ESSENTIAL PROCEDURAL KNOWLEDGE FOR LITIGATION
AGAINST THE CROWN: PROVINCIAL PROSPECTIVE
Raymond G. Colautti1
The potential scope of the subject matter of this paper is formidable. In discussing litigation
against the Crown, the first question which must be asked is: What kind of litigation are we
talking about:

personal injury or property damage arising out of acts or omissions of the Crown
servants?

breach of contract, or related tortious causes of actions involving acts or omissions by
Crown servants or agents such as inducing breach of contract or interference with
commercial relations?

breach or failure to fulfill a statutory duty?

judicial review of administrative action?

constitutional or charter litigation?
Any of these areas could be the subject matter of a learned treatise. Different considerations
come to play in each subject area. It is not possible to discuss them all in this paper. I will
instead attempt a mere survey of some of the "nuts and bolts" issues that one needs to be aware
of in litigating an action against the Crown.
Be Aware of the Nature of the Beast
A central reality must be faced by all potential litigators when considering an action by or against
a provincial Crown. It is a complex institution. Comparatively speaking, it has relatively
inexhaustible resources of time and money. Private litigants, on the other hand, rarely do.
Secondly, governments do not respond to downside risks inherent in litigation in the same way
as private litigants and institutions. There are other different forces at play. The risk benefit
assessment that must be made in bringing or defending lawsuits which are almost always taken
1
LLB., of Raphael Partners LLP, Barrister at Law, Ontario
2
into account by private litigants, do not affect the Crown in deciding to defend, settle or pursue
litigation. Policy reasons, sometimes complex, enter the equation. Politics can seriously distort
an objective assessment of a fact situation. There may be many levels of decision makers who
must be consulted for instance, on a settlement proposal. It can get ponderous. Things move
slowly. There may be many appeals, even if you are successful in the first instance. Be prepared
for a siege. One of my colleagues at the Windsor Bar once expressed the problem this way:
"Fighting the government is like fighting a nine-headed hydra: but you don't know
which head has the brain."
Awareness of these dynamics is essential to a litigator considering an action. Be prepared.
Where Do You Bring an Action Against a Provincial Government or Crown Agency?
In Ontario, as in all provinces, when bringing an action against the Queen in right of a province,
or as against a provincial Crown agency, the action must be brought in a provincial court. A
provincial Crown or Crown agency may only be sued in the provincial courts.2 Subject to
conflict of law rules, which is beyond the scope of this paper, a provincial Crown or agency
could also conceivably be a party to an action brought in a different provincial jurisdiction.
Provincial Superior Courts have original jurisdiction, power and authority, historically exercised
by courts of common of law and equity in England and in the provinces.3 As a Superior Court of
general jurisdiction, provincial Superior Courts have all the powers that are necessary to do
justice between the parties and, except where provided specifically to the contrary, the court's
jurisdiction is unlimited and unrestricted in substantive law in civil matters.4
Generally, it is not difficult to determine whether an action should be brought against a
provincial, as opposed to a federal, Crown or Crown agency. It depends on the nature of the
dispute, the nature of the statutory or property right sought to be engaged, or the tortious conduct
alleged, and whether the actors were servants or agents of the provincial Crown, or what head of
2
Gardiner et al v. The Queen in Right of Ontario et al 45 O.R. (2d) 760
Court of Justice Act, R.S.O. 1990, c. C.43, s. 11; and see other similar provincial adjudicator
acts
4
80 Wellesley Street East Ltd. v. Fundy Bay Builders Ltd. [1972] 2 O.R. 280, C.A.
3
3
legislative power or constitutional rights under the Constitution Act are engaged. In most cases,
the underlying facts make this clear.
However, there may be occasions where a party may need to consider bringing an action against
both the federal and the provincial Crown. Before amendments to section 17 of the Federal
Courts Act, providing for concurrent jurisdiction to the Federal Court (and by implication to the
provincial Superior Courts) a litigant would have had to commence two (2) actions, one in
Federal Court and one in provincial Superior Court.5 This is no longer the case and, if an
occasion arises where a party may need to bring an action against both the federal and provincial
Crowns, such an action could be brought in a provincial Superior Court. The Federal Court of
Canada, being a creature of statute, has only the jurisdiction granted pursuant to federal statutes,
primarily the Federal Courts Act. Consequently, it has no jurisdiction to entertain an action
against the provincial Crown or provincial Crown agency.
As an example of the type of situation which might engage an action against both the federal and
provincial Crown, see Gardiner et al v. The Queen in Right of Ontario et al 45 O.R. (2d) 760,
and Chippewas of Sarnia Band v. Canada (Attorney General) (2001), 14 C.P.C. (4th) 7; 204
D.L.R. (4th) 744 (Ont.C.A.).
Each province is, in law, a separate legal entity from each other province and from the federal
government. There are separate treasuries, separate property, employees, courts and separate
sets of laws to administer.6
The question arises as to whether the Crown in right of a particular province can be sued in the
courts of another province. There is some authority suggesting that the Crown in right of one
province cannot be sued in the courts of another.7 However, the better view is that the extent to
which one provincial Crown can be impleaded in the courts of another province should be
5
Gardiner et al v. The Queen in Right of Ontario et al, supra
Hogg and Monahan, Liability of the Crown, Third Edition
1.4(c) at p. 12 and 13; Liquidators of the Maritime Bank v. Receiver General of New
Brunswick [1892] A.C. 437 (Privy Council)
7
Western Surety Co. v. Elk Valley Logging(1985), 23 D.L.R (4th) 464 (B.C.S.C.)
6
4
governed by considerations of fairness, comity and interdependence.8 As Hogg and Monahan
put it:
"In our view, this is the preferable approach to the issue. The extent to which one
provincial Crown can be impleaded in the courts of another province should be
governed by considerations of fairness, committee and interdependence identified
by Laforet, J. in Morguard, rather than by an out-dated and inappropriate doctrine
of provincial sovereign immunity. This analysis would appear to be particularly
relevant and important in situations where plaintiffs seek to institute proceedings
involving a number of provincial Crowns for liability jointly incurred."
This issue has particular significance to class proceedings where more than one provincial
Crown may be defendants.9 As Hogg and Monahan again noted, commenting on the settlement
of a national class action in the tainted blood case:
"The question that this raises is whether, in the event that the matter had
proceeded to trial, it would have been necessary to commence separate
proceedings in each provincial and territorial court in order to pursue redress
against non-consenting Crown defendants. In our view, to the extent that there
are common factual or legal issues capable of resolution in a single proceeding,
and assuming the matter has a real and substantial connection to the province in
which the litigation is commenced, it would be wasteful and counterproductive to
require plaintiffs to commence separate actions in each province or territory in
order to obtain redress against all defendants."
Sources of Procedural Rules
At common law, no action could be brought against the Crown, including the Crown in right of a
province, without a fiat obtained by a petition of right to the Lieutenant Governor. By statute,
this was abolished some time ago, and now all provincial crown liability statutes give a right of
action .
Proceedings Against the Crown Act
In Ontario, the Proceedings Against the Crown Act is the source of procedural law respecting
law suits against the Crown. All provinces have a similar statute, based on a model act adopted
8
Morguard Investments v. DeSavoy [1990] 3 S.C.R. 1077; Hunt v. T & NPLC [1993] 4 S.C.R.
289; J. Walker "Interprovincial Sovereign Immunity Revisited" (1997), 35 Osgoode Hall, L.J.
