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Parties - Crown Attorneys - Immunity

Immunity - Crown Attorneys

Abernethy v. Ontario (Ont CA, 2017)

In this case the Court of Appeal outlined the general immunity of Crown Attorneys being sued for actions conducted in the course of their duties, with the exception of claims for malicious prosecution:
[7] After properly reviewing all the relevant principles relating to the striking of pleadings, and reading the Fresh as Amended Statement of Claim as generously as he could in favour of the plaintiff, with due allowances for drafting deficiencies, the motion judge concluded that Ms. Abernethy’s claims against the Crown Defendants disclosed no reasonable cause of action and that it was plain and obvious they could not succeed. He also held – correctly in our view – that, with the exception of a claim for malicious prosecution (which Ms. Abernethy acknowledged before him and us that she was not pursuing), the Crown Attorney defendants were protected by Crown immunity under the Ministry of the Attorney General Act, R.S.O. 1990, c. M.17, s. 8 and by common law Crown immunity; and that the remaining Crown Defendants were protected by statutory immunity under the Police Services Act, R.S.O. 1990, c. P.15, ss. 21(9) and 26.1(12).


[12] The Crown Attorneys are protected from suit against them by the statutory and common law immunity outlined above. Ms. Abernethy candidly conceded that she is not asserting a claim for malicious prosecution. It follows that no action can be brought against these defendants in their personal capacities in these circumstances. See Nelles v. Ontario, 1989 CanLII 77 (SCC), [1989] 2 S.C.R. 170; Miazga v. Kvello Estate, 2009 SCC 51 (CanLII), [2009] 3 S.C.R. 339; Thompson v. Ontario (1998), 1998 CanLII 7180 (ON CA), 113 O.A.C. 82 (C.A.); Gilbert v. Gilkinson (2005), 2005 CanLII 46386 (ON CA), 205 O.A.C. 188 (C.A.), leave to appeal refused, [2006] S.C.C.A. No. 67. The defendants Rippey and McNeilly are protected by the statutory immunity provided by the Police Services Act.

[13] In addition, on the basis that Ms. Abernethy’s pleading discloses no factually material basis for a cause of action against the personal Crown Defendants, the claims against the Crown, itself, based as they are on vicarious liability, must fail too.

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