Federal Court - Christian Aboriginal Infrastructure Developments ...

Page: 246
[936] The Defendant can avoid this prima facie duty of care by policy considerations such as
indeterminate liability; see Hercules Managements. Further, there is no liability for the policy
decisions of government; see Premakumaran, at para. 20.
[937] As I have discussed above, there are no policy considerations that should exempt the
Defendant from the prima facie duty of care. There was no indeterminate liability as this was a
2010 FC 495 (CanLII)
specific representation made at a scheduled meeting, to two specific parties.
[938] The Defendant had a policy of encouraging economic development in the forest industry.
The decision to have a system of long-term tenure is also a policy decision. This action is not a
challenge to a political or legislative decision. On the facts of this case, I find that the representation
made on July 15, 1997 was the implementation of the Defendant’s policies, and was not a policy
decision in and of itself. The implementation of a policy is an operational decision and not exempt
from a duty of care.
(ii)
The Representation
[939] The Plaintiffs claim that the Defendant made a representation that if a mill were built, an
adequate supply for the operation of that mill would be made available.
[940] According to the evidence adduced, this representation was made at the “due diligence”
meeting held on July 15, 1997 when Mr. Alan Kerr and Mr. Brian Kerr, on behalf of LPL, and Mr.
Spencer and Mr. Fehr went to Whitehorse to meet with representatives of DIAND to discuss the