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Statutory Interpretation - Specific Term - "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'].
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).
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