379; Hogg and Monahan, Liability of the Crown, Third Edition @ para. 13.3(b), p. 353 - 357;
Athabasca Chippewyan First Nation v. Canada (1999), 178 D.L.R. (4th) 245 (Q.B.)
9
See: Parsons v. Canadian Red Cross Society (1999), 40 C.P.C. (4th) 151
5
by all provinces, except Quebec.10 The provincial Proceedings Against the Crown Acts of all the
common law provinces therefore abolished a petition of right and the necessity of the grant of a
fiat by the Lieutenant Governor.11
Under the Proceedings Against the Crown Act of the various provinces, the provincial Crown is
subject to all liabilities in tort to which, if they were a person of full age and capacity, they would
be subject.12 Consequently, provincial Crowns may be sued in respect of torts committed by
any of its servants or agents, in respect of breach of duties that one owes in respect of one's
servants or agents by reason of being their employer; in respect of any breach of duties attaching
to the ownership, occupation, possession and control of property and under any statute or under
any regulation or by-law made or passed under the authority of any statute.13
Provincial Crowns are also liable for contribution and indemnity in respect of any liability in
which the Crown is subject, as if the Crown were a person of full age and capacity.14
In any proceedings in which the Crown is a party, the rights of the parties are, as nearly as
possible, the same as in a suit between persons. The court has jurisdiction to make any order that
it may make in a proceeding between persons and may otherwise give such appropriate relief as
the case may require.15 In any such proceeding, the Crown may advance any defence that, if the
proceeding was between persons, could be relied upon by the defendant as a defence to the
proceedings or otherwise.16
Rules of Civil Procedure
The Rules of Civil Procedure in a province may also specify the manner in which an action may
be served, and proceeded with as against the Queen in right of the province. For example, under
10
Hogg and Monahan, Liability of the Crown, Third Edition @ para. 1.3(3), p. 8 - 9
Proceedings Against the Crown Act, R.S.O. 1990, c. P.27, s. 3
12
Proceedings Against the Crown Act, R.S.O. 1990, c. P.27, s. 5
13
Proceedings Against the Crown Act, R.S.O. 1990, c. P.27, s. 5(1)(a) - (d)
14
Proceedings Against the Crown Act, R.S.O. 1990, c. P.27, s. 6
15
Proceedings Against the Crown Act, R.S.O. 1990, c. P.27, s. 13
16
Proceedings Against the Crown Act, R.S.O. 1990, c. P.27, s. 17
11
6
Rule 16.02 of the Rules of Civil Procedure in Ontario, an originating document, which is
required to be served personally (which would include a Statement of Claim) must be served in
accordance with section 10 of the Proceedings Against the Crown Act, which specifies that the
document to be served personally on the Crown shall be served by leaving a copy of the
document with a solicitor in the Crown Law Office (Civil Law) of the Ministry of the Attorney
General.
Prior Notice Requirements
Crown liability statutes in several provinces require that, prior to commencement of an action,
notice be given to the provincial Crown particularizing the contemplated claim. Ontario, New
Brunswick, Nova Scotia and Prince Edward Island each impose such a notice period.17 In
Ontario, except in the case of a counterclaim or a claim by way of a set-off, no action for a claim
can be commenced against the provincial Crown unless the claimant has, at least 60 days before
the commencement of the action, served on the Crown a notice of the claim containing sufficient
particulars to identify the occasion out of which the claim arose, and the Attorney General may
require such additional particulars as in his or her opinion are necessary to enable the claim to be
investigated.18 In addition, no proceeding can be brought against the Crown respecting any
cause of action for breach of duties attaching to ownership, occupation, possession or control of
property, unless notice is served on the Crown within 10 days after the claim arose.19
Hogg and Monahan, Liability of the Crown, describes these kinds of notice requirements as a
form of privative clause, barring entry into the courts. They describe the effect of the case law
concerning the applicability of these notice requirements as follows:
"… What the courts have said is that the tort actions against the Crown are
creatures of statute, and conditions such as notice requirements imposed on the
bringing of such actions must be strictly complied with; otherwise the Crown is
entitled to its common law immunity. If timely notice has not been given, the
plaintiff's action is barred."20
17
Proceedings Against the Crown Act, Ontario s. 7 (60 days); New Brunswick s. 15 (2 months);
Nova Scotia s. 18( 2 months); Prince Edward Island s. 10 (90 days)
18
Proceedings Against the Crown Act, R.S.O. 1990, c. P.27, s. 7(1)
19
Proceedings Against the Crown Act, R.S.O. 1990, c. P.27, s. 7(3)
20
Hogg and Monahan, Liability of the Crown, Third Edition @ para. 4.6(a), p. 78
7
Failure to give notice does not bar a claim against the Crown's servant or agent.21
The "prior notice" provisions referred to above, i.e. the 60 day notice prior to commencing an
action where the Crown was sought to be made a defendant, or restrictive 10 days notice
required where the action is in respect of breach of duties attaching to the ownership, occupation,
possession or control of property, are mandatory. If they are not met, no action lies against the
Crown and such action is a nullity.22 The notice must be in writing and must specifically
indicate that the claimant intends to commence an action against the Crown.23 Failure to comply
with the notice requirements pursuant to the Proceedings Against the Crown Act is therefore
fatal.24
Since the action is a nullity, non-compliance with prior notice requirements cannot be waived.
What happens if a limitation period expires during the period of notice to be given pursuant to
the Proceedings Against the Crown Act? The Act specifically provides that where a Notice of
Claim is served pursuant to the statute before the expiration of the limitation period applying to
the commencement of an action for the claim and the 60 day period of prior notice expires after
the expiry of limitation period, the limitation period is extended to the end of seven (7) days after
the expiration of the 60 day period.
Authorities such as the Ontario Law Reform Commission have described the Crown notice
requirements as a "trap for the unwary".25
21
Kirkpatrick v. McIntosh (1989), 103 N.B.R. (2d) 248; Hiebert v. Peters (1994), 116 D.L.R.
(4th) 727 (Man.C.A.); Brooks v. Darling (1995), 126 D.L.R. (4th) 764 (Ont.C.A.)
22
Walcott v. Ontario [1997] O.J. No. 2910 (O.C.J.)
23
Olesiuk v. LeCompte (1991), 2 O.R. (3d) 473 @ 479; Starline Entertainment Center Inc. v.
Ciccarelli(1925), 25 O.R. (3d) 765 @ 771, 772
24
Zuliani Limited v. City of Windsor (1974), 2 O.R. (2d) 598 (H.C.J.); Khan v. LeLuk (1985 1986), 3 W.D.C.P. 37 (Ont. H.C.) @ p. 38; EP v. Ontario [2004] O.J. No. 3039 @ para. 11-14
25
Ontario Law Reform Commission Report on Liability of the Crown (1989), p. 79
8
As a practical suggestion, where, through inadvertence, prior notice has not been given before
commencing an action, and where there is no intervening limitation period, the situation can
often be repaired by extracting from the Crown an agreement to treat the offending pleading as
the notice required under the Proceedings Against the Crown Act (which should be sufficient
since the Statement of Claim ought to be specific as to the facts giving rise to the occasions
respecting the action against the Crown and the specific breach of duty alleged as against the
Crown). The action can then be discontinued, and a new Statement of Claim issued after expiry
of the notice period and again delivered to the Crown. Thus, if a limitation period expired during
the 60 day period of notice, then following this procedure, it is specifically extended in
accordance with the Act.
