2011 NBCA 48, 2011 NBCA 48

COURT OF APPEAL OF NEW BRUNSWICK 69-10-CA 70-10-CA RODRIGUE LÉVESQUE, SUZANNE LÉVESQUE and BMG FARMING LTD. APPELLANTS RODRIGUE LÉVESQUE, SUZANNE LÉVESQUE et BMG FARMING INC. APPELANTS - and - - et - THE PROVINCE OF NEW BRUNSWICK and THE NEW BRUNSWICK CROP INSURANCE COMMISSION RESPONDENTS LA PROVINCE DU NOUVEAU-BRUNSWICK et LA COMMISSION DE L’ASSURANCE- RÉCOLTE DU NOUVEAU-BRUNSWICK INTIMÉES Lévesque and BMG Farming Ltd. v. Province of New Brunswick and New Brunswick Crop Insurance Commission, 2011 NBCA 48 Lévesque et BMG Farming Inc. c.

Province du Nouveau-Brunswick et Commission de l’assurance- récolte du Nouveau-Brunswick, 2011 NBCA 48 CORAM: The Honourable Chief Justice Drapeau The Honourable Justice Larlee The Honourable Justice Richard CORAM : L’honorable juge en chef Drapeau L’honorable juge Larlee L’honorable juge Richard Appeal from a decision of the Court of Queen’s Bench: August 23, 2010 Appel d’une décision de la Cour du Banc de la Reine : Le 23 août 2010 History of Case: Historique de la cause : Decision under appeal: 2010 NBQB 150 Décision frappée d’appel : 2010 NBBR 150 Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : s.o.

Appeal heard: February 17, 2011 Appel entendu : Le 17 février 2011

Judgment rendered: May 19, 2011 Jugement rendu : Le 19 mai 2011 Reasons for judgment by: The Honourable Chief Justice Drapeau Motifs de jugement : L’honorable juge en chef Drapeau Concurred in by: The Honourable Justice Larlee The Honourable Justice Richard Souscrivent aux motifs : L’honorable juge Larlee L’honorable juge Richard Counsel at hearing: For the appellants: Lucie LaBoissonnière For the respondents: Pierre R. Ouellette Avocats à l’audience : Pour les appelants : Lucie LaBoissonnière Pour les intimées : Pierre R.

Ouellette THE COURT The appeal, which is a consolidation of individual appeals, one launched by the Lévesques, the other by BMG Farming Ltd., is dismissed with costs of $2,500. In sum, the trial judge did not commit reversible error in allowing the respondents’ motions for non-suit, there being no basis in law upon which either of the two underlying actions could succeed having regard to s. 4(1) of the Proceedings Against the Crown Act and s. 9 of the applicable Limitation of Actions Act .

LA COUR L’appel, qui est une fusion d’appels distincts, l’un interjeté par les Lévesque, l’autre par BMG Farming Inc., est rejeté avec dépens de 2 500 $. En somme, la juge du procès n’a pas commis d’erreur justifiant l’infirmation de sa décision lorsqu’elle a accueilli les motions de non-lieu des intimées, car il n’existe aucun fondement juridique sur lequel l’une ou l’autre des actions sous-jacentes pourrait être accueillie, compte tenu du par. 4(1) de la

Loi sur les procédures contre la Couronne et de l’art. 9 de la

Loi sur la prescription applicable. The judgment of the Court was delivered by DRAPEAU, C.J.N.B. I. Introduction and Overview [ 1 ] Few have heard of the Proceedings Against the Crown Act , R.S.N.B. 1973, c. P-18. Even fewer realize it may allow the provincial government to escape liability for wrongs that, if committed by an ordinary citizen, could lead to a judgment for, at the very least, compensatory damages.

That the provincial government’s immunity from tort liability was unlimited prior to the enactment of the Proceedings Against the Crown Act in the early 1950s, or that the corresponding legislation in other common law and civil law jurisdictions is significantly more victim-friendly, is cold comfort for non-suited complainants, like the appellants. That said, it is to the Legislature, and not the courts, that those dissatisfied with the immunity-preserving provisions of the Proceedings Against the Crown Act must turn for reform.

After all, and as I have often stated, the Legislature is sovereign within constitutional limits, and the judge’s oath of office is to render justice according to law .

[ 2 ] In the summer of 1994, the appellants’ potato crops were affected by fungal disease, a risk covered under their respective policies with the New Brunswick Crop Insurance Commission. It was quickly recognized that crop losses and the Commission’s associated policy exposure would mushroom if “extraordinary” remedial steps were eschewed in favour of passivity or run-of-the-mill measures. Expectedly, solutions were explored in discussions with Commission representatives.

In the appellants’ first pleading, it was explained “extraordinary” crop-saving measures had been undertaken in reliance on the representation by those Commission representatives that all related outlays would be reimbursed by the Minister of Agriculture. When their applications for full redress through the arbitration process contemplated by the now repealed Crop Insurance Act , R.S.N.B., 1973, c. C-35, proved unsuccessful, the Lévesques and B.M.G. Farming Ltd. commenced, in 1996, separate actions in tort for negligent misrepresentation.

Each action targeted “Her Majesty the Queen, in Her Right as Represented by the Minister of Agriculture” (“the Province”) and the Commission representative who “misrepresented” to the suing farming operation the Minister’s reimbursement commitment.

A decade or so later, the actions against the Commission representatives were discontinued, and an order issued joining the Commission as a defendant and adding claims for breach of contract and restitution. [ 3 ] At the close of the appellants’ case following eight days of trial in late 2009, the Province and the Commission elected not to call any evidence and moved for a non-suit in relation to each case, claiming Crown immunity and prescription combined to foreclose judgment against them.

After hearing extensive submissions on point, the trial judge acceded to the motions, without making any findings of fact, being of the view that, on any understanding of the evidential matrix, neither case could succeed as a matter of law ( see Levesque v. New Brunswick , 2010 NBQB 150 , 363 N.B.R. (2d) 6 and B.M.G. Farming Ltd. v. New Brunswick , 2010 NBQB 151 , [2010] N.B.J. No. 138 (QL) ). The appellants contest that ruling, raising a bevy of interesting substantive questions, the resolution of which hinges on the correct

interpretation of provincial legislative provisions seldom judicially considered, let alone applied. [ 4 ] Chief among those questions are whether s. 4 of the Proceedings Against the Crown Act allows an action against the “Crown” – an expression inclusive of the Province and “Crown corporations” – for the tort of negligent misrepresentation, and whether “special circumstances” may deprive a defendant of the limitation defence provided by s. 9 of the now repealed Limitation of Actions Act , R.S.N.B. 1973, c. L-8.

Because s. 4(1) of the Proceedings Against the Crown Act occupies center stage in the substantive debate on appeal, its immediate reproduction can only prove helpful in framing and understanding the underlying issues: 4

(1) Subject to this Act, the Crown is subject to all liabilities in tort to which, if it were a person of full age and capacity, it would be subject, (

a) in respect of a tort to real or personal property, or causing bodily injury, committed by an officer or agent; (

b) in respect of a breach of a duty that a person owes to his servant or agent by reason of being his employer; (

c) in respect of a breach of a duty attaching to ownership, occupation, possession or control of property; (

d) under any enactment, or under any regulation made under authority of any enactment. 4

(1) Sous réserve des dispositions particulières de la présente loi, la Couronne encourt la même responsabilité délictuelle qu’elle devrait assumer, si elle était une personne majeure et capable,

a) à raison d’un délit civil portant atteinte à des biens réels ou personnels ou causant des dommages corporels et commis par un fonctionnaire ou un représentant;

b) à raison d’un manquement à une obligation dont une personne est tenue envers son préposé ou représentant du fait qu’elle est son employeur;

c) à raison d’un manquement à une obligation afférente à la propriété, l’occupation, la possession ou la garde d’un bien;

d) en vertu d’un texte législatif ou d’un règlement d’application d’un texte législatif. [ 5 ] While conceding the tort of negligent misrepresentation falls outside the categories listed in s. 4(1), the

appellants contend that state of affairs does not rule out their action in tort, if a large and liberal

interpretation is given to the Proceedings Against the Crown Act , as a whole. In that regard, they point to s. 4(3), in particular, as a prime indicator of a legislative intention to put in place a scheme that leaves the Crown in no better position than an ordinary citizen when it comes to answering in damages for any tort. As will be seen, while s. 4(3) is hardly a model of pellucid legislative drafting, the fog over its true reach swiftly lifts once its object is identified, and the result is not helpful to the appellants’ case. At any rate, the provision reads as follows: 4

(3) Where a function is conferred or imposed upon an officer of the Crown as such by common law or by statute, and that officer commits a tort in the course of performing or purporting to perform that function, the liability of the Crown in respect of the tort is the same as if that function had been conferred or imposed solely by virtue of instructions lawfully given by the Crown. 4

(3) Lorsque la common law ou une loi attribue ou impose une fonction à un fonctionnaire de la Couronne et que ce fonctionnaire commet un délit civil dans l’exercice réel ou présumé de cette fonction, la responsabilité de la Couronne à raison de ce délit est engagée dans la même mesure que si cette fonction avait été attribuée ou imposée uniquement en vertu d’instructions qu’elle aurait régulièrement données elle- même. [ 6 ] The ultimate question regarding the suability of the Province and its “ Crown corporations” for negligent misrepresentation is whether s. 4(3) or some other provision of the Proceedings Against the Crown Act permits a suit in damages for a tort not embraced by 4(1).

