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Crown - Meaning of the "Crown". Sanis Health Inc. v. British Columbia
In Sanis Health Inc. v. British Columbia (SCC, 2024) the Supreme Court of Canada dismissed an appeal, that against a BCCA decision dismissing an appeal, that of a dismissal by the BC Superior Court of an application by the corporate defendants in a consumer opioid damages class action, who sought an interlocutory division-of-powers ultra vires declaration against a class-action-supporting BC statutory provision [the 'Opioid Damages and Health Care Costs Recovery Act, s.11'].
These passages are quite interesting for the isolation of the Crown's private 'litigation autonomy', when it acts as a 'natural person' - and from a number of other perspectives (eg. cabinet, legislature, crown plaintiff litigation, delegated legislation, interjurisdictional class actions and the pressing - though rarely acknowledged - issues of both Canadian and international cross-jurisdictional problems:(2) Does Section 11 Respect the Legislative Sovereignty of Other Canadian Governments?
[95] The appellants argue that s. 11 fails to respect the legislative sovereignty of other Canadian governments by forcing them to either opt out of the proceeding, or else opt in and fetter their sovereignty by giving away their ability to legislate regarding their substantive opioid-related healthcare cost recovery rights or their litigation autonomy over those rights. They say that the support of the other governments for this legislation is irrelevant.
[96] As I have explained, the appellants’ concerns about the binding effects on another province’s litigation autonomy does not undermine its sovereignty. Litigation involves consequences and those consequences may be inescapable, especially when they occur in jurisdictions beyond the control of a government’s legislature. There is no constitutional principle against this. The appellants’ arguments blur the distinction between legislative and executive authority. The legislature of one level of government cannot transfer its primary authority to legislate to another level of government (Reference re Pan-Canadian Securities Regulation, at paras. 75-76). However, no such rule applies to the executive delegation of litigation conduct.
[97] Of course, a government cannot displace existing laws through executive action and the “legislature is entitled to enact legislation inconsistent with the government’s commitments under a prior agreement” (Canada (Attorney General) v. British Columbia Investment Management Corp., 2019 SCC 63, [2019] 4 S.C.R. 559, at para. 92). Thus, as a general constitutional principle, neither the executive, nor the legislature itself, can bind a future legislature in its exercise of authority (Reference re Pan-Canadian Securities Regulation, at paras. 54-59; Wells v. Newfoundland, 1999 CanLII 657 (SCC), [1999] 3 S.C.R. 199, at para. 37; Reference re Canada Assistance Plan (B.C.), 1991 CanLII 74 (SCC), [1991] 2 S.C.R. 525, at p. 560).
[98] But this general principle hits its limit when a Crown exercises its civil rights, in its capacity as a natural person, in areas where its legislature has no authority to enact laws. Aside from effects on a Crown’s desire to litigate as they wish in foreign territory, when Crowns act in their capacity as a natural person in other jurisdictions they may also have to accept legal consequences that fall outside their legislative competence, such as the creation of private rights and duties in other provinces. For example, when a Crown enters into a contract in another province, that contract will fall under the legislative competence of that other province’s authority over “Property and Civil Rights in the Province” (s. 92(13) of the Constitution Act, 1867). The contracting Crown’s legislature could not enact a law to cancel those extra-provincial contractual rights, and it will be bound by that contractual obligation in the same way as an individual (see Churchill Falls, at pp. 332-33; see also Bank of Montreal v. Attorney General (Quebec), 1978 CanLII 173 (SCC), [1979] 1 S.C.R. 565, at p. 574).
[99] So when a Crown exercises the same civil rights as an individual, it will be bound by the consequences of its actions undertaken in another province when those actions fall under that other province’s legislative sovereignty. Despite being sovereign in its own territory over these subject matters, a Crown cannot legislate itself out of situations it might have controlled at home. Nothing forces one province to engage in activities elsewhere, but when they do, they must abide by the laws of that other province (see D. Gibson, “Interjurisdictional Immunity in Canadian Federalism” (1969), 47 Can. Bar Rev. 40, at p. 60; Hogg and Wright, at § 10:20).
