B.C. mink farms' challenge to government ban dismissed in court

Minks are seen at a farm in Naestved, Denmark, in November 2020. (Mads Claus Rasmussen / Ritzau Scanpix via AP)

Five different lawsuits from B.C. mink farms seeking to reverse the provincial government's ban on their industry have been tossed out of the province's Supreme Court.

The five cases all raised the same legal arguments and were based on "nearly identical facts," explained B.C. Supreme Court Justice Amy D. Francis in a single decision for all five cases that was issued Tuesday and posted online 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 strike the lawsuits, arguing their claims were "bound to fail."

The lawsuits claimed the defendants had engaged in "misfeasance in public office" and that the province had engaged in "constructive taking" of the farms' property.

For a variety of reasons, Francis found both claims were bound to fail and dismissed the lawsuits in their entirety.

The mink farming ban

In November 2021, the provincial government announced its intention to phase out mink farming in B.C. 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 slammed 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 rationale behind the mink farming ban are referenced in Francis's decision, but they're not the focus of the judge's analysis.

Rather, the decision laments the plaintiffs' submissions about the issue of COVID on mink farms as "prolix," a legal term meaning unnecessarily long and trivial.

For Francis, the mink farms' 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 demonstrate that the decision to ban mink farming was unlawful – as required to prove misfeasance – or that it would provide an "advantage" to the province that was directly related to the plaintiffs' property – as required for constructive taking.

The misfeasance case

Misfeasance is the misuse of power by a holder of government office, and the Supreme Court of Canada has identified two ways in which a plaintiff can demonstrate that it has occurred.

Category A deals with conduct specifically intended to injure a person or class of persons, while Category B involves a public officer knowingly taking an action that they don't have the power to take, and doing so knowing that the act is likely to injure the plaintiff.

The mink farms alleged that the provincial decision-makers had committed Category B misfeasance. In order to prove it, they would need to first show that the decision to ban mink farming – which was made through an order in council – was an unlawful act, and then show that the provincial cabinet knew it was acting unlawfully and that its actions were likely to harm mink farmers.

Francis found the plaintiffs' lawsuits 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 submission is twofold: 1) it fails to appreciate the legislative scheme under which the OIC was enacted; and 2) it presumes that there is something unlawful about passing subordinate legislation for political reasons," the decision reads.

Possessing wildlife – a category that includes mink – is illegal in B.C. under the Wildlife Act. The Animal Health Act and the Fur Farm Regulation within it create exceptions to the Wildlife Act allowing the licensing of mink farms.

"The OIC provides for a series of amendments to the Fur Farm Regulation to, in three stages, end licensed mink farming in British Columbia," Francis's decision reads.

"The effect of the OIC is to remove the regulatory exception to the Wildlife Act that allowed mink farming in the first place. 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. 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."

Moreover, the judge noted, it's not illegal for a political body like the provincial cabinet to make a decision based on public opinion or other considerations.

"I find that the 'wrong' the plaintiffs allege the minister and the province to have committed – namely, the enactment of the OIC for political reasons rather than public health reasons – is not an unlawful act, nor can it support a finding of bad faith or conduct inconsistent with the obligations of office."

The constructive taking case

Francis was similarly dismissive of the mink farms' argument that the province had engaged in "constructive taking."

"Historically, constructive taking has been understood to apply when the following two requirements are met: a public authority has acquired a beneficial interest in the plaintiff’s property or an advantage flowing from it, and state action has deprived the plaintiff of all reasonable uses of its property," the decision explains.

The property does not have to be literally appropriated by the government for a constructive taking to occur, but the benefit the government receives from the alleged taking does have to be sufficiently connected to the property in question.

According to the decision, the mink farms argued that the province acquired three benefits from 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 are completely untethered to the plaintiffs’ property," the decision reads. "I cannot find that the alleged political or public opinion benefits of the OIC could possibly amount to an 'advantage flowing from the plaintiffs' property' in the manner required for constructive taking. I therefore find that the constructive taking claim has no reasonable prospect of success."

Francis dismissed all five lawsuits and declined to allow the mink farms to amend and resubmit their claims.