A subsidiary question is whether the judge was correct in determining the Commission is not a “Crown corporation”. If she was not, the Province might also be sheltered from suit by virtue of s. 2(2)( d ), which, at least from a purely textual standpoint, excludes all proceedings against it “in respect of a cause of action that is enforceable against a Crown corporation”. [ 7 ] The other statute in play is the Limitation of Actions Act . It is common ground that the six-year limitation set by s. 9 applies to actions for negligent misrepresentation, breach of contract and restitution.

The pivotal issue is whether the claims added in 2006, well beyond that limitation period, formed part of the proceeding launched in 1996. The respondents say that proceeding was an action in tort for negligent misrepresentation, and not an action for breach of contract or restitution. The appellants’ countering argument is that the claims added in 2006 are merely differently articulated theories underlying the previously instituted action in damages, one that, in their assessment, is all-encompassing.

For its part, the Commission contends that, because no lawsuit was initiated against it within six years after its liability (if any) might have been engaged, all of the appellants’ claims against it are time-barred. The appellants respond that “special circumstances” deprive the Commission of the benefit of s. 9, at the very least in connection with the action for negligent misrepresentation. [ 8 ] Finally, the debate on appeal raised a novel procedural question, which is whether non-suit motions should be allowed in civil non-jury trials.

In the text that follows, I provide an overview of the problems attendant upon successful motions of that nature and express doubt regarding their value as an adjudicative tool. However, I ultimately shy away from passing judgment on their legal validity, preferring to await a more in-depth debate on point in a case where, unlike the one at hand, the determination of that question would be essential to disposition. II. Background [ 9 ] In the summer of 1994, the appellants’ potato fields were infested with late blight, a fungal disease.

Upon discovery of the problem, the appellants sought advice from David Frost, an agricultural expert. He suggested they consult their insurance representatives regarding the advisability of abandoning the crops and processing a claim under their respective insurance policies with the Commission. In Mr.

Frost’s judgment, it was unclear whether the crops could be saved and, in any event, any serious salvage undertaking would likely prove to be expensive. [ 10 ] By way of follow-up, Gilles Cormier (for BMG) and Rodrigue Lévesque (for himself and his wife, Suzanne) sought guidance from their respective insurance representatives, Marius Thériault (in the case of BMG) and Emery Bernard (for the Lévesques). The ensuing discussions touched upon the possibility of abandoning the diseased crops and accessing indemnity benefits under the policy issued by the Commission.

BMG’s Statement of Claim featured the allegation that Mr. Thériault “ recommended that the Plaintiff use extraordinary measures including very heavy chemical spraying, roguing and other unusual cultural practices in order to salvage the crops and represented to the Plaintiff that the extra cost incurred would be compensated by the defendant Minister when the loss was adjusted under the Crop Insurance Act ” (emphasis added). The Lévesques’ Statement of Claim parroted those statements while attributing them to Mr.

Bernard. [ 11 ] At any rate, the appellants eventually submitted claims for their losses and the cost of those “extraordinary” measures. The Commission agreed to pay no more than loss-related benefits in accordance with the terms of its policy.

[ 12 ] The appellants then availed themselves of the arbitration process provided under the auspices of the Crop Insurance Act . The arbitration board ultimately found the cost of the “extraordinary” measures was not compensable under the Commission’s crop insurance scheme. It went on to reject the appellants’ related claims without, of course, addressing the issue of anyone’s liability in tort or otherwise for the cost of those measures. [ 13 ] In February 1996, the appellants notified the Attorney General in writing of their intention to commence legal proceedings against the Province.

The notice in question purported to comply with s. 15(1) of the Proceedings Against the Crown Act , which precludes an action against the Province or one of its “Crown corporations” without two months prior written notice thereof being served on the Attorney General, in the case of an action against the Province, and on the corporation itself, in the case of an action against a “Crown corporation”. The provision goes on to require that the notice explicitly disclose: (1) the name and residence of the plaintiff; (2) the court in which the action is to be brought; and (3) the cause of action.

It is the last-mentioned element that is in play in the case at hand. [ 14 ] Following service of their s. 15 notices, the Lévesques and BMG turned to the Court of Queen’s Bench, launching separate actions against the Province on May 1, 1996. The Lévesques also sued Mr. Bernard, while BMG sued Mr. Thériault. In both instances, damages were sought for the negligent misrepresentation attributed to Mr. Bernard and Mr. Thériault regarding the Minister’s willingness to reimburse outlays for “extraordinary” crop-saving measures. BMG’s Statement of Claim reads as follows: 2.

The Defendant, Her Majesty the Queen, hereinafter referred to as the Minister, is a department of the government of New Brunswick empowered and responsible for the administration of the Crop Insurance Act ,

Chapter C-35 , R.S.N.B. 1973. 3. The Defendant, Marius Thériault, is a resident of the Parish of Drummond, in the County of Victoria and Province of New Brunswick, is a field agent employed by the Defendant Minister under the Crop Insurance Act . 4.

In the Spring of 1994, the Plaintiff entered into a contract of crop insurance with the Defendant Minister whereby it insured a number of lots of Russett Burbank potatoes and Shepody potatoes, both seed and tablestock for loss or damage from various diseases, pests and viruses including potato blight the particulars of which coverage was: PARTICULARS Variety of Area (acres) Guaranty Price/cwt Potatoes Russet Burbank 115 75 $5.00 Shepody 73.08 75 $5.00 5.

During the course of growing in the Summer of 1994, all of the insured potatoes described in paragraph 4 hereof became heavily infested with late blight which could not be controlled such that all of the potatoes were a constructive total loss. 6.

During the course of various meetings with the Defendant, Marius Thériault, concerning the blight in the Plaintiff’s crop, the said Marius Thériault, recommended that the Plaintiff use extraordinary measures including very heavy chemical spraying, roguing and other unusual cultural practices in order to salvage the crops and represented to the Plaintiff that the extra cost incurred would be compensated by the Defendant Minister when the loss was adjusted under the Crop Insurance Act . 7.

In reliance on the representations of the Defendant, Marius Thériault, the Plaintiff expended large sums to salvage the crop the particulars of which are:

PARTICULARS

a) Extra Chemical Spray Materials $ 17,286.00

b) Aerial Spraying $ 30,129.00

c) Extra wages of employer on Cultivating, grading and harvesting $ 75,000.00

d) Extra machinery and trucking expenses $ 15,000.00 TOTAL EXTRA COSTS $137,415.00 8. As a result of the huge extra expenditures incurred by the Plaintiff, the Plaintiff salvaged sufficient of its crop that its yield reached the minimum yield guaranteed under its crop insurance contract with the Defendant Minister such that no indemnity was paid. 9.

The Plaintiff’s crop was a constructive total loss at the time of the representations made by the Defendant, Marius Thériault, and it was the Plaintiff’s intention to abandon the crop and seek indemnity under its insurance policy, but that was not done as the Plaintiff relied on the representations of the Defendant, Marius Thériault, which it subsequently discovered were not true. 10. The Plaintiff took all its procedures under its policy of insurance for arbitration of its claim unsuccessfully. 11.