[100] This is the case when a Crown exercises its civil rights by participating as a non-representative plaintiff in a class action in another province. It will find itself subject to that province’s procedural rules governing class actions, including procedural rules relating to the binding nature of the court’s judgments or any settlements negotiated by the parties (CPA, ss. 26 and 35).
[101] However, the application of those procedural rules to the foreign, participating Crowns does not determine which substantive laws will apply to those Crowns (see Wilson, at para. 83; Thorpe, at para. 135; Walker, at § 4.03). Here, the harms underlying each Crown’s causes of action occurred in their own jurisdictions and thus are subject to their own substantive law (see Tolofson v. Jensen, 1994 CanLII 44 (SCC), [1994] 3 S.C.R. 1022, at pp. 1050 and 1064-65; Unifund Assurance Co. v. Insurance Corp. of British Columbia, 2003 SCC 40, [2003] 2 S.C.R. 63, at paras. 25 and 80; Van Breda, at para. 37; Walker, at § 1.02[2][e]). That substantive law remains subject to each legislature’s sovereignty, including their own ORA-type legislation to establish their causes of action.
[102] I also do not agree that s. 11 fails to respect the sovereignty of other governments because of the potential for overlap and conflict between their various ORA-type statutes and the litigation they authorize. Multi-jurisdictional legislative overlap is normal in a federation; so long as it occurs within the proper legislative authority of the enacting governments, it is not problematic (see Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134, at para. 62; Canadian Western Bank, at paras. 36-37). Multi-Crown participation in a national class action, where each is authorized by its own law, represents cooperation between different governments and comity between the courts.
[103] Intergovernmental cooperation in Canada recognizes that some amount of overlap is inevitable regarding national issues like the opioid epidemic, and that “governments should be permitted to legislate for their own valid purposes in these areas of overlap” (PHS Community Services Society, at para. 62). While the courts remain the ultimate arbiters of the constitutionality of governments’ efforts to regulate nationwide issues like these, the day-to-day task of maintaining the balance of powers regarding cooperative legislative schemes “falls primarily to governments” (Canadian Western Bank, at para. 24).
[104] Here, nearly every provincial and territorial government in Canada has chosen to cooperate by enacting virtually identical statutes, by indicating their intent to participate as class members, and by intervening in this appeal supporting B.C. The federal government, which also intervened in support of the respondent, has indicated its intent to participate in the class action as well (House of Commons Debates, vol. 151, No. 216, 1st Sess., 44th Parl., June 19, 2023, at p. 16247 (Hon. Carolyn Bennett)). This multi-Crown participation is in harmony with our Court’s approach to intergovernmental cooperation on national issues, where collaboration between the executives and legislatures of both provincial and federal governments is vital. Especially given the presumption of constitutionality of legislation, a court should exercise considerable caution before it finds that this cooperation between multiple executive and legislative branches is unconstitutional (see Murray-Hall, at paras. 79 and 82; Reference re Impact Assessment Act, at para. 69; Kitkatla, at paras. 72-73; OPSEU, at pp. 19-20).
[105] As for the judicial branch of government, this Court has recognized that “[g]reater comity is required in our modern era when international transactions involve a constant flow of products, wealth and people across the globe” (Hunt, at p. 292). The courts in our federation provide a comparable quality of justice, and so demand the same level of faith in one another’s judgments where jurisdiction has been properly exercised (Morguard, at p. 1099). If overlapping litigation arises, courts acting in respect of one another have the tools to prevent any abuse of process (see, e.g., CPA, ss. 4(3) to 4.1). Comity between our federation’s courts helps with access to justice in a world where people and problems cross borders without heed for which legislature or court has authority over them.
