts by reason of their diagnoses with mental health conditions flowing from their service with the RCMP, there was no suggestion that this included the events alleged to underly the claim for systemic negligence. There was no evidence about whether the proposed representative plaintiffs (or other members of the proposed Class) had applied for or were entitled to additional pension amounts under section 32 if they suffered damages attributable to the provision of or failure to provide Mental Health Services.
[61] In the absence of such evidence, I fail to see how the bar in section 9 of the CLPA could be found to apply at this stage to the proposed representative plaintiffs or to any putative Class member when the full scope of their entitlement to a disability pension has not been established.
[62] Also, for those proposed Class members, like the proposed representative plaintiffs, who had an Operational Stress Injury entitling them to be paid a disability pension (albeit not for the events underlying the alleged RCMP systemic negligence), the mere fact of entitlement to the pension does not provide enough information to conduct a proper section 9 analysis. An Operational Stress Injury tells us what kind of injury a Class member has, but little about the events that caused it. As noted earlier, the Sarvanis analysis demands information about the factual basis of the injury, damage or loss giving rise to the disability pension or compensation so that it can be lined up against the factual basis of the injury, damage or loss alleged to underlie the claim against the Crown. Then a determination can be made on whether the factual basis is the same or if the pension or compensation is paid or payable "“in respect of”" the death, injury, damage or loss in respect of which the claim is made.
[63] Several cases have considered the extent to which section 9 of the CLPA bars a claim for subsequent negligent treatment of the condition giving rise to the pension or other compensation entitlement: see e.g. Lafrenière, Dumont v. Canada, 2003 FCA 475, [2004] 3 F.C.R. 338 [Dumont] and Gélinas v. Canada, 2021 FC 1157. The focus of the analysis is whether there is sufficient linkage between the compensation event and the subsequent treatment. In Lafrenière, this Court concluded that a claim based on the harm arising from the Crown’s processing of the plaintiff’s complaints was barred under section 9 as it was intrinsically related to the factual basis that gave rise to the compensation payment: at paras. 64-67. This line of cases is particularly relevant here. The appellants claim they do not seek damages for the Operational Stress Injuries themselves, for which they acknowledge a disability pension may be payable, but for the losses caused by the "“separate event”" of the RCMP’s alleged systemic negligence in delivering or failing to deliver Mental Health Services.
[64] As addressed further below, the factual basis of each proposed Class member’s entitlement to a disability pension is unique and individualized. The Sarvanis linkage analysis is not possible in the abstract, or, in these circumstances, on a Class-wide basis. There was insufficient evidence regarding proposed Class members’ entitlement or possible entitlement to a disability pension, including in respect of the events giving rise to the alleged RCMP systemic negligence. This lack of evidence meant that a proper section 9 analysis could not be started, let alone support a finding of commonality sufficient to ground the application of section 9 on a Class-wide basis. Thus, even aside from the misplaced reliance on the alleged concession, the Federal Court erred in concluding that section 9 of the CLPA applied to all proposed Class members entitled to a disability pension.
[65] I do not however rule out that section 9 of the CLPA could sometimes apply on a class-wide basis at the certification stage. It may be appropriate in circumstances where the factual basis of a claim is an identifiable loss arising from a common event for all class members and that same event gives rise to a disability pension or other compensation to them all.
[66] The Federal Court recently came to a conclusion along those lines in Dunn, granting a motion to strike a statement of claim in a proposed class proceeding based on section 9. The proposed class proceeding was on behalf of members of the Canadian Armed Forces who were exposed to black mould and other toxins during their military service. The claim asserted systemic negligence, breach of fiduciary duty and violations of section 7 of the Charter. The Federal Court concluded that the pension paid or payable to the plaintiff had the same factual basis as the allegations of loss or damage asserted in the claim. By striking the claim without leave to amend, the Federal Court, in effect, found there to be no reasonable cause of action for the entire class. . Flying E Ranche Ltd. v. Canada (Agriculture)
In Flying E Ranche Ltd. v. Canada (Agriculture) (Ont CA, 2023) the Court of Appeal considered the federal Crown Liability and Proceedings Act, s.9 ['No proceedings lie where pension payable'], here in the context of a class action lawsuit involving an outbreak of Bovine Spongiform Encephalopathy ("BSE"):Analysis
[24] I begin by setting out the provision contained in s. 9 of the CLPA. It reads: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. [25] Section 9 has been considered in many cases, the leading one of which is Sarvanis v. Canada, 2002 SCC 28, [2002] 1 S.C.R. 921 in which Iacobucci J. considered the scope of the section. In that case, an inmate in a federal penitentiary had sustained serious personal injuries. As a result, he qualified for Canada Pension Plan disability benefits. The inmate sued the Crown in tort soon after suffering his injuries. The Crown moved for summary judgment claiming that the action was statute-barred by s. 9 because the plaintiff was receiving Canada Pension Plan disability benefits.