The Plaintiff therefore claims against the Defendants jointly and severally with liability of the Defendant Minister being vicarious liability for negligent misstatement on the Hedley Byrne principle.

a) Damages of $137,415.00;

b) Interest;

c) Costs;

d) Such further and other remedy as this court finds just. The Lévesques’ Statement of Claim is identical, except for the amount claimed and the fact that it identifies Mr. Bernard as the Commission representative with whom they dealt. [ 15 ] The phrase “ Hedley Byrne principle” in the prayer for relief at paragraph 11 of each Statement of Claim is a reference to Hedley Byrne & Co. Ltd. v. Heller & Partners , [1964] A.C. 465 , [1963] 2 All E.R. 575 . In the mind of most jurists, that case, more than any other, breathed life into the previously uncertain tort of negligent misrepresentation.

Perhaps more importantly for our present purposes, the case does not stand for any contract-related or restitution-related principle. [ 16 ] In each Statement of Defence filed on its behalf in June of 1996, the Province asserted “the Plaintiff’s action in negligent misstatement or negligent misrepresentation is not available against the Crown , not being within that class of torts enumerated in s. 4(1) and in s. 21 of the Proceedings Against the Crown Act , R.S.N.B. 1973, c. P-18”.

Section 21 reads as follows: 21 No proceedings may be brought against the Crown except as provided by this Act. 21 Il ne peut être engagé de procédures contre la Couronne que dans les cas prévus par la présente loi.

[ 17 ] On April 19, 2006, the actions against Mr. Bernard and Mr. Thériault were discontinued. I note parenthetically that, if someone engaged in conduct amounting to the tort of negligent misrepresentation, it was one or the other or both of these individuals. At common law, neither would have been immune from suit and there is nothing in the record to suggest the respondents would not have adhered to the practice mentioned in Peter W. Hogg and Patrick J.

Monahan, Liability of the Crown, 3rd ed. (Toronto: Carswell, 2000) at p. 110, namely “the practice of the Crown [of] ‘standing behind’ any servant who committed a tort in the course of employment”. As the authors point out that practice appears to be one of general application. That said, it is unclear whether the personal liability of crown agents and servants for negligent misrepresentation survived the enactment of s. 4(8) of the Proceedings Against the Crown Act .

It provides that “no proceedings lie directly against an officer or agent of the Crown, in the name of the officer or agent or in the name of his or her office, in respect of anything done or omitted to be done by the officer or agent in the course of the performance or purported performance of his or her duties” (see Doucette v. Region 7 Hospital Corp. et al. , 2002 NBQB 39 , 246 N.B.R. (2d) 171 (Russell J.) . It may be that s. 4(8) simply gives expression to the defence of legal authority. There may be other reasons for the provision’s inapplicability to the action against Messrs. Thériault and Bernard.

In the circumstances, we need not resolve that uncertainty. [ 18 ] On July 24, 2006, an order issued allowing the appellants to amend their respective Statements of Claim for the purposes of: (1) joining the Commission as a defendant; and (2) adding claims for breach of contract and restitution based on quantum meruit .

The enabling order explicitly preserved the respondents right to plead and rely upon any defence arising from the Limitation of Actions Act and the Proceedings Against the Crown Act . [ 19 ] Paragraphs 6-17 of the Amended Statement of Claim filed by the Lévesques the day after the issuance of the amending order bear reproducing, if only to highlight how the fairly straightforward misrepresentation alleged in the Statement of Claim filed in 1996 became a “request” that extraordinary measures be undertaken before morphing into an “offer” of payment for their cost, the acceptance of which was said to have given rise to an enforceable contract: During the course of growing in the Summer of 1994, all of the insured potatoes described in paragraph 5 hereof became heavily infested with late blight such that it appeared that the crop would be a total loss.

The Plaintiffs desired to be given permission under their contract of crop insurance to abandon the insured crop and receive insurance benefits . During the course of various meetings with Emery Bernard concerning the blight in the Plaintiffs’ crop, Emery Bernard requested that the Plaintiffs use extraordinary measures including very heavy chemical spraying, roguing and other unusual cultural practices in order to salvage the crops and he stated to the Plaintiffs that the extra cost incurred would be compensated by the Commission and/or the Minister .

On the basis of the request by Emery Bernard on the part of the Commission and/or the Minister , the Plaintiffs expended large sums to salvage the crop the particulars of which are: PARTICULARS

a) Extra Chemical Spray Materials to be determined

b) Aerial Spraying to be determined

c) Extra wages of employer on cultivating grading and harvesting $21,606.00

d) Extra machinery and trucking expenses to be determined

e) Cost of replacing seed $15,492.00 As a result of the huge extra expenditures incurred by the Plaintiffs, the Plaintiffs salvaged sufficient of its crop that the anticipated losses under the contract of insurance were avoided . The Plaintiffs’ crop was a constructive total loss at the time of the request made by […] Emery Bernard, and it was the Plaintiffs’ intention to abandon the crop and seek indemnity under it insurance policy, however, the Plaintiffs accepted the offer and representations

of Emery Bernard, on behalf of the Commission and/or the Minister, to perform extraordinary work in exchange for reimbursement of the expenses thereof . Emery Bernard had the actual or apparent authority to contract on behalf of the Commission and/or the Minister, such that the Plaintiffs’ acceptance of his request and promise amounted to an independent contract to perform services binding upon the Commission and/or the Minister . After performing the requested work, the Plaintiffs requested the promised reimbursement of extraordinary expenses, which request was denied by the Commission and/or the Minister.

Such denial constituted a breach of contract . The Plaintiffs therefore claim against the Minister and the Commission , jointly and severally for breach of contract as follows :

a) Damages to be determined;

b) Interest;

c) Costs;

d) Such further and other remedy as this court finds just. In the alternative, the Plaintiffs state that they performed the extraordinary work requested by the Commission and the Minister with the intention and based upon the reasonable belief that the cost of the work would be reimbursed to them. The Plaintiffs therefore claim, in the alternative, against the Commission and the Minister jointly and severally as follows :

a) Restitution on the basis of quantum meruit for the performance of work and services requested by the Commission and the Minister;

b) Interest;

c) Costs;

d) Such further and other remedy as this court finds just . In the further alternative, the Plaintiffs state that they reasonably relied on the representation of Emery Bernard that the policy or practice of the Commission and the Minister was to reimburse extraordinary expenses incurred in salvaging crops, such representation being either untrue at the time it was made, or giving rise to a duty to inform of any reversal of the policy or practice before the work was completed . Therefore, in the further alternative, the Plaintiffs claim against the Commission and the Minister for the negligent misrepresentation of Emery Bernard as follows :

a) Damages to be determined;

b) Interest;

c) Costs;

d) Such further and other remedy as this court finds just. The Plaintiffs rely on the doctrine of respondeat superior and state that the Commission and the Minister are jointly responsible for the negligent misrepresentation of Emery Bernard . [paras. 6-17] [Emphasis in original.]

BMG also filed an amended Statement of Claim and it reproduces, in substance, the very same allegations. [ 20 ] In their responding pleadings, the Province and the Commission denied the facts gave rise to liability on their part, whether in tort, contract or quasi-contract.

They also pleaded, inter alia , that: (1) the Commission was a “ Crown corporation” and, as such, was entitled to the immunity mantle provided by the Proceedings Against the Crown Act ; (2) all claims, other than the claim in tort for negligent misrepresentation against the Province, were nullities due to lack of notice compliant with s. 15 of the Proceedings Against the Crown Act ; and (3) in any event, those claims were time-barred as a result of s. 9 of the Limitation of Actions Act . [ 21 ] The trial unfolded piecemeal over eight days in the late fall of 2009 (October 26-30, November 30 and December 1-2).

Two days into the hearing, the appellants further amended their respective pleadings to update the quantum of special damages each was seeking to recover: $175,078.00 in the case of BMG; and $69,956.98 for the Lévesques. Neither Mr. Thériault nor Mr. Bernard testified and, as mentioned, both the Province and the Commission moved for non-suit. [ 22 ] The trial judge found the following had been established on a prima facie basis: a. there was a duty of care based on a special relationship between BMG and Mr. Thériault, as well as between the Lévesques and Mr. Bernard; b.

BMG and the Lévesques relied on the representations of the insurance agents that they should take whatever means necessary to salvage as much of their crop as possible and that the Commission would take into consideration their additional costs; c. the agents’ representations turned out to be false; d. the agents acted negligently in making these representations; and e. BMG and the Lévesques reasonably relied on the agents’ representations to their detriment. [ 23 ] I should immediately point out that the trial judge did not actually find any of the foregoing had been established on a balance of probabilities.

