Date: Thu, 30 Aug 2007 15:38

From: Russell Brown

Subject: SCC has granted leave in Holland v. Saskatchewan

Colleagues,

The SCC has just this morning granted leave to appeal in Holland v. Saskatchewan (on appeal from the Saskatchewan Court of Appeal's decision to strike the plaintiff's action).

It is a representative action brought I gather by commercial cervid farmers in the province (Holland, the representative plaintiff, farms elk). Holland had received a game farm licence issued under a statute and complied with the provincial surveillance program aimed at avoiding the spread of chronic wasting disease in cervids. At some point, the provincial program was combined with a federal program (anathema to western farmers) which required farmers to release and indemnify the federal Crown in connection with the disease and the program. When Holland and the other plaintiffs refused to sign, Saskatchewan reduced the compliance status of his herd to "surveillance", which reduced his herd value.

Holland sought judicial review and succeeded in having the surveillance status removed from his herd. The Minister complied but refused to restore the original clean status of the herd. That prompted a suit (alleging negligence, misfeasance in a public office and intimidation) and - unsurprisingly - the Minister's application to strike.

This may be just the kind of case the SCC might want to consider Lewis Klar's argument that, even in Crown liability cases, proximity requires examination of the relationship, not the statute. In most Crown liability cases, there will be no relationship, proximate or otherwise, with the plaintiff. (James v. BC is an exception, but even there there should have been no liability because of the absence of reasonable reliance). In Holland, however, there will be a relationship for the Court to examine for proximity.

With best wishes,
Russ

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