ESSENTIAL PROCEDURAL KNOWLEDGE FOR LITIGATION AGAINST THE CROWN: PROVINCIAL PROSPECTIVE

Raymond G. Colautti1

The potential scope of the subject matter of this paper is formidable. In discussing litigation

against the Crown, the first question which must be asked is: What kind of litigation are we

talking about:

personal injury or property damage arising out of acts or omissions of the Crown

servants?

breach of contract, or related tortious causes of actions involving acts or omissions by

Crown servants or agents such as inducing breach of contract or interference with

commercial relations?

breach or failure to fulfill a statutory duty?

judicial review of administrative action?

constitutional or charter litigation?

Any of these areas could be the subject matter of a learned treatise. Different considerations

come to play in each subject area. It is not possible to discuss them all in this paper. I will

instead attempt a mere survey of some of the "nuts and bolts" issues that one needs to be aware

of in litigating an action against the Crown.

Be Aware of the Nature of the Beast

A central reality must be faced by all potential litigators when considering an action by or against

a provincial Crown. It is a complex institution. Comparatively speaking, it has relatively

inexhaustible resources of time and money. Private litigants, on the other hand, rarely do.

Secondly, governments do not respond to downside risks inherent in litigation in the same way

as private litigants and institutions. There are other different forces at play. The risk benefit

assessment that must be made in bringing or defending lawsuits which are almost always taken

1 LLB., of Raphael Partners LLP, Barrister at Law, Ontario

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into account by private litigants, do not affect the Crown in deciding to defend, settle or pursue

litigation. Policy reasons, sometimes complex, enter the equation. Politics can seriously distort

an objective assessment of a fact situation. There may be many levels of decision makers who

must be consulted for instance, on a settlement proposal. It can get ponderous. Things move

slowly. There may be many appeals, even if you are successful in the first instance. Be prepared

for a siege. One of my colleagues at the Windsor Bar once expressed the problem this way:

"Fighting the government is like fighting a nine-headed hydra: but you don't know which head has the brain."

Awareness of these dynamics is essential to a litigator considering an action. Be prepared.

Where Do You Bring an Action Against a Provincial Government or Crown Agency?

In Ontario, as in all provinces, when bringing an action against the Queen in right of a province,

or as against a provincial Crown agency, the action must be brought in a provincial court. A

provincial Crown or Crown agency may only be sued in the provincial courts.2 Subject to

conflict of law rules, which is beyond the scope of this paper, a provincial Crown or agency

could also conceivably be a party to an action brought in a different provincial jurisdiction.

Provincial Superior Courts have original jurisdiction, power and authority, historically exercised

by courts of common of law and equity in England and in the provinces.3 As a Superior Court of

general jurisdiction, provincial Superior Courts have all the powers that are necessary to do

justice between the parties and, except where provided specifically to the contrary, the court's

jurisdiction is unlimited and unrestricted in substantive law in civil matters.4

Generally, it is not difficult to determine whether an action should be brought against a

provincial, as opposed to a federal, Crown or Crown agency. It depends on the nature of the

dispute, the nature of the statutory or property right sought to be engaged, or the tortious conduct

alleged, and whether the actors were servants or agents of the provincial Crown, or what head of

2 Gardiner et al v. The Queen in Right of Ontario et al 45 O.R. (2d) 7603 Court of Justice Act, R.S.O. 1990, c. C.43, s. 11; and see other similar provincial adjudicator acts4 80 Wellesley Street East Ltd. v. Fundy Bay Builders Ltd. [1972] 2 O.R. 280, C.A.

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legislative power or constitutional rights under the Constitution Act are engaged. In most cases,

the underlying facts make this clear.

However, there may be occasions where a party may need to consider bringing an action against

both the federal and the provincial Crown. Before amendments to section 17 of the Federal

Courts Act, providing for concurrent jurisdiction to the Federal Court (and by implication to the

provincial Superior Courts) a litigant would have had to commence two (2) actions, one in

Federal Court and one in provincial Superior Court.5 This is no longer the case and, if an

occasion arises where a party may need to bring an action against both the federal and provincial

Crowns, such an action could be brought in a provincial Superior Court. The Federal Court of

Canada, being a creature of statute, has only the jurisdiction granted pursuant to federal statutes,

primarily the Federal Courts Act. Consequently, it has no jurisdiction to entertain an action

against the provincial Crown or provincial Crown agency.

As an example of the type of situation which might engage an action against both the federal and

provincial Crown, see Gardiner et al v. The Queen in Right of Ontario et al 45 O.R. (2d) 760,

and Chippewas of Sarnia Band v. Canada (Attorney General) (2001), 14 C.P.C. (4th) 7; 204

D.L.R. (4th) 744 (Ont.C.A.).

Each province is, in law, a separate legal entity from each other province and from the federal

government. There are separate treasuries, separate property, employees, courts and separate

sets of laws to administer.6

The question arises as to whether the Crown in right of a particular province can be sued in the

courts of another province. There is some authority suggesting that the Crown in right of one

province cannot be sued in the courts of another.7 However, the better view is that the extent to

which one provincial Crown can be impleaded in the courts of another province should be

5 Gardiner et al v. The Queen in Right of Ontario et al, supra6 Hogg and Monahan, Liability of the Crown, Third Edition

1.4(c) at p. 12 and 13; Liquidators of the Maritime Bank v. Receiver General of NewBrunswick [1892] A.C. 437 (Privy Council)

7 Western Surety Co. v. Elk Valley Logging(1985), 23 D.L.R (4th) 464 (B.C.S.C.)

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governed by considerations of fairness, comity and interdependence.8 As Hogg and Monahan

put it:

"In our view, this is the preferable approach to the issue. The extent to which one provincial Crown can be impleaded in the courts of another province should be governed by considerations of fairness, committee and interdependence identified by Laforet, J. in Morguard, rather than by an out-dated and inappropriate doctrine of provincial sovereign immunity. This analysis would appear to be particularly relevant and important in situations where plaintiffs seek to institute proceedings involving a number of provincial Crowns for liability jointly incurred."

This issue has particular significance to class proceedings where more than one provincial

Crown may be defendants.9 As Hogg and Monahan again noted, commenting on the settlement

of a national class action in the tainted blood case:

"The question that this raises is whether, in the event that the matter had proceeded to trial, it would have been necessary to commence separate proceedings in each provincial and territorial court in order to pursue redress against non-consenting Crown defendants. In our view, to the extent that there are common factual or legal issues capable of resolution in a single proceeding, and assuming the matter has a real and substantial connection to the province in which the litigation is commenced, it would be wasteful and counterproductive to require plaintiffs to commence separate actions in each province or territory in order to obtain redress against all defendants."

Sources of Procedural Rules

At common law, no action could be brought against the Crown, including the Crown in right of a

province, without a fiat obtained by a petition of right to the Lieutenant Governor. By statute,

this was abolished some time ago, and now all provincial crown liability statutes give a right of

action .