She determined the motion for non-suit by: (1) accepting as true Mr. Lévesque’s and Mr. Cormier’s testimony regarding representations made prior to their undertaking “extraordinary” measures; and (2) resolving in their favour any testimonial ambiguity on the subject. Thus, to this day, some 16 years after the crop losses, no trial court has determined on a balance of probabilities the precise tenor of the representations, if any, made by the Commission field representatives, and whether any such representation was, not only erroneous but, as well, negligently made.

Nor has any trial court found as a fact that any such representation actually prompted the appellants to undertake “extraordinary” crop-saving measures.

I will return to the practical problems that would have arisen from that state of affairs in the event of reversal on appeal. [ 24 ] In disposing of the motions for non-suit the trial judge turned her mind to the following questions: (1) is the Commission a “ Crown corporation” for the purposes of the Proceedings Against the Crown Act ?; (2) does s. 9 of the Limitation of Actions Act bar the claims against the Province for breach of contract and restitution?; (3) does that provision also bar the action against the Commission in its entirety?; (4) are all claims against the Commission and the claims against the Province for breach of contract and restitution barred by reason of the appellants’ failure to provide written notice thereof in accordance with s. 15 of the Proceedings Against the Crown Act ?; and (5) can the Province be sued in tort for negligent misrepresentation?

A. The Commission, a “ Crown corporation”? [ 25 ] In the Proceedings Against the Crown Act , “Crown” means the Crown in right of the Province, but it also includes a “Crown corporation”. The quoted expression includes, but is not limited to, 16 legal entities, which are listed under s. 1 of the Act . The Commission is not among those listed. The question remained whether it was nonetheless included in the definition as an unspecified entity.

[26] The trial judge concluded it was not primarily because: (1) unlike several of the specifically named “Crowncorporations”, the Commission’s constituent legislation did not expressly provide it was an agent of the Crown in right of the Province. Ipause to note that, while the judge made those observations on the basis of Regulation 95-122, which was not in effect at the time of theappellants’ losses in 1994, nothing turns on the point; and (2) the Commission is not specifically identified as a Crown corporation in thelist of agencies of the Crown found in the Auditor General Act, S.N.B. 1981, c. A-17.1. B.

The limitation issue [27] As mentioned, the judge ruled that, having regard to s. 9 of the Limitation of Actions Act, the appellants’ rightto commence proceedings against the Province for breach of contract and restitution was extinguished by the time those claims wereadded in 2006. [28] The judge came to that view after contrasting the appellants’ original and revised pleadings, and rejecting theircontention that the added claims were based on the same pleaded allegations of fact.

She found the facts recounted in the 1996 Statementof Claim did not provide any support for the claims founded on breach of contract and restitution. In other words, the original pleadingdid not disclose a cause of action in contract or restitution. [29] The judge also rejected the appellants’ submission that the case featured “peculiar circumstances” within therule in Weldon v. Neal (1887), 19 Q.B.D. 394, 56 L.J.Q.B. 621 in seemingly denying any force or effect to the 2006 order amending theStatements of Claim.

At any rate, she concluded it would be “improper and unjust” to allow the “plaintiffs to take advantage of theiroriginal Notice of Action and Statement of Claim to defeat the Limitation of Actions Act and take away from the defendants an existingright” (para. 61).

In her view, the appellants were aware of the salient facts at all material times and nothing prevented them from suingfor breach of contract and restitution before the expiry of the six-year limitation period. [30] While acknowledging the respondents were aware, well before the expiry of the six-year limitation period, ofthe appellants’ allegation that they had relied to their detriment on comfort statements by their respective insurance representatives, thejudge considered “this is different from knowing within the limitation period the nature of the new claims that the [appellants] brought in2006” (para. 62). [31] The judge went on to indicate that she would have applied the same reasoning to dismiss the claims in contractand restitution against the Commission, if she had found it was a “Crown corporation”.

However, she would have “allowed the additionof the Commission to the action as it concerns the negligent misrepresentation, due to special circumstances” (para. 65). Those were: (1)the Commission representatives charged with misrepresentation were specifically named in the original Statement of Claim; (2) the“Commission’s crop insurance scheme ha[d] been the subject of this action since the beginning” (para. 66); (3) the Commission wasaware of the nature of the claim against it from the beginning; and (4) the Commission suffered no delay-related prejudice in preparingits defence. C.

The notice issue [32] The judge found the actions against the Province for breach of contract and restitution were nullities, theappellant having failed to comply with the strict requirements of s. 15 of the Proceedings Against the Crown Act in respect of thoseactions. She added the entire action against the Commission would have been dismissed for the same reason, had it been determined tobe a “Crown corporation”. In the judge’s view, the Commission’s actual notice of intended actions did not obviate the necessity ofservice of a written notice in compliance with s. 15.

Moreover, service of notice on the Attorney General did not meet the statutory noticerequirements with respect to a proposed action against a “Crown corporation”. In such a case, s. 15 dictates the notice must be served onthe corporation itself. D. Crown liability in tort for negligent misrepresentation [33] Finally, the judge determined the Province and its “Crown corporations” cannot be sued in tort for negligentmisrepresentation. She did so on the basis of Daigle and Rideout v. Province of New Brunswick (1979), (NB KB), 25N.B.R. (2d) 261, [1979] N.B.J.

No. 74 (Q.B.) (QL) where Stevenson J. held an action in tort for negligent misrepresentation is notmaintainable against the Crown because it “does not fall within the language of subsection 4(1) of the [Proceedings Against the Crown]

Act” (para. 4). III.

Grounds of Appeal [34] The appellants urge reversal, contending the trial judge erred in the following respects: (1) holding s. 4(1) ofthe Proceedings Against the Crown Act insulated the Commission from actions in tort for negligent misrepresentation after concluding itwas not a “Crown corporation”; (2) ruling an action in tort for negligent misrepresentation cannot be maintained against the Provincebecause it is not mentioned in s. 4(1); (3) concluding the right to bring the action for breach of contract and restitution was barred by s. 9of the Limitation of Actions Act; and (4) finding they failed to comply with the notice requirements of s. 15 of Proceedings Against theCrown Act.

At the hearing, the Court raised the issue of the applicability and relevance of s. 4(3) of the last-mentioned statute. Theparties subsequently filed helpful submissions on point. In the circumstances, I would amend the Notice of Appeal to add as a furtherground of appeal: the trial judge’s failure to apply s. 4(3). [35] The respondents, who may consider their quiver of arguments is plentiful enough as it stands, have not filed aNotice of Contention to contest the trial judge’s finding that the Commission is not a “Crown corporation”.

In any event, having regardto the position I take on the issues of Crown immunity and prescription, it is not stricto jure necessary to express definitive views on thesubject. Nonetheless, I would say the correctness of that finding is open to question. IV. Analysis and Decision [36] As can be gleaned from the foregoing, the present appeal raises two overarching issues. The first is whether theProceedings Against the Crown Act forecloses an action in tort for negligent misrepresentation against the Province and “Crowncorporations”.

The second is whether “special circumstances” may operate to deny a defendant the benefit of the limitation defenceprovided by s. 9 of the Limitation Actions Act. [37] In my view, the trial judge rightly found the Proceedings Against the Crown Act precludes an action in tort fornegligent misrepresentation against the Province and a “Crown corporation” within the purview of that statute. In this jurisdiction, unlikethe situation elsewhere, the Crown is only liable for torts falling within the categories recognized by s. 4(1).

While the appellants areright in suggesting that s. 4(1) stands to receive “a wide and liberal construction […] calculated to advance the right of the subject bygiving him [or her] an extended remedy” (see Cherubini Metal Works Limited v. Nova Scotia (Attorney General), (NSCA), [1995] N.S.J. No. 12 (C.A.) (QL), at para. 19), they do acknowledge terminological elasticity has a snapping point. Thus, as noted,the appellants acknowledge the tort of negligent misrepresentation is not captured by s. 4(1).

Correlatively, I conclude s. 4(3) does notoperate to open the door to a lawsuit for negligent misrepresentation against the Crown. [38] Furthermore, it is my view that s. 9 of the Limitation of Actions Act provides a complete answer to the actionagainst the Province for breach of contract and restitution and to the action against the Commission for negligent misrepresentation,breach of contract and restitution. In point of fact, the appellants should not have been given leave to amend their respective Statementsof Claim to effectively commence those actions, all of which were time-barred.

