Liability of The Crown 4th Edition Hogg-Monahan

LIABILITY
OF THE CROWN
4th Edition
by
Peter W. Hogg
Patrick J. Monahan
and Wade K. Wright

䉷 2011 Thomson Reuters Canada Limited
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PREFACE
The first edition of Liability of the Crown was published in 1971, making
2011 the 40th anniversary of the book and a fitting year for the publication of the
fourth edition. The first edition, which was an adaptation of Peter Hogg’s Ph.D.
thesis at Monash University, was published in Australia by the Law Book Com-
pany Ltd. It covered Australia, New Zealand and the United Kingdom, but not
Canada. Canada was added to the covered jurisdictions in the second edition,
which was written after Professor Hogg had moved to the Osgoode Hall Law
School of York University; the second edition was published by Carswell in
Canada in 1989. The first two editions were written by Professor Hogg alone, but
Patrick Monahan joined him as a co-author for the third edition, which was
published by Carswell in 2000. This fourth edition has a third co-author, Wade
Wright, and is the joint project of all three of us.
The emphasis of the second and third editions of the book was on Canada,
but we went to considerable lengths to also provide an accurate account of the
law of Australia, New Zealand and the United Kingdom, making use of research-
ers and readers outside Canada. This was a daunting task, and for the fourth
edition we have restricted the book to Canada. We still make frequent reference
to the law of Australia, New Zealand and the United Kingdom, and we have tried
to keep those references up-to-date to 2011; but the book does not purport to
contain a comprehensive account of the law of any country other than Canada.
We never harboured the ambition of including the United States in the book,
although the law of governmental liability in that republic is in large measure
derived from its colonial history under the Crown and is in many aspects similar
to that of Canada; we have referred to the law of the United States from time to
time where a comparison seemed interesting. So far as Canada is concerned, a
welcome development in the source materials available to us was the publication
in 2007 of Horsman and Morley (eds.), Government Liability: Law and Practice
(details in bibliography), which is a multi-author, high quality, encyclopaedic
account of the law, in loose-leaf format, regularly supplemented, which we have
found useful and have cited frequently. The discussion in the book reflects the
law as of June 30, 2011. The important decision of the Supreme Court of Canada
in R. v. Imperial Tobacco Can. 2011 SCC 42 (dealing with two separate actions
against the federal government, both involving various tort claims, for negligent
misrepresentation and so on) was released as this book was going to print; ac-
cordingly, it has not been discussed. However, we do make reference to the
decisions of the British Columbia Court of Appeal, which were reported as Knight
v. Imperial Tobacco Can. (2009) 313 D.L.R. (4th) 695 (B.C.C.A.) and B.C. v.
Imperial Tobacco Can. (2009) 313 D.L.R. (4th) 651 (B.C.C.A.), in chapter 7,
Tort: Negligence. And happily, the Supreme Court’s decision does not contradict,
PREFACE
and indeed largely affirms, what we have to say about the law of tort as it applies
to the Crown.
The eleven years that have elapsed since the third edition have seen many
developments in the law of governmental liability, and all but a few chapters have
undergone heavy revision and some reorganization. The chapters on procedure,
evidence, tort (especially negligence) and contract are the most changed. In this
edition, there are new chapters on restitution, taking (expropriation), trust, estop-
pel and Crown as creditor, topics that were covered only briefly in the third
edition, all (except taking) grouped together in a kind of miscellaneous chapter
called Other Obligations. We have also taken up the suggestion of a reviewer of
the third edition (Lorne Sossin), and added a concluding chapter, which tries to
draw together a coherent thesis for the book. There had been a concluding chapter
in the first edition, which of course originated as a thesis, but we had dropped
that chapter from the subsequent editions; for this edition, we decided to revive
it.
As in the previous editions, we take the view that the Crown ought to be
governed by the same rules of legal liability for harm caused to private persons
as a private defendant. We continue to reject the European-derived alternative of
a distinctive public law of governmental liability, and we also reject the French
model of special courts to administer the public law of governmental liability.
This approach leads us to criticize most of the immunities, privileges and special
rules that continue to apply to the Crown, although we acknowledge that some
adaptation of the general law is needed to accommodate the special responsibil-
ities of government. As in previous editions, we are forthright in asserting our
own views, not hesitating to criticize legal doctrine or particular decisions. We
think that we have always been frank in identifying our own opinions so that they
can be appropriately discounted by the reader. We also think that moderation,
reasonableness and adherence to legal principles are hallmarks of our views, but
not everyone agrees. Begg J., in the Supreme Court of New South Wales, said of
the first edition that Hogg “employs at times intemperate criticism of the author-
ities”, and his work “appears to be based to a degree upon sociological approaches
rather than the strict principles of law” (Connell v. Commonwealth (1979) 37
F.L.R. 95, 100, defending the now discredited rule that the Crown cannot be
liable in tort to a member of the armed forces).
Thanks are due to those who helped us prepare this edition. First and foremost
is the law firm of Blake, Cassels & Graydon LLP, where Professor Hogg is the
Scholar in Residence. This position provides access to all the infrastructure of the
firm, including the services of the librarians, the students, and especially those of
a superb secretary, Madeline Rumble, whose work has been invaluable to us.
Blakes’ students who did research for us were Saad Ahmad, Stephen Birman,
Bryn Gray, Catherine Hariton, Suzie Chiodo and Brandin O’Connor. The Os-
goode Hall Law School, where Professor Monahan was Dean for most of the
period of preparation (before being appointed Provost of the University), also
provided research funding to hire students over the summers and during term.
iv
PREFACE
The Osgoode students who did research for us were Jesse Rosenberg, James
Gotowiec (who also worked for us while summering at Torys) and Brandin
O’Connor (who also worked for us while summering at Blakes). We are extremely
grateful for the work that all these outstanding students did for us, and to Blakes,
Torys and the Osgoode Hall Law School, who made it possible. Finally, we record
our gratitude to the Reference Librarians in the law library of Columbia Law
School, where Wade Wright was an Associate in Law and continues to pursue
his doctorate in law (J.S.D.): they were very helpful in arranging access to research
materials from Canada, Australia, New Zealand and the United Kingdom.
Last but not least, we must thank our spouses, Frances Hogg, Monica Mo-
nahan and Alex Irwin, for all their understanding and support during the extrav-
agant amount of time that goes into the writing of a book.
Toronto Peter W. Hogg
June 30, 2011 Patrick J. Monahan
Wade K. Wright
v
Summary of Chapters
(The detailed table of contents is on the next page.)
1. Introduction ................................................................................. 1
2. Remedies .................................................................................... 29
3. Enforcement of Judgments ............................................................... 75
4. Procedure .................................................................................... 87
5. Evidence ..................................................................................... 113
6. Tort: General Principles .................................................................. 151
7. Tort: Negligence ........................................................................... 221
8. Tort: Liability of Servants ................................................................ 275
9. Contract ...................................................................................... 303
10. Restitution ................................................................................... 341
11. Taking ........................................................................................ 357
12. Trust .......................................................................................... 369
13. Estoppel ...................................................................................... 381
14. Crown as Creditor .......................................................................... 387
15. Statutes ....................................................................................... 395
16. Crown Agents .............................................................................. 461
17. Federal Questions .......................................................................... 483
18. Conclusion .................................................................................. 501
Table of Contents
Preface ............................................................................................. iii

