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Crown and Government Liability - Immunity (3). 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 the obvious issue of whether the Crown is generally subject to the court's jurisdiction (it is), despite it's conclusions regarding limits on Crown disclosure:The Crown Does Not Contest that it is Subject to the Court’s Jurisdiction
[24] The Appellants argue strenuously that the Crown has attorned to the court’s jurisdiction in this case and has placed considerable legal authority before the court to support its position (Factum, paras. 29-35). It is beyond debate that the Crown has appeared as a party before the court in this proceeding and is subject to the court’s jurisdiction over the claim. The Crown accepts this point.
[25] The Appellant argues that the motion judge found that the Crown “had not attorned to the jurisdiction of the court” (factum, para. 12). That is not what the motion judge found. At para. 63 of the Decision, the motion judge found as follows:I reject this argument of the moving parties. At issue in Mid-Ohio, Van Damme, Wolfe, and Kaman was the jurisdiction of the court to determine the action itself.[4] The provincial Crown in this case acknowledges the jurisdiction of the court to determine the action but takes the position it is not compellable for discovery in actions commenced under the [Act]. None of the cases cited by the moving parties dealt with such an argument. On the other hand, there is case law cited by the Crown, and reviewed above, that has held that even in circumstances in which the Crown voluntarily participates in discovery, if the court cannot compel attendance at discovery, then it similarly cannot compel reattendance to answer refusals.[5] [26] Claims asserted against the Crown under the Act are, obviously, within the jurisdiction of the court. As noted by the motion judge, that is not the issue here. Just because the court has jurisdiction respecting the claims in this proceeding does not mean that the court has the legal authority to compel disclosure and examination of the Crown. As noted above (at para. 11), “absent express statutory authority, discovery is not compellable from the Crown in a civil proceeding.” Obviously, this principle would have no substance if the Crown was compellable in any proceeding in which it defends a claim. Further, the appellants’ arguments imply that whenever a claim is asserted against the Crown under the Act, and the Crown defends that claim, production and discovery are available against the Crown. That argument runs directly contrary to Longo and conflates jurisdiction over claims with authority to compel production and discovery from the Crown.
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