Summary
Civil procedure - Third party claims - Striking of third party notices - Crown law - Crown liability - Crown immunity - Legislation - Interpretation - Torts - Duty of care - Negligence - Does a statutory public authority, in its regulatory and other responses to the public health risks posed by a commercially supplied product, cigarettes, owe a duty of care in negligence to consumers and to the regulated manufacturer for economic loss - Should any extant prima facie duties be negated based on policy concerns for indeterminate liability - Should this Court clarify that the Ontario Court of Appeal’s decision in Sauer v. Canada, 2007 ONCA 454 did not change the law and that the decision in Welbridge Holdings Ltd. v. Winnipeg (Greater), [1971] S.C.R. 957, to the effect that legislative and regulatory action is immune from tort liability, still governs - Are the negligence claims at issue novel ones which satisfy the requirement of proximity - Should complex and contentious statutory interpretation issues be considered on a motion to strike a pleading - Is it plain and obvious that Canada cannot be a “supplier” under the Trade Practice Act, R.S.B.C. 1996, c. 457 - Should speculative policy considerations negate a prima facie duty of care in circumstances where it is pleaded that Canada was not acting as a regulator and the pleadings do not allege inaction by Canada - Is it plain and obvious that policy considerations negate Canada’s prima facie duty of care to the Respondent for negligent design.
Persons who had purchased light or mild brands of their cigarettes in British Columbia during a certain period brought a class proceeding against Respondent seeking damages pursuant to consumer protection legislation under the Business Practises and Consumers Protection Act, S.B.C. 2004, c. 2 (“BPCPA”). They claimed the refund of monies paid by them for the purchase of light and mild cigarettes, as well as punitive and exemplary damages. They did not seek the return of that portion of the purchase price paid to Canada as taxes. The Respondent filed a third party notice against the Applicant, on the basis, inter alia, that officials at Health Canada had directed the Respondent to develop, market and promote products in furtherance of the government’s programme to develop and promote light and mild cigarettes and made representations and gave advice to the Respondent and to smokers about such things as the relative safety of light and mild products and the actual deliveries of smoke constituents. The Applicant also developed strains of tobacco suitable for incorporation into light and mild products, and collected license fees and royalties from the sale of that tobacco. The Applicant brought a motion to strike the third party notice as disclosing no reasonable cause of action.
July 3, 2007
Supreme Court of British Columbia
(Satanove J.)
Neutral citation: 2007 BCSC 964 Applicant’s motion to strike the Respondent’s third party notice as disclosing no reasonable cause of action, granted
December 8, 2009
Court of Appeal for British Columbia
(Vancouver)
(Hall (dissenting), Saunders, Lowry (dissenting) Tysoe and Smith JJ.A.)
Neutral citation: 2009 BCCA 541; CA035214 Appeal allowed in part
February 8, 2010
Supreme Court of Canada Application for leave to appeal filed
March 10, 2010
Supreme Court of Canada Application for conditional leave to cross-appeal filed by Respondent