Table of Cases .................................................................................... xix
Chapter 1 Introduction
1.1 Scope of work............................................................................. 1
1.2 Dicey’s idea of equality ................................................................. 2
1.3 History of Crown proceedings ......................................................... 4
(a) Origin of petition of right ......................................................... 4
(b) Equitable relief...................................................................... 6
(c) Contract and tort.................................................................... 6
(d) Royal fiat............................................................................. 8
(e) Statutory reform .................................................................... 8
(f) Judicial reform ...................................................................... 10
1.4 Meaning of the Crown................................................................... 11
(a) Executive branch of government ................................................ 11
(b) Crown agency....................................................................... 13
(c) Divisibility........................................................................... 13
(d) Corporate character ................................................................ 16
1.5 Powers of the Crown .................................................................... 18
(a) Statutory powers.................................................................... 18
(b) Crown prerogative ................................................................. 19
(c) Judicial review of Crown powers ............................................... 25
Chapter 2 Remedies
2.1 Introduction ............................................................................... 30
2.2 Damages ................................................................................... 32
(a) Definition ............................................................................ 32
(b) Crown liability ...................................................................... 32
(c) Tortious liability .................................................................... 32
(d) Punitive damages ................................................................... 33
(e) Interest on damages ................................................................ 34
TABLE OF CONTENTS
2.3 Declaration ................................................................................ 37