Notice of Constitutional Question
In addition, in most provinces such as Ontario, pursuant to the Courts of Justice Act, require that
notice of a constitutional question be served on the Attorney General of Canada and the Attorney
General of Ontario in circumstances where the constitutional validity or constitutional
applicability of an act of Parliament of Canada or the Legislature, or a regulation or by-law made
under such an act or rule of common law is in question, or where a remedy is claimed under
section 24(1) of the Canadian Charter of Rights and Freedoms in relation to an act or omission
of the government of Canada or of the government of Ontario.26 Failure to give such a notice
bars a court from ruling that the act, regulation, by-law or rule of common law is constitutionally
invalid or inapplicable, and bars the court from granting a remedy.27
A notice shall be served as soon as the circumstances requiring it become known and in any
event, at least 15 days before the day on which the question is to be argued, unless the court
orders otherwise.28
26
Courts of Justice Act, s. 109
Courts of Justice Act, s. 109(2)
28
Courts of Justice Act, s. 109(2.2)
27
9
Where such a notice of constitutional question is given, the Attorney General of Canada or the
Attorney General of Ontario are entitled to a notice of any appeal, and are entitled to appear, to
adduce evidence and make submissions in the court in respect of the constitutional question.29
It is not appropriate for a court to entertain constitutional questions where proper notice has not
been given to the applicable Attorneys General and where the Attorney General is prejudiced by
lack of such notice.30
However, it is possible that notice may not be required where the
applicable Attorney General consents to a constitutional issue be considered absent a formal
notice or where a de facto notice has been given.31
Limitation Periods
In addition to the prior notice requirements contained statutes as the Proceedings Against the
Crown Act, there may be special limitation periods which give the benefit of a short limitation
period where the Crown is a defendant. An example of this, before recent changes, was section
7(1) of the Ontario Public Authorities Act, R.S.O. 1990, c. P.38. That section provided that no
action may be maintained against any person for an act done in pursuance or execution or
intended execution of any statutory or other public duty or authority unless it is commenced
within six (6) months after the cause of action arose. In DesChamps v. Conseil Des Ecoles
Separes Catholiques de Langue Francais de Prescott-Russell [1999] 3 S.C.R.
28132, the
Supreme Court of Canada reviewed the history of this limitation period. The question often
arose in cases such as DesChamps as to whether the "pursuance or execution or intended
execution of any statutory or other public duty or authority" covers a cause of action advanced as
against the public authority in the particular circumstances of the case.
In DesChamps, a
wrongful dismissal action brought by a school superintendent, whose position was declared
redundant after a reorganization of a school board's educational services, fell not to be subject to
the six (6) month limitation period. The court held that, before this limitation period applied, the
right asserted by the plaintiff must correlate with a statutory public duty owed by the public
29
Courts of Justice Act, s. 109(4)
Eaton v. Brant County Board of Education [1997] 1 S.C.R. 241
31
Hogg and Monahan, Liability of the Crown, Third Edition @ para. 4.6(a), p. 79
32
DesChamps v. Conseil Des Ecoles Separes Catholiques de Langue Francais de PrescottRussell [1999] 3 S.C.R. 281
30
10
authority. If a duty did not arise by virtue of the public authority's statutory mandate, but by
virtue of a private contractual right, the right is not correlative with the public duty and the
special limitation period does not apply. The court also held that even if the plaintiff's right
correlates with the public duty, the special limitation period will not apply if the actions of the
public authority are merely incidental or ancillary to the discharge of the public mandate.
Consequently, in Bernardinelli v. Ontario Housing Corporation [1979] 1 S.C.R. 27533, a resident
of a public housing development brought action for injuries suffered in a fall on ice or snow in
what was found to be a negligently maintained common area, was not barred from proceeding
with an action.
Although the housing authority had a public mandate to provide housing
services, the removal of snow was a private and operational matter in contrast with burdens of
planning, construction and management of a housing complex which had a public character.
Activities of an internal or operational character having a predominantly private aspect would
not fall within the protection of the special limitation period.
These two cases demonstrate the court's restrictive interpretation of such special limitation
periods, which effectively allow for a double standard providing public authorities with shorter
limitation periods than applicable to private defendants faced with similar claims.34
Fortunately, in Ontario, the legislature has finally eliminated such a double standard.
Consequently, in Ontario's new Limitations Act 2002, section 7 of the Public Authorities
Protection Act was repealed and a general two (2) year limitation period, consistent and
applicable to any person in Ontario, is binding on the Crown.35 Nevertheless, in those provinces
which do have restrictive limitation periods, giving the benefit of shorter limitation periods to the
Crown or Crown agencies, the reasoning of the Supreme Court of Canada as discussed above,
would still be applicable, narrowly construing the applicability of those kinds of limitation
periods, based on a classification of functions.
Bernardinelli v. Ontario Housing Corporation [1979] 1 S.C.R. 275
Hogg and Monahan, Liability of the Crown, Third Edition, @ para. 4.5(d), p. 75
35
Limitations Act 2002, S.O. 2002, c. 24, s. 3
33
34
11
Procedure
Who is the Defendant?
In Ontario, as in most provinces, in a proceeding under one of the Crown liability acts, the
Crown is usually designated "Her Majesty the Queen in Right of Ontario" or as the case may be,
elsewhere.36
If a Crown servant commits a tort, the servant is personally liable, even if the tort is committed
during the course of employment. The Crown is liable as well in such case under the principles
of vicarious liability. However, only the servant who actually commits the tort is liable:
"Only the servant who actually commits a tort is personally liable, and only the
Crown - the master - is vicariously liable. A minister, department head or other
superior servant is not liable for the tort of a subordinate, for the superior is a
fellow servant and not the master. It would be otherwise if the superior servant
had actually ordered the commission of the tort, but in that case, the superior
would be directly liable for his or her own act; the superior servant cannot be
liable vicariously."37
Most provinces have a statute such as Ontario's Crown Agency Act, R.S.O. 1990, c. C.48. In
Ontario's case, a Crown agency is a board, commission, railway, public utility, university,
manufacturer, company or agency owned, controlled or operated by Her Majesty in Right of
Ontario or by the government of Ontario or under the authority of the legislature or Lieutenant
Governor-in-Council. A Crown agency is for all of its purposes an agent of the Queen and its
powers may be exercised only as an agent of the Queen.38
An agent of the Crown is generally in the same situation as an individual Crown servant. A
Crown corporation would be liable in its own right if it commits a tort directly.
Deciding who to name as the defendant in an action against the Crown, depends entirely upon
the nature of the cause of action. In the case of a tort committed by a provincial servant, both
Her Majesty the Queen in Right of Ontario and the servant personally may be named in the suit.
36
Proceedings Against the Crown Act, s. 9
Hogg and Monahan, Liability of the Crown, Third Edition @ para. 8.2(a), p. 187 - 188
38
Crown Agency Act, R.S.O. 1990, c. C.48, sections 1 and 2
37
12
In Ontario, as seen above, the Crown is subject to all liabilities and tort to which if it were a
person of full age and capacity, it would be subject of a tort, breach of duty of any of its
"servants or agents".39 The word "servant" is defined when used in relation to the Crown as
including a minister of the Crown.40 Consequently, if the nature of the cause of action is a tort
committed by a minister of the Crown, for a breach of duty owed by the minister of the Crown
attaching to the ownership, occupation, possession or control of property of a minister of the
Crown, for a failure or breach of a duty described on any statute, regulation or by-law passed
under the authority of any statute, the action properly lies against Her Majesty the Queen in
Right of Ontario rather than that specific Minister, although, in accordance with what has been
set out above, the Minister could be personally named, provided he/she was the actor who
committed the wrong or did or failed to do the thing complained of.41
However, as stated above, a Minister of the Crown, being a servant of the Crown, cannot be held
vicariously liable for acts of other inferior Crown servants. Only the Crown itself is vicariously
liable for those acts.42
A plaintiff who brings an action against the Crown for the tort of a Crown servant, need not
bring proceedings against the servant personally, although there are often good, strategic or
tactical reasons for doing so. These reasons include the need for obtaining oral discovery
directly from the Crown servant most closely involved with the facts giving rise to the cause of
action.
