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Crown and Government Liability - Disclosure. O’Brien v. Horychuk
In O’Brien v. Horychuk (Ont Divisional Ct, 2025) the Divisional Court dismissed an interlocutory appeal [under CJA 19(1)(b)], here regarding whether "the Ministry of Transportation (the “Crown”) is compellable in the process of production and discovery in claims under the Public Transportation and Highway Improvement Act, RSO 1990.... ". The motion judge "found that the Crown is not compellable for discovery, and could not be compelled to answer questions on an examination for discovery, even though a representative of the Crown had appeared for examination and answered some questions".
Here the court considers crown immunity, Crown civil disclosure duties and the modifying role of statute - ans in the process engages in a textbook application of stare decisis (re Longo):[3] As I explain below, the questions at issue in this appeal are subject to binding authority from the Court of Appeal and a consistent history of jurisprudence applying that authority in the Superior Court of Justice. The one case from the Superior Court that reaches a contrary conclusion on these points, Tayler v. Mayes, 2019 ONSC 5651, is wrongly decided.
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[10] As argued by the appellants and as accepted by the motion judge and acknowledged by the Crown, the Crown is subject to the court’s jurisdiction and has participated voluntarily in the process of production of documents and examinations for discovery in these proceedings.
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The Law of Discovery of the Crown in Claims under the Act
[11] The motion judge summarized applicable legal principles relating to discovery of the Crown at paras. 27-32 of the Decision. She concluded that statutes do not bind the Crown unless they expressly state otherwise, and that, absent express statutory authority, discovery is not compellable from the Crown in a civil proceeding. Neither the CJA nor the Rules of Civil Procedure expressly bind the Crown and thus cannot be used as legal authority to compel oral or documentary disclosure by the Crown. These statements of general principle are correct: Legislation Act, 2006, S.O. 2006, c. 21, Sched. F, s. 71; The Queen v. Canadian Transport Commission, 1977 CanLII 150 (SCC), [1978] 1 SCR 61; Abou-Elmaati v. Canada (A.G.), 2011 ONCA 95; Canada Deposit Insurance Corporation v. Code, 1988 ABCA 36; A.G. Quebec and Keable v. A.G. Canada et al., 1978 CanLII 23 (SCC), [1979] 1 SCR 218, at 245.
[12] The motion judge then considered the Court of Appeal’s decision in Longo v. The Queen, [1959] OWN 19, in which the issue of compellability of the Crown arose in the context of a claim arising under a predecessor version of the Act.[2] The motion judge summarized the principle stated in Longo as follows (Decision, para. 34):In Longo, the court confirmed that the Crown’s privilege to refuse discovery can only be taken away by express words in a statute. After reviewing s. 32(7) of the HIA, which is substantially identical in wording to the relevant provision of the [Act], the Court of Appeal held that in the absence of an express provision in the HIA or the Rules of Practice that specifically provided for a right of discovery against the Crown, a party to an action commenced under the HIA cannot compel oral discovery of the Crown. This characterization of the principle to be taken from Longo is correct.
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[15] The motion judge then considered cases addressing the compellability of the Crown in proceedings arising under the Act [SS: the Public Transportation and Highway Improvement Act]. She found, correctly, that there is a conflict in the case law. In one case, Taylor v. Mayes, 2019 ONSC 5651, the court found that the Crown is compellable in an action commenced against the Crown pursuant to the Act. The balance of authority comes to the contrary conclusion on the basis of Longo, including one decision subsequent to Taylor v. Mayes where the court considered and declined to follow Taylor on the basis that it was contrary to Longo and long-established authority (Stegenga v. Jans, 2021 ONSC 7898).
[16] Having noted the conflict in the jurisprudence in the Superior Court of Justice, the motion judge then stated as follows (at para. 57):This is an issue that would benefit from appellate intervention. On the one hand, Ryan Bell J.’s analysis in Taylor is more attractive to me than the Longo/Stegenga analysis. The conclusions of Ryan Bell J., accord with a modern approach to the issue of Crown prerogative. I note that the Court of Appeal in Longo specifically recognized that the case was decided at a time when discovery rights against the Crown were at an early stage. That is no longer the case. Discovery is an important step in civil matters for the parties to be able to assess the strength and weaknesses of their respective cases and to exchange evidence that will be relevant to a determination of the case. [17] The motion judge then noted that her view of the “more attractive” policy choice did not relieve her from following binding precedent. She concluded, as did Broad J. in Stegenga, that Longo and the jurisprudence following it are binding and preclude the finding in Taylor v. Mayes:Other than personal preference, I have no cogent reason to depart from these cases and am bound to follow them. I find there is no right of discovery against the Crown under the [Act]. (Decision, para. 60) ....
[20] Longo is binding authority and is directly on point. The provisions of the PACA do not affect this conclusion: as per s. 2(1) of the PACA, it does not “affect” claims under the Act. The language in s. 33(7) of the Act, relied on in Taylor v. Mayes, was characterized by the Court of Appeal in Longo as follows:It enables a party to commence and maintain that action without the fiat of the Lieutenant-Governor or the consent of the Attorney-General, and it declares that the action in the court is to be carried on and judgment given in the same manner as in ordinary cases. It does not create a right or a remedy of discovery. If such a right or remedy is to be found it must be found in the Rules of Practice of this Court. This finding is binding on the Superior Court of Justice and on this court. It clearly and expressly precludes the finding in Taylor.
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[22] I would not address the policy arguments set out in Taylor, which the motion judge found “more attractive” than the conclusion to which she was driven by binding authority. Where, as here, there is binding authority from the Court of Appeal, and a consistent line of jurisprudence applying this authority in the Superior Court, policy arguments should be addressed to the legislature. Alternatively, if a litigant feels that long-established and long-followed precedent from the Court of Appeal should be overturned, the place to address that argument is the Court of Appeal. However, to be clear, I am not suggesting that further appellate guidance would be advisable: the motion judge was faced with conflicting authority in the Superior Court, a reasonable basis for suggesting some appellate guidance. Further appellate guidance is not required to settle the point for the purpose of proceedings in the Superior Court, and it would be for the Court of Appeal to consider whether there is any good reason to revisit its own established jurisprudence and the longstanding precedent that has followed it.
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