(a) Definition ............................................................................ 37
(c) Crown proceedings statutes ...................................................... 38
(d) Dyson procedure ................................................................... 38
(e) Interlocutory declaration .......................................................... 39
(f) Suspended declaration............................................................. 42
(g) Constitutional declaration......................................................... 44
2.4 Injunction .................................................................................. 45
(a) Definition ............................................................................ 45
(b) Crown immunity.................................................................... 46
(c) Crown servants ..................................................................... 46
(d) Lack of legal authority ............................................................ 48
(e) Mandatory injunction.............................................................. 48
(f) Interlocutory injunction ........................................................... 49
(g) Constitutional injunction .......................................................... 50
(h) Personal or official capacity ...................................................... 52
(i) Justification for Crown immunity ............................................... 54
2.5 Specific performance .................................................................... 56
(a) Definition ............................................................................ 56
(b) Crown immunity.................................................................... 56
2.6 Mandamus ................................................................................. 57
(a) Definition ............................................................................ 57
(b) Crown immunity.................................................................... 57
(c) Persona designata .................................................................. 57
(d) Constitutional mandamus ......................................................... 58
(e) Justification for Crown immunity ............................................... 59
2.7 Prohibition and certiorari ............................................................... 60
(a) Definition ............................................................................ 60
(b) Crown immunity.................................................................... 60
2.8 Habeas corpus............................................................................. 61
(a) Definition ............................................................................ 61
(c) Constitutional guarantee .......................................................... 62
2.9 Application for judicial review ........................................................ 63
(a) Definition ............................................................................ 63
(b) Crown immunity.................................................................... 63
2.10 Collateral attack .......................................................................... 63
(a) Definition of collateral attack .................................................... 63
(b) Collateral attack in inferior courts............................................... 65
(c) Collateral attack in superior courts.............................................. 65
(d) Collateral attack criminal proceedings ......................................... 66
(e) Collateral attack in civil proceedings ........................................... 67
2.11 Set-off ...................................................................................... 71
(a) Definition ............................................................................ 71
(b) Crown immunity.................................................................... 71
(c) Statutory reform .................................................................... 72
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TABLE OF CONTENTS
2.12 Proceedings in rem....................................................................... 72

(a) Definition ............................................................................ 72
(b) Crown immunity.................................................................... 73
2.13 Proceedings by the Crown.............................................................. 74
Chapter 3 Enforcement of Judgments