Yet this is precisely what was done in 2006 when a judgeallowed the appellants’ motions to join the Commission as a defendant and to add new claims for breach of contract and restitution. Suchan order should not issue where, as here, the defendant confirms his or her definite intention to plead the limitation-setting provision andnothing in the record disentitles that defendant to plead and rely upon the statutory time bar. A. The Proceedings Against the Crown Act and the tort of negligent misrepresentation

(1) The action in tort against the Province [39] At common law, the Crown itself could not be sued in tort. Accordingly, it is well-settled that there cannot bean action in tort against the Crown unless it is authorized by statute (see Long v. Province of New Brunswick, [1959] N.B.J. No. 5 (C.A.)(QL), Magda v. R., (SCC), [1964] S.C.R. 72 and R. v. Paradis, (SCC), [1942] S.C.R. 10). [40] The appellants submit the Proceedings Against the Crown Act reflects, in substance, the provisions of the

Uniform Model Act recommended in 1950 by the Conference of Commissioners on Uniformity of Legislation in Canada, which stripsthe Crown of immunity with respect to actions in respect of any tort committed by its officers or agents. The appellants stand withlearned company in contending our Proceedings Against the Crown Act is as claimant-friendly as the Uniform Model Act and theimmunity-abolishing legislation that the latter spawned elsewhere.

Thus, in the leading text on Crown liability law in Canada, theauthors state the “Uniform Model Act was enacted in substance by eight provinces – all except British Columbia and Quebec” (seeLiability of the Crown, p. 113) (emphasis added). The appellants also rely upon Gauthier v. Canada (Attorney General) (2000), (NB CA), 225 N.B.R. (2d) 211, [2000] N.B.J.

No. 143 (C.A.) (QL), where the Court let stand an action in tort fornegligent misrepresentation against the federal government. [41] Cutting to the chase, it seems to me the appellants can only achieve success in respect of this particular issue if,and only if, this Court’s decision in Long v. Province of New Brunswick is overruled. The longstanding practice of the Court is to eschewsuch a course of action except through the decision of a panel of at least five judges. As Chief Justice, I would not hesitate to strike anenlarged panel if I doubted the correctness of the earlier decision.

Unfortunately for the appellants, I unhesitatingly conclude Long v.Province of New Brunswick was correctly decided. [42] That view is tethered to the distinctive wording of this Province’s legislation dealing with proceedings againstthe Crown. In that regard, a truism bears repeating: in the Canadian federation, New Brunswick, like all other provinces, is fully entitledto adopt, within constitutional limits, legislation that differs from statutes on the same topic enacted elsewhere.

When our Legislatureadopts its own legislative framework to address a problem that may be common to some or all sister jurisdictions, its sovereign will infashioning a solution must be respected. In particular, that sovereign will cannot be sacrificed by courts at the altar of pan-Canadianlegislative uniformity. More pointedly, it is beyond dispute that, in adopting the Proceedings Against the Crown Act in the early 1950s,the Legislature parted ways with other reforming jurisdictions.

Indeed, it rejected unqualified abolition of Crown immunity for actions intort in favour of a regime that opens the door to Crown liability for torts that fall within specified categories. [43] At its 32nd annual meeting in 1950, the Conference of Commissioners on Uniformity of Legislation in Canadarecommended enactment of the following draft provisions with respect to Crown liability in tort: 5.

(1) Subject to this Act and notwithstanding

section […] of the Uniform

Interpretation Act, the Crown is subject to all those liabilitiesin tort to which, if it were a person of full age and capacity, it would be subject,

a) in respect of a tort committed by any of its officers or agents;

b) in respect of any breach of those duties that a person owes to his servants or agents by reason of being their employer;

c) in respect of any breach of the duties attaching to the ownership, occupation, possession or control, of property; and

d) under any statute, or under any regulation or by-law made or passed under the authority of any statute. […]

(3) Where a function is conferred or imposed upon an officer of the Crown as such, either by any rule of the common law or by statute,and that officer commits a tort in the course of performing or purporting to perform that function, the liability of the Crown in respect ofthe tort shall be such as it would have been if that function had been conferred or imposed solely by virtue of instructions lawfully givenby the Crown. [44] By 1974, most common law provinces had adopted legislation that replicated, in substance, if not verbatim, ss.5(1) and 5(3) of the Uniform Model Act.

The first provinces to do so were Nova Scotia, Manitoba and Saskatchewan. [45] In Nova Scotia, ss. 5(1) and 5(3) of the Proceedings against the Crown Act, S.N.S. 1951, c. 8, stipulated asfollows:

5(1) Subject to this Act the Crown is subject to all liabilities in tort to which, if it were a person of full age and capacity, it would be subject (

a) in respect of a tort committed by any of its officers or agents; (

b) in respect of any breach of the duties that a person owes to his servants or agents by reason of being their employer; (

c) in respect of any breach of the duties attaching to ownership, occupation, possession or control of property; (

d) under any statute, or under any regulation or by-law made or passed under the authority of any statute. […]

(3) Where a function is conferred or imposed upon an officer of the Crown as such by common law or by statute, and that officer commits a tort in the course of performing or purporting to perform that function, the liability of the Crown in respect of the tort is the same as if that function had been conferred or imposed solely by virtue of instructions lawfully given by the Crown. [ 46 ] Manitoba enacted The Proceedings Against the Crown Act , S.M. 1951, c. 13, ss. 5(1) and 5(3) of which read as follows: 5.

(1) Subject to this Act, and notwithstanding

section 9 of The Manitoba

Interpretation Act, the Crown is subject to all those liabilities in tort to which, if it were a person of full age and capacity, it would be subject

a) in respect of a tort committed by any of its officers or agents;

b) in respect of any breach of those duties that a person owes to his servants or agents by reason of being their employer;

c) in respect of any breach of the duties attaching to the ownership, occupation, possession, or control, of property; and

d) under any statute, or under any regulation or by-law made or passed under the authority of any statute. […]

(3) Where a function is conferred or imposed upon an officer of the Crown as such, either by any rule of the common law or by statute, and that officer commits a tort in the course of performing or purporting to perform that function, the liability of the Crown in respect of the tort shall be such as it would have been if that function had been conferred or imposed solely by virtue of instructions lawfully given by the Crown. [ 47 ] In Saskatchewan, ss. 5(1) and 5(3) of The Proceedings against the Crown Act , 1952, c. 35 , provided:

(1) Subject to this Act, and notwithstanding

section 7 of The

Interpretation Act, 1943, the Crown is subject to all those liabilities in tort to which, if it were a person of full age and capacity, it would be subject: (

a) in respect of a tort committed by any of its officers or agents; (

b) in respect of any breach of those duties that a person owes to his servants or agents by reason of being their employer; (

c) in respect of any breach of the duties attaching to the ownership, occupation, possession or control of property; and (

d) under any statute, or under any regulation or bylaw made or passed under the authority of any statute. […]

(3) Where a function is conferred or imposed upon an officer of the Crown as such, either by any rule of the common law or by statute, and that officer commits a tort in the course of performing or purporting to perform that function, the liability of the Crown in respect of the tort shall be such as it would have been if that function had been conferred or imposed solely by virtue of instructions lawfully given by the Crown. [ 48 ] It is universally accepted that s. 5(1) of the statutes referenced in the preceding three paragraphs brought about substantial equivalency between the Crown ’s liability and the liability of an ordinary person of full age and capacity for tortious conduct.

That being so, one can only conclude the object of s. 5(3) of those statutes was other than achieving equivalency. Indeed, as will be demonstrated, the object of s. 5(3), and our s. 4(3), was to abrogate a Crown-favouring invention of the common law: the independent discretion rule. [ 49 ] At any rate, while Nova Scotia, Manitoba and Saskatchewan were importing into their statute books s. 5(1) of the Uniform Model Act, New Brunswick was enacting a much more timid reform of its tort-related Crown immunity law.

It is reported in Hansard that, in the course of introducing Bill 194 (“The Proceedings Against the Crown Act”) during the 1952 session of the Legislature, Premier John McNair made the following observations: This bill, entitled The Proceedings Against the Crown Act , will effect a momentous change in the relationship between the Crown in the right of the Province and the people, in that for the first time a person will be able, subject to certain minor limitations, to bring action in the courts of the Province against the Crown.

In my view, it is an important milestone in progressive legislation and in the evolution of the relations between subject and the Crown. The Crown in right of the Province is probably more popularly known as “the Government” or “the Province”. It has never been subject to suit in the courts of the Province. This situation is based on the maxim “The King can do no wrong”. The expansion of “Crown” or “Government” activities into new spheres necessitates a re-examination of the situation.

