The Crown Liability and Proceedings Act, 2019, S.O. 2019, C. 7 Sched. 17 (hereinafter the “Act“) discusses the liability of the Ontario Government, which is referred to as the “Crown” in the Act. It replaces the Proceedings Against the Crown Act, which was repealed July 1, 2019 (but applies to most older claims).
There is a federal counterpart in the Crown Liability and Proceedings Act, R.S.C., 1985, c. C-50, which ought to be consulted for legal proceedings against the Government of Canada.
This article focus on Ontario’s Crown Liability and Proceedings Act, 2019, not the federal legislation.
Prior to commencing any litigation against the government, it is important to familiarise oneself with the applicable legislation and also to make sure there is a valid and meaningful claim in law that is properly pled. It goes without saying that the government has comparatively unlimited resources to litigate and will use its resources accordingly. Anyone can start a claim, but being able to bring the claim to an end through a positive resolution or judgment is what matters.
Historically, it was very challenging to sue the Crown for any reason, due to various Crown immunities. However, the Act confirms that the Crown can be sued as can any person, with exceptions set out in the Act or other legislation. This article pinpoints a number of concepts and can be read to get the broad strokes of the Act, but the reader should always refer back to the specific language of the Act. This article is a short summary and not legal advice.
Sections 1 through 7 of the Act set out definitions (s. 1), confirms the Act binds the Crown (s. 2), confirms no immunities and privileges of the Legislative Assembly of Ontario are overridden (s. 4) and identifies other legislation not affected by the Act (s. 6). The Act prevails in the event of a conflict (s. 7).
Section 8 of the Act is important in that it confirms the “Crown is subject to all the liabilities in tort to which it would be liable if it were a person”. The Crown is not liable for Crown agencies or Crown corporations, transfer payment recipients (see definition in s. 1) and independent contractors (s. 9). Legislative, regulatory and policy decisions (or a failure to make them) cannot give rise to liability (s. 11) and this applies retroactively (s. 31(4)).
Proceedings involving the Crown mean that the Crown can defend, counterclaim or take any steps a typical litigant may take (s. 12). The usual limitation periods apply (s. 16(3)). The rules of Court apply so long as there is nothing that would be “injurious to the public interest” (s. 13 and s. 19).
If there is a claim alleging misfeasance, or bad faith, that proceeding requires leave (permission) of the Court or is automatically stayed (stopped) (s. 17). Obtaining leave requires showing the proceeding is in good faith and has a reasonable probability of success.
Starting a Claim and Notice Requirements
Claims are started by naming the Ontario Government (the Crown) as follows: “His Majesty the King in Right of Ontario” if a King reigns or “Her Majesty the Queen in Right of Ontario” if a Queen reigns (s. 14). Note: this article was written after the passing of Queen Elizabeth II.
Pursuant to sections 18(4) and 8(1)(b) with respect to claims “in respect of a breach of duty attaching to the ownership, occupation, possession or control of property” requires notice be given within 10 days in accordance with s. 15.
A 60-day notice of claim for damages is required if a litigant seeks damages from the Crown (s. 18). Notice is provided by serving a letter upon the Crown Law Office (Civil Law) of the Ministry of the Attorney General. Please consult our article on How to Prepare a Notice of Claim for Damages when Suing the Crown (Ontario), which includes a template notice letter available for purchase.
Claims are to be tried by a Judge, not a Jury (s. 20). No injunctions or specific performance are available (s. 22).
There are various rules about not set-off against taxes, duties and penalties (s. 24), no default judgment without leave (permission) on a motion with notice (s. 25), interest is treated in the same manner as for any litigant (s. 26), enforcement of judgments have some specific rules (s. 27) and payment of judgments is done by the Minister of Finance (s. 28).
Regulations and Transition
The Act permits regulations (s. 30) and at the time of this article there was only one regulation concerning garnishments. The Act explains the transition from the Proceedings Against the Crown Act to the Crown Liability and Proceedings Act, 2019 (s. 31) and generally the Act applies to claims started after July 1, 2019 regardless of when the claim arose.
For further information on notices of claims for damages, please consult our article on How to Prepare a Notice of Claim for Damages when Suing the Crown (Ontario).
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