Proceedings Against the Crown Act

In Ontario, the Proceedings Against the Crown Act is the source of procedural law respecting

law suits against the Crown. All provinces have a similar statute, based on a model act adopted

8 Morguard Investments v. DeSavoy [1990] 3 S.C.R. 1077; Hunt v. T & NPLC [1993] 4 S.C.R. 289; J. Walker "Interprovincial Sovereign Immunity Revisited" (1997), 35 Osgoode Hall, L.J. 379; Hogg and Monahan, Liability of the Crown, Third Edition @ para. 13.3(b), p. 353 - 357; Athabasca Chippewyan First Nation v. Canada (1999), 178 D.L.R. (4th) 245 (Q.B.)9 See: Parsons v. Canadian Red Cross Society (1999), 40 C.P.C. (4th) 151

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by all provinces, except Quebec.10 The provincial Proceedings Against the Crown Acts of all the

common law provinces therefore abolished a petition of right and the necessity of the grant of a

fiat by the Lieutenant Governor.11

Under the Proceedings Against the Crown Act of the various provinces, the provincial Crown is

subject to all liabilities in tort to which, if they were a person of full age and capacity, they would

be subject.12 Consequently, provincial Crowns may be sued in respect of torts committed by any

of its servants or agents, in respect of breach of duties that one owes in respect of one's servants

or agents by reason of being their employer; in respect of any breach of duties attaching to the

ownership, occupation, possession and control of property and under any statute or under any

regulation or by-law made or passed under the authority of any statute.13

Provincial Crowns are also liable for contribution and indemnity in respect of any liability in

which the Crown is subject, as if the Crown were a person of full age and capacity.14

In any proceedings in which the Crown is a party, the rights of the parties are, as nearly as

possible, the same as in a suit between persons. The court has jurisdiction to make any order that

it may make in a proceeding between persons and may otherwise give such appropriate relief as

the case may require.15 In any such proceeding, the Crown may advance any defence that, if the

proceeding was between persons, could be relied upon by the defendant as a defence to the

proceedings or otherwise.16

Rules of Civil Procedure

The Rules of Civil Procedure in a province may also specify the manner in which an action may

be served, and proceeded with as against the Queen in right of the province. For example, under

Rule 16.02 of the Rules of Civil Procedure in Ontario, an originating document, which is

10 Hogg and Monahan, Liability of the Crown, Third Edition @ para. 1.3(3), p. 8 - 911 Proceedings Against the Crown Act, R.S.O. 1990, c. P.27, s. 312 Proceedings Against the Crown Act, R.S.O. 1990, c. P.27, s. 513 Proceedings Against the Crown Act, R.S.O. 1990, c. P.27, s. 5(1)(a) - (d)14 Proceedings Against the Crown Act, R.S.O. 1990, c. P.27, s. 615 Proceedings Against the Crown Act, R.S.O. 1990, c. P.27, s. 1316 Proceedings Against the Crown Act, R.S.O. 1990, c. P.27, s. 17

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required to be served personally (which would include a Statement of Claim) must be served in

accordance with section 10 of the Proceedings Against the Crown Act, which specifies that the

document to be served personally on the Crown shall be served by leaving a copy of the

document with a solicitor in the Crown Law Office (Civil Law) of the Ministry of the Attorney

General.

Prior Notice Requirements

Crown liability statutes in several provinces require that, prior to commencement of an action,

notice be given to the provincial Crown particularizing the contemplated claim. Ontario, New

Brunswick, Nova Scotia and Prince Edward Island each impose such a notice period.17 In

Ontario, except in the case of a counterclaim or a claim by way of a set-off, no action for a claim

can be commenced against the provincial Crown unless the claimant has, at least 60 days before

the commencement of the action, served on the Crown a notice of the claim containing sufficient

particulars to identify the occasion out of which the claim arose, and the Attorney General may

require such additional particulars as in his or her opinion are necessary to enable the claim to be

investigated.18 In addition, no proceeding can be brought against the Crown respecting any cause

of action for breach of duties attaching to ownership, occupation, possession or control of

property, unless notice is served on the Crown within 10 days after the claim arose.19

Hogg and Monahan, Liability of the Crown, describes these kinds of notice requirements as a

form of privative clause, barring entry into the courts. They describe the effect of the case law

concerning the applicability of these notice requirements as follows:

"… What the courts have said is that the tort actions against the Crown are creatures of statute, and conditions such as notice requirements imposed on the bringing of such actions must be strictly complied with; otherwise the Crown is entitled to its common law immunity. If timely notice has not been given, the plaintiff's action is barred."20

17 Proceedings Against the Crown Act, Ontario s. 7 (60 days); New Brunswick s. 15 (2 months); Nova Scotia s. 18( 2 months); Prince Edward Island s. 10 (90 days)18 Proceedings Against the Crown Act, R.S.O. 1990, c. P.27, s. 7(1)19 Proceedings Against the Crown Act, R.S.O. 1990, c. P.27, s. 7(3)20 Hogg and Monahan, Liability of the Crown, Third Edition @ para. 4.6(a), p. 78

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Failure to give notice does not bar a claim against the Crown's servant or agent.21

The "prior notice" provisions referred to above, i.e. the 60 day notice prior to commencing an

action where the Crown was sought to be made a defendant, or restrictive 10 days notice

required where the action is in respect of breach of duties attaching to the ownership, occupation,

possession or control of property, are mandatory. If they are not met, no action lies against the

Crown and such action is a nullity.22 The notice must be in writing and must specifically indicate

that the claimant intends to commence an action against the Crown.23 Failure to comply with the

notice requirements pursuant to the Proceedings Against the Crown Act is therefore fatal.24

Since the action is a nullity, non-compliance with prior notice requirements cannot be waived.

What happens if a limitation period expires during the period of notice to be given pursuant to

the Proceedings Against the Crown Act? The Act specifically provides that where a Notice of

Claim is served pursuant to the statute before the expiration of the limitation period applying to

the commencement of an action for the claim and the 60 day period of prior notice expires after

the expiry of limitation period, the limitation period is extended to the end of seven (7) days after

the expiration of the 60 day period.

Authorities such as the Ontario Law Reform Commission have described the Crown notice

requirements as a "trap for the unwary".25

As a practical suggestion, where, through inadvertence, prior notice has not been given before

commencing an action, and where there is no intervening limitation period, the situation can

often be repaired by extracting from the Crown an agreement to treat the offending pleading as

the notice required under the Proceedings Against the Crown Act (which should be sufficient 21 Kirkpatrick v. McIntosh (1989), 103 N.B.R. (2d) 248; Hiebert v. Peters (1994), 116 D.L.R. (4th) 727 (Man.C.A.); Brooks v. Darling (1995), 126 D.L.R. (4th) 764 (Ont.C.A.)22 Walcott v. Ontario [1997] O.J. No. 2910 (O.C.J.)23 Olesiuk v. LeCompte (1991), 2 O.R. (3d) 473 @ 479; Starline Entertainment Center Inc. v. Ciccarelli(1925), 25 O.R. (3d) 765 @ 771, 77224 Zuliani Limited v. City of Windsor (1974), 2 O.R. (2d) 598 (H.C.J.); Khan v. LeLuk (1985 - 1986), 3 W.D.C.P. 37 (Ont. H.C.) @ p. 38; EP v. Ontario [2004] O.J. No. 3039 @ para. 11-1425 Ontario Law Reform Commission Report on Liability of the Crown (1989), p. 79

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since the Statement of Claim ought to be specific as to the facts giving rise to the occasions

respecting the action against the Crown and the specific breach of duty alleged as against the

Crown). The action can then be discontinued, and a new Statement of Claim issued after expiry

of the notice period and again delivered to the Crown. Thus, if a limitation period expired during

the 60 day period of notice, then following this procedure, it is specifically extended in

accordance with the Act.