If a person is injured by a motor vehicle driven by an employee of the Crown, he can sue the employee, but he cannot sue the employer, the Crown, as he could an ordinary employer. If this bill is enacted, a person so injured will be able to sue the Crown without the consent of anyone. This question has been under consideration for some years and in 1949 I, as Attorney-General, directed that it be referred to the Commissioners on Uniformity of Legislation in Canada to the end that that body might prepare a uniform bill.

At the 1949 meeting of the commissioners, it was so referred, concurrently with a similar reference by the Attorney-General for Manitoba. The commissioners after careful study recommended a draft bill, but the draft was predicated on the existence of a procedure for action against the Crown by a petition of right which was included in the laws of some of the provinces. Since a petition of right procedure has never been authorized in this Province, further study with a view to adapting the commissioners’ uniform bill to our local situation was necessary.

As a further opportunity for detailed study of the bill will be afforded when it is before the Committee of the Whole, I will only outline the effect of it now in very general terms. If the bill becomes law, a person may sue the Crown on a claim that his land, goods or money are in the possession of the Crown, a claim arising out of contract with the Crown or a claim for a tort, or wrong, by the Crown or an officer or agent of the Crown, to his real or personal property or causing bodily injury.

The action may be brought in the supreme or a county court, but not before a magistrate or in an inferior court. Crown corporations, such as the Electric Power Commission and the Liquor Control Board, will be on the same basis as the Crown itself. [Emphasis added.] It goes without saying that Premier McNair did not have the tort of negligent misrepresentation in mind when he made those remarks, since Hedley Byrne would only be decided in 1963. [ 50 ] Although ss. 4(1) (b) , (

c) and (

d) and s. 4(3) of the Proceedings Against the Crown Act , R.S.N.B. 1952, c. 176, replicate ss. 5(1) (b) , (c) , and (

d) and s. 5(3) of the Uniform Model Act, s. 4(1) (

a) of the statute diverges markedly from the proposed s. 5(1) (a) . While the last-mentioned provision stated the Crown was subject to the same liability as a person of full age and capacity “in respect of a tort committed by any of its officers or agents”, s. 4(1) (

a) referred only to “a tort to real or personal property or causing bodily injury, committed by an officer or agent”, as Premier McNair underscored when he introduced Bill 194 in the Legislature. [ 51 ] In framing tort liability in such narrow terms, the Legislature did not fall prey to some drafting “slip”. Neither more victim-favouring reforms elsewhere nor arguably victim-unfriendly judicial

interpretations of s. 4(1) of our Proceedings Against the Crown Act have moved the Legislature to modify its terms with a view to expanding the Crown’s liability in tort. For the sake of thoroughness, I will complete, in

summary fashion, the overview of legislative reforms pursued elsewhere in Canada before focusing on the jurisprudence of this Province bearing on the

interpretation of s. 4(1). [ 52 ] In 1959, Alberta adopted The Proceedings Against the Crown Act , S.A. 1959, c. 63, which included the following provisions: 5.

(1) Except as otherwise provided in this Act and notwithstanding

section 13 of The

Interpretation Act, 1958 , the Crown is subject to all those liabilities in tort to which, if it were a person of full age and capacity, it would be subject, (

a) in respect of a tort committed by any of its officers or agents, (

b) in respect of any breach of those duties that a person owes to his servants or agents by reason of being their employer, (

c) in respect of any breach of the duties attaching to the ownership, occupation, possession or control of property, and (

d) under any statute or under any regulation or by-law made or passed under the authority of any statute. […]

(3) When a function is conferred or imposed upon an officer of the Crown as such, either by a rule of common law or by statute and that officer commits a tort in the course of performing or purporting to perform the function, the liability of the Crown in respect of the tort is such as it would have been if the function had been conferred or imposed solely by virtue of instructions lawfully given by the Crown. [ 53 ] In Ontario, the Legislature voted in favour of The Proceedings Against the Crown Act, S.O. 1952, c. 78 , but it was never proclaimed.

Within a decade or so, the Province adopted The Proceedings Against the Crown Act , S.O. 1962-63, c. 109, which featured the following provisions:

(1) Except as otherwise provided in this Act and notwithstanding

section 11 of The

Interpretation Act , the Crown is subject to all liabilities in tort to which, if it were a person of full age and capacity, it would be subject, (

a) in respect of a tort committed by any of its servants or agents; (

b) in respect of a breach of the duties that a person owes to his servants or agents by reason of being their employer; (

c) in respect of any breach of the duties attaching to ownership, occupation, possession or control of property; and (

d) under any statute, or under any regulation or by-law made or passed under the authority of any statute. […] 5(3) Where a function is conferred or imposed upon a servant of the Crown as such, either by a rule of the common law or by or under a statute, and that servant commits a tort in the course of performing or purporting to perform that function, the liability of the Crown in respect of the tort shall be such as it would have been if that function had been conferred or imposed by instructions lawfully given by the Crown. [ 54 ] In 1973, Newfoundland adopted The Proceedings against the Crown Act , S.N. 1973, c. 59. Sections 5(1) and 5(3) stated: 5.

(1) Subject to this Act, and notwithstanding

Section 13 of The

Interpretation Act , the Crown is subject to those liabilities in tort to which, if it were a person of full age and capacity, it would be subject, (

a) in respect of a tort committed by any of its officers or agents; (

b) in respect of any breach of those duties that a person owes to his servants or agents by reason of being their employer; (

c) in respect of any breach of the duties attaching to the ownership, occupation, possession or control of property; and (

d) under any statute or under any regulation made or passed under the authority of any statute. […]

(3) Where a function is conferred or imposed upon an officer of the Crown as such by common law or by statute, and that officer commits a tort in the course of performing or purporting to perform the function, the liability of the Crown in respect of the tort is the same as if the function had been conferred or imposed solely by virtue of instructions lawfully given by the Crown. [ 55 ] During the same year, the Crown Proceedings Act , S.P.E.I. 1973, c. 28 came into effect in Prince Edward Island. Sections 5(1) and 5(3) specified: 5.

(1) Subject to this Act, and notwithstanding

section 10 of the

Interpretation Act , the Crown is subject to all those liabilities in tort to which, if it were a person of full age and capacity, it would be subject

(

a) in respect of a tort committed by any of its officers or agents; (

b) in respect of any breach of those duties that a person owes to his servants or agents, by reason of being their employer, (

c) in respect of any breach of the duties attaching to the ownership, occupation, possession or control, of property, and (

d) under any statute, or under any regulation or bylaw made or passed under the authority of any statute. […]

(3) Where a function is conferred or imposed upon an officer of the Crown , as such, either by any rule of the common law or by statute, and that officer commits a tort in the course of performing or purporting to perform that function, the liability of the Crown in respect of the tort is such as it would have been if that function had been conferred or imposed solely by virtue of instructions lawfully given by the Crown. [ 56 ] British Columbia would put off reform until 1974. At that time, it adopted the Crown Proceedings Act , S.B.C. 1974, c. 24 , which did not incorporate s. 5(1) of the Uniform Model Act. However, s. 2 (

c) prescribed “the Crown is subject to all those liabilities to which it would be liable if it were a person”, which leaves “no doubt that the Crown in right of British Columbia is wholly liable in tort, and in all other areas of the law that impose liabilities on legal persons” (see Liability of the Crown , at p. 114). [ 57 ] Of course, each jurisdiction was free to adopt a modified version of the Uniform Model Act, which is precisely what New Brunswick did.

Rather than equating the liability of the Crown to that of a person of full age and capacity in respect of all torts committed by one of its officers or agents, as the Conference of Commissioners on Uniformity of Legislation in Canada recommended, and as Nova Scotia, Saskatchewan and Alberta did in the early 1950s, our Legislature endorsed equivalency only for a “tort to real or personal property, or causing bodily injury”. The plain and ordinary meaning of the quoted phrase, which is lifted from s. 4(1)( a ), excludes, as the appellants concede, the tort of negligent misrepresentation.

