Federal Court - Christian Aboriginal Infrastructure Developments ...

Page: 191
Department employed a local community hall and its “bingo drum” and selected the names of the
successful applicants out of the drum. If the Defendant’s submission is correct, the selection of a
name out of that “bingo drum” would qualify as a “true policy decision” and would exempt the
government from liability in negligence. That submission is wrong in principle.
[748] Justice Cory, in Just at page 1242, explained that:
2010 FC 495 (CanLII)
The duty of care should apply to a public authority unless there is a
valid basis for its exclusion. A true policy decision undertaken by a
government agency constitutes such a valid basis for exclusion. What
constitutes a policy decision may vary infinitely and may be made at
different levels although usually at a high level.
(Emphasis added)
[749] The Defendant relied upon a series of Judgments made under the Fisheries Act, R.S.C.
1985, c. F-14 to argue that management of the forest resources in the Yukon Territory is, like the
management of the fisheries, a matter left to the discretion of the Minister in the preservation and
management of a public resource. This argument is not well-founded and the many decisions cited
by the Defendant are not relevant to the issues in play in this action.
[750] In this regard, the Defendant relied on the decision of the Federal Court of Appeal in
Comeau’s Sea Foods Ltd. v. Canada (Minister of Fisheries and Oceans), [1995] 2 F.C. 467 (C.A.).
The Defendant relied on this decision and other decisions made relative to the Fisheries Act to argue
that the Plaintiffs’ claims in this action are all focused on policy choices and are accordingly, nonjusticiable.