Notice of Constitutional Question

In addition, in most provinces such as Ontario, pursuant to the Courts of Justice Act, require that

notice of a constitutional question be served on the Attorney General of Canada and the Attorney

General of Ontario in circumstances where the constitutional validity or constitutional

applicability of an act of Parliament of Canada or the Legislature, or a regulation or by-law made

under such an act or rule of common law is in question, or where a remedy is claimed under

section 24(1) of the Canadian Charter of Rights and Freedoms in relation to an act or omission

of the government of Canada or of the government of Ontario.26 Failure to give such a notice

bars a court from ruling that the act, regulation, by-law or rule of common law is constitutionally

invalid or inapplicable, and bars the court from granting a remedy.27

A notice shall be served as soon as the circumstances requiring it become known and in any

event, at least 15 days before the day on which the question is to be argued, unless the court

orders otherwise.28

Where such a notice of constitutional question is given, the Attorney General of Canada or the

Attorney General of Ontario are entitled to a notice of any appeal, and are entitled to appear, to

adduce evidence and make submissions in the court in respect of the constitutional question.29

It is not appropriate for a court to entertain constitutional questions where proper notice has not

been given to the applicable Attorneys General and where the Attorney General is prejudiced by

26 Courts of Justice Act, s. 10927 Courts of Justice Act, s. 109(2)28 Courts of Justice Act, s. 109(2.2)29 Courts of Justice Act, s. 109(4)

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lack of such notice.30 However, it is possible that notice may not be required where the

applicable Attorney General consents to a constitutional issue be considered absent a formal

notice or where a de facto notice has been given.31

Limitation Periods

In addition to the prior notice requirements contained statutes as the Proceedings Against the

Crown Act, there may be special limitation periods which give the benefit of a short limitation

period where the Crown is a defendant. An example of this, before recent changes, was section

7(1) of the Ontario Public Authorities Act, R.S.O. 1990, c. P.38. That section provided that no

action may be maintained against any person for an act done in pursuance or execution or

intended execution of any statutory or other public duty or authority unless it is commenced

within six (6) months after the cause of action arose. In DesChamps v. Conseil Des Ecoles

Separes Catholiques de Langue Francais de Prescott-Russell [1999] 3 S.C.R. 28132, the

Supreme Court of Canada reviewed the history of this limitation period. The question often

arose in cases such as DesChamps as to whether the "pursuance or execution or intended

execution of any statutory or other public duty or authority" covers a cause of action advanced as

against the public authority in the particular circumstances of the case. In DesChamps, a

wrongful dismissal action brought by a school superintendent, whose position was declared

redundant after a reorganization of a school board's educational services, fell not to be subject to

the six (6) month limitation period. The court held that, before this limitation period applied, the

right asserted by the plaintiff must correlate with a statutory public duty owed by the public

authority. If a duty did not arise by virtue of the public authority's statutory mandate, but by

virtue of a private contractual right, the right is not correlative with the public duty and the

special limitation period does not apply. The court also held that even if the plaintiff's right

correlates with the public duty, the special limitation period will not apply if the actions of the

public authority are merely incidental or ancillary to the discharge of the public mandate.

Consequently, in Bernardinelli v. Ontario Housing Corporation [1979] 1 S.C.R. 27533, a resident

30 Eaton v. Brant County Board of Education [1997] 1 S.C.R. 24131 Hogg and Monahan, Liability of the Crown, Third Edition @ para. 4.6(a), p. 7932 DesChamps v. Conseil Des Ecoles Separes Catholiques de Langue Francais de Prescott-Russell [1999] 3 S.C.R. 28133 Bernardinelli v. Ontario Housing Corporation [1979] 1 S.C.R. 275

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of a public housing development brought action for injuries suffered in a fall on ice or snow in

what was found to be a negligently maintained common area, was not barred from proceeding

with an action. Although the housing authority had a public mandate to provide housing

services, the removal of snow was a private and operational matter in contrast with burdens of

planning, construction and management of a housing complex which had a public character.

Activities of an internal or operational character having a predominantly private aspect would

not fall within the protection of the special limitation period.

These two cases demonstrate the court's restrictive interpretation of such special limitation

periods, which effectively allow for a double standard providing public authorities with shorter

limitation periods than applicable to private defendants faced with similar claims.34

Fortunately, in Ontario, the legislature has finally eliminated such a double standard.

Consequently, in Ontario's new Limitations Act 2002, section 7 of the Public Authorities

Protection Act was repealed and a general two (2) year limitation period, consistent and

applicable to any person in Ontario, is binding on the Crown.35 Nevertheless, in those provinces

which do have restrictive limitation periods, giving the benefit of shorter limitation periods to the

Crown or Crown agencies, the reasoning of the Supreme Court of Canada as discussed above,

would still be applicable, narrowly construing the applicability of those kinds of limitation

periods, based on a classification of functions.

34 Hogg and Monahan, Liability of the Crown, Third Edition, @ para. 4.5(d), p. 7535 Limitations Act 2002, S.O. 2002, c. 24, s. 3

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Procedure

Who is the Defendant?

In Ontario, as in most provinces, in a proceeding under one of the Crown liability acts, the

Crown is usually designated "Her Majesty the Queen in Right of Ontario" or as the case may be,

elsewhere.36

If a Crown servant commits a tort, the servant is personally liable, even if the tort is committed

during the course of employment. The Crown is liable as well in such case under the principles

of vicarious liability. However, only the servant who actually commits the tort is liable:

"Only the servant who actually commits a tort is personally liable, and only the Crown - the master - is vicariously liable. A minister, department head or other superior servant is not liable for the tort of a subordinate, for the superior is a fellow servant and not the master. It would be otherwise if the superior servant had actually ordered the commission of the tort, but in that case, the superior would be directly liable for his or her own act; the superior servant cannot be liable vicariously."37

Most provinces have a statute such as Ontario's Crown Agency Act, R.S.O. 1990, c. C.48. In

Ontario's case, a Crown agency is a board, commission, railway, public utility, university,

manufacturer, company or agency owned, controlled or operated by Her Majesty in Right of

Ontario or by the government of Ontario or under the authority of the legislature or Lieutenant

Governor-in-Council. A Crown agency is for all of its purposes an agent of the Queen and its

powers may be exercised only as an agent of the Queen.38

An agent of the Crown is generally in the same situation as an individual Crown servant. A

Crown corporation would be liable in its own right if it commits a tort directly.

Deciding who to name as the defendant in an action against the Crown, depends entirely upon

the nature of the cause of action. In the case of a tort committed by a provincial servant, both

Her Majesty the Queen in Right of Ontario and the servant personally may be named in the suit.

In Ontario, as seen above, the Crown is subject to all liabilities and tort to which if it were a 36 Proceedings Against the Crown Act, s. 937 Hogg and Monahan, Liability of the Crown, Third Edition @ para. 8.2(a), p. 187 - 18838 Crown Agency Act, R.S.O. 1990, c. C.48, sections 1 and 2

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person of full age and capacity, it would be subject of a tort, breach of duty of any of its

"servants or agents".39 The word "servant" is defined when used in relation to the Crown as

including a minister of the Crown.40 Consequently, if the nature of the cause of action is a tort

committed by a minister of the Crown, for a breach of duty owed by the minister of the Crown

attaching to the ownership, occupation, possession or control of property of a minister of the

Crown, for a failure or breach of a duty described on any statute, regulation or by-law passed

under the authority of any statute, the action properly lies against Her Majesty the Queen in

Right of Ontario rather than that specific Minister, although, in accordance with what has been

set out above, the Minister could be personally named, provided he/she was the actor who

committed the wrong or did or failed to do the thing complained of.41

However, as stated above, a Minister of the Crown, being a servant of the Crown, cannot be held

vicariously liable for acts of other inferior Crown servants. Only the Crown itself is vicariously

liable for those acts.42

A plaintiff who brings an action against the Crown for the tort of a Crown servant, need not

bring proceedings against the servant personally, although there are often good, strategic or

tactical reasons for doing so. These reasons include the need for obtaining oral discovery

directly from the Crown servant most closely involved with the facts giving rise to the cause of

action.

