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Crown Liability - Practice. Bigeagle v. Canada
In Bigeagle v. Canada (Fed CA, 2023) the Federal Court of Appeal considered that crown liability (here under the federal Crown Liability and Proceedings Act) does not impose liability on the Crown directly, but only vicarious liability on agents of the Crown:[31] I recognize that the CLPA does not require that a claimant name a specific department, ministry or bureaucratic division. However, under the CLPA, the Crown itself is immune to liability in tort and can only be held liable for the actions or omissions of its servants or agents (CLPA at s. 3; Hinse v. Canada (Attorney General), 2015 SCC 35 at para. 58). A certain level of particularity is necessary to identify the servants or agents against whom liability is alleged (Canada (Attorney General) v. Jodhan, 2012 FCA 161 at paras. 87-89). This is so in order to allow for the determination of whether the person or body named is really a servant or agent of the Crown, and to provide that person or body the opportunity to respond to the allegations directed against them (Merchant Law Group v. Canada Revenue Agency, 2010 FCA 184 at para. 38). This case bears on both federal and Ontario crown liability law.
. Leroux v. Ontario
In Leroux v. Ontario (Ont CA, 2023) the Court of Appeal considered an appeal of a class action certification refusal from the Divisional Court, here regarding SSPSIPDDA applicants. The alleged causes of action were negligence and s.7 Charter.
In these quotes the court considers CLPA provisions [SS: s.11(4-5)] that the Crown argues defeat the class action on the negligence issue, those being immune 'policy decisions':[66] Ontario made two additional submissions about why the appellant’s negligence claim is doomed to fail. First, the claim impugns actions that are said to be immune under the CLPA. Second, the claim is deficient because it does not advance specific allegations of tortious conduct by individual Crown servants, for whom Ontario would be vicariously liable. Ontario cannot be directly liable for negligence − it can only be liable for acts of its servants under s. 5(2) of the Proceedings Against the Crown Act, R.S.O. 1990, c. P.27.
[67] In my view, Francis v. Ontario, 2021 ONCA 197, 154 O.R. (3d) 498, stands as an answer to both arguments.
[68] With respect to the first argument, Ontario points to ss. 11(4)-(5) of the CLPA [SS: "Extinguishment of causes of action respecting certain governmental functions - Policy decisions"]. Section 11(4) of the CLPA provides that there is no cause of action against the Crown “in respect of any negligence … in the making of a decision in good faith respecting a policy matter”. Section 11(5) includes in the definition of policy matter “the creation, design, establishment, redesign or modification of a program, project or other initiative” and “the manner in which a program, project or other initiative is carried out”.
[69] The courts below did not decide whether the CLPA applied to this action which was commenced before the CLPA was enacted. Ontario argues in this court that the CLPA applies. Even if Ontario is right on that point, which I need not decide, it does not change the analysis since this court has held that the CLPA merely codifies existing law.
[70] In Francis, at para. 127, this court held that the CLPA did not give the government broader immunity to that which it enjoyed for core policy decisions at common law. As such, it did not immunize the government for operational matters such as the implementation of a core policy. In light of Francis, it is not plain and obvious that statutory immunity would apply under the CLPA.
[71] With respect to the second argument, this court in Francis stated, at paras. 144-146:On a fair reading of the amended statement of claim, it is clear that the allegations being made against Ontario arise from its vicarious liability for the negligent acts of its servants … It is also clear from the amended statement of claim that the negligent acts are those of servants of Ontario. It is axiomatic to point out that Ontario can only operate through the actions of individuals.
There is no absolute requirement that the individual servants of the Crown, who undertake the negligent acts, must be named in the proceeding. Section 5(2) of the PACA simply says that no proceeding can be brought against the Crown "unless a proceeding in tort in respect of such act or omission may be brought against that servant or agent" (emphasis added). The section does not require that the proceeding must be brought against that servant or agent.
We accept that best practices in pleadings might suggest that the negligent individual, from whom vicarious liability arises, be named as a party, at least in a case where only one event or individual is involved. However, this is a class proceeding in which collective claims are made … it is impractical to expect a representative plaintiff … to name all of the individuals involved in the collectively negligent acts. [Emphasis in original.] [72] In my view, these quoted passages are a complete answer to Ontario’s second argument.
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