39
Proceedings Against the Crown Act, s. 5(1)
Supra, s. 1
41
As an example of an action brought against a provincial Minister for breach of a public duty,
see Roncarelli v. Duplessis [1959] S.C.R. 121, per Rand, J. @ 142 where a tort was committed
when the Premier of Quebec ordered the cancellation of a restaurant's liquor licence, the finding
being that the Premier was motivated by malice towards the proprietor of the restaurant. Rand, J.
found that liability under common law was the same as under the Quebec Civil Code.
42
National Harbour Board v. Longelier [1969] S.C.R. 60; Sinclair v. Ontario Harabulyor v.
Ontario (Minister of Labour) [2005] O.J. 1137
40
13
Crown Agencies
As discussed above, a Crown agency is for all of its purposes an agent of the Queen and its
powers may be exercised only as an agent of the Queen.43
Are all Crown agencies liable to be sued in their own right? In Westlake v. The Queen in Right
of Ontario44, statutory authorities were divided into six (6) categories based on their
characteristics:
"1.
There are bodies corporate which are not expressly declared to be suable.
With respect to this type of body, the Interpretation Act of Ontario provides that
in every act, unless a contrary intention appears, words making an association or
number of persons, a corporation or body politic incorporate invest in the
corporation the power to sue and be sued.
2.
There are bodies corporate which are expressly declared to be suable.
3.
There are bodies corporate which are expressly declared not to be suable.
4.
There are non-corporate bodies which are, by the terms of the statute
creating them, expressly liable to suit.
5.
There are non-corporate bodies which are not, by the terms of the statute
incorporating them, expressly liable to suit, but which are by necessary
implication, liable to be sued in an action for damages.
6.
Statutory bodies which are non-corporate bodies which are not, by the
terms of the statute incorporating them or by necessary implication, liable to be
sued in an action for damages, but who are legal entities in that their actions may
be reviewed in proceedings brought against them by way of the extraordinary
remedies of certiorari mandamus and prohibition."45
If the Crown agency in question was empowered to enter into contracts, and the statute
incorporating them does not expressly make them liable to suit, that entity would nevertheless be
held liable for breach of contract. In Perehinec v. Northern Pipeline Agency 50 N.R. 248 @ 261,
Mr. Justice Estey stated:
43
Crown Agency Act, R.S.O. 1990, c. C.48, s. 1 and 2
Westlake v. The Queen in Right of Ontario [1971] 3 .O.R. 533, affirmed [1972] 2 O.R. 604 and
[1973] 33 D.L.R. (3d) 256
45
Supra, @ p. 534 - 535 and 538
44
14
"These authorities again illustrate the principle that in the field of public agency
liability, the issue remains to be decided according to the terminology employed
in the constituting legislation. In the result, it appears to make no difference
whether the public body is or is not a Crown agency. Central Mortgage and
Housing Corporation and the Canadian Commercial Corporation, for example,
were both described by expressed statutory declarations as agents of the Crown.
Each entity was nonetheless found to be liable in its own right. These cases have
clearly brought into the law of Canada the reasoning of the Privy Council in the
International Railway case, supra. There can now be no doubt that Crown agents
can be liable on their own contracts in their own and may be so liable whether or
not the words "on its own behalf" appear in the statute."46
And further:
"Whatever the nature of the agency is in law, and whether or not the statute had
expressly made the agency a body corporate, there can be no doubt in the world of
realities the plaintiff respondent entered into a hiring arrangement with the agency
and not with the Crown."47
And further:
"Where a fair construction of the enabling statute permits an agency to enter into
a contract on its own behalf, even if it may be on behalf of the Crown as well, the
agency, having entered into the contract, in its own name, may be sued in its own
right in an action for breach of that contract. This would place the agency in
question herewith in the fifth category enunciated by Houlden, J. in Westlake,
supra."48
Juries
In Ontario, as in most other provinces, in a proceeding against the Crown, a trial must be without
a jury.49
Evidence and Discovery
At common law, the Crown was immune from pretrial discovery. The Crown had a right to
refuse discovery even though it could obtain discovery itself. The right of refusal is not lost even
when the Crown was the plaintiff.50
Perehinec v. Northern Pipeline Agency 50 N.R. 248 @ 261
Supra, @ p. 262
48
Supra, @ p. 263
49
Proceedings Against the Crown Act, s. 11
46
47
15
Statutory reform has long since placed the Crown on an equal footing as any other litigant.
Consequently, in Ontario, in a proceeding against the Crown, the rules of court as to discovery
and inspection of documents and examination for discovery, apply in the same manner as if the
Crown were a corporation, except that the Crown may refuse to produce a document or to
answer a question on the ground that the production or answer would be injurious to the public
interest. The person who shall attend to be examined for discovery is an official designated by
the Deputy Attorney General. The Crown is not required to deliver an affidavit on production of
documents for discovery and inspection, but a list of the documents that the Crown may be
required to produced signed by the Deputy Attorney General, shall be delivered. 51 In Ontario,
where the Deputy Attorney General designates the person who shall attend for examination for
discovery, there is no power in the court to substitute a different person.52 Such a restriction
tends to encourage plaintiffs to bring action personally against Crown servants and include them
as defendants, along with the Crown, so that discovery can be obtained directly from the person
who may have been the main actor on behalf of the Crown in the circumstances leading up to the
cause of action. In a contract case, where the contract is with the Crown and the action is solely
for a breach of contract (as opposed to tortious claims such as inducing breach of contract for
interference with commercial relations) the only possible defendant may be the Crown itself, and
hence discovery can only be obtained as set out above.
Public Interest Immunity
Although the philosophy behind most provincial Crown liability statutes is that the Crown is to
be treated, so far as possible, and in the same matter as if the Crown were a corporation, the
Crown continues to enjoy a significant advantage in litigation with respect to immunity from the
production of certain kinds of evidence. At common law, oral or documentary evidence that is
relevant and otherwise admissible, may be excluded if its admission would be injurious to the
50
Hogg and Monahan, Liability of the Crown, Third Edition @ para. 4.2(b), p. 65
Proceedings Against the Crown Act, s. 8 and see similar Acts in other provinces, e.g. B.C. s. 9;
Alta. s. 11; Sask. s. 13; Man. s. 9; N.B. s. 10; N.S. s. 11; PEI s. 8; Nfld. s. 9; and Que. s. 94 of the
Code of Civil Procedure
52
Harrison Rock and Tunnel Co. v. The Queen (1980), 31 O.R. (2d) 573
51
16
public interest. This Crown privilege, or public interest immunity, is codified in the federal
sphere of jurisdiction, in the Canada Evidence Act, R.S.C. 1985, c. C.5, sections 37, 38 and 39.
In the provincial sphere of jurisdiction, Crown privilege is codified in Crown liability statutes
and in the various provincial evidence acts. In the following section of this paper, I will deal
with the procedural rather than the substantive law on public interest immunity, as the subject
will be more fully covered in another paper.