3.1 Execution .................................................................................. 75
(a) Definition of execution............................................................ 75
(b) Crown immunity.................................................................... 75
(c) Duty to pay judgment debts ...................................................... 76
(d) Interest on judgment debts........................................................ 78
(e) Legislative nullification ........................................................... 78
(f) Justification for Crown immunity ............................................... 79
3.2 Garnishment............................................................................... 80
(a) Definition of garnishment ........................................................ 80
(b) Crown as judgment debtor........................................................ 80
(c) Crown as garnishee ................................................................ 81
3.3 Contempt................................................................................... 82
(a) Definition of contempt ............................................................ 82
(b) Crown immunity.................................................................... 82
(c) Justification for Crown immunity ............................................... 84
Chapter 4 Procedure
4.1 General rule ............................................................................... 87
4.2 Discovery .................................................................................. 89
(a) Definition ............................................................................ 89
(b) Crown immunity.................................................................... 90
(d) Designation of Crown representative ........................................... 91
(e) Residual immunity ................................................................. 92
(f) Crown privilege..................................................................... 93
4.3 Costs ........................................................................................ 94
(a) Definition ............................................................................ 94
(b) Crown immunity.................................................................... 94
(d) Advance costs....................................................................... 95
4.4 Interest...................................................................................... 98
(a) Prejudgment interest ............................................................... 98
(b) Postjudgment interest.............................................................. 98
4.5 Limitation of actions..................................................................... 98
(a) Definition ............................................................................ 98
(b) Crown immunity.................................................................... 98
(c) Statutory reform of limitation law............................................... 99
(d) Limitation periods in the provinces ............................................. 100
(e) Limitation periods in the federal jurisdiction.................................. 102
(f) Constitutional claims .............................................................. 105
xi
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4.6 Notice requirements ..................................................................... 107

(a) Definition ............................................................................ 107
(b) Post-accident notice................................................................ 108
(c) Pre-accident notice ................................................................. 110
(d) Constitutional notice ............................................................... 111
Chapter 5 Evidence
5.1 Definition of public interest immunity ............................................... 114
5.2 Comparison with other privileges ..................................................... 114
5.3 Procedure .................................................................................. 116
(a) General ............................................................................... 116
(b) Form of claim ....................................................................... 116
(c) Claim made before trial ........................................................... 117
(d) Claim made during trial ........................................................... 118
(e) Representation of Crown.......................................................... 119
5.4 Judicial review ............................................................................ 120
(a) History................................................................................ 120
(b) Balancing of interests.............................................................. 122
(c) Balancing in criminal cases....................................................... 124
(d) Inspection ............................................................................ 125
(e) Disclosure............................................................................ 125
(f) Disclosure of Crown brief ........................................................ 126
(g) Disclosure under Canada Evidence Act........................................ 128
5.5 Class claims ............................................................................... 129
(a) General rule ......................................................................... 129
(b) Candour in public service......................................................... 129
5.6 Cabinet documents ....................................................................... 130
(a) Common law ........................................................................ 130
(b) Canada Evidence Act, s. 39 ...................................................... 132
5.7 National security.......................................................................... 136
5.8 Oral evidence ............................................................................. 140
5.9 Real evidence ............................................................................. 142
5.10 Informer privilege ........................................................................ 142
(a) Nature of informer privilege ..................................................... 142
(b) Scope of informer privilege ...................................................... 146
(c) Other confidential information................................................... 148
5.11 Confidentiality laws...................................................................... 148
5.12 Freedom of information laws .......................................................... 149
Chapter 6 Tort: General Principles

6.1 History...................................................................................... 152
(a) Crown immunity.................................................................... 152
(b) Early statutory reform ............................................................. 152
(c) United Kingdom reform of 1947 ................................................ 154
(d) Australia and New Zealand....................................................... 156
(e) Canada................................................................................ 156
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6.2 Vicarious liability ........................................................................ 159

