In C&A Mink Ranch Ltd. v. British Columbia (Ministry of Agriculture and Food), 2025 BCCA 272, the appeals arose from orders “dismissing a series of substantially identical actions” that alleged misfeasance in public office and a constructive taking.
Regulatory changes were made to the Animal Health Act that rendered mink farming illegal in British Columbia. The Lieutenant Governor in Council amended the Fur Farm Regulation, which put mink farmers out of business. The process began in November 2021 for total prohibition of mink farming by April 2025.
Mink farmers were the plaintiffs in the actions. The amendment was purportedly an action to prevent the risk of farmed mink spreading respiratory viruses, including SARS-CoV-2, which causes COVID-19, as mink were particularly susceptible.
The farmers alleged that the real reason for the change was not for health reasons but rather “reflected Cabinet’s capitulation to the anti-fur lobby and public opinion,” which was an unlawful purpose, and said the decision-makers knew the changes would harm them. They said the regulation was in response to lobbying by groups including the B.C. SPCA, the Association for the Protection of Fur-Bearing Animals and the Union of B.C. Indian Chiefs.
They posited that health risks associated with mink farming were not significant and said the order was enacted without consultation or warning, adding that the ban was not recommended by the B.C. Centre for Disease Control. They also said the province did not compensate the mink farmers.
The plaintiffs alleged the provincial government benefited from putting them out of business, amounting to a constructive taking, which is compensable in damages, and claimed that the government knew that there was no need to terminate mink farming for public health, and they had cooperated with government to mitigate associated health risks.
The judge ruled that it was plain and obvious that cabinet acted lawfully and any advantages to the government “were not ‘tethered’ to the plaintiffs’ property rights so as to fall within the scope of constructive taking.” She found the plaintiffs could not plead material facts to remedy the pleading, and did not allow the claims to be amended.
The judgment of the lower court and on appeal did not decide the merits of the parties’ claims but rather determined whether the claims could have any reasonable prospect of success, on the assumption that the allegations were true.
The judge stated that the Wildlife Act made it unlawful for any persons to possess mink unless they have a permit issued under the Act or the Animal Health Act. The regulation under the latter provides the licensing scheme allowing for mink farm operations in the province, which served as an exemption from a general prohibition under the Wildlife Act. The amendment to the regulation removed a regulatory exception.
“In this context, the plaintiffs’ pleading that the OIC ‘was not related to animal health or public health as required under the legislative scheme’ is based on an incorrect premise,” the lower court wrote. “There is nothing in the legislative scheme governing fur farming in British Columbia that requires amendments to the Fur Farm Regulation to be related to animal health or public health.”
The judge went on to note that any underlying political, social or partisan considerations were irrelevant to the consideration of whether an act of cabinet was ultra vires “as they reflect ‘core policy decisions’ that are usually immune from review in civil tort actions.”
“Cabinet is a political body that is responsive to public opinion,” she added. “When Cabinet passes subordinate legislation, such as the amendments to the Fur Farming Regulation, it may be moved by any number of political, economic, social or partisan considerations.”
In addition to not being an unlawful act, the enactment of the regulation for political reasons rather than public health reasons could not support a finding of bad faith or being inconsistent with the obligations of office, she added.
The pleaded benefits acquired were policy advantages in the preservation, promotion and protection of public health, animal health and welfare, and satisfaction of public standards. The judge found that if such an argument were to prevail, it would “signal a radical change in the law of constructive taking.”
“By this logic, any infringement of property rights based on a sound policy justification or political purpose, even where the Crown enjoys no benefit flowing from the infringed property, would amount to a constructive taking,” she said. “The plaintiffs were unable to point to any case authority to support such a proposition.”
She could not find that the alleged benefits could amount to an advantage flowing from the plaintiffs’ property. Further, knowledge of harm was an insufficient basis to conclude an act of bad faith or dishonesty.
The appellate court noted that claims of public misfeasance “must be scrutinized and resolved with caution and restraint because the tort provides redress for egregious intentional misconduct and not for maladministration, official incompetence or bad judgment.”
It noted that a court’s role is to review the validity and legality of the legislation and not whether it is “necessary, wise or effective in practice.” This was therefore an exercise in statutory interpretation and not to substantively assess policy merits.
Justice David Harris, writing for the panel, accepted that the order in council fell “within a reasonable interpretation of the scope of the enabling legislation” and agreed that it was irrelevant whether it was passed for political, social or public opinion reasons. He found the judge’s reasons were a “manifestly reasonable interpretation of the statutory scheme.”
Even if the allegations were true, the regulation fell within the statutory mandate and could not be seen as evidencing an improper purpose. This was so even without considering the defendant province’s argument.
The appeal court found there was no reasonable possibility that the farmers would be able to demonstrate that enacting the order was unlawful. The cause of action could not be made out.
In relation to listing the chief public health officer and chief veterinarian as defendants, misfeasance in public office relates to conduct by a decision-maker. Attempting to “capture advice, recommendations, support and so forth expands the tort beyond its scope.”
Justice Harris found the lower court judge’s reasoning was sound, adding that the claim was not “an incremental change or development of the law, but a radical alteration and wholesale redefinition of the nature of the cause of action.”
It was found that the judge was correct in concluding that the alleged advantages were not connected to the use of the plaintiffs’ property.
“I cannot find that she erred in concluding that the plaintiffs’ deprivation of the use of their property did not result in advantages of the necessary kind, such as assets, inventory, or goodwill flowing from the property itself,” said Justice Harris. “There is no acquisition of any kind of interest in the property itself. On the current law, the action is bound to fail.”
Such a novel cause of action is not one that should be permitted to go to trial, he added. There would not be a prospect of an incremental development in the law but rather would consume judicial resources that would frustrate access to justice.
The actions are bound to fail however they are pleaded.
The appeals were dismissed. Justices Sheri Ann Donegan and Heather MacNaughton agreed.
Counsel for the appellants was Morgan Camley and Mélanie Power of Dentons Canada LLP.
Counsel for the respondents were Chantelle Rajotte, Emily Lapper, Christine Bant and Trevor Bant.
They were not immediately available for comment.
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