In Ontario, section 8 of the Proceedings Against the Crown Act provides that the Crown may
refuse to produce a document or to answer a question on a ground that production or answer
would be injurious to the public interest.53 In addition, section 30 of the Ontario Evidence Act54
provides as follows:
"Where a document is in the official possession, custody or power of a member of
the Executive Council, or the head of a Ministry of the public service of Ontario,
if the Deputy had or other officer of the Ministry has the document in his or her
possession, and is called as witness, he or she is entitled, acting herein by the
direction and on behalf of such member of the Executive Council or head of the
Ministry, to object to producing the document on the ground that it is privileged,
and such objection may be taken by him or her in the same manner, and has the
same effect, as if such member of the Executive Council or head of the Ministry
were personally present and made the objection."
A claim for Crown privilege may be made in any proceeding, civil or criminal, before any court
or tribunal, and at any stage of the proceedings.
In civil proceedings, the public interest
immunity claim most commonly arises during the process of discovery. Where the Crown is not
a party to proceedings, objections to the production of evidence on the ground of Crown
privilege can be raised either by the Crown, a private party or a witness. If necessary, the Crown
may intervene in the proceedings in order to raise such an objection.55
53
Proceedings Against the Crown Act, s. 8(a)
Evidence Act, R.S.O. 1980, c. E.23
55
Ontario Law Reform Commission Report on Liability of the Crown, Chapter 5, p. 63
54
17
Where a claim of Crown privilege is raised, it is supported by the affidavit or certificate of a
minister asserting that the public interest would be injured by disclosure of the evidence.56
The law governing public interest immunity in the provinces is distinctly different from that of
the federal sphere. As discussed above, the Canada Evidence Act sets out an entire code of
procedure and specifically defines and circumscribes the power of the courts to order production
and discovery where Crown privilege is raised. In the provincial sphere, in a jurisdiction such as
Ontario, there is no such statutory based judicial circumscription.
In the provincial sphere, the seminal case is Carey v. Ontario [1986] 2 S.C.R. 637; 35 D.L.R.
(4th) 161.57 That action concerned an alleged promise, made by the government of Ontario, to
support the re-opening of a tourist resort complex known as the Minaki Lodge in northern
Ontario by making good all losses of the operators through forgivable or interest-free loans if the
Lodge were re-opened. The government denied such an offer to form part of the loan assistance
it was willing to extend. The plaintiff, Kerry, alleged that he accepted the alleged offer and in
reliance on it, acquired control of the Lodge from other shareholders and re-opened it in the
summer of 1992.
In the midst of the litigation, on examination for discovery, provincial
witnesses claimed an absolute privilege respecting all documents that went to or emanated from
the Cabinet and its committees. The claim was not based on the particular contents of the
documents, but on the class to which they belonged. It was alleged that production of such
documents would breach confidentiality and inhibit Cabinet discussion on matters of significant
public policy. When a trial date was fixed. a subpoena duces tecum was served on the Secretary
of the Cabinet for Ontario requiring him to attend at trial and bring all documents relating to
proceedings described in the subpoena. Ontario applied to quash the subpoena and in support of
the application filed an affidavit sworn by the Secretary of the Cabinet for Ontario, in which he
acknowledged that he had relevant documents under his control but objected to the production on
the basis that it would not be in the public interest to produce the document or make them
56
Evidence Act, s. 30; and Carey v. The Queen in Right of Ontario [1986[ 2 S.C.R. 637, 35
D.L.R. (4th) 161
57
Ibid
18
available for inspection. The supporting affidavit made the following statements in support of
the claim for class privilege over the documents:
"… It is my firm opinion that it has consistently been assumed and taken for
granted at all material times by all members of the Executive Council and by all
members of the staff of the Cabinet office, that all the discussions of the
Executive Council are private and confidential, and will not be published or
revealed to any persons who are not members of the Council. It has also been
consistently realized and appreciated by all members of the Council that the
discussions taken by it are collegial or group discussions, for each of which they
all share responsibility …"
And further:
"It is my firm opinion that if these notes of the discussions of the Executive
Council were to be produced, it would almost necessarily lead to a distorted,
incomplete and inaccurate impression of the nature of the actual discussion which
took place. It is also my opinion that if these notes were produced, it would in
future affect the nature of the discussions in Cabinet, and would inhibit the
freedom of the members of Cabinet to discuss matters of significant public
concern and policy to the detriment of the public interest."
The Supreme Court of Canada held that the court must weight the importance of withholding
production on the basis of a public interest against public interest in the proper administration of
justice. Consequently, protection of documents as a class was generally not favoured. Although
there was a public interest in the confidentiality of Cabinet deliberations in developing public
policy, this was but one of several variables which must be taken into account in determining
whether the interest in disclosure for the administration of justice was outweighed by other
public interests. In making this determination, the court must weigh the nature of the policy,
whether it was contemporary or not and the nature and importance of the action. In the specific
case at hand, the information which was sought to be revealed concerned a particular transaction
involving a low-level policy matter which had taken place some 13 years before. The court
directed that the Trial Court should first inspect the documents to balance the competing interests
in disclosing or producing them. Mr. Justice Laforest on behalf of the Supreme Court of Canada,
reasoned that it is necessary for the proper administration of justice that litigants have access to
all evidence that may be of assistance to the fair disposition of the issues arising from the
litigation. The competing interest is that certain information regarding governmental activity
should not be disclosed in the public interest. He noted that the general balance between these
19
two competing interests has shifted over the years. In the past, the public interest and the need
for government secrecy had been given virtually absolute priority as long as the claim to nondisclosure was made by a minister of the Crown. He noted that the need for secrecy and
government operations may vary with the particular public interest sought to be protected. As an
example, there is a difference between information relating to national defence and information
relating to a purely commercial transaction. He noted that the need for disclosure may be more
or less compelling, having regard to the nature of the litigation and the extent to which facts may
be proven without resort to information sought to be protected from disclosure. The court noted
that with expansion of state activities into the commercial sphere, different attitudes to suits
against the Crown developed and statutes were enacted to make these possible. The general
social context also affected attitudes toward government secrecy.
Consequently, the court
determined that there was need for judicial intervention and oversight over the claim for
privilege:
"The public interest and the non-disclosure of a document is not, as Thorson, J.A.
noted in the Court of Appeal, a Crown privilege. Rather it is more properly called
a public interest immunity, one that, in the final analysis, is for the court to weigh.
The court may itself raise the issue of its application, as indeed counsel may, but
the most usual and appropriate way to raise it is by means of a certificate by the
affidavit of a minister or where, as in this case, statute permits it or it is otherwise
appropriate, of a senior public servant. The opinion of the minister (or official)
must be given due consideration, but its weight will still vary with the nature of
the public interest sought to be protected. And it musts be weighed against the
need for producing it in the particular case.
In the end, it is for the court and not the Crown to determine the issue. … The
opposite view would go against the spirit of the legislation enacted in every
jurisdiction in Canada that the Crown may be sued like any other person. More
fundamentally, it would be contrary to the constitutional relationship that ought to
prevail between the executive and the courts of this country."58
The court noted that in making a claim for public interest immunity, the Minister or official
should be as helpful as possible in identifying the interest ought to be protected. As such, this
person should describe with as much detail as the nature of the subject matter would allow, the
precise policy matter sought to be protected from disclosure. The court specifically noted that a
58
Ibid
20
claim that a document should not be disclosed on the ground it belongs to a certain class such as
Cabinet deliberations, has little chance of success without such detail.