39 Proceedings Against the Crown Act, s. 5(1)40 Supra, s. 141 As an example of an action brought against a provincial Minister for breach of a public duty, see Roncarelli v. Duplessis [1959] S.C.R. 121, per Rand, J. @ 142 where a tort was committed when the Premier of Quebec ordered the cancellation of a restaurant's liquor licence, the finding being that the Premier was motivated by malice towards the proprietor of the restaurant. Rand, J. found that liability under common law was the same as under the Quebec Civil Code.42 National Harbour Board v. Longelier [1969] S.C.R. 60; Sinclair v. Ontario Harabulyor v. Ontario (Minister of Labour) [2005] O.J. 1137

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Crown Agencies

As discussed above, a Crown agency is for all of its purposes an agent of the Queen and its

powers may be exercised only as an agent of the Queen.43

Are all Crown agencies liable to be sued in their own right? In Westlake v. The Queen in Right

of Ontario44, statutory authorities were divided into six (6) categories based on their

characteristics:

"1. There are bodies corporate which are not expressly declared to be suable. With respect to this type of body, the Interpretation Act of Ontario provides that in every act, unless a contrary intention appears, words making an association or number of persons, a corporation or body politic incorporate invest in the corporation the power to sue and be sued.

2. There are bodies corporate which are expressly declared to be suable.

3. There are bodies corporate which are expressly declared not to be suable.

4. There are non-corporate bodies which are, by the terms of the statute creating them, expressly liable to suit.

5. There are non-corporate bodies which are not, by the terms of the statute incorporating them, expressly liable to suit, but which are by necessary implication, liable to be sued in an action for damages.

6. Statutory bodies which are non-corporate bodies which are not, by the terms of the statute incorporating them or by necessary implication, liable to be sued in an action for damages, but who are legal entities in that their actions may be reviewed in proceedings brought against them by way of the extraordinary remedies of certiorari mandamus and prohibition."45

If the Crown agency in question was empowered to enter into contracts, and the statute

incorporating them does not expressly make them liable to suit, that entity would nevertheless be

held liable for breach of contract. In Perehinec v. Northern Pipeline Agency 50 N.R. 248 @ 261,

Mr. Justice Estey stated:

"These authorities again illustrate the principle that in the field of public agency liability, the issue remains to be decided according to the terminology employed

43 Crown Agency Act, R.S.O. 1990, c. C.48, s. 1 and 244 Westlake v. The Queen in Right of Ontario [1971] 3 .O.R. 533, affirmed [1972] 2 O.R. 604 and [1973] 33 D.L.R. (3d) 25645 Supra, @ p. 534 - 535 and 538

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in the constituting legislation. In the result, it appears to make no difference whether the public body is or is not a Crown agency. Central Mortgage and Housing Corporation and the Canadian Commercial Corporation, for example, were both described by expressed statutory declarations as agents of the Crown. Each entity was nonetheless found to be liable in its own right. These cases have clearly brought into the law of Canada the reasoning of the Privy Council in the International Railway case, supra. There can now be no doubt that Crown agents can be liable on their own contracts in their own and may be so liable whether or not the words "on its own behalf" appear in the statute."46

And further:

"Whatever the nature of the agency is in law, and whether or not the statute had expressly made the agency a body corporate, there can be no doubt in the world of realities the plaintiff respondent entered into a hiring arrangement with the agency and not with the Crown."47

And further:

"Where a fair construction of the enabling statute permits an agency to enter into a contract on its own behalf, even if it may be on behalf of the Crown as well, the agency, having entered into the contract, in its own name, may be sued in its own right in an action for breach of that contract. This would place the agency in question herewith in the fifth category enunciated by Houlden, J. in Westlake, supra."48

Juries

In Ontario, as in most other provinces, in a proceeding against the Crown, a trial must be without

a jury.49

Evidence and Discovery

At common law, the Crown was immune from pretrial discovery. The Crown had a right to

refuse discovery even though it could obtain discovery itself. The right of refusal is not lost even

when the Crown was the plaintiff.50

46 Perehinec v. Northern Pipeline Agency 50 N.R. 248 @ 26147 Supra, @ p. 26248 Supra, @ p. 26349 Proceedings Against the Crown Act, s. 1150 Hogg and Monahan, Liability of the Crown, Third Edition @ para. 4.2(b), p. 65

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Statutory reform has long since placed the Crown on an equal footing as any other litigant.

Consequently, in Ontario, in a proceeding against the Crown, the rules of court as to discovery

and inspection of documents and examination for discovery, apply in the same manner as if the

Crown were a corporation, except that the Crown may refuse to produce a document or to

answer a question on the ground that the production or answer would be injurious to the public

interest. The person who shall attend to be examined for discovery is an official designated by

the Deputy Attorney General. The Crown is not required to deliver an affidavit on production of

documents for discovery and inspection, but a list of the documents that the Crown may be

required to produced signed by the Deputy Attorney General, shall be delivered.51 In Ontario,

where the Deputy Attorney General designates the person who shall attend for examination for

discovery, there is no power in the court to substitute a different person.52 Such a restriction

tends to encourage plaintiffs to bring action personally against Crown servants and include them

as defendants, along with the Crown, so that discovery can be obtained directly from the person

who may have been the main actor on behalf of the Crown in the circumstances leading up to the

cause of action. In a contract case, where the contract is with the Crown and the action is solely

for a breach of contract (as opposed to tortious claims such as inducing breach of contract for

interference with commercial relations) the only possible defendant may be the Crown itself, and

hence discovery can only be obtained as set out above.

Public Interest Immunity

Although the philosophy behind most provincial Crown liability statutes is that the Crown is to

be treated, so far as possible, and in the same matter as if the Crown were a corporation, the

Crown continues to enjoy a significant advantage in litigation with respect to immunity from the

production of certain kinds of evidence. At common law, oral or documentary evidence that is

relevant and otherwise admissible, may be excluded if its admission would be injurious to the

public interest. This Crown privilege, or public interest immunity, is codified in the federal

sphere of jurisdiction, in the Canada Evidence Act, R.S.C. 1985, c. C.5, sections 37, 38 and 39.

51 Proceedings Against the Crown Act, s. 8 and see similar Acts in other provinces, e.g. B.C. s. 9; Alta. s. 11; Sask. s. 13; Man. s. 9; N.B. s. 10; N.S. s. 11; PEI s. 8; Nfld. s. 9; and Que. s. 94 of the Code of Civil Procedure52 Harrison Rock and Tunnel Co. v. The Queen (1980), 31 O.R. (2d) 573

16

In the provincial sphere of jurisdiction, Crown privilege is codified in Crown liability statutes

and in the various provincial evidence acts. In the following section of this paper, I will deal

with the procedural rather than the substantive law on public interest immunity, as the subject

will be more fully covered in another paper.