[106] This is true in class actions, whose “purpose is to facilitate access to justice for citizens who share common problems and would otherwise have little incentive to apply to the courts on an individual basis to assert their rights” (Bisaillon, at para. 16). This Court has noted that class actions serve judicial economy, promote access to justice, and modify the behaviour of wrongdoers who might otherwise escape accountability for their actions (Dutton, at paras. 27-29; Hollick, at para. 15). These goals are met where governments cooperate with one another to have their claims litigated efficiently, in one action, before one province’s superior court, whose proceedings and judgment will be respected through the principle of comity in the other courts of our federation.
[107] Section 11 of the ORA therefore respects the legislative sovereignty of foreign Crowns. It is an example of the important role that national class actions play in matters which span the country, by providing a mechanism to help multiple governments cooperate while working toward the same goal. . Sanis Health Inc. v. British Columbia
In Sanis Health Inc. v. British Columbia (SCC, 2024) the Supreme Court of Canada dismissed an appeal, that against a BCCA decision dismissing an appeal, that of a dismissal by the BC Superior Court of an application by the corporate defendants in a consumer opioid damages class action, who sought an interlocutory division-of-powers ultra vires declaration against a class-action-supporting BC statutory provision [the 'Opioid Damages and Health Care Costs Recovery Act, s.11'].
Here the court explains the uses of the term "Crown" in Canadian law, and their role in litigation:[47] I would not give effect to the appellants’ submission on s. 11’s purpose. In Canadian law, the term “the Crown” is used as both a personification of the state and in reference to the Sovereign, that is, the physical, natural person of His Majesty the King (Attorney General of Quebec v. Labrecque, 1980 CanLII 24 (SCC), [1980] 2 S.C.R. 1057, at p. 1082; Verreault (J.E.) & Fils Ltée v. Attorney General (Quebec), 1975 CanLII 179 (SCC), [1977] 1 S.C.R. 41, at p. 47; P. W. Hogg, P. J. Monahan and W. K. Wright, Liability of the Crown (4th ed. 2011), at p. 12; see also M.-F. Fortin, “The King’s Two Bodies and the Canadian Office of the Queen” (2021), 25 Rev. Const. Stud. 117). In this latter sense, as a natural person “the Crown” has many of the same common law powers as any other individual, unless those powers have been expressly narrowed by statute (Attorney General for Ontario v. Fatehi, 1984 CanLII 85 (SCC), [1984] 2 S.C.R. 536, at p. 551; see also K. Horsman and G. Morley, Government Liability: Law and Practice (loose-leaf), at §§ 1:10-1:11). For example, the Crown as a natural person may hold property, enter into contracts, and spend money like any other person (see Hogg, Monahan and Wright, at p. 12).
[48] When the Crown participates as a plaintiff in litigation to enforce a common law or statutory cause of action, it is typically acting in this capacity as a natural person (Fatehi, at pp. 551-52; Hogg, Monahan and Wright, at p. 74). The Crown may sue for damage to its civil rights in the same way as any other person, without a statutory grant of authority to do so (R. v. Murray, 1967 CanLII 49 (SCC), [1967] S.C.R. 262; Horsman and Morley, at § 1:11).
[49] However, the Crown as a natural person is subject to its Parliament or its Legislature (see P. W. Hogg and W. K. Wright, Constitutional Law of Canada (5th ed. Supp.), at § 10:13). So while the Crown has the right to sue to enforce its rights, this ability may be limited by a statute if, for example, the Crown is excluded from a particular right or procedure.
[50] The appellants argue that s. 29 of the Interpretation Act is such a limitation on the Crown’s capacity to sue under the CPA. Section 29 of the Interpretation Act — which provides general statutory definitions applicable to all legislation in B.C. — defines a “person” as including “a corporation, partnership or party, and the personal or other legal representatives of a person to whom the context can apply according to law”. That same provision states that a “‘corporation’ . . . includes a corporation sole other than [His] Majesty”. The appellants suggest that connecting these phrases leads inevitably to the conclusion that a “corporation” is a “person” unless that corporation is “[His] Majesty”.
