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Crown Liability - Vicarious Liability [CLPA s.8]. 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. . Francis v Ontario [PACA, now repealed]
In Francise v Ontario (Ont CA, 2021) the Court of Appeal considered the point that Ontario is not directly liable in tort but rather must 'act through' it's servants [under s.5(1) of the Proceedings Against the Crown Act], and pleadings in relation to that:(viii) The Proceedings Against the Crown Act
[142] One last technical point needs to be addressed with respect to this issue. Ontario asserts that the respondent’s claim is fundamentally flawed because it does not advance specific allegations of tortious conduct by individual Crown servants, for whom Ontario would be vicariously liable. Rather, Ontario says that the claim advanced is effectively one of direct liability from which Ontario is immune under s. 5 of the PACA.[4] Ontario is only liable for indirect claims, under s. 5(1), which reads, in part:[T]he Crown is subject to all liabilities in tort to which, if it were a person of full age and capacity, it would be subject,
(a) in respect of a tort committed by any of its servants or agents; [143] The motion judge addressed this argument in his reasons and rejected it. He said, at para. 485:The discussion above shows that the case at bar is about the operational decisions of Ontario's civil servants not about core policy decisions, which is another way of saying that the case at bar is not a direct negligence claim precluded by Crown immunity. The discussion above about systemic negligence reveals that it is not necessary to name the individual civil servants whose collective conduct led to a system-wide breach of the duty of care and system-wide harm to the collective of inmates. [144] We agree with the motion judge’s determination of this issue. 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. The amended statement of claim expressly references Regulation 778, by which administrative segregation decisions are left to the individual Superintendents. 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.
[145] 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.
[146] 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. As the motion judge pointed out, it is impractical to expect a representative plaintiff, advancing a claim covering a class period of almost three and one-half years, with class members in 32 correctional institutions, to name all of the individuals involved in the collectively negligent acts.
[147] As an alternative, best practices in pleadings might suggest naming a John and Jane Doe to represent all of those individuals in such situations, but the failure to do so is not fatal to the claim. On this point, we repeat the often-cited principle that a statement of claim is to be read “as generously as possible and to accommodate any inadequacies in the form of the allegations which are merely the result of drafting deficiencies”: Operation Dismantle Inc. v. The Queen, 1985 CanLII 74 (SCC), [1985] 1 S.C.R. 441, at p. 451. . Ontario v. Madan
In Ontario v. Madan (Ont CA, 2023) the Court of Appeal considered a negligence counterclaim against Ontario directly:(a) Can Ontario be directly liable for negligence?
[50] The motion judge struck the claims alleging that Ontario was directly liable to the appellants in negligence. She held that under s. 8 of the Crown Liability and Proceedings Act, 2019, S.O. 2019, c. 7, Sched. 17 (the “Act”), the Crown could not be held directly liable in tort. The Crown could be held vicariously liable for the tortious acts of its officers, employees or agents.
[51] The relevant parts of s. 8 are set out below:Crown liability
8(1) Except as otherwise provided under this Act or any other Act, the Crown is subject to all the liabilities in tort to which it would be liable if it were a person,
(a) in respect of a tort committed by an officer, employee or agent of the Crown;
...
Same
(2) For greater certainty, nothing in clause (1) (a) subjects the Crown to liability for a tort that is not attributable to the acts or omissions of an officer, employee or agent of the Crown.
Limitation of government actors’ liability applies to the Crown
(3) The negation or limitation under an Act of the liability of an officer, employee or agent of the Crown in respect of a tort committed by him or her applies to the same extent and in the same manner with respect to the Crown, and no proceeding may be brought against the Crown in respect of an act or omission of an officer, employee or agent of the Crown if a proceeding in tort in respect of such an act or omission may not be brought against that officer, employee or agent or against his or her personal representative. [52] The provisions in s. 8 abrogate to some extent the Crown’s immunity from tort liability. Under the Act, Ontario is liable for torts committed by an officer, employee or agent of the Crown and Ontario’s liability in tort extends only to acts or omissions attributable to an officer, employee or agent of the Crown. Finally, the Crown is liable in tort for an act or omission, only if a proceeding in tort in respect of that act or omission could be brought against an officer, employee or agent of the Crown. Ontario’s tort liability is vicarious and depends on the plaintiff’s ability to prove the tortious conduct or omission of an officer, employee or agent of Ontario.
[53] The vicarious nature of the Crown’s liability in tort under the Act is clear on a careful reading of s. 8 of the Act.[4] Several judgments from this court have affirmed that reading: see Walters (Litigation Guardian of) v. Ontario, 2017 ONCA 53, 136 O.R. (3d) 53, at para. 34, leave to appeal refused, [2017] S.C.C.A. No. 100; Ontario v. Phaneuf, 2010 ONCA 901, 104 O.R. (3d) 392, at para. 13; Bruno v. Dacosta, 2020 ONCA 602, 69 C.C.L.T. (4th) 171, at paras. 33-34, leave to appeal refused, [2020] S.C.C.A. No. 412; Francis v. Ontario, 2021 ONCA 197, 154 O.R. (3d) 498, at paras. 142-45.
[54] Despite the language of s. 8 of the Act, and the line of authority referred to above, the appellants maintain that the Crown can be directly liable in tort. In their factum, the appellants make no reference to the language of the Act but instead, refer to an authority from British Columbia, where the comparable legislation, differently worded, does permit claims directly against the Crown: see Just v. British Columbia, 1989 CanLII 16 (SCC), [1989] 2 S.C.R. 1228.
[55] The appellants also misread this court’s decision in Francis, and make no reference to the other cases cited above, in para. 53. In Francis, at para. 144, this court said: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. The amended statement of claim expressly references Regulation 778, by which administrative segregation decisions are left to the individual Superintendents. It is also clear from the amended statement of claim that the negligent acts are those of servants of Ontario. [Emphasis added.] [56] Finally, the appellants’ reliance on Aylmer Meat Packers Inc. v. Ontario, 2022 ONCA 579, 162 O.R. (3d) 532 does not assist. Whether the Ministry of Agriculture, Food and Rural Affairs’ liability was direct or vicarious was not debated in Aylmer. Neither the Act, nor the cases referred to above were discussed or cited in the judgment. The parties and this court treated any distinction between the Ministry of Agriculture, Food and Rural Affairs’ direct liability in negligence and its vicarious liability for the actions of its employees as irrelevant to the issues addressed on the appeal.
[57] The motion judge correctly struck the negligence claims in the counterclaims to the extent they advanced a direct claim in negligence against Ontario.
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