In Ontario, section 8 of the Proceedings Against the Crown Act provides that the Crown may

refuse to produce a document or to answer a question on a ground that production or answer

would be injurious to the public interest.53 In addition, section 30 of the Ontario Evidence Act54

provides as follows:

"Where a document is in the official possession, custody or power of a member of the Executive Council, or the head of a Ministry of the public service of Ontario, if the Deputy had or other officer of the Ministry has the document in his or her possession, and is called as witness, he or she is entitled, acting herein by the direction and on behalf of such member of the Executive Council or head of the Ministry, to object to producing the document on the ground that it is privileged, and such objection may be taken by him or her in the same manner, and has the same effect, as if such member of the Executive Council or head of the Ministry were personally present and made the objection."

A claim for Crown privilege may be made in any proceeding, civil or criminal, before any court

or tribunal, and at any stage of the proceedings. In civil proceedings, the public interest

immunity claim most commonly arises during the process of discovery. Where the Crown is not

a party to proceedings, objections to the production of evidence on the ground of Crown

privilege can be raised either by the Crown, a private party or a witness. If necessary, the Crown

may intervene in the proceedings in order to raise such an objection.55

Where a claim of Crown privilege is raised, it is supported by the affidavit or certificate of a

minister asserting that the public interest would be injured by disclosure of the evidence.56

53 Proceedings Against the Crown Act, s. 8(a)54 Evidence Act, R.S.O. 1980, c. E.2355 Ontario Law Reform Commission Report on Liability of the Crown, Chapter 5, p. 6356 Evidence Act, s. 30; and Carey v. The Queen in Right of Ontario [1986[ 2 S.C.R. 637, 35 D.L.R. (4th) 161

17

The law governing public interest immunity in the provinces is distinctly different from that of

the federal sphere. As discussed above, the Canada Evidence Act sets out an entire code of

procedure and specifically defines and circumscribes the power of the courts to order production

and discovery where Crown privilege is raised. In the provincial sphere, in a jurisdiction such as

Ontario, there is no such statutory based judicial circumscription.

In the provincial sphere, the seminal case is Carey v. Ontario [1986] 2 S.C.R. 637; 35 D.L.R.

(4th) 161.57 That action concerned an alleged promise, made by the government of Ontario, to

support the re-opening of a tourist resort complex known as the Minaki Lodge in northern

Ontario by making good all losses of the operators through forgivable or interest-free loans if the

Lodge were re-opened. The government denied such an offer to form part of the loan assistance

it was willing to extend. The plaintiff, Kerry, alleged that he accepted the alleged offer and in

reliance on it, acquired control of the Lodge from other shareholders and re-opened it in the

summer of 1992. In the midst of the litigation, on examination for discovery, provincial

witnesses claimed an absolute privilege respecting all documents that went to or emanated from

the Cabinet and its committees. The claim was not based on the particular contents of the

documents, but on the class to which they belonged. It was alleged that production of such

documents would breach confidentiality and inhibit Cabinet discussion on matters of significant

public policy. When a trial date was fixed. a subpoena duces tecum was served on the Secretary

of the Cabinet for Ontario requiring him to attend at trial and bring all documents relating to

proceedings described in the subpoena. Ontario applied to quash the subpoena and in support of

the application filed an affidavit sworn by the Secretary of the Cabinet for Ontario, in which he

acknowledged that he had relevant documents under his control but objected to the production on

the basis that it would not be in the public interest to produce the document or make them

available for inspection. The supporting affidavit made the following statements in support of

the claim for class privilege over the documents:

"… It is my firm opinion that it has consistently been assumed and taken for granted at all material times by all members of the Executive Council and by all members of the staff of the Cabinet office, that all the discussions of the Executive Council are private and confidential, and will not be published or revealed to any persons who are not members of the Council. It has also been consistently realized and appreciated by all members of the Council that the

57 Ibid

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discussions taken by it are collegial or group discussions, for each of which they all share responsibility …"

And further:

"It is my firm opinion that if these notes of the discussions of the Executive Council were to be produced, it would almost necessarily lead to a distorted, incomplete and inaccurate impression of the nature of the actual discussion which took place. It is also my opinion that if these notes were produced, it would in future affect the nature of the discussions in Cabinet, and would inhibit the freedom of the members of Cabinet to discuss matters of significant public concern and policy to the detriment of the public interest."

The Supreme Court of Canada held that the court must weight the importance of withholding

production on the basis of a public interest against public interest in the proper administration of

justice. Consequently, protection of documents as a class was generally not favoured. Although

there was a public interest in the confidentiality of Cabinet deliberations in developing public

policy, this was but one of several variables which must be taken into account in determining

whether the interest in disclosure for the administration of justice was outweighed by other

public interests. In making this determination, the court must weigh the nature of the policy,

whether it was contemporary or not and the nature and importance of the action. In the specific

case at hand, the information which was sought to be revealed concerned a particular transaction

involving a low-level policy matter which had taken place some 13 years before. The court

directed that the Trial Court should first inspect the documents to balance the competing interests

in disclosing or producing them. Mr. Justice Laforest on behalf of the Supreme Court of Canada,

reasoned that it is necessary for the proper administration of justice that litigants have access to

all evidence that may be of assistance to the fair disposition of the issues arising from the

litigation. The competing interest is that certain information regarding governmental activity

should not be disclosed in the public interest. He noted that the general balance between these

two competing interests has shifted over the years. In the past, the public interest and the need

for government secrecy had been given virtually absolute priority as long as the claim to non-

disclosure was made by a minister of the Crown. He noted that the need for secrecy and

government operations may vary with the particular public interest sought to be protected. As an

example, there is a difference between information relating to national defence and information

relating to a purely commercial transaction. He noted that the need for disclosure may be more

19

or less compelling, having regard to the nature of the litigation and the extent to which facts may

be proven without resort to information sought to be protected from disclosure. The court noted

that with expansion of state activities into the commercial sphere, different attitudes to suits

against the Crown developed and statutes were enacted to make these possible. The general

social context also affected attitudes toward government secrecy. Consequently, the court

determined that there was need for judicial intervention and oversight over the claim for

privilege:

"The public interest and the non-disclosure of a document is not, as Thorson, J.A. noted in the Court of Appeal, a Crown privilege. Rather it is more properly called a public interest immunity, one that, in the final analysis, is for the court to weigh. The court may itself raise the issue of its application, as indeed counsel may, but the most usual and appropriate way to raise it is by means of a certificate by the affidavit of a minister or where, as in this case, statute permits it or it is otherwise appropriate, of a senior public servant. The opinion of the minister (or official) must be given due consideration, but its weight will still vary with the nature of the public interest sought to be protected. And it musts be weighed against the need for producing it in the particular case.

In the end, it is for the court and not the Crown to determine the issue. … The opposite view would go against the spirit of the legislation enacted in every jurisdiction in Canada that the Crown may be sued like any other person. More fundamentally, it would be contrary to the constitutional relationship that ought to prevail between the executive and the courts of this country."58

The court noted that in making a claim for public interest immunity, the Minister or official

should be as helpful as possible in identifying the interest ought to be protected. As such, this

person should describe with as much detail as the nature of the subject matter would allow, the

precise policy matter sought to be protected from disclosure. The court specifically noted that a

claim that a document should not be disclosed on the ground it belongs to a certain class such as

Cabinet deliberations, has little chance of success without such detail.