Once the provincial Crown produces documents, is the immunity or privilege lost? The answer
is probably yes.
In the federal sphere, the Supreme Court of Canada held in Babcock v.
Canada59 that where documents were disclosed and then later sought to be certified as immune
from production under a certificate under the Canada Evidence Act, the documents were no
longer protected and may be used in the litigation. The court reasoned that the Canada Evidence
Act, s. 39, whose purpose was to prevent disclosure, was not longer applicable once there had
been disclosure. There appears to be no good reason why this logic would not apply equally to a
provincial claim of retrospective public interest immunity.
Can an adverse inference be drawn against the Crown in a situation where it validly and
successfully asserts a privilege over documents that may be crucial to some aspect of the
litigation? Can such an adverse inference be drawn against the Crown? The answer is probably
yes.
RJR MacDonald v. Canada60, McLaughlin, J. suggested such adverse inference could be
drawn against the Crown in a constitutional case. The case at issue concerned the federal
Tobacco Products Control Act, which prohibited all advertising and promotion of tobacco
products and the sale of tobacco products unless its packaging prescribed unattributed health
warnings and a list of toxic ingredients. The issue in the case was whether the Act was an
unjustified infringement of freedom of expression guaranteed by section 2(b) of the Charter.
McLaughlin, J. considered evidence of justification under section 1 of the Charter. The question
was whether the government had before it a variety of less intrusive measures when it enacted a
total ban on advertising including a partial ban which would allow information of brand
preference advertising, a ban on lifestyle advertising only, and so forth. The question was
whether any of these alternatives would be a reasonable impairment of the right to freedom of
expression and the important objective in legislative content and would thus constitute a less
intrusive impairment of a constitutional right. In this connection, she stated as follows:
59
60
Babcock v. Canada [2002] 2 S.C.R. 3
RJR MacDonald v. Canada [1995] 3 S.C.R. 199 @ para. 165, 166
21
"These considerations suggest that the advertising ban imposed by section 4 of the
Act may be more intrusive of freedom of expression than is necessary to
accomplish its goals. Indeed, Health and Welfare proposed less intrusive
regulation instead of a complete prohibition on advertising. Why then, did the
government adopt such a broad ban? The record provides no answer to this
question. The government presented no evidence in defence of the total ban, no
evidence comparing its effects to less invasive bans.
This omission is all the more glaring in view of the fact that the government
carried out at least one study of alternatives to a total ban on advertising before
enacting a total ban. The government has deprived the courts of the results of that
study. The Attorney General of Canada refused to disclose this document and
approximately 500 others demanded at the trial by invoking section 39 of the
Canada Evidence Act … thereby circumventing an application by the tobacco
companies for disclosure since the courts lack authority to review the documents
for which privilege is claimed under section 39. References to the study were
blanked out of such documents as were produced: reasons at trial at p. 516. In
the face of this behaviour, one is hard pressed not to infer that the results of the
studies must undercut the government's claim that a less invasive ban would not
have produced an equally salutary result."
Freedom of Information and Confidentiality Laws
Various provincial statutes may contain provisions providing that information received in the
course of a public official's duties are prohibited from disclosure.
Where such provisions
specifically prohibit the introduction of evidence in a court of law, they will be effective to
withhold the protected material from litigation. Where, however, such a provision makes the
information confidential, but does not address admissibility in a court of law, they will be
interpreted as not barring either the production of the documents in court or oral testimony.61
All Canadian provinces have enacted freedom of information laws. In Ontario, it is the Freedom
of Information and Protection of Privacy Act, R.S.O. 1990, c. F.3162. The Ontario act provides a
general right of access to a very broadly defined record meaning "a record of information
however recorded whether in printed form, on film or electronic means or otherwise". 63 The Act
provides exemptions through a list of specific types of documents relating to government
61
Regina v. Snider [1954] S.C.R. 479 and see Hogg and Monaghan, Liability of the Crown,
Third Edition, @ para. 5.9, p. 103 - 104
62
Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31
63
Ibid, s. 2
22
records, advice to government, law enforcement, relations with other governments, defence, third
party information, personal privacy, economic and other interests of Ontario, solicitor/client
privilege, etc. The Act contains a detailed procedure for applying for access to such documents
pursuant to "request", a reply to the request of the government official concerned therewith, and
a review of such requests and appeals by the Information Commissioner.
The great advantage to the use of FOI laws is that production of documents are not dependent on
justifying the need for the document in litigation on the basis of relevancy or admissibility. No
reason at all need be given for demanding a document. These statutes operate completely
independently of the obligations imposed by the Rules of Civil Procedure or common law for
production, discovery and trial, and do not govern the admissibility of government documents in
litigation. On the other hand, freedom of information laws can be extremely useful in obtaining
background and investigatory information respecting litigation against the Crown. Because of
the wide definition of public records in FOI laws, the act can be a useful tool in obtaining
government reports, studies, statistics and other information which may be relevant in the
preparation and investigation of an action. This tool is particularly useful in researching and
investigating constitutional and charter litigation, and the certification of class actions. Manuals,
interpretations memos, reports, studies, and statistical information can be obtained.
There is one further advantage to using freedom of information statutes to obtain pre-litigation
production. At common law, and specifically in Ontario under the Rules of Civil Procedure,
there is a deemed undertaking rule. This is an implied undertaking that all parties to litigation
and their counsel are deemed to undertake not to use evidence or information produced during
the course of litigation for any purpose other than those of the particular proceeding in which the
evidence was obtained.64
The undertaking prevents the recipient of the information from
revealing it to third parties, such as the news media or making any other use of the information in
a proceeding other than the one in which it was obtained. Consequently, evidence which is
obtained through the discovery process in one action against a governmental actor, cannot be
used in another action. There is no such restriction under FOI laws.
64
Rule 30.1.01(3) of the Rules of Civil Procedure and Goodman v. Rossi (1995) 24 O.R. (3d)
359
23
It sometimes happens that information which is sought to be produced is not in fact compellable
under the usual rules of production and discovery, but may be obtainable under the freedom of
information laws. As an example, in Edwards Estate et al v. Lovie et al 24 O.R. (3d) 22865 the
plaintiff had moved for an order compelling one of the defendants, the Police Services Board, to
produce documentation relating to an internal investigation carried out by the Police Services
Board or relating to complaints submitted to the Police Complaints Commissioner arising from
the events surrounding a particular arrest. The plaintiff had moved for an order compelling a
police officer to attend on an examination for discovery and answer questions with respect to that
documentation.
The court held section 108 of the Police Services Act, which mandates
preservation of secrecy in respect of all information obtained in the course of an investigation of
a complaint under the Act and which provided further that: "no person shall be required to
testify in a civil proceedings with regard to information obtained in the course of his or her
duties, except at a hearing held under this part or at a disciplinary hearing held under Part V"
constituted a prohibition against producing for inspection documentation prepared during an
investigation into a complaint made about the conduct of a police officer.
However, the
provincial Freedom of Information Act did not provide an exemption from the confidentiality
obligations of the Police Services Act if the information is ordered to be released pursuant to a
proper application made pursuant to that legislation.
The plaintiffs could therefore apply,
pursuant to the applicable freedom of information statute for release of that information. Thus
the information was available under FOI laws, but no under the usual rules regarding production
and discovery.
