The province’s Supreme Court has dismissed five different lawsuits from British Columbia mink farms seeking to overturn the provincial government’s ban on their industry.
All five cases raised the same legal arguments and were based on “almost identical facts,” British Columbia Supreme Court Justice Amy D. Francis explained in a single decision for the five cases that was aired on Tuesday and posted online on Wednesday.
The defendants — the province, former agriculture minister Lana Popham, provincial health officer Dr. Bonnie Henry and former chief veterinarian Dr. Rayna Gunvaldsen — asked the court to dismiss the lawsuits, arguing that their claims They were “destined to fail.”
The lawsuits claimed that the defendants had engaged in “embezzlement in public office” and that the province had engaged in a “constructive appropriation” of the farms’ property.
For various reasons, Francis considered both lawsuits doomed to fail and dismissed the lawsuits in their entirety.
The ban on mink farming
In November 2021, the provincial government announced its intention to phase out mink farming in British Columbia by 2025.
At the time, Popham described the decision as “in the best interest of public health,” citing concerns about the potential for COVID-19 transmission between humans and mink on farms in the province.
The Canadian Mink Breeders Association criticized the decision as “unnecessary, radical and excessive” and argued that it was motivated by political pressure, rather than genuine concern about health risks.
These same claims and counterclaims about the basis for the ban on mink farming are referenced in Francisco’s decision, but they are not the focus of the judge’s analysis.
Rather, the decision bemoans the plaintiffs’ claims about the COVID issue on mink farms as “longwinded,” a legal term that means unnecessarily long and trivial.
For Francis, the mink farm cases had little to do with the science of virus transmission or the validity of the province’s public health arguments.
Rather, the cases hinged on whether the plaintiffs could show that the decision to ban mink farming was illegal (as required to prove misconduct) or that it would provide an “advantage” to the province that was directly related to the property. of the plaintiffs (as required for constructive taking.
The embezzlement case
Misconduct is the abuse of power by a holder of a government office, and the Supreme Court of Canada has identified two ways in which a plaintiff can prove that it has occurred.
Category A refers to conduct specifically intended to harm a person or class of people, while category B involves a public official knowingly performing an action that he or she does not have the power to perform, and doing so knowing that the act is likely to harm the person. demanding.
The mink farms alleged that provincial officials had committed category B offences. To prove this, they would first have to prove that the decision to ban mink farming, which was made by an order in council, was an illegal act, and then prove that the provincial cabinet knew it was acting illegally and that its actions would likely harm mink farmers.
Francis concluded that the plaintiffs’ claims failed to clear the first hurdle.
The mink farms argued that the OIC amounted to the provincial cabinet acting outside its legislative powers under the Animal Health Act “by passing subordinate legislation that does not serve the purposes of the Animal Health Act and instead “serves wildlife conservation purposes.”
“The problem with this presentation is twofold: 1) it fails to appreciate the legislative scheme under which the OIC was enacted; and 2) it assumes that there is something illegal about passing subordinate legislation for political reasons,” the decision reads.
Possession of wildlife, a category that includes mink, is illegal in British Columbia under the Wildlife Act. The Animal Health Act and the Fur Farm Regulations contained therein create exceptions to the Wildlife Act that allow licensing of mink farms.
“The OIC provides for a series of amendments to the Fur Farm Regulations to, in three stages, end authorized mink farming in British Columbia,” Francis’ decision reads.
“The effect of the OIC is to eliminate the regulatory exception to the Wildlife Act that permitted mink farming in the first place. In this context, plaintiffs’ argument that the OIC ‘was not related to animal health or public health as required by the “Legislative Scheme” is based on an incorrect premise. There is nothing in the legislative scheme governing fur farming in British Columbia that requires amendments to the Fur Farming Regulations that are related to animal health. or public health.
Furthermore, the judge noted, it is not illegal for a political body such as the provincial cabinet to make a decision based on public opinion or other considerations.
“I believe that the ‘wrong’ that the plaintiffs allege the minister and the province have committed – namely, the enactment of the OIC for political reasons rather than public health reasons – is not an illegal act, nor can it support a conclusion of bad faith or conduct incompatible with the obligations of the position”.
The constructive case
Francis also dismissed the mink farms’ argument that the province had engaged in “constructive capture.”
“Historically, constructive expropriation has been understood to apply when both of the following requirements are met: a public authority has acquired a beneficial interest in or an advantage derived from the plaintiff’s property, and state action has deprived the plaintiff of all reasonable uses of your property,” the decision explains.
It is not necessary for the government to literally take the property for a constructive taking to occur, but the benefit the government receives from the alleged taking must be sufficiently related to the property in question.
According to the decision, the mink farms argued that the province gained three benefits by depriving them of their property: “the preservation, promotion and protection of public health; the preservation, promotion and protection of animal health and welfare; and the satisfaction of public standards on animal health and welfare.”
“These advantages have no connection to plaintiffs’ property,” the decision reads. “I cannot find that the alleged political or public opinion benefits of the OIC can amount to an ‘advantage arising from the property of the plaintiffs’ in the manner required for constructive taking. Therefore, I find that the claim of constructive take has no reasonable prospects of success.”
Francisco dismissed all five lawsuits and refused to allow the mink farms to amend and resubmit their claims.