Indeed, to hold otherwise would require ascribing to the phrase “tort […]​ to personal property” a meaning that its constituent words cannot reasonably bear. [ 58 ] The wording of s. 4(1)(

a) has not been modified since its adoption, despite the more sweeping terminology employed by reform legislation elsewhere, both in the immediate aftermath of the 1950 recommendation by the Conference of Commissioners on Uniformity of Legislation in Canada, and in the ensuing decades. Furthermore, and as mentioned, nothing in the context suggests s. 4(1)(

a) is the product of a drafting “slip”. However, those considerations do not fully answer the appellants’ bedrock argument, at least as I understand it. [ 59 ] The appellants focus on the fact that s. 4(1) is, by its own terms, “[s]ubject to this Act” and that s. 4(3) refers to a “tort”, without words of limitation. They then use this state of affairs as a springboard for the contention that s. 4(3) expands Crown liability beyond the categories set by s. 4(1). In the result, what is not allowed under s. 4(1), e.g. an action in tort for negligent misrepresentation, would be permissible by virtue of s. 4(3).

While the argument reflects commendable creative ingenuity, it fails to pass muster for the following reasons. [ 60 ] In my view, the phrase “[s]ubject to this Act” serves to limit, not expand the scope of s. 4(1). The phrase makes plain that the Crown ’s liability in tort is subject to all of the statute’s other provisions, none of which operate to expand the tort classes specified in s. 4(1). [ 61 ] As for s. 4(3) of the Proceedings Against the Crown Act , it may be helpful to begin the discussion on its application by reproducing, once again, its text:

4(3) Where a function is conferred orimposed upon an officer of the Crown as suchby common law or by statute, and that officercommits a tort in the course of performing orpurporting to perform that function, theliability of the Crown in respect of the tort isthe same as if that function had beenconferred or imposed solely by virtue ofinstructions lawfully given by the Crown. 4(3) Lorsque la common law ou une loiattribue ou impose une fonction à unfonctionnaire de la Couronne et que cefonctionnaire commet un délit civil dansl’exercice réel ou présumé de cette fonction,la responsabilité de la Couronne à raison dece délit est engagée dans la même mesure quesi cette fonction avait été attribuée ouimposée uniquement en vertu d’instructionsqu’elle aurait régulièrement données elle-même. [62] While the provision does employ broad language (“a tort [committed by an officer of the Crown] in the courseof performing or purporting to perform” a function conferred by statute), it nonetheless stands to be interpreted contextually and havingregard to its object (see Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27, [1998] S.C.J.

No. 2 (QL), and RuthSullivan, Statutory

Interpretation, (Concord: Irwin Law, 1997), at 108). Complementarily, effect must be given to s. 17 of theInterpretation Act, R.S.N.B. 1973, c. I-13, which provides that every legislative provision: (1) is deemed remedial; and (2) stands toreceive such fair, large and liberal

interpretation “as best ensures the attainment of [its] object” (emphasis added). [63] Section 4(3) must be read in a manner that is harmonious with the Proceedings Against the Crown Act as awhole, an interpretative process that brings into the mix s. 4(1), which limits Crown liability in tort to specified categories. Thesimplicity of that proposition should not dilute its cogency. [64] Section 4(3) must also be understood in light of ss. 3(

c) and 21, which read as follows: 3 Subject to this Act, a person who has aclaim against the Crown may enforce it as ofright by proceedings against the Crown inaccordance with this Act in all cases in which […] (

c) the claim is based upon liability of theCrown in tort to which it is subject by thisAct. 21 No proceedings may be broughtagainst the Crown except as provided by thisAct. [Emphasis added.] 3

Sous réserve des dispositionsparticulières de la présente loi, une personnequi a une demande à faire valoir peut la fairevaloir de plein droit en intentant desprocédures contre la Couronne conformémentà la présente loi dans tous les cas où […]

c) la demande est fondée sur la responsabilitédélictuelle de la Couronne à laquelle laprésente loi l’assujettit. 21 Il ne peut être engagé de procédurescontre la Couronne que dans les cas prévuspar la présente loi. [C’est moi qui souligne.] [65] Viewed in the particular context provided by our Proceedings Against the Crown Act, the phrase “liability ofthe Crown in tort to which it is subject by this Act” found in s. 3(

c) is a strong indicator that there are claims in tort to which the Act doesnot subject the Crown. More generally, the French version of s. 21, literally translated, would read, “No proceedings may be broughtagainst the Crown except in the cases provided by this Act” (emphasis added), which suggests there are cases for which Crown liabilityis not provided by the Act.

That brings us full circle to the time-honoured proposition that there cannot be an action in tort against theCrown unless it is authorized by statute. [66] Moreover, s. 4(3) stands to be deciphered with its object in mind: the abrogation of the independent discretionrule. At common law, the independent discretion rule operated to exclude vicarious liability of the Crown. Most cases featuring anapplication of the rule dealt with tort claims against police officers. The rule posited that the Crown was not vicariously liable for the

actions of a police officer in the execution of statutory or common law powers that were vested in him or her personally and which calledfor the exercise of independent discretion (see Liability of the Crown, at pp. 125-126, Joseph Carabetta, “Employment Status of thePolice in Australia”, (2003) 27 Melb. U. L. Rev. 1 at 1-17, and S.C. Churches, “Bona Fide Police Torts and Crown Immunity: AParadigm of the Case for Judge Made Law” (1980) 6 U. Tas. L. Rev. 294, at 305-306). In the leading Canadian case on point, McCleavev.

City of Moncton (1902), (SCC), 32 S.C.R. 106, the rule was applied to deny liability on the part of the City ofMoncton for an unlawful seizure of liquor by a police officer in its employ. [67] Soon after the adoption of the Proceedings Against the Crown Act in 1952, this Court was called upon tointerpret ss. 4(1) and 4(3) in Long v. Province of New Brunswick. In that case, Mr. Long claimed damages against the Province for falsearrest, malicious prosecution, forcible search and unlawful seizure and detention of his property by provincial game wardens.

The Courtheld the claims for false arrest, malicious prosecution and forcible search were precluded by the Proceedings Against the Crown Actbecause none fell within the categories in s. 4(1): For the purposes of the hearing below, and of this appeal, the facts alleged in the statement of claim must be taken as admitted by thedefence.

Such allegations are that DeLong and Bastarache, two deputy game wardens appointed, employed and paid by the province,were, on 24th September 1957, patrolling a public highway in a motor vehicle seeking violators of The Game Act, R.S.N.B., 1952, c. 95;that their attention was attracted to an automobile on the highway, which was owned and driven by the plaintiff; that they followed it;that, not knowing the officers were attempting to stop his car in order to search it, the plaintiff increased his speed and attempted escape;that he was overtaken eventually at a stop sign; that despite the demand of the officers that he open his car and submit to its search, theplaintiff kept it locked; that the two officers were shortly joined by Lockhart, a forest ranger and deputy game warden also appointed,employed and paid by the province; that none of the three officers was in uniform; that together they forced entry to the plaintiff’s car,but discovered therein no evidence of any violation of The Game Act; and that they, nevertheless, searched the person of the plaintiff,seized the car and its contents and arrested the plaintiff who later was charged with violations of s. 19 (2) of The Game Act, s. 123 (1) ofThe Motor Vehicle Act and s. 110 (

a) of The Criminal Code. [para. 4] […] In the action the plaintiff claims damages for false arrest, malicious prosecution, forcible search, unlawful seizure and unlawful retention(sic) of goods. The issue for determination is whether, under The Proceedings Against the Crown Act, R.S.N.B. 1952, c. 176, an action lies against theCrown, in the right of New Brunswick, for such tortious acts. [paras. 8-9] […] It is conceded that the plaintiff has no right of action against the Crown under the common law and so must rely on the provisions of thestatute [The Proceedings Against the Crown Act].

Under it, proceedings in tort are limited by s. 4(1) which is: Subject to this Act, the Crown is subject to all liabilities in tort to which, if it were a person of full age and capacity, it would be subject, (

a) in respect of a tort to real or personal property, or causing bodily injury, committed by an officer or agent; (

b) in respect of a breach of a duty that a person owes to his servant or agent by reason of being his employer; (

c) in respect of a breach of a duty attaching to ownership, occupation, possession or control of property; (

d) under any enactment, or under any regulation made under authority of any enactment. The plaintiff’s claims based on false arrest, malicious prosecution and forcible search do not fall within the provisions of the sub-sectionand they must fail. The only possible cause of action disclosed by the pleadings is in respect of the alleged unlawful seizure anddetention of the car and its contents. [paras. 13-14]

[Emphasis added.] [68] However, the Court took a different view of the claim for unlawful seizure and detention of property becauseit was based upon a “tort […] to property”, within the meaning of s. 4(1)(a). That conclusion led to a consideration of s. 4(3): There remains for consideration the question whether there are in The Proceedings Against the Crown Act any provisions which renderinapplicable the common law principle enunciated in McCleave v. Moncton, supra, on which the learned judge also relied.