Production and Discovery: General Observations
Before leaving the subject of production and discovery in Crown litigation cases, I would like to
say a few things about documentary production and discovery as it relates to the Crown. Here,
in summary is the benefit of some of my experience in the form of broad observations:
65
Edwards Estate et al v. Lovie et al 24 O.R. (3d) 228
24

Depending on the nature of the case, and who the other defendants are (i.e. whether a
particular Crown servant is also personally named as a co-defendant), your ability to
obtain effective oral discovery may be severely limited. Unless you are able to directly
examine the main actors on the part of the Crown, discovery will likely be by an endless
series of undertaking.

Documentary discovery, on the other hand, is often crucial, particularly where the cause
of action involves facts with a lengthy and extensive history. For example, in a case
involving allegations of sexual and physical assaults in a training school institution,
which occurred years ago, the Crown Ward file may be the primary and perhaps only
source of detailed information. Similarly, documents contained in public archives may
identify previous occasions and complaints of abuse. In these types of cases, one of the
plaintiff's objectives should be to extract admissions as to the authenticity of the
documents and the facts that the documents record, in order to facilitate their use and
admission at trial.

Recognize that in a large, bureaucratic institution, most actions taken by individual
government actors are reported, considered, analyzed, summarized, re-analyzed,
dissected, repeated, etc. All these steps are recorded in some fashion. There are usually a
host of materials that need to be culled in order to understand what happened.

Documentary management and organization, particular in constitutional and class action
cases, can be overwhelming. Electronic systems for identifying, scanning, cataloguing
and retrieving documentation are critical. In these types of cases, the devil is in the
details contained in the documentation. Timelines are crucial to reconstruct events.

The nature of the case may require the court to consider the validity of legislation or the
context against which legislation was passed. This will arise in charter cases, or cases
where ay argument is being advanced concerning the division of powers between federal
and provincial jurisdictions under s. 91 or 92 of the Constitution Act 1867, or whether
the legislation was enacted for a "colourable" purpose.
In such cases, where it is
necessary to examine the context in which legislation was passed, it is necessary to
distinguish between "adjudicative facts", which relate to the specific facts underlying the
dispute before the court, and "legislative facts" or "constitutional facts", which go to the
context within which the provincial legislature enacted the statute under review. The
25
traditional rules of evidence apply to the adjudicative facts, but not necessarily to the
legislative facts. Legislative facts can be proven from reports and studies generated
within government, excerpts from Hansard, deliberations of legislative committees, Law
Reform Commission Reports, parliamentary and Legislative Committee Reports, Royal
Commission Reports, general social science studies and articles, to give a few
examples.66 Be aware of this broad range of evidence and when conducting discovery
and examining and cross-examining witnesses during the course of this kind of litigation.
Quashing Summonses and Subpoenas Against Public Officials
Is a Minister or former Minister a compellable witness at trial? In Smallwood v. Sparling67 the
Supreme Court of Canada held that a Minister, including a former Premier, has no exemption
from the universal testimonial duty to give evidence simply by virtue of their former status as
Minister and Premier of a province. Furthermore, there was no blanket immunity either under
statute or common law in giving oral testimony or the right to refuse to produce documents.
Crown immunity was not absolute, but relative, involving an issue by issue examination by the
courts so that the public interest immunity could be balanced against the interests of the
administration of justice.
The judicature acts and rules of civil procedure in various provinces all provide for methods of
compelling attendances by witnesses at trials and to give evidence in other civil litigation
procedures such as on applications. In Ontario, compelling attendance of witnesses at trial is
pursuant to Rule 53.04. In addition, Rule 39.03 can be used to compel the attendance of a
66
For a more detailed discussion on the nature and admissibility of "legislative facts" evidence,
see Hogg, "Constitutional Law of Canada", para. 57.2 @ p. 57-10 to 57-16; Binnie and Meaner,
"The Use of Evidence in Constitutional Cases" in Law Society of Upper Canada, "Constitutional
Litigation", Oct. 23, 1990, and see RJR MacDonald, supra, per McLaughlin, J. at para. …..; R.
v. Seo 27 D.L.R. (4th) 496; British Columbia Motor Vehicle Act Reference [1985] 2 S.C.R. 486;
Reference Re Education Act, (1984), 10 D.L.R. (4th) 491; Reference Re Residential Tenancies
Act [1981] 1 S.C.R. 714 @ 723; R v. Morgantaler [1993] 3 S.C.R. 463; Authorson v. Canada
(Attorney General) 53 O.R. (3d) 221 @ para. 46 to 66; affirmed 58 O.R. (3d) 417 (Ont. C.A.),
revised other grounds [2003] 2 S.C.R. 40. But note caution on limits of such extrinsic evidence
in Re Ontario Teachers' Federation et al and Attorney General of Canada 39 O.R. (3d) 140
67
Smallwood v. Sparling [1982] 2 S.C.R. 686
26
witness on a pending motion or application for the purpose of having a transcript of their
evidence available for use at the hearing.
Since, there is no general prohibition in common law against compelling the Minister or other
government official from attending to give evidence, the limits of testimonial compellability
depend on several factors:
a)
Is there a statutory provision which prohibits the official from giving evidence at
trial?
b)
Is the evidence of the witness who is sought to be compelled relevant to a live
issue in the case?
c)
There may be a limit to the use of evidence obtained by way of a subpoena or
summons of a public official or minister where that evidence was exclusively to
"legislative facts" i.e. the purpose for which a statute or regulation has been
passed.
a)
Is there a statutory provision which prohibits the official from giving evidence at trial?
The first question on must face in deciding whether a subpoena or summons may be upheld is
whether there is a specific statutory or regulatory provision containing a clear and unqualified
prohibition against requiring the official in question from testifying in court? An example of
such provision is section 108 of the Police Services Act, discussed in Edwards Estate v. Lovie,
supra. However, depending on the nature of proceeding in which the evidence is being sought,
such provisions cannot be used to preclude judicial review. In Glengarry Memorial Hospital v.
Ontario (Pay Equity Hearings Tribunal), for instance, the court held that although the legislature
can decree that knowledge and documents that come into existence solely because of a
requirement of a piece of legislation are immune to disclosure to a court, the immunity does not
prevent the court from inquiring into the question of excess of jurisdiction on the part of the
tribunal created by the legislation. Consequently, in that case, a member of the Pay Equity
Tribunal could be subpoenaed to give evidence as to how or why he or any other member of the
tribunal arrived at a decision where there are compelling and overriding reasons that he should
testify, and in particular, whether the tribunal engaged in actions which constituted a breach of
the rules of natural justice. Although a common law testimonial privilege, as well as a statutory
27
testimonial privilege may protect the tribunal member from normally having to testify, when the
tribunal's jurisdiction is being judicially reviewed, these protections do not apply. As Mr. Justice
O'Leary states:
"The reasons why the common law imposes a duty of deliberative secrecy upon a
tribunal are all too obvious, especially in the case of a tripartite tribunal, to require
enumeration. The integrity of the deliberative process can only be ensured if the
rule is all but absolute. But absolute it cannot be. Where, as in this case, it
becomes necessary to pierce that secrecy to ensure that natural justice has not
been denied, then that secrecy will be pierced."68
b)
Is the evidence of the witness who is sought to be compelled relevant to a live issue in the
case?
As noted above, ministers of the Crown and other public officials, do not enjoy any special
exemption from testifying pursuant to a summons or subpoena.69 Where a motion is brought to
quash a subpoena or summons, the court will consider whether the evidence sought to be
obtained from the proposed examination is relevant to any issue raised on the main application.
