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Crown Liability - Simon's Politics | Everything on this page is Simon's personal politics, not law. My politics are municipalist Green, near Utopian. |
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Probably the most immediate 'political' Crown liability issue in Ontario is the attempt by the province (so far seemingly successful) contained in the CLPA, 2019 [s.11(4-5)] to do away with the prior 'operational-policy' distinction and broaden the 'policy' definition so that what used to be litigation-vulnerable activities are now protected by immunity [see the 'GOVERNMENT ACTIVITIES, NO CROWN LIABILITY REGARDING CERTAIN' sub-topic]. On this issue, my suspicion is that lawyers (who too commonly for my liking these days also have MBAs) fear that narrowing (heck, even eliminating?) the suable 'operational' realm creates huge, unwarranted 'moral hazard' [fear that reducing liability (and thus responsibility) invites dangerous behaviour] on the part of governments.
In these 'political' website pieces though I hope to get into deeper, long-term - even existential (insofar as areas of law can be born and die out) - themes. In that respect 'Crown Liability' is primarily a smaller issue within larger 'tort/insurance/risk' allocation debates. In that respect any political debate over Crown Liability will turn on the future role of government and, given whatever that will be, the utility of locating risk on government itself - ie. is there anything about it's future social role that justifies some variation from 'normal' liability treatment, that is 'normal' as between two private citizens.
Another theme which may have a role in this consideration is that of 'no-fault' insurance, in which governments do have a central role and perhaps deserve more favourable treatment given that. On this, I immediately think of the federal CLPA s.9 [see 'Crown Liability (fed) - No Proceeding Against Crown Where Pension Payable [CLPA s.9]'], which readers may want to review.
In short, most political considerations in this area are premature. We need to decide the (if any) role of 'government' in our new utopian world. Better sort that out first.
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