Once the provincial Crown produces documents, is the immunity or privilege lost? The answer

is probably yes. In the federal sphere, the Supreme Court of Canada held in Babcock v.

Canada59 that where documents were disclosed and then later sought to be certified as immune

from production under a certificate under the Canada Evidence Act, the documents were no

58 Ibid59 Babcock v. Canada [2002] 2 S.C.R. 3

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longer protected and may be used in the litigation. The court reasoned that the Canada Evidence

Act, s. 39, whose purpose was to prevent disclosure, was not longer applicable once there had

been disclosure. There appears to be no good reason why this logic would not apply equally to a

provincial claim of retrospective public interest immunity.

Can an adverse inference be drawn against the Crown in a situation where it validly and

successfully asserts a privilege over documents that may be crucial to some aspect of the

litigation? Can such an adverse inference be drawn against the Crown? The answer is probably

yes. RJR MacDonald v. Canada60, McLaughlin, J. suggested such adverse inference could be

drawn against the Crown in a constitutional case. The case at issue concerned the federal

Tobacco Products Control Act, which prohibited all advertising and promotion of tobacco

products and the sale of tobacco products unless its packaging prescribed unattributed health

warnings and a list of toxic ingredients. The issue in the case was whether the Act was an

unjustified infringement of freedom of expression guaranteed by section 2(b) of the Charter.

McLaughlin, J. considered evidence of justification under section 1 of the Charter. The question

was whether the government had before it a variety of less intrusive measures when it enacted a

total ban on advertising including a partial ban which would allow information of brand

preference advertising, a ban on lifestyle advertising only, and so forth. The question was

whether any of these alternatives would be a reasonable impairment of the right to freedom of

expression and the important objective in legislative content and would thus constitute a less

intrusive impairment of a constitutional right. In this connection, she stated as follows:

"These considerations suggest that the advertising ban imposed by section 4 of the Act may be more intrusive of freedom of expression than is necessary to accomplish its goals. Indeed, Health and Welfare proposed less intrusive regulation instead of a complete prohibition on advertising. Why then, did the government adopt such a broad ban? The record provides no answer to this question. The government presented no evidence in defence of the total ban, no evidence comparing its effects to less invasive bans.

This omission is all the more glaring in view of the fact that the government carried out at least one study of alternatives to a total ban on advertising before enacting a total ban. The government has deprived the courts of the results of that study. The Attorney General of Canada refused to disclose this document and approximately 500 others demanded at the trial by invoking section 39 of the Canada Evidence Act … thereby circumventing an application by the tobacco

60 RJR MacDonald v. Canada [1995] 3 S.C.R. 199 @ para. 165, 166

21

companies for disclosure since the courts lack authority to review the documents for which privilege is claimed under section 39. References to the study were blanked out of such documents as were produced: reasons at trial at p. 516. In the face of this behaviour, one is hard pressed not to infer that the results of the studies must undercut the government's claim that a less invasive ban would not have produced an equally salutary result."

Freedom of Information and Confidentiality Laws

Various provincial statutes may contain provisions providing that information received in the

course of a public official's duties are prohibited from disclosure. Where such provisions

specifically prohibit the introduction of evidence in a court of law, they will be effective to

withhold the protected material from litigation. Where, however, such a provision makes the

information confidential, but does not address admissibility in a court of law, they will be

interpreted as not barring either the production of the documents in court or oral testimony.61

All Canadian provinces have enacted freedom of information laws. In Ontario, it is the Freedom

of Information and Protection of Privacy Act, R.S.O. 1990, c. F.3162. The Ontario act provides a

general right of access to a very broadly defined record meaning "a record of information

however recorded whether in printed form, on film or electronic means or otherwise".63 The Act

provides exemptions through a list of specific types of documents relating to government

records, advice to government, law enforcement, relations with other governments, defence, third

party information, personal privacy, economic and other interests of Ontario, solicitor/client

privilege, etc. The Act contains a detailed procedure for applying for access to such documents

pursuant to "request", a reply to the request of the government official concerned therewith, and

a review of such requests and appeals by the Information Commissioner.

The great advantage to the use of FOI laws is that production of documents are not dependent on

justifying the need for the document in litigation on the basis of relevancy or admissibility. No

reason at all need be given for demanding a document. These statutes operate completely

independently of the obligations imposed by the Rules of Civil Procedure or common law for

61 Regina v. Snider [1954] S.C.R. 479 and see Hogg and Monaghan, Liability of the Crown, Third Edition, @ para. 5.9, p. 103 - 10462 Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.3163 Ibid, s. 2

22

production, discovery and trial, and do not govern the admissibility of government documents in

litigation. On the other hand, freedom of information laws can be extremely useful in obtaining

background and investigatory information respecting litigation against the Crown. Because of

the wide definition of public records in FOI laws, the act can be a useful tool in obtaining

government reports, studies, statistics and other information which may be relevant in the

preparation and investigation of an action. This tool is particularly useful in researching and

investigating constitutional and charter litigation, and the certification of class actions. Manuals,

interpretations memos, reports, studies, and statistical information can be obtained.

There is one further advantage to using freedom of information statutes to obtain pre-litigation

production. At common law, and specifically in Ontario under the Rules of Civil Procedure,

there is a deemed undertaking rule. This is an implied undertaking that all parties to litigation

and their counsel are deemed to undertake not to use evidence or information produced during

the course of litigation for any purpose other than those of the particular proceeding in which the

evidence was obtained.64 The undertaking prevents the recipient of the information from

revealing it to third parties, such as the news media or making any other use of the information in

a proceeding other than the one in which it was obtained. Consequently, evidence which is

obtained through the discovery process in one action against a governmental actor, cannot be

used in another action. There is no such restriction under FOI laws.

It sometimes happens that information which is sought to be produced is not in fact compellable

under the usual rules of production and discovery, but may be obtainable under the freedom of

information laws. As an example, in Edwards Estate et al v. Lovie et al 24 O.R. (3d) 22865 the

plaintiff had moved for an order compelling one of the defendants, the Police Services Board, to

produce documentation relating to an internal investigation carried out by the Police Services

Board or relating to complaints submitted to the Police Complaints Commissioner arising from

the events surrounding a particular arrest. The plaintiff had moved for an order compelling a

police officer to attend on an examination for discovery and answer questions with respect to that

documentation. The court held section 108 of the Police Services Act, which mandates

64 Rule 30.1.01(3) of the Rules of Civil Procedure and Goodman v. Rossi (1995) 24 O.R. (3d) 35965 Edwards Estate et al v. Lovie et al 24 O.R. (3d) 228

23

preservation of secrecy in respect of all information obtained in the course of an investigation of

a complaint under the Act and which provided further that: "no person shall be required to

testify in a civil proceedings with regard to information obtained in the course of his or her

duties, except at a hearing held under this part or at a disciplinary hearing held under Part V"

constituted a prohibition against producing for inspection documentation prepared during an

investigation into a complaint made about the conduct of a police officer. However, the

provincial Freedom of Information Act did not provide an exemption from the confidentiality

obligations of the Police Services Act if the information is ordered to be released pursuant to a

proper application made pursuant to that legislation. The plaintiffs could therefore apply,

pursuant to the applicable freedom of information statute for release of that information. Thus

the information was available under FOI laws, but no under the usual rules regarding production

and discovery.