[26] The Supreme Court of Canada found that s. 9 did not bar the plaintiff’s action. In his reasons, Iacobucci J. began by noting that the words “in respect of” are of the widest possible scope. He also noted, though, that the words are not “of infinite reach”: at para. 22. Iacobucci J. then set out the proper approach to the interpretation and application of s. 9. He said, at para. 24:In both cases, we must not interpret words that are of a broad import taken by themselves without looking to the context in which the words are found. Indeed, the proper approach to statutory interpretation requires that we more carefully examine the wider context of s. 9 before settling on the correct view of its reach. [27] Iacobucci J. reviewed the specific facts of the case that was before the court and concluded that s. 9 did not apply in the circumstances. In making that determination, Iacobucci J. set out a form of test for the application of s. 9. He said, at para. 28, that for s. 9 to apply, the pension or compensation paid or payable “must be made on the same factual basis as the action” that would be barred against the Crown. Iacobucci J. reiterated that the purpose of s. 9 was to bar double recovery “for the same claim where the government is liable for misconduct but has already made a payment in respect thereof”.
[28] The appellant resists the application of s. 9 to this case largely based on its argument that the various programs referred to above were designed to provide “financial assistance” to the class members but were not for the purpose of providing “compensation”. It points to the fact that none of the programs use the term “compensation” in describing its purpose.
[29] I find this submission unpersuasive. The application of s. 9 does not turn on whether the specific word “compensation” is used in relation to the payment made. It is the purpose of the payment, and whether it is “contingent” on an event of death, injury, damage or loss, that is important: Sarvanis, at para. 31. If the payment is made to a person in recognition of that “death, injury, damage or loss”, then that person has received compensation.[2]
[30] In my view, in the factual circumstances of this case, government’s purpose in paying assistance to the cattle farmers under the BSE-specific programs was clearly to compensate them, in particular, for the economic effects of the border closures that arose from the discovery of BSE in Canada, but also for the impact of BSE generally. It may be that some aspects of the programs were designed to accomplish other goals. It may also be that some payments under the programs were not made directly for losses sustained but in order to pre-empt other pending losses. But those observations do not change the fact that one of the principal purposes of these programs was to compensate farmers for the economic impact of BSE.
[31] This purpose is reflected not only in the programs’ substantive provisions, as described in the facts section above, but also in their surrounding documents provided in the record. For instance, the TISP Direct Payment Form and Guide published by the Ministry states that “The Direct Payment is designed to provide assistance to producers in meeting the financial challenges resulting from the market impacts of Bovine Spongiform Encephalopathy (BSE)” (emphasis added). The Questions and Answers document published with the FIP Program explains that it “is targeted to producers of animals directly impacted by the BSE outbreak and the resulting border closures.” Additionally, the preambles to the province-Canada agreements establishing the BSE Recovery Program read:WHEREAS the federal and provincial and territorial ministers of agriculture, representing their respective governments, recognize the important economic contribution of the beef industry to Canada, and the difficulty facing that industry as a result of the current suspension by the United States of America of imports of Canadian ruminants and ruminant products; [Emphasis added.] [32] In support of its view that “compensation” is distinct from “assistance”, the appellant submits, based on Berardinelli v. Ontario Housing Corp., 1978 CanLII 42 (SCC), [1979] 1 SCR 275, that s. 9 should receive a restrictive meaning because it circumscribes the rights of citizens. This submission is also unpersuasive. I begin by questioning whether it can be properly said that the terms of s. 9 involve an ambiguity, as the appellant contends. The words used in s. 9 each have a clear meaning. Further, no apparent ambiguity arises from the sentence structure. Irresolvable ambiguity obtains only when it is not possible to determine which of two equally plausible meanings were intended by Parliament. The mere fact that a party can conceive of an alternative meaning does not mean there is any ambiguity: an alternative interpretation can simply be wrong. Furthermore, difficulty in applying a provision to a particular set of facts is not necessarily the result of any ambiguity. Meaning and application are two different concepts: Bell ExpressVu Ltd. Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at paras. 29-30.
[33] In any event, the interpretative approach of treating some statutes as requiring restrictive interpretations was abandoned some time ago. There is now only one interpretive principle or approach, namely, “the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”: Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, at para. 21, citing Elmer Driedger, Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983), at p. 87.
