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Crown Liability - History. Chippewas of Nawash Unceded First Nation v. Canada (Attorney General) [important and thoughtful]
In Chippewas of Nawash Unceded First Nation v. Canada (Attorney General) (Ont CA, 2023) the Court of Appeal usefully considers the recent history of crown immunity:(a) The history of Crown immunity
[215] Historically, Crown immunity from civil suits did not originate in policy or statute, but in the common law derived from medieval civil procedure. The feudal principle was that a lord could not be sued in his own court, and, since no court was higher than the King’s own court, he could not be sued at all: Peter Hogg, Wade Wright & Patrick Monahan, Liability of the Crown, 4th ed. (Toronto: Carswell, 2011), at p. 5. The maxim was that “The King hath no lord but God”. This, in turn, evolved into the more commonly cited but misleading maxim, “the King can do no wrong”: Sir William Wade, “The Crown, Ministers and Officials: Legal Status and Liability” in Maurice Sunkin & Sebastian Payne, eds., The Nature of the Crown: A Legal and Political Analysis (Oxford: Oxford University Press, 1999), at p. 24.
[216] There were limitations on Crown immunity. The King enjoyed personal immunity and the Crown could not be held vicariously liable for wrongs committed by its agents and ministers, but those who committed wrongful acts while acting for the Crown could not avail themselves of the protection of the Crown’s immunity: see “Crown Practice” in Halsbury’s Laws of England, 2nd ed., vol. 9 (London: Butterworths & Co., 1933), at p. 691. This is the source of the most notable limitation on Crown immunity.
[217] To compensate for the King’s procedural but non-substantive immunity, the procedural mechanism of the ‘petition of right’ emerged: Hogg et al., at p. 5. The petition of right allowed certain claims to proceed against the King upon receiving his fiat, primarily for the recovery of property, but it notably excluded tort claims: see Hogg et al., at pp. 6-7.
[218] The proper remedy where a person committed a tort while acting for the Crown was to sue the individual personally, because the Crown could not legally have authorized the conduct: see Halsbury’s Laws of England, at p. 691. For tort claims and other claims for which a petition of right was not available, the historical practice was that the Crown servant – including senior officials such as Cabinet Ministers – would be sued personally. Since the King could do no wrong, the Crown could not have authorized the wrongdoing, so the minister or servant was seen as having acted outside of his authority: see Feather v. The Queen (1865), 122 E.R. 1191 (K.B.), at p. 1205. In situations where it would be difficult to identify one individual responsible for the breach, the Crown would nominate an individual to serve as defendant, and the treasury would compensate for the individual defendant’s potential lack of funds, so as not to leave a plaintiff without a remedy: see Matthews v. Ministry of Defence, [2003] UKHL 4, [2003] 1 A.C. 1163, at para. 46, per Lord Hope of Craighead.
[219] Lord Woolf explained in M. v. Home Office, [1993] UKHL 5, [1994] 1 A.C. 377, at p. 410, that, in practice, this system allowed plaintiffs to pursue claims and receive compensation almost as though the Crown were liable:The difficulty which a plaintiff might have in identifying the appropriate servant of the Crown who was the tortfeasor in practice was overcome by the Crown nominating the individual responsible for the damage and the lack of resources of the defendant did not cause problems since the Treasury would make an ex gratia payment of compensation if it was a case where, but for Crown immunity, the Crown would be vicariously liable. In such proceedings, if it was appropriate for an injunction to be granted, there was no reason why this should not be done. [220] Further, English authorities suggest that Crown immunity was limited to causes of action, and, since declaratory relief did not require a cause of action, a party could seek a declaration against the Crown notwithstanding the Crown’s immunity: see Dyson v. Attorney-General, [1911] 1 K.B. 410 (Eng. & Wales C.A.). The fact that the Crown would pay in response to a declaration did not have the effect of converting the case into a claim for damages.
[221] It is not our intention to traverse in more detail the history that Cullity J. covered so well in his lengthy and scholarly discussion in his seminal decision of Slark (Litigation Guardian of) v. Ontario, 2010 ONSC 1726, 6 C.P.C. (7th) 168, leave to appeal refused, 2010 ONSC 6131, 6 C.P.C. (7th) 221 (Div. Ct.). Cullity J. reviewed, at paras. 98-114, the origins and evolution of the petition of right procedure in England and Canada. He noted that “it is apparent that, prior to the enactment of [the Proceedings Against the Crown Act, 1962-63, S.O. 1962-63, c. 109], the law governing the scope of declaratory relief against the Crown was continuing to evolve”: at para. 115. He also noted the “gradual erosion” of the maxim that the King can do no wrong, an erosion which was “vastly accelerated by the enactment of [the Proceedings Against the Crown Act]”: Slark, at para. 116.
[222] In particular, Cullity J. noted, at para. 102, the abandonment of the distinction between direct and vicarious liability:[T]he statutes have in the past been interpreted as - subject to specific exceptions - excluding the direct, as distinct from the vicarious, liability of the Crown in tort. To this extent they preserved, or reflected, the rule that the king can do no wrong. The relevance of the distinction - and, consequentially, the continuing influence of the maxim for this purpose - was, however, emphatically rejected by the majority of the Supreme Court of Canada in Swinamer v. Nova Scotia, 1994 CanLII 122 (SCC), [1994] 1 S.C.R. 445 where Cory J. stated (at para. 29):The arguments of the Crown [in favour of immunity from direct liability] are regressive and to accept them would severely restrict the ability of injured persons to claim against the Crown. [223] Speaking of the Dyson procedure as an exception to the operation of Crown immunity, because it permitted an action for a declaration against the Crown without the need for a petition of right, Cullity J. noted, at para 115:I believe it is apparent that, prior to the enactment of [the Proceedings Against the Crown Act], the law governing the scope of declaratory relief against the Crown was continuing to evolve in accordance with the principle mentioned by [Sir William] Holdsworth [in A History of English Law, vol. 9 (London: Methuen & Co. Ltd., 1926), at p. 41, that a petition of right “should be available against the crown where the subject has a cause of action against a fellow subject”] - and that neither the maxim that the king can do no wrong nor the inability to enforce judgments by coercive process against the Crown were sufficient in all cases to preclude declarations that a plaintiff was entitled to damages, compensation or restitution from the Crown. [224] Statutory and common law reforms in both Canada and England have gradually moved away from Crown immunity, in recognition of the problem it poses to the rule of law. As the Ontario Law Reform Commission wrote in Report on the Liability of the Crown (Toronto: Ontario Law Reform Commission, 1989), at p. 6:In our view, the answer to the question why the government should relinquish many of the advantages that it now enjoys is very simple, yet compelling. It is the right and fair thing for good government to do…. The preservation of the Crown’s minor tactical advantages in its dealings with ordinary persons would be a trivial and unworthy reason to set against the improvement in the justice of our legal system that this report proposes. [225] This policy perspective underpins the Proceedings Against the Crown Act, 1962-1963, S.O. 1962-63, c. 109 (“PACA”).[9] The PACA, which was originally enacted in 1963, eliminated some of the immunities enjoyed by the Crown while preserving both immunity from action and the petition of right regime with respect to claims that existed on September 1, 1963. . Dolmage v. Ontario [also referred to as 'Slark']
In Dolmage v. Ontario (Ont Sup Court, 2010) the Superior Court engages in an extended review of the common law and the Ontario history of crown immunity and liability, at paras 71-128.
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