In that casethe Supreme Court of Canada held the relationship between a municipal corporation and peace or public officers appointed by it was notthe ordinary relationship of master and servant and was not subject to the doctrine of respondeat superior.

It further was decided thatalthough the police officer, whose acts were in question, held his appointment from the City of Moncton such appointment was for thepurpose of administering the general law of the land and, as the wrong complained of was not committed by him in the exercise of a dutyof a corporate nature imposed merely by the direction or authority of the city, it was not liable. In the course of delivering the judgmentof the Court Sir Henry Strong C.J., at 108, cites with approval the following passage from the judgment in Buttrick v.

The City of Lowell,1 Allen (Mass.) 172: Police officers can in no respect be regarded as agents or officers of the city. Their duties are of a public nature. Their appointment isdevolved on cities and towns by the legislature as a convenient mode of exercising a function of government, but this does not renderthem liable for their unlawful or negligent acts.

The detection and arrest of offenders, the preservation of the public peace, theenforcement of the laws, and other similar powers and duties with which police officers and constables are entrusted are derived from thelaw, and not from the city or town under which they hold their appointment. For the mode in which they exercise their powers the city ortown cannot be held liable. Unless an intention to repeal is manifest, it is a second rule to construe a statute in conformity with the principles of the common law andas amending rather than replacing it. See Humphrey Motors Limited v.

Ells, (SCC), [1935] S.C.R. 249, [1935] 2 D.L.R.705, 10 Can. Abr. 616. A careful examination of The Proceedings Against the Crown Act leads us, however, to the conclusion theintention of the Legislature was that in proceedings in tort under the statute the principles enunciated in McCleave’s case should notapply in favour of the Crown. Of special significance is s. 4(3) which reads: 4.

(3) Where a function is conferred or imposed upon an officer of the Crown as such by common law or by statute, and that officercommits a tort in the course of performing or purporting to perform that function, the liability of the Crown in respect of the tort is thesame as if that function had been conferred or imposed solely by virtue of instructions lawfully given by the Crown. It is difficult to visualize language which more effectually would nullify the operation of the principles laid down in McCleave’s case.

Inthe face of such provisions it cannot, we feel, be said a public officer upon whom is conferred a function by provincial statute actsindependently of the Crown in performing that function.

It is our view that the circumstances on which the plaintiff founds his claim inrespect of the alleged seizure and detention of the car and its contents by the officers, acting in the course of their employment, fallwithin the provisions of s. 4(1) of the statute; that the provisions of s. 4(3) render applicable the doctrine of respondent superior to therelationship between the Crown and the officers involved; and that s. 2(2)(

e) does not operate to exonerate the defendant. [paras. 25-28] [69] Interestingly, the Honourable John McNair, who shepherded the Act’s adoption through the Legislature priorto his appointment to the bench, concurred in Justice Ritchie’s reasons for judgment. One might be forgiven for suspecting that thosereasons are faithful to the Legislature’s intention in enacting ss. 4(1) and 4(3). [70] At any rate, the interpretative view espoused in Long has never been questioned in this Province. Indeed, it wasre-affirmed in Levesque v. Picard et al. (1985), (NB CA), 66 N.B.R. (2d) 87, [1985] N.B.J.

No. 104 (C.A.) (QL), anaction in tort for malicious prosecution, where the Court (H.E. Ryan, J.A.) observed: There was, of course, no right at common law to sue the Crown in respect of torts committed by its servants. But this immunity from suithas now been altered by legislation. In some jurisdictions, the Crown is now subjected to liability with respect to all forms of tort. In New

Brunswick, however, subs. 4(1) of the Proceedings Against the Crown Act, R.S.N.B. 1973, c. P-18, subjects the Crown to liability onlyin respect of certain classes of tort, namely: 4(1) Subject to this Act, the Crown is subject to all liabilities in tort to which, if it were a person of full age and capacity, it would besubject, (

a) in respect of a tort to real or personal property, or causing bodily injury, committed by an officer or agent; (

b) in respect of a breach of a duty that a person owes to his servant or agent by reason of being his employer; (

c) in respect of a breach of a duty attaching to ownership, occupation, possession or control of property; (

d) under any enactment, or under any regulation made under authority of any enactment. […] The

interpretation to be placed on subs. 4(1) of the Act was considered by this Court in a case very similar to the present one. In Long v.New Brunswick (1959), (NB CA), 31 C.R. 119, provincial game officers, purporting to act under the Game Act,R.S.N.B. 1952, c. 95, stopped Mr. Long’s vehicle and when he refused to co-operate made an unauthorized search and seizure of thevehicle and its contents. The officers also charged Mr. Long with several offences all of which were eventually dismissed or quashed.Mr.

Long brought action against the Crown claiming damages for false arrest, malicious prosecution, forcible search and unlawfulseizure and detention of property under s. 4(1) of the Act. The Court held that Mr. Long’s claims based on false arrest, maliciousprosecution and forcible search did not fall within the provisions of subs. 4(1) of the Act. [paras. 7 and 9] See, as well, Daigle and Rideout v. Province of New Brunswick (Q.B., Stevenson J.), E.E. McCoy Company Limited v. Province of NewBrunswick (1979), (NB KB), 25 N.B.R. (2d) 255, [1979] N.B.J.

No. 73 (Q.B.) (QL) (Stevenson J.), Crawford et al. v.Agricultural Development Board (N.B.) et al. (1993), (NB KB), 136 N.B.R. (2d) 70, [1993] N.B.J. No. 245 (Q.B.)(QL) (Stevenson J.), Doucette v. Region 7 Hospital Corp. et al. (Q.B.) (Russell J.) and Thériault v. New Brunswick (Minister ofAgriculture and Rural Development), 2002 NBBR 166 , 2002 NBQB 166, 250 N.B.R. (2d) 120 (LaVigne J.), at paras. 47 and63. [71] It follows that the trial judge did not err in accepting as correct the

summary of the law on point found inDaigle and Rideout v. Province of New Brunswick: […] In many jurisdictions the Crown’s immunity has been removed and the Crown subjected to liability with respect to all forms of tort.In this Province, however, subsection 4(1) of the Act subjects the Crown to liability only in respect of the classes of tort thereinenumerated, viz: (

a) in respect of a tort to real or personal property, or causing bodily injury, committed by an officer or agent; (

b) in respect of a breach of a duty that a person owes to his servant or agent by reason of being his employer; (

c) in respect of a breach of a duty attaching to ownership, occupation, possession or control of property; (

d) under any enactment, or under any regulation made under authority of any enactment. With respect to a tort that does not fall within those enumerated classes the common law immunity of the Crown remains. For instance,

in Long v. Province of New Brunswick (1959), (NB CA), 44 M.P.R. 12; 19 D.L.R.(2d) 437, it was held that claimsbased on false arrest, malicious prosecution and forcible seizure did not fall within the provisions of subsection 4(1) of the Act. The plaintiffs’ claim in the present action is a claim for alleged economic loss. A claim for such loss occasioned by negligentmisstatement or misrepresentation clearly does not fall within the language of any of the paragraphs in subsection 4(1). Paragraphs (b)and (

d) are clearly inapplicable. The alleged tort is not a tort or wrong to real or personal property and it is not suggested that it causedbodily injury to anyone - paragraph (

a) therefore does not apply. While the transaction related to a highway matter, the alleged tortcannot be said to have constituted a breach of any duty owed by the defendant arising out of or attaching to its ownership, occupation,possession or control of the highway - paragraph (

c) therefore does not apply. [paras. 3-4] [Emphasis added.] [72] I would wrap up the discussion on the subject of the Crown’s suability in tort for negligent misrepresentationby expressing my full agreement with the trial judge’s conclusion that this Court’s decision in Gauthier v. Canada (Attorney General) isdistinguishable. In that case, the Court examined the circumstances under which the Hedley Byrne principles “may impose liability intort on the federal Crown” (para. 1) (emphasis added). In Gauthier v. Canada (Attorney General), the defendant federal Crown did notclaim immunity from tort liability.

It litigated the case without raising that issue in all likelihood because it was satisfied no suchimmunity survived the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50. Nothing further need be said on the question. [73] For the reasons fleshed out in the preceding text, it is my duty to reject the appeal against the dismissal of theaction in tort against the Province for negligent misrepresentation.

(2) The action in tort against the Commission [74] The appellants argue the trial judge should not have dismissed their action against the Commission fornegligent misrepresentation once

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