Production and Discovery: General Observations

Before leaving the subject of production and discovery in Crown litigation cases, I would like to

say a few things about documentary production and discovery as it relates to the Crown. Here,

in summary is the benefit of some of my experience in the form of broad observations:

Depending on the nature of the case, and who the other defendants are (i.e. whether a

particular Crown servant is also personally named as a co-defendant), your ability to

obtain effective oral discovery may be severely limited. Unless you are able to directly

examine the main actors on the part of the Crown, discovery will likely be by an endless

series of undertaking.

Documentary discovery, on the other hand, is often crucial, particularly where the cause

of action involves facts with a lengthy and extensive history. For example, in a case

involving allegations of sexual and physical assaults in a training school institution,

which occurred years ago, the Crown Ward file may be the primary and perhaps only

source of detailed information. Similarly, documents contained in public archives may

identify previous occasions and complaints of abuse. In these types of cases, one of the

plaintiff's objectives should be to extract admissions as to the authenticity of the

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documents and the facts that the documents record, in order to facilitate their use and

admission at trial.

Recognize that in a large, bureaucratic institution, most actions taken by individual

government actors are reported, considered, analyzed, summarized, re-analyzed,

dissected, repeated, etc. All these steps are recorded in some fashion. There are usually a

host of materials that need to be culled in order to understand what happened.

Documentary management and organization, particular in constitutional and class action

cases, can be overwhelming. Electronic systems for identifying, scanning, cataloguing

and retrieving documentation are critical. In these types of cases, the devil is in the

details contained in the documentation. Timelines are crucial to reconstruct events.

The nature of the case may require the court to consider the validity of legislation or the

context against which legislation was passed. This will arise in charter cases, or cases

where ay argument is being advanced concerning the division of powers between federal

and provincial jurisdictions under s. 91 or 92 of the Constitution Act 1867, or whether

the legislation was enacted for a "colourable" purpose. In such cases, where it is

necessary to examine the context in which legislation was passed, it is necessary to

distinguish between "adjudicative facts", which relate to the specific facts underlying the

dispute before the court, and "legislative facts" or "constitutional facts", which go to the

context within which the provincial legislature enacted the statute under review. The

traditional rules of evidence apply to the adjudicative facts, but not necessarily to the

legislative facts. Legislative facts can be proven from reports and studies generated

within government, excerpts from Hansard, deliberations of legislative committees, Law

Reform Commission Reports, parliamentary and Legislative Committee Reports, Royal

Commission Reports, general social science studies and articles, to give a few

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examples.66 Be aware of this broad range of evidence and when conducting discovery

and examining and cross-examining witnesses during the course of this kind of litigation.

Quashing Summonses and Subpoenas Against Public Officials

Is a Minister or former Minister a compellable witness at trial? In Smallwood v. Sparling67 the

Supreme Court of Canada held that a Minister, including a former Premier, has no exemption

from the universal testimonial duty to give evidence simply by virtue of their former status as

Minister and Premier of a province. Furthermore, there was no blanket immunity either under

statute or common law in giving oral testimony or the right to refuse to produce documents.

Crown immunity was not absolute, but relative, involving an issue by issue examination by the

courts so that the public interest immunity could be balanced against the interests of the

administration of justice.

The judicature acts and rules of civil procedure in various provinces all provide for methods of

compelling attendances by witnesses at trials and to give evidence in other civil litigation

procedures such as on applications. In Ontario, compelling attendance of witnesses at trial is

pursuant to Rule 53.04. In addition, Rule 39.03 can be used to compel the attendance of a

witness on a pending motion or application for the purpose of having a transcript of their

evidence available for use at the hearing.

Since, there is no general prohibition in common law against compelling the Minister or other

government official from attending to give evidence, the limits of testimonial compellability

depend on several factors:

66 For a more detailed discussion on the nature and admissibility of "legislative facts" evidence, see Hogg, "Constitutional Law of Canada", para. 57.2 @ p. 57-10 to 57-16; Binnie and Meaner, "The Use of Evidence in Constitutional Cases" in Law Society of Upper Canada, "Constitutional Litigation", Oct. 23, 1990, and see RJR MacDonald, supra, per McLaughlin, J. at para. …..; R. v. Seo 27 D.L.R. (4th) 496; British Columbia Motor Vehicle Act Reference [1985] 2 S.C.R. 486; Reference Re Education Act, (1984), 10 D.L.R. (4th) 491; Reference Re Residential Tenancies Act [1981] 1 S.C.R. 714 @ 723; R v. Morgantaler [1993] 3 S.C.R. 463; Authorson v. Canada (Attorney General) 53 O.R. (3d) 221 @ para. 46 to 66; affirmed 58 O.R. (3d) 417 (Ont. C.A.), revised other grounds [2003] 2 S.C.R. 40. But note caution on limits of such extrinsic evidence in Re Ontario Teachers' Federation et al and Attorney General of Canada 39 O.R. (3d) 14067 Smallwood v. Sparling [1982] 2 S.C.R. 686

26

a) Is there a statutory provision which prohibits the official from giving evidence at

trial?

b) Is the evidence of the witness who is sought to be compelled relevant to a live

issue in the case?

c) There may be a limit to the use of evidence obtained by way of a subpoena or

summons of a public official or minister where that evidence was exclusively to

"legislative facts" i.e. the purpose for which a statute or regulation has been

passed.

a) Is there a statutory provision which prohibits the official from giving evidence at trial?

The first question on must face in deciding whether a subpoena or summons may be upheld is

whether there is a specific statutory or regulatory provision containing a clear and unqualified

prohibition against requiring the official in question from testifying in court? An example of

such provision is section 108 of the Police Services Act, discussed in Edwards Estate v. Lovie,

supra. However, depending on the nature of proceeding in which the evidence is being sought,

such provisions cannot be used to preclude judicial review. In Glengarry Memorial Hospital v.

Ontario (Pay Equity Hearings Tribunal), for instance, the court held that although the legislature

can decree that knowledge and documents that come into existence solely because of a

requirement of a piece of legislation are immune to disclosure to a court, the immunity does not

prevent the court from inquiring into the question of excess of jurisdiction on the part of the

tribunal created by the legislation. Consequently, in that case, a member of the Pay Equity

Tribunal could be subpoenaed to give evidence as to how or why he or any other member of the

tribunal arrived at a decision where there are compelling and overriding reasons that he should

testify, and in particular, whether the tribunal engaged in actions which constituted a breach of

the rules of natural justice. Although a common law testimonial privilege, as well as a statutory

testimonial privilege may protect the tribunal member from normally having to testify, when the

tribunal's jurisdiction is being judicially reviewed, these protections do not apply. As Mr. Justice

O'Leary states:

"The reasons why the common law imposes a duty of deliberative secrecy upon a tribunal are all too obvious, especially in the case of a tripartite tribunal, to require enumeration. The integrity of the deliberative process can only be ensured if the rule is all but absolute. But absolute it cannot be. Where, as in this case, it

27

becomes necessary to pierce that secrecy to ensure that natural justice has not been denied, then that secrecy will be pierced."68

b) Is the evidence of the witness who is sought to be compelled relevant to a live issue in the case?

As noted above, ministers of the Crown and other public officials, do not enjoy any special

exemption from testifying pursuant to a summons or subpoena.69 Where a motion is brought to

quash a subpoena or summons, the court will consider whether the evidence sought to be

obtained from the proposed examination is relevant to any issue raised on the main application.