The party seeking to conduct the examination is required to show a reasonable evidentiary basis
that the examination relates to issues relevant to the pending application and that the intended
witness is in a position to offer evidence.70 In Ontario Federation of Anglers and Hunters v.
Ontario (Ministry of Natural Resources)71, the Ontario Divisional Court stated:
"The courts must be cautious to ensure that a summons to a witness directed to a
minister of the Crown under rule 39.03 involves a valid evidentiary basis
necessary to determine a specific legal issue and is not simply for the purpose of
turning the court process into an extended battleground for extracting information
pertaining to the on-going political debate. …"
In that case, the applicants contended, on an application for judicial review of a regulation
enacted by the Minister of Natural Resources that terminated the spring open hunting season for
black bears, that the minister improperly exercised his discretion when he enacted the legislation
Glengarry Memorial Hospital v. Ontario (Pay Equity Hearings Tribunal) [1993] O.J. No. 25
Smallwood v. Sparling [1982] 2 S.C.R. 686; and also see Ontario (A.G.) v. Dieleman (1993),
16 O.R. (3d) 39 @ 44; leave to appeal denied [1993] O.J. No. 2798, (1993), 16 O.R. (3d) 39 @
46 (Div. Ct.)
70
Consortium Development (Clearwater) Inc. v. Sarnia [19998] 3 S.C.R. @ para. 45
71
Ontario Federation of Anglers and Hunters v. Ontario (Ministry of Natural Resources) [2001]
O.J. No. 86 @ para. 87
68
69
28
and did so because the Premier had, for political reasons, directed him to do so. After carefully
reviewing the circumstances behind the application for judicial review and the facts already filed
with the court, the Divisional Court determined that there was a live issue which the evidence of
the Premier and Minister would be relevant, and set aside an earlier Order of the lower court
quashing the notice of examination to the Minister and a summons to the Premier, thereby
allowing the applicants to examine them under rule 39.03. The court, however, directed that the
examination was to be limited to the sole issue of whether the Minister made his own decision in
exercising his discretion to pass the regulation or whether he was merely directed to pass the
regulation by the Premier without the exercise of any independent discretion.
c)
There may be a limit to the use of evidence obtained by way of a subpoena or summons of
a public official or minister where that evidence was exclusively to "legislative facts" i.e.
the purpose for which a statute or regulation has been passed.
Evidence of a minister or other public official may not be relevant and admissible if it relates
solely to certain categories of "legislative facts" as discussed above. In Re Ontario Teachers'
Federation et al and Attorney General of Ontario72, the applicants had applied for a declaration
that the provisions of a certain provincial act, excluding the principals and vice-principals of
public and separate school from teachers' bargaining units on the basis that these provisions were
passed for an improper purpose in that they were a retaliatory response to the participation by
principals and vice-principals in an anti-government protest. The applicants sought to examine
the Minister of Education and Training and the Director of Policy in the office of Premier as
witnesses on the application, pursuant to rule 39.03 of the Ontario Rules of Civil Procedure. The
summons required them to attend for examination and to bring with them a broad range of
documentation relating to the decision, and introducing the Bill in question, to allow principals
and vice-principals to remain in the teacher bargaining units, to be members of and represented
by the bargaining agent, and as well, relating to the subsequent decision to amend the provisions
of Bill 160 to exclude principals and vice-principals. The court noted that the scope of the
examinations sought was extremely broad. Mr. Justice R.A. Blair, in quashing the summonses,
held:
72
Re Ontario Teachers' Federation et al and Attorney General of Ontario 39 O.R. (3d) 140
29
"What is at issue on the application is the constitutional validity of the impugned
provisions of the legislation and the purpose of that legislation. The applicants
contend that this has been enacted for a "colourable" i.e. an improper or
extraneous purpose. While the authorities have developed to the point where it is
permissible for courts to examine extrinsic evidence in the context of charter and
other challenges to the constitutional validity of legislation, I do not support the
extension of that exercise to the consideration of the testimony of individual
members of the legislature - including ministers in charge of introducing
legislation - or of civil servants or political advisors.
Legislation implementing fundamental changes in society inevitably invokes
passionate and robust debate. Arguments of one sort or another based upon
infringement of the Charter are not infrequently put forward. While I do not
suggest for a moment that such is the case on the instant application, it seems to
me that if those opposing legislative initiatives are to have access to the outside
testimony and documentation of members of the legislature, ministers of the
Crown, civil servants and policy advisors connected with the implementation of
the targeted legislation through the simple means of launching a Charter challenge
in the courts based on allegations of colourability, the implications are significant
for the courts, and for the differing functions which the courts and the broader
political arena have in society. There may be no end to such skirmishes. The
courts - and the discovery process inherent in the court process - will become
simply another extension of the legislative floor. That is not the intention of the
legislative process, or of the provisions of rule 39.03 of the rules of civil
procedure, in my view."
The court went on to deal with the constitutional separation of powers between legislatures, the
executive and the courts, and held that the courts ought not to overstep the bounds of their
constitutional role permitting the introduction of this kind of evidence. Mr. Justice Blair stated:
"I take from the foregoing that the categories of "various kinds" of extrinsic
evidence that may be admissible in cases of this nature are not closed, but that the
general nature of such evidence will be along the lines of those classes referred to.
I also note that the extension of the concept to even admission of excerpts from
Hansard is somewhat guarded. In my opinion, it would be an unwarranted
extension of the concepts underlying the courts resort to such aids, such as
Hansard, Royal Commission Reports, government policy papers and other such
sources bearing upon the history and background of the legislation, to broaden
those concepts to apply to the sworn in out of legislature views and opinions of
ministers and members of the legislature. It would be inconsistent with the
weight of existing authority on the subject. …"
30
Consequently, it was held that the propriety of calling ministers and public officials and having
legislation stand or fall on their testimony was not to be allowed.73
Execution
Once you have gone through the litigation process, marshaled and secured the evidence, adduced
the evidence and reduced your claim to a judgment, how do you enforce it against the
government?
Most Crown liability statutes provide, as indeed the common law provided, that no execution
may issue against the Crown. In Ontario, in a proceeding against the Crown, judgment shall not
be entered against the Crown in default of appearance or pleading without leave of the court. 74
Furthermore, no execution or attachment or process in the nature thereof shall be issued out of
any court against the Crown.75 However, where a judgment is rendered against the Crown, the
provincial Minister of Finance is statutorily mandated to pay out of the Consolidated Revenue
Fund the amount payable by the Crown under any Order of a court that is finalized, not subject
to appeal, or under a settlement of a proceeding in a court, or under a settlement of a claim that is
subject to the notice of claim requirements.76
This provision constitutes a permanent
appropriation of funds for the satisfaction of judgment debts.77
As set out above, the duty of the provincial Crown to pay a judgment extends to out of court
settlements. Ontario and British Columbia have such a provision. Elsewhere, a settlement
would have to be followed by an entry of judgment in order to compel the Crown to pay.
73
See also British Columbia (Attorney General) v. Mount Currie Indian Band (1991), 54
B.C.L.R. (2d) 156 (C.A.); appeal (Regional Municipality) v. Great Atlantic and Pacific Company
(1991), 2 O.R. (3d) 65 (Ont.C.A.); Ontario (Attorney General) v. Dieleman (1993), 16 O.R. (3d)
39; Seaway Trust Co. v. Ontario (1983), 143 D.L.R. (3d) 623
74
Proceedings Against the Crown Act, s. 18
75
Ibid, s. 21
76
Ibid, s. 22
77
Northrop Corp. v. The Queen [1977] 1 F.C. 289 (T.D.)