(a) Definition of vicarious liability .................................................. 159
(b) Direct liability compared.......................................................... 159
(c) Crown servant....................................................................... 160
(i) Liability for tort of Crown servant: General rule ...................... 160
(ii) Definition of Crown servant ............................................... 161
(iii) Identification of Crown servant ........................................... 162
(iv) Independent contractor ..................................................... 163
(v) Crown agent .................................................................. 166
(d) Commission of tort by servant ................................................... 167
(i) Commission of tort by servant: General rule ........................... 167
(ii) Statutory immunity clauses ................................................ 167
(iii) Enforcement of criminal law .............................................. 168
(iv) Judicial functions ............................................................ 169
(e) Course of employment ............................................................ 171
(i) Course of employment: General rule..................................... 171
(ii) De facto authority............................................................ 172
(iii) Independent discretion...................................................... 173
(f) Policy favouring vicarious liability ............................................. 175
6.3 Direct liability............................................................................. 176
(a) Crown liability ...................................................................... 176
(b) Employers’ duties .................................................................. 178
(c) Occupiers’ duties ................................................................... 179
(d) Statutory duties ..................................................................... 180
(e) Other duties and reform of direct liability ..................................... 182
6.4 Lack of legal authority .................................................................. 188
(a) General rule ......................................................................... 188
(b) Compensation under statute ...................................................... 188
(c) Compensation under prerogative ................................................ 188
(d) Significance of legal authority ................................................... 189
(e) Interpretation of statutory authority............................................. 190
6.5 Commission of a tort .................................................................... 194
(a) Recognized heads of liability .................................................... 194
(b) Negligence........................................................................... 196
(c) Misfeasance in a public office ................................................... 197
(d) Constitutional torts ................................................................. 201
6.6 Reform ..................................................................................... 206
(a) Compensation based on invalidity .............................................. 206
(b) Compensation based on risk...................................................... 213
(c) Compensation based on entitlement ............................................ 217
(d) A public law of torts ............................................................... 218
Chapter 7 Tort: Negligence

7.1 Definition of negligence ................................................................ 221
7.2 Duty of care ............................................................................... 223
(a) Definition of duty of care ......................................................... 223
(b) The Anns/Kamloops test .......................................................... 224
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(i) Description of the Anns/Kamloops test .................................. 224

(ii) The policy/operational distinction ........................................ 225
(iii) Criticism of the Anns/Kamloops test ..................................... 228
(c) The Anns/Cooper test.............................................................. 231
(i) Description of the Anns/Cooper test ..................................... 231
(ii) Proximity ...................................................................... 232
(iii) Residual policy considerations ............................................ 244
7.3 Special categories of negligence....................................................... 248
(a) Introduction to special categories of negligence.............................. 248
(b) Pure economic loss................................................................. 249
(i) Evolution of liability for pure economic loss........................... 249
(ii) Independent liability of statutory public authorities................... 251
(iii) Negligent misrepresentation ............................................... 254
(c) Nonfeasance......................................................................... 256
(d) Peculiarly governmental activity ................................................ 261
(i) Evolution of liability for peculiarly governmental activity .......... 261
(ii) Military activity .............................................................. 264
7.4 Invalidity................................................................................... 267
7.5 Reform ..................................................................................... 273
Chapter 8 Tort: Liability of Servants

8.1 Personal liability in general ............................................................ 275
8.2 State necessity ............................................................................ 276
(a) General rule ......................................................................... 276
(b) Act of state........................................................................... 277
8.3 Legal authority............................................................................ 278
8.4 Statutory immunity....................................................................... 279
8.5 Judicial immunity ........................................................................ 283
(a) Common law protection........................................................... 283
(b) Superior court judges .............................................................. 284
(c) Inferior court judges ............................................................... 286
(d) Statutory protection ................................................................ 289
8.6 Prosecutorial immunity.................................................................. 292
8.7 Immunity from defamation proceedings ............................................. 298
(a) Judicial proceedings ............................................................... 298
(b) High executive communications ................................................ 299
(c) Critique of immunity .............................................................. 301
Chapter 9 Contract
9.1 Introduction ............................................................................... 304
9.2 Private law of contract................................................................... 304
9.3 Intention to create contractual relations .............................................. 307
(a) Government promises ............................................................. 307
(b) Statutory provisions................................................................ 308
(c) Election promises .................................................................. 308
(d) Policy promises ..................................................................... 309
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TABLE OF CONTENTS
(e) Tendering contracts ................................................................ 311

