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Law Times • February 23, 2009 mation case against the Liberal party for alleging on its web site that he knew of an attempt to bribe Independent MP Chuck Cadman with a $1-million life insurance policy if he cast the deciding vote to defeat the Paul Martin government in the summer of 2005. Cadman voted with the Liber- swept under carpet P rime Minister Stephen Harper has quietly drop- ped his $3.5-million defa- Cadman affair The Hill By Richard Cleroux director, and Tom Flanagan, Harper's mentor and one-time chief of staff, to meet with Cadman on May 19, 2005. The decision to drop the case als, saved the Martin government, but died of cancer a few months later. His widow Dona said the Conservatives had tried to bribe him, but then she ran as a Con- servative candidate . . . and won. The Harper defamation case, which also included a misap- propriation of character allega- tion, ended without a trial or an apology and neither Liberals nor Conservatives would say whether money changed hands. The first hint that the end was near came last November when Harper's lawyer, the noted libel expert Richard Dearden, with- drew from the case without giving a reason. The affair goes back to a con- versation Vancouver journalist Tom Zytaruk had with Harper in 2005 while preparing his Cadman biography entitled, Like a Rock. Zytaruk wrote in his book that Harper had told him that "financial considerations" were involved with Cadman. Then to everyone's surprise Zytaruk produced a tape record- ing of Harper's voice saying those words. Harper's explanation was that he was talking about the Conservatives making an of- fer to Cadman to run again for the Conservatives if it came to an election. The Conservatives would pay Cadman's election ex- penses if he ran as a Conservative, Harper said. Harper said the tape didn't tell the whole story. Part had been left out. Harper said the tape had been "doctored." Zytaruk was furious. He denied it most vehemently, and said Harper had attacked his reputa- tion as a journalist, and that he would sue Harper if only he had the money to do it. The Liberal party wrote on its web site that Harper knew of the alleged attempt to bribe Cadman. Harper was furious. He sued, for $1.5 million at first, and then raised it to $2.5 million, then to $3.5 million, adding the misappropriation of character part to the suit. He also sought a court order to pre- vent the Liberals from using his voice recording during an elec- tion campaign to allege that he knew about a bribe attempt. Last September, in court, under oath, Harper testified that only "rogue representa- tives" of the Conservative party would have tried to bribe Cad- man. He said the only thing he authorized was that "financial and organizational support" be given to Cadman if he ran as a Conservative candidate. He testified that he had au- thorized party officials Doug Finley, the party's campaign two weeks ago and the refusal of both Conservatives and Liberals to explain has sparked furious backroom political speculation and has kept political bloggers busy ever since. Harper said there was no use pursuing his lawsuit since Stéphane Dion had gone. Trouble is Harper's action was against the Liberal party, not against Dion. Bloc Québécois leader Gilles Duceppe said Harper dropped the suit because "he was not in a position to win it." The Lib- erals said they could have won it, but didn't want to spend the money. Better to save it for the next federal election. The New Democrats, led by Joe Comartin, a smart Windsor lawyer, have picked up the ball and brought the issue back into the Commons where everything said is privileged. So why was the case dropped? Why did Harper quit fighting; why did Ignatieff quit fighting back? The answer has to do with politics, not the law. People don't care about who might have known, who might have bribed whom, and when they might have known. That's the old politics of the spon- sorship era. Everything has changed. The economy is go- ing down the drain. Nothing focuses the mind like that. People are asking: "Will I be fired? Will my wife lose her job? Is there a job for our son graduating in June?" Old stories about bribes, and governments that never fell, or mysterious "rogue elements" in the Conservative party, are the least of their concerns right now. Smart politics says, "Forget- about-it! It's the economy, stu- pid. That's what people care about. Not about something that happened back in 2005 when Paul Martin was prime minister. Who was he? Can he save my job?" Ignatieff, like U.S. President Barack Obama, is a big-picture man. And right now that's how to get Canada back on its feet. It's the No. 1 issue, the only issue. That's how Harper will be judged, not on something that might have happened in 2005. Can he get the economy mov- ing again, or would Ignatieff do better? Once again politics trumps the law; and in Ottawa that's nothing new. LT Richard Cleroux is a freelance reporter and columnist on Parlia- ment Hill. His e-mail address is richardcleroux@rogers.com. www.lawtimesnews.com COMMENT Who then in law is a public servant's neighbour? A BY PATRICK ORR For Law Times s a legislative drafter who has been writ- ing laws for governments for over two decades, I was dumbfounded by Pro- fessor Lewis Klar's recent article in another legal newspaper analysing the cases of Attis v. Canada and Drady v. Canada. The cases claim catastrophic, personal and physical harm caused by gross negligence committed by the federal Crown. The Ontario Court of Appeal decided the pleadings disclosed no cause of action. Klar asks if there was a