Every Newfoundlander with a driver’s licence has either struck a moose on one of the province’s highways, or come very close. (My scare came in 1992, barely a year after I’d gotten my licence, while driving this through Terra Nova Park.) Now, prominent trial lawyer Ches Crosbie (John’s son) is leading a class action against the Provincial government for failing to adequately protect motorists:
The statement of claim that Ches Crosbie is putting forward has no legal precedence that either side is aware of. None of the allegations noted have ever been tested in court.
At the heart of Crosbie’s case is the population of moose in Newfoundland and Labrador. Specifically, the plaintiffs point to the fact that these animals are not native to the province. Because they are alien species brought in by earlier settlers, the government is responsible for controlling the growth of the species. “Wildlife practices of the defendant have allowed the moose population on the Island to reach numbers in the range of 120,000 to 200,000 … multiplying the danger of moose collisions for users of the highways,” reads the statement of claim. The statement of claim also adds: the “government made a decision to bring this non-native invasive species here about a hundred years ago,” but the government has “avoided taking responsibility for managing the hazard it created.”
Accordingly, the plaintiffs demand that the Newfoundland and Labrador government take actions to cut the population of moose by half as a means to protect drivers. As well, moose near roads should be allowed to be killed by officials and fences should be installed along roads to keep them out.
At first glance, this case may seem sensational. Upon further examination, though, the legal issue at the heart of this case should remind us of a case that was heard some 20 years ago. The legal analysis will turn on the duty of care that is owed by public authorities. The guiding case is the 1989 Supreme Court of Canada case of Just v. BC. In the earlier case, the issue of governmental liability was raised when a boulder fell on a car, killing one passenger and seriously injuring another. The plaintiff claimed that the government had neglected to properly maintain the highway. At the trial and Court of Appeal levels, the judges held the government of British Columbia to not be liable in tort, as the entire inspection system and its implementation are policy matters.
What ultimately comes out of the Just case is a test for when governmental actions are exempt from liability, to as to allow government actors to exercise their duty to formulate public policy without intervention from the courts. This is fundamental to the division of powers in our country.
First, the majority of the judges on the Supreme Court found there to be general proximity because “the Department of Highways could readily foresee the risk that harm might befall users of a highway if it were not reasonably maintained.” Once general proximity is established, the Court in turned their attention to statutory exemptions and the difference between an operational decision and a policy decision. That forms the crux of the Just test. “Government agencies may be exempt from the application of the traditional tort law duty of care if an explicit statutory exemption exists or if the decision arose as a result of a policy decision,” summarizes the Court.
The Court found that there was no statutory exemption, so it proceeded to distinguish policy decisions from operational decisions, explicitly noting that the former concerns budgetary allotments for departments or government agencies. This kind of investigation usually includes an inquiry into where on the governmental hierarchy the decision was made, whether it was done with advanced planning as opposed to being executed on the ground, etc.
While it was a policy decision to have safeguards on the highway, the majority of the Court found that the government failed to exercise due care in the operation of the policy — in the manner and quality of the inspection system. Having found no statutory exemption and having dismissed it as a policy decision, the Court ordered a new trial to more fully investigate the facts of the case (i.e. budgetary restrains, availability of personnel, etc.) in Just.