[34] The conclusion that the absence of the word “compensation” from the BSE-specific schemes does not determine the application of s. 9 is also consistent, either explicitly or implicitly, with various other decisions. One is North Bank Potato Farms Ltd. v. Canadian Food Inspection Agency, 2019 ABCA 344. That action arose from a decision by the Canadian Food Inspection Agency to quarantine the plaintiffs’/appellants' lands and destroy their seed potato crops, after it discovered potato cyst nematode spores in soil samples from the appellants' land. As a consequence, both the United States and Mexico had closed their borders to seed potatoes. Potato farmers had received some assistance from the federal and provincial governments arising from these events.
[35] The issue was whether those payments constituted compensation under s. 9 such that the plaintiffs’/appellants’ negligence claim against the federal government was barred. The chambers judge concluded that it was and dismissed the action. The Alberta Court of Appeal upheld that decision. In that case, the appellant had advanced very much the same argument, as the appellant does here, regarding the submitted difference between compensation and assistance and the absence of the word “compensation” from the particular program. Both the chambers judge and the court of appeal rejected the argument.
[36] The case law is clear that s. 9 bars an action for damages for a loss that has already been compensated, even if the action attempts to frame the loss differently. In Vancise v. Canada (Attorney General), 2018 ONCA 3, the plaintiff/appellant brought a claim in negligence against the federal government arising out of damages he suffered when his cattle became infected with anaplasmosis – a bacterial infection that was considered to be a foreign animal disease requiring the destruction of any infected animal. His claim was dismissed on a summary judgment motion because s. 9 was found to bar his claim.
[37] On appeal, the plaintiff/appellant argued that his claim for negligence was separate and apart from the loss arising from the destruction of his animals, for which he acknowledged he had been compensated by the respondents. This court rejected that argument. In doing so, Paciocco J.A. said that the reach of s. 9 was “settled”. He went on to say, at para. 15: “The framing of the appellant's 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.”
[38] Yet another case is Begg v. Canada (Minister of Agriculture), 2005 FCA 362, 261 D.L.R. (4th) 36, where the plaintiffs/appellants had brought an action for damages against the Minister for losses suffered as a result of the destruction of their herd of elk by Agriculture Canada. The destruction followed the discovery of tuberculosis in one of the animals. The plaintiffs/appellants had received compensation under a statutory compensation scheme.
[39] The plaintiffs’ claim was again dismissed on a summary judgment motion. The dismissal was upheld by the Federal Court of Appeal. In dismissing the appeal, Nadon J.A. said, at para. 32: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. [40] To the same effect is the decision in Langille v. Canada (Minister of Agriculture) (CA), 1992 CanLII 14834 (FCA), [1992] 2 F.C. 208 (C.A.), where the Federal Court of Appeal allowed an appeal from a motion judge and struck out that part of a statement of claim claiming damages for negligence arising from the destruction of cattle owned by the respondents resulting from the positive presence of brucellosis in some of the animals. The Federal Court of Appeal found that the claim was barred by subsection 4(1) of the Crown Liability Act, R.S.C. 1970, c. C-38 – the predecessor section to s. 9.
[41] The plaintiffs/respondents in that case had advanced the same argument regarding the distinction between compensation for the animals destroyed and the losses sustained from the alleged negligence of the appellant. In rejecting that distinction, Stone J.A. said, at para. 12: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. [42] In the end result, all of these cases make the same point. Section 9 bars a claim if the plaintiff has received monies by way of compensation for losses arising from the same factual basis that the action is based upon. It is clear that the appellant in this case received payments under various programs that the federal government had set up to address the financial impacts that arose from the presence of BSE in this country. Indeed, the trial judge made that specific finding. He said, at para. 530: “As a practical matter, therefore, whether characterized as incentives, or assistance, or compensation, monetary payments were made to farmers that had the effect of compensating them for at least some of their losses, and this was how they were regarded at the time.”
[43] The appellant’s efforts to draw a distinction between compensation schemes and “stabilization programs” also fails to address the fundamental point that the claims arise from the same factual foundation upon which the payments were made. The appellant’s further efforts to draw a distinction between “compensation” and “assistance” does not find any support in the case law nor does the appellant point to any.
[44] I find further support for this conclusion in the decision of Brownhall v. Canada (Ministry of National Defence) (2007), 2007 CanLII 31749 (ON SCDC), 87 O.R. (3d) 130 (Div. Ct.), where Swinton J. restated the test from Sarvanis. At para. 37, she said: “Does the same loss or injury underlie both? If it is plain and obvious, on the facts as pleaded, that the same loss underlies both, the action is barred by s. 9 of the CLPA.”
[45] I would note that, in this case, we are not dealing with a summary dismissal based solely on the pleadings. Rather, we have both the facts as pleaded and the factual findings of the trial judge. The conclusion is made clearer and stronger as a result. The appellant (and the other class members) received monies under the BSE-specific programs for losses arising from the presence of BSE in Canada, which is the same factual basis underlying the class claims. The trial judge’s conclusion that the claims are barred by s. 9 is correct.
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