9.4 Power of Crown to make contracts ................................................... 313
(a) Power of a natural person ......................................................... 313
(b) Statutory authority ................................................................. 315
(c) Legislative appropriation ......................................................... 316
(d) Constitutional limits ............................................................... 318
(e) Statutory limits...................................................................... 320
9.5 Power of Crown servants to make contracts ........................................ 322
(a) General rules of agency ........................................................... 322
(b) Statutory limits...................................................................... 323
9.6 Fettering legislative power ............................................................. 324
(a) Direct fettering of legislative power ............................................ 324
(b) Indirect fettering of legislative power .......................................... 325
(c) The Pacific National case......................................................... 326
(d) Policy reasons for permitting indirect fettering ............................... 329
(e) Conclusion on fettering legislative power ..................................... 331
9.7 Liability of Crown servants ............................................................ 332
(a) General rule of immunity ......................................................... 332
(b) Warranty of authority.............................................................. 332
(c) Agent’s personal liability ......................................................... 333
9.8 Contracts with Crown servants ........................................................ 333
(a) Application of general law of contract ......................................... 333
(b) Action for loss of services ........................................................ 339
Chapter 10 Restitution
10.1 Definition of restitution ................................................................. 341
10.2 Crown liability for restitution .......................................................... 342
10.3 Benefit to Crown ......................................................................... 343
10.4 Detriment to plaintiff .................................................................... 345
10.5 No juristic reason for enrichment ..................................................... 347
10.6 Recovery of unauthorized taxes ....................................................... 348
(a) General right of recovery ......................................................... 348
(b) Uncertainty before Kingstreet decision ........................................ 349
(c) The Kingstreet decision ........................................................... 352
(d) The passing-on defence ........................................................... 354
(e) Limitation periods.................................................................. 354
Chapter 11 Taking
11.1 Constitutional power to take property ................................................ 357
11.2 Crown property ........................................................................... 359
11.3 Compensation for taking ................................................................ 360
(a) No constitutional right to compensation ....................................... 360
(b) Statutory right to compensation ................................................. 362
11.4 Regulation of property .................................................................. 363
11.5 Constructive taking ...................................................................... 364
11.6 Extinguishment of contractual rights ................................................. 367
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Chapter 12 Trust
12.1 Definition of trust ........................................................................ 369
12.2 Crown liability as trustee ............................................................... 369
12.3 Political trusts ............................................................................. 370
12.4 Crown’s duties as trustee ............................................................... 371
12.5 Crown as fiduciary ....................................................................... 372
(a) Definition of fiduciary............................................................. 372
(b) Crown liability as fiduciary....................................................... 373
(c) No ordinary fiduciary.............................................................. 374
(d) Legislation modifying fiduciary duty........................................... 376
(e) Conclusion on Crown as fiduciary .............................................. 379
Chapter 13 Estoppel
13.1 Definition of estoppel ................................................................... 381
13.2 Crown bound by estoppel............................................................... 382
13.3 Estoppel and statutory duties........................................................... 383
13.4 Estoppel and statutory powers ......................................................... 383
13.5 Res judicata................................................................................ 385
Chapter 14 Crown as Creditor

14.1 Legal proceedings by Crown........................................................... 387
14.2 Prerogative of priority ................................................................... 387
14.3 Competing Crown debts ................................................................ 388
14.4 Statutory abolition of Crown priority................................................. 389
14.5 Statutory reinforcement of Crown priority .......................................... 391
Chapter 15 Statutes
15.1 Subjection to common law ............................................................. 396
15.2 Subjection to statute law ................................................................ 396
15.3 Presumption of Crown immunity...................................................... 397
(a) Rule of construction ............................................................... 397
(b) Rights peculiar to the Crown ..................................................... 400
(c) Public good .......................................................................... 400
(d) Necessary implication ............................................................. 400
(e) Modern version of presumption ................................................. 401
15.4 Effect of Interpretation Acts............................................................ 406
(a) Codification of presumption...................................................... 406
(b) Reversal of presumption .......................................................... 409
15.5 Express words............................................................................. 410
15.6 Necessary implication ................................................................... 411
(a) Exception to immunity ............................................................ 411
(b) Purpose of statute................................................................... 411
(c) Other indications in statute ....................................................... 412
(d) Displacement of prerogative ..................................................... 415
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15.7 Benefit of statutes ........................................................................ 417