legislative intention to create a private law duty of care. This ques- tion indicates a misun- derstanding of both legislative intention and tort law. I respectfully submit that the proper question is whether courts should ignore the 1953 statutory reversal of the common law immunity of the federal Crown. These cases amount to judicial extinction of the private law right of action granted by plain words in a simple and direct statute. This might trouble even lawyers or academics who lament so-called "judicial activism." The Crown Liability and Proceedings Act provides that the Crown in right of Canada is liable in tort as if it were a private person of full age and capacity. Lawyers should be able to assume that statutes will have their intended effect. It is for Parliament to exempt the Crown from liability. We hardly need the courts creat- ing an immunity not enacted by Parliament. Let us recall first principles in tort, Lord James Atkin's decision in Donoghue v. Stevenson and the test set out in Anns v. Merton London Borough Council. The principle that a duty of care exists between a consumer and a manu- facturer and between a member of the public and a regulator has been accepted for decades, despite their lack of any direct relationship. In any event, the Food and Drugs Act was en- acted to protect consumers of medical devices and drugs. This legal regime was enacted and funds appropriated to protect people just like Attis and Drady. In addition, the Department of Health Act expressly entrusts the Minister of Health with powers, duties, and functions to promote and preserve the physical, mental, and social well-being of the people of Canada. How can it sensibly be said that the relation- ship between Health Canada and Attis or Dra- dy (users of medical devices) is less proximate than between the B.C. Dept. of Highways and Mr. Just (a user of a highway)? The relationship between Health Canada and primary users of medical devices is the most direct relationship imaginable. That is their job. It cannot sensibly be said that their relationship is more remote than that between a manufacturer and a pur- chaser of ginger beer; nor more remote than the relationship between Transport Canada and the travelling public. The facts pleaded in Attis and in Drady are of actual direct knowl- edge of danger and probable, if not certain, harm to users of the medical implants at issue. How can actual direct knowledge of danger and harm not create proximity in fact? Speaker's Corner Attis and Drady are not cases of economic loss or negligent misrepresentation. The proximity analysis in Cooper v. Hobart, used by the Court of Appeal, might be slightly more relevant in a purely economic loss case — a situation where the second part of the test in Anns would also be relevant. But any consideration of the policy is- sues involved in the second part of the Anns test would require the production of evidence and a trial, and so could not be summarily dismissed before certification. Cooper, as well as Edwards v. Law Society of Upper Canada, concerned negligence claims against provincial authorities for pure economic loss, and no interpretation of the Crown Liability and Pro- ceedings Act. Attis and Drady pleaded (and those pleadings must be accepted as true) that Health Canada knew of the dangers and did nothing to protect the public. In fact, Health Canada maintains it still has no duty to warn the public about the dangers of these devices. In any event, at its best, Cooper does not stand for the proposition that proximity must be found in the statute. In Cooper neither the plaintiffs nor the Registrar of Mortgage Brokers knew of each other's existence before the alleged cause of action arose. Attis and Drady are op- posite to the Cooper situation of non-relation- ship. Health Canada operates Canada's only human medical device oversight inspectorate. Health Canada cannot be said to not know that there would be a discrete group of individu- als who would use the devices that it reviews and regulates. It is perhaps time for the law to come back to the reality stated by Linden J.A. in Swanson Estate v. R.: "While governments must certainly be free to govern, it is not acceptable for all bu- reaucrats who must exercise professional judg- ment to clothe themselves in the vestments of policy-making functions and thereby seek to avoid any responsibility for their negligence. This is especially so for officials charged with the duty of maintaining safety. They cannot be protected by an immunity, but must be encouraged, just like other professionals, to perform their duties carefully. They must learn that negligence, like crime, does not pay." Finally, the concerns over creating indetermi- nate Crown liability, or externalizing private costs onto the public purse, do not arise in Attis or Drady. Our provincial and territorial medical and welfare systems must pay much of the health care and relat- ed costs arising from federal inspectors' negligence. Recognizing the federal duty of care merely allo- cates the costs of negligence to those public servants who are best able to avoid causing the damage in the first place. In reality, Attis and Drady endanger individual Canadians by exempting inspectors from liability for their gross negligence, where Parliament conspicuously did not do that itself. LT Patrick Orr, BA, LLB & Dip LD, is a member of the bars of Ontario, N.W.T., and Nunavut and has practised as a legislative counsel since 1983. He has acted as counsel on issues of statutory in- terpretation and regulatory negligence in relation to medical devices litigation. He can be reached at lawdraft@magma.ca. PAGE 7