The party seeking to conduct the examination is required to show a reasonable evidentiary basis

that the examination relates to issues relevant to the pending application and that the intended

witness is in a position to offer evidence.70 In Ontario Federation of Anglers and Hunters v.

Ontario (Ministry of Natural Resources)71, the Ontario Divisional Court stated:

"The courts must be cautious to ensure that a summons to a witness directed to a minister of the Crown under rule 39.03 involves a valid evidentiary basis necessary to determine a specific legal issue and is not simply for the purpose of turning the court process into an extended battleground for extracting information pertaining to the on-going political debate. …"

In that case, the applicants contended, on an application for judicial review of a regulation

enacted by the Minister of Natural Resources that terminated the spring open hunting season for

black bears, that the minister improperly exercised his discretion when he enacted the legislation

and did so because the Premier had, for political reasons, directed him to do so. After carefully

reviewing the circumstances behind the application for judicial review and the facts already filed

with the court, the Divisional Court determined that there was a live issue which the evidence of

the Premier and Minister would be relevant, and set aside an earlier Order of the lower court

quashing the notice of examination to the Minister and a summons to the Premier, thereby

allowing the applicants to examine them under rule 39.03. The court, however, directed that the

examination was to be limited to the sole issue of whether the Minister made his own decision in 68 Glengarry Memorial Hospital v. Ontario (Pay Equity Hearings Tribunal) [1993] O.J. No. 2569 Smallwood v. Sparling [1982] 2 S.C.R. 686; and also see Ontario (A.G.) v. Dieleman (1993), 16 O.R. (3d) 39 @ 44; leave to appeal denied [1993] O.J. No. 2798, (1993), 16 O.R. (3d) 39 @ 46 (Div. Ct.)70 Consortium Development (Clearwater) Inc. v. Sarnia [19998] 3 S.C.R. @ para. 4571 Ontario Federation of Anglers and Hunters v. Ontario (Ministry of Natural Resources) [2001] O.J. No. 86 @ para. 87

28

exercising his discretion to pass the regulation or whether he was merely directed to pass the

regulation by the Premier without the exercise of any independent discretion.

c) There may be a limit to the use of evidence obtained by way of a subpoena or summons of a public official or minister where that evidence was exclusively to "legislative facts" i.e. the purpose for which a statute or regulation has been passed.

Evidence of a minister or other public official may not be relevant and admissible if it relates

solely to certain categories of "legislative facts" as discussed above. In Re Ontario Teachers'

Federation et al and Attorney General of Ontario72, the applicants had applied for a declaration

that the provisions of a certain provincial act, excluding the principals and vice-principals of

public and separate school from teachers' bargaining units on the basis that these provisions were

passed for an improper purpose in that they were a retaliatory response to the participation by

principals and vice-principals in an anti-government protest. The applicants sought to examine

the Minister of Education and Training and the Director of Policy in the office of Premier as

witnesses on the application, pursuant to rule 39.03 of the Ontario Rules of Civil Procedure. The

summons required them to attend for examination and to bring with them a broad range of

documentation relating to the decision, and introducing the Bill in question, to allow principals

and vice-principals to remain in the teacher bargaining units, to be members of and represented

by the bargaining agent, and as well, relating to the subsequent decision to amend the provisions

of Bill 160 to exclude principals and vice-principals. The court noted that the scope of the

examinations sought was extremely broad. Mr. Justice R.A. Blair, in quashing the summonses,

held:

"What is at issue on the application is the constitutional validity of the impugned provisions of the legislation and the purpose of that legislation. The applicants contend that this has been enacted for a "colourable" i.e. an improper or extraneous purpose. While the authorities have developed to the point where it is permissible for courts to examine extrinsic evidence in the context of charter and other challenges to the constitutional validity of legislation, I do not support the extension of that exercise to the consideration of the testimony of individual members of the legislature - including ministers in charge of introducing legislation - or of civil servants or political advisors.

Legislation implementing fundamental changes in society inevitably invokes passionate and robust debate. Arguments of one sort or another based upon infringement of the Charter are not infrequently put forward. While I do not

72 Re Ontario Teachers' Federation et al and Attorney General of Ontario 39 O.R. (3d) 140

29

suggest for a moment that such is the case on the instant application, it seems to me that if those opposing legislative initiatives are to have access to the outside testimony and documentation of members of the legislature, ministers of the Crown, civil servants and policy advisors connected with the implementation of the targeted legislation through the simple means of launching a Charter challenge in the courts based on allegations of colourability, the implications are significant for the courts, and for the differing functions which the courts and the broader political arena have in society. There may be no end to such skirmishes. The courts - and the discovery process inherent in the court process - will become simply another extension of the legislative floor. That is not the intention of the legislative process, or of the provisions of rule 39.03 of the rules of civil procedure, in my view."

The court went on to deal with the constitutional separation of powers between legislatures, the

executive and the courts, and held that the courts ought not to overstep the bounds of their

constitutional role permitting the introduction of this kind of evidence. Mr. Justice Blair stated:

"I take from the foregoing that the categories of "various kinds" of extrinsic evidence that may be admissible in cases of this nature are not closed, but that the general nature of such evidence will be along the lines of those classes referred to. I also note that the extension of the concept to even admission of excerpts from Hansard is somewhat guarded. In my opinion, it would be an unwarranted extension of the concepts underlying the courts resort to such aids, such as Hansard, Royal Commission Reports, government policy papers and other such sources bearing upon the history and background of the legislation, to broaden those concepts to apply to the sworn in out of legislature views and opinions of ministers and members of the legislature. It would be inconsistent with the weight of existing authority on the subject. …"

Consequently, it was held that the propriety of calling ministers and public officials and having

legislation stand or fall on their testimony was not to be allowed.73

Execution

Once you have gone through the litigation process, marshaled and secured the evidence, adduced

the evidence and reduced your claim to a judgment, how do you enforce it against the

government?

73 See also British Columbia (Attorney General) v. Mount Currie Indian Band (1991), 54 B.C.L.R. (2d) 156 (C.A.); appeal (Regional Municipality) v. Great Atlantic and Pacific Company (1991), 2 O.R. (3d) 65 (Ont.C.A.); Ontario (Attorney General) v. Dieleman (1993), 16 O.R. (3d) 39; Seaway Trust Co. v. Ontario (1983), 143 D.L.R. (3d) 623

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Most Crown liability statutes provide, as indeed the common law provided, that no execution

may issue against the Crown. In Ontario, in a proceeding against the Crown, judgment shall not

be entered against the Crown in default of appearance or pleading without leave of the court.74

Furthermore, no execution or attachment or process in the nature thereof shall be issued out of

any court against the Crown.75 However, where a judgment is rendered against the Crown, the

provincial Minister of Finance is statutorily mandated to pay out of the Consolidated Revenue

Fund the amount payable by the Crown under any Order of a court that is finalized, not subject

to appeal, or under a settlement of a proceeding in a court, or under a settlement of a claim that is

subject to the notice of claim requirements.76 This provision constitutes a permanent

appropriation of funds for the satisfaction of judgment debts.77

As set out above, the duty of the provincial Crown to pay a judgment extends to out of court

settlements. Ontario and British Columbia have such a provision. Elsewhere, a settlement

would have to be followed by an entry of judgment in order to compel the Crown to pay.

74 Proceedings Against the Crown Act, s. 1875 Ibid, s. 2176 Ibid, s. 2277 Northrop Corp. v. The Queen [1977] 1 F.C. 289 (T.D.)