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Crown Liability - Subjects Table of Contents (E)
EMPLOYMENT OBLIGATIONS, CROWN
CLPA, 2019 (Ont) - s.8(1)(c) Crown Liability Regarding Crown Employment Obligations
ENTITIES, CROWN
Comment
Strictly speaking - under the CPLA, the Crown (as a legal entity itself) is still immune, just as it was under the common law. What Crown liability exists emanates from the fact that the Crown can only act through others, and it is only those 'others' that can be directly liable - with that liability (in a bit of legal gymnastics) then being redirected back the the Crown itself.
Put another way, any 'Crown liability' is 'vicarious' liability - a concept which is best known as an employment law principle, holding that employers are liable for the acts or omissions of their employees.
In the present CLPA, 2019, this effect is achieved by the 'deeming' provision of s.8(1)(a) where the Crown is subject to the tort liability of an "officer, employee or agent of the Crown". In any event - for the most part, such liability emanates from behaviour of 'officers or employees', who are actual persons - and do actual behaviours. As for 'Crown agents', they are defined in the CPLA, 2019 as various 'corporations' [see CPLA s.1(1): "Crown agency" and "Crown corporation"] - but CLPA s.9(1) essentially re-asserts Crown immunity these corporations 'as such', leaving only the human actors as sources of liability [under CLPA s.8].
The upshot is that (for the most part) only employees and officers of the Crown - and employees and officers of Crown agents - can give rise to actual tort liability against the Crown.
General
Interpretation
CLPA, 2019 (Ont) - s.1(3) Act or Omission
CLPA, 2019 (Ont) - s.1(1) Definitions ["proceeding"]
Crown Liability of "Officer, Employee or Agent"
CLPA, 2019 (Ont) - s.8(1)(a),(2) Crown liability in Tort
Individual Statutory Liability Standards for Crown 'Officers, Employees or Agents' Extended to Crown Itself
CLPA, 2019 (Ont) - s.8(3) Limitation of government actors’ liability in tort applies to the Crown
This (awkward) CLPA s.8(3) provision operates in conjunction with common provisions set out in numerous statutes which create a 'bad faith' liability standard (though it may be couched as a corollary 'no suing if good faith') for Crown entities such as "officer, employee or agent of the Crown". For example:ODSPA 58(1)
No personal liability
No action or other proceeding in damages shall be instituted against the Ministry, the Director or a delivery agent, an officer, employee of any of them or anyone acting under their authority for any act done in good faith in the execution or intended execution of a duty or authority under this Act or for any alleged neglect or default in the execution in good faith of any duty or authority under this Act. The effect of CLPA s.8(3) extends this heightened liability standard to the Crown itself [for a further explanation see 'Bad Faith', above].
Vicarious
Crown Liability - Vicarious Liability [CLPA s.8]
Indemnity and Contribution in Tort Apply to Crown
CLPA, 2019 (Ont) - s.8(4) Indemnity and contribution
The general (ie. non-Crown Liability) 'indemnity and contribution" sub-topic is listed (in several places) in the main Tort topic.
Specific Entities
Despite the CLPA being five years old (it came into force 08 July 2020), it's fair to say that it has not had a lot of clarifying litigation. This present section does what I can to identify and define specific Crown entities, and their liability or immunity statuses - which again (except for Crown employees and officers) are mostly immunities. And again, where the Crown body is corporate or institutional (ie. not a person), any immunity normally applies to the body itself - not to it's employees or officers.
Another related issue is that while a Crown entity (eg. a tribunal) may be 'immune' from civil damage claims, it of course has widely-acknowledged 'standing' by way of judicial review (JR). More recently, the legislature has sometimes extended such 'review' standing to administrative appeals [eg. RTA s.210(3) re the LTB] - but in both cases (JR and appeals) the law has sometimes broadened 'standing' rights of such statutory entities to a limited form of party status: see Standing - Tribunals Standing on JR/Appeal. This limited form of 'standing' is quite analogous to intervenor status [indeed, sometimes it is openly approached on this basis: Société Radio-Canada v. Canada (Attorney General) (Fed CA, 2023) (the CRTC)] where increasing 'party' rights are a live issue - esp. respecting introducing evidence. In short, this area of law is developing.
My sense is that this is an area of law with few certainties. A useful first read might be the Westlake 'test' (next below), an older case where the court tried to resolve liability uncertainties over specific types of Crown entities, but - largely due to amendments in statute law, and the highly-political nature of the issues - may not have achieved as much as we could have hoped for.
Westlake Test: Liability of Statutory Entities
Crown Liability - Westlake v Ontario (SCC, 1973) Cases
Crown Entities and their Immunity from Tort Liability
CLPA, 2019 (Ont) - s.9(1-2) Limitations on Crown liability
CLPA, 2019 (Ont) - s.1(1) Definitions ["transfer payment recipient"]
Actors under Court Order or Process
Courts of Justice Act - s.142 (Ont) Protection for acting under court order] [#Courts]
PAPA (Ont) - s.6(1-6) Actions against constable, small claims court bailiff or other officer for Actions on Warrants
PAPA (Ont) - s.8 Persons obeying mandamus protected
Actors Enforcing Criminal/Penal Law [CLPA s.9(2)(a)]
Crown Liability - Actors Enforcing Criminal/Penal Law
PAPA (Ont) - s.2 Immunity of Informant
PAPA (Ont) - s.3(1-2) Court May Order Immunity after Conviction Quashed
Actors Discharging Responsibilities of a Judicial Nature [CLPA s.9(2)(b)]
Crown Liability - Administrative Tribunals
Crown Liability - Judges
PAPA (Ont) - s.9 Judicial and Other Immunity Where Ultra Vires Statutes
Crown Agencies
Crown Liability - Crown Agents
CLPA, 2019 (Ont) - s.1(1) Definitions ["Crown Agency"]
Crown Agency Act (Ont) - s.1 Definitions ["Crown Agency"]
Crown Agency Act (Ont) - s.2 Status of Crown Agency
Crown Corporations
CLPA, 2019 (Ont) - s.1(1) Definitions ["Crown corporation"]
Crown Employees
Crown Liability - Crown Employees
Crown Officer
CLPA, 2019 (Ont) - s.1(2) Crown officer
Crown Officer, Employee or Agents includes former
CLPA, 2019 (Ont) - s.1(4) Crown officer, employee or agent includes Former
ESTOPPEL
That the issue of whether 'estoppel applies to the Crown' is an issue at all, illustrates the profoundly undemocratic nature of Crown immunity. In some of these cases the issue is whether estoppel applies without express statutory law overriding common law Crown immunity.
Crown Liability - Estoppel
EVIDENCE
General
CLPA, 2019 (Ont) - s.3. Rules of evidence unaffected
Witness Examination
CLPA, 2019 (Ont) - s.19(1-2) Witness examination, Rules of Court Apply to Crown as though Corporation (2/3)
Affidavits, Cross-Examination On
CLPA, 2019 (Ont) - s.19(1-2) Cross-Examination on Affidavits, Rules of Court Apply to Crown as though Corporation; Exceptions (3/3)
EXECUTION, NONE AGAINST CROWN
CLPA, 2019 (Ont) - s.27(1) No execution against the Crown
CLPA, 2019 (Ont) - s.5. No In Rem Property Execution Against Crown (1/2)
There is an exception for Garnishment, Against Crown (see below).
Continue to F-O
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