[51] I am not persuaded these definitions exclude the Crown from being a “person” for the purposes of the CPA and s. 11 of the ORA. Section 29 of the Interpretation Act states that a “‘person’ includes a corporation” “other than [His] Majesty”. The word “includes” typically functions as a legislative signal that these terms are offered as examples, not as exhaustive meanings (see R. v. McColman, 2023 SCC 8, at para. 38; R. Sullivan, The Construction of Statutes (7th ed. 2022), at § 4.04). The non-exhaustive definition of a “person” in the Interpretation Act does not displace the ordinary meaning of this term, including the common law inclusion of the Crown as a natural person, capable of suing to enforce its rights (see R. v. British Columbia, 1992 CanLII 12849 (BC SC), [1992] 4 W.W.R. 490 (B.C.S.C.), at para. 17; Sullivan, at § 4.04). Nor does the exclusion of the Crown from laws applying to private corporations, which s. 29 effects, limit its ability to sue as a person.
[52] As for s. 1 of the Crown Proceeding Act, it defines a “person” as not including “the government”. However, that definition applies “[i]n this Act”, unlike the general definitions in the Interpretation Act. The Crown Proceeding Act deals with when the Crown may be sued as a defendant. It is a statutory override of the common law position that the Crown is immune from liability, and as such does not speak to where the Crown is suing as a plaintiff (see Nelson (City) v. Marchi, 2021 SCC 41, [2021] 3 S.C.R. 55, at para. 38; Hogg and Wright, at § 10:12).
[53] I conclude the Crown in right of B.C. was already a “person” capable of enforcing its civil rights as either a representative or non-representative plaintiff under the CPA.
[54] The same conclusion applies to “foreign” Crowns. They may sue as a “person” under the CPA. As similarly natural persons, foreign Crowns “may sue in any Court having jurisdiction in the particular matter” (McNamara Construction (Western) Ltd. v. The Queen, 1977 CanLII 13 (SCC), [1977] 2 S.C.R. 654, at p. 660; see also Hogg, Monahan and Wright, at p. 493). “The Crown in right of a province (or the Dominion) has the power of a natural person . . . and is not subject to territorial restraints in exercising such common law powers” (Hogg and Wright, at § 13:8; see also Horsman and Morley, at § 1:11).
[55] Leaving aside the concerns raised about the effects of a multi-Crown class action on Crown autonomy or parliamentary sovereignty, there is nothing in the CPA, the Interpretation Act, or the Crown Proceeding Act that prevents either the Crown in right of B.C. or any “foreign” Crowns from satisfying the most basic requirement to participate in a class action: to be “a member of a class of persons” (CPA, s. 2(1)). When one or more Crowns sue as plaintiffs, their rights “are no different from those of the subject, and never were” (Horsman and Morley, at § 1:11). . McAteer v. Canada (Attorney General)
In McAteer v. Canada (Attorney General) (Ont CA, 2014), in which a Charter challenge to the citizenship oath to the Queen was dismissed, the Court of Appeal clarified that such references in the oath (and apparently generally for legal matters) were not to the Queen of England as an individual person, but rather to "our form of government":[6] For the reasons that follow I would dismiss the appeal and allow the cross-appeal. The appellants’ arguments are based on a literal “plain meaning” interpretation of the oath to the Queen in her personal capacity. Adopting the purposive approach to interpretation mandated by the Supreme Court of Canada, leads to the conclusion that their interpretation is incorrect because it is inconsistent with the history, purpose and intention behind the oath. The oath in the Act is remarkably similar to the oath required of members of Parliament and the Senate under The Constitution Act, 1867. In that oath, the reference to the Queen is symbolic of our form of government and the unwritten constitutional principle of democracy. The harmonization principle of interpretation leads to the conclusion that the oath in the Act should be given the same meaning.
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