A Canadian Symbol Brought to Court: Victims of Moose Crashes Sue Newfoundland in Class Action Suit

On May 26, 2011, the international publication The Economist featured an article about moose in Canada. In particular, they focused on moose in Newfoundland and Labrador. These “lumbering giants” are wreaking havoc on the roads, resulting in over 700 collisions every year, many of which are fatal. Having no natural predators, their population has soared to 150,000, and the residents of Newfoundland are becoming increasingly weary of their new neighbours.

Six months ago, a St. John-area lawyer filed a class action lawsuit against the province of Newfoundland and Labrador. The lawyer, Ches Crosbie, claims that the provincial government is responsible for the injuries suffered by motorists who crash into moose on the road.

On Tuesday of last week, Justice Richard LeBlanc of the Supreme Court of Newfoundland and Labrador supported certification of the case. Thus, Ches Crosbie and the victims he represents were given the green light to proceed with their class action lawsuit, which may have wide legal ramifications for class proceedings and for the duty of care owed by public authorities.

A Novel Statement of Claim

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.

Certification of Class Proceeding

Another big question raised by this case is the requirements of class proceedings. Although Justice LeBlanc backed the certification of the case, he did raise questions about who could be considered in the class. Initially, the class was restricted to those who were involved in vehicular accidents on provincial roads that needed hospital treatment. These victims must also be residents of Newfoundland and Labrador. Justice LeBlanc questioned why victims who received outpatient care or who reside outside of the province should be excluded from the class. In response to this inquiry, the lawyer responded: “Restricting the class definition to make it more manageable to a lower number of the most deserving people in terms of their injuries was something that we thought was wise to do in an environment where there’d be a lot of skepticism… But in light of the judge’s comments now, and in light of the fact that this class action seems to have a lot more credibility … we’re going to have to have another look at that.” As it stands, there are approximately 69 to 100 victims represented by Crosbie, all of whom needed hospital care after the accident in the last ten years. If Crosbie takes LeBlanc J.’s advice to heart, then the class could easily balloon to thousands of people. (The government of Newfoundland and Labrador has not yet filed a statement of defense, and the government lawyers have not blocked any initiatives to enlarge the class of plaintiffs.)

The victims whom Crosbie is working with are seeking not only personal injury and general compensation, but also actions from the government, including moose fencing, a cull of the herd, etc.

Duty of Care Owed by Public Authorities (Just v. BC)

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.

Budgetary Considerations

“I think that resources will be the key issue, [as in] to what extent can the government plead straitened fiscal circumstances in a negligence claim?” states Prof. Allan Hutchinson.

Following the decision in Just v. BC and the earlier Anns test, the Supreme Court of Newfoundland and Labrador will likely find there to be a proximate relationship between the government and the motorists injured or killed in moose accidents. It is foreseeable that moose, left unfenced, will run onto the road and get hit by cars. Similarly, there would be no statutory exemptions in this case. So, the case ultimately rests on the distinction between policy and operational decisions — the Just test. In trying to plead that it is a matter of policy, the government is likely to point to economic hardships and the provincial deficit. Due to constraints on its budget, the provincial government could not have taken additional measures to maintain the moose population and keep them away from roads and highways, or so the argument would go. Depending largely on the facts of this case, that line of reasoning may or may not succeed.

On the other hand, some scholars argue that this case will probably settle out of court. The legal issues raised are not entirely novel, and the litigation process can become drawn out and increasingly expensive.

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