In this case, the New Brunswick Court of Appeal determined that section 4(1) of the New Brunswick Proceedings Against the Crown Act operates to prevent the Crown and Crown corporations from being sued for negligent misrepresentation.
In 1994, the Lévesques’ potato crops were affected by a fungal disease. The risk of fungal disease was covered under their policies with the New Brunswick Crop Insurance Commission. The Lévesques alleged that representatives of the Commission and the province of New Brunswick recommended that they take “extraordinary” remedial steps to save the crops, and represented that the Minister of Agriculture would reimburse all outlays. Their applications for redress through the arbitration process provided by the now repealed Crop Insurance Act were unsuccessful. In 1996, the Lévesques commenced actions for negligent misrepresentation against the Province and the Commission representative who misrepresented the Minister’s reimbursement commitment. In 2006, the action against the Commission representative was discontinued, and the claims amended to include claims for breach of contract and restitution. At the close of the trial in 2009, the Province moved for non-suit, claiming that Crown immunity and prescription foreclosed judgment against them.
The Court of Appeal found that the trial judge was correct in finding that the Proceedings Against the Crown Act precluded an action for negligent misrepresentation against the Province and the Commission, a Crown corporation within the comprehension of that Act. In New Brunswick, the Crown is only liable for torts falling within the categories listed in section 4(1). The Lévesques claimed that section 4(3) of the Proceedings Against the Crown Act indicated 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”. The Court, however, determined that section 4(3) does not “open the door to a lawsuit for negligent misrepresentation against the Crown”. After reviewing the Uniform Model Act and similar statutes in other provinces, the Court determined that section 4(3) must be read in a way that is harmonious with the entire Proceedings Against the Crown Act. Therefore, as section 4(1) limits Crown liability in tort to specific categories, section 4(3) should not be read to expand Crown liability beyond the categories specified in section 4(1).
May 19, 2011
Link to Decision
Catherine Marchant
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