(a) Requirement of prejudice ......................................................... 417
(b) No effect on Crown ................................................................ 418
(c) Beneficial effect on Crown ....................................................... 418
(d) Burden linked to benefit .......................................................... 420
15.8 Implied term of contract ................................................................ 424
15.9 Commercial activity ..................................................................... 425
15.10 Incorporation by reference.............................................................. 427
(a) Crown liability ...................................................................... 427
(b) Ambulatory or static ............................................................... 428
(c) Interjurisdictional liability ........................................................ 429
15.11 Provincial Crown as defendant ........................................................ 429
(a) Right-of-the-parties provision.................................................... 429
(b) Procedural rights.................................................................... 430
(c) Substantive rights .................................................................. 430
(d) Ambulatory effect .................................................................. 432
(e) “As nearly as possible”............................................................ 433
15.12 Federal Crown as defendant............................................................ 435
(a) Absence of rights-of-the-parties provision .................................... 435
(b) Proceedings in contract............................................................ 435
(c) Proceedings in tort ................................................................. 435
15.13 Crown as plaintiff ........................................................................ 437
15.14 Criminal liability ......................................................................... 440
(a) Strict liability offences ............................................................ 440
(b) Mens rea offences .................................................................. 443
15.15 Crown agents and servants ............................................................. 445
(a) Requirement of prejudice ......................................................... 445
(b) Crown agents........................................................................ 445
(c) Crown servants ..................................................................... 446
(d) Crown contractors.................................................................. 448
(e) Crown premises..................................................................... 449
15.16 Federal complications ................................................................... 450
(a) Scope of presumption.............................................................. 450
(b) Meaning of “the Crown”.......................................................... 452
(c) Crown bound by necessary implication ........................................ 455
15.17 Reform ..................................................................................... 456
(a) Criticism of presumption.......................................................... 456
(b) Reversal of presumption .......................................................... 459
Chapter 16 Crown agents

16.1 Agent of the Crown ...................................................................... 461
16.2 Crown agent at common law........................................................... 463
(a) Functions test........................................................................ 463
(b) Control test .......................................................................... 465
16.3 Crown agent by statute .................................................................. 468
(a) General rule ......................................................................... 468
(b) Ultra vires activity.................................................................. 470
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16.4 Liability of Crown agent ................................................................ 472

(a) Introduction.......................................................................... 472
(b) Liability to be sued................................................................. 472
(c) Liability under substantive law .................................................. 474
(d) Tort.................................................................................... 475
(e) Contract .............................................................................. 478
(f) Crown immunities.................................................................. 479
16.5 Conclusion................................................................................. 481
Chapter 17 Federal Questions

17.1 Federalism ................................................................................. 483
17.2 State immunity in international law................................................... 484
17.3 Jurisdiction of courts..................................................................... 485
(a) Crown immunity.................................................................... 485
(b) Suits against Crown in right of provinces...................................... 485
(c) Suits against Crown in right of Canada ........................................ 488
(d) Suits by Crown...................................................................... 493
(e) Suits between governments....................................................... 494
17.4 Choice of law ............................................................................. 496
(a) Which law applies? ................................................................ 496
(b) Liability of Crown in right of Canada .......................................... 497
(c) Crown in right of Canada as plaintiff........................................... 498
17.5 Federal common law..................................................................... 498
(a) Federal common law in the United States ..................................... 498
(b) Federal common law in Canada ................................................. 499
Chapter 18 Conclusion
............................................................................................... 501
Selected Bibliography ........................................................................... 507
Index................................................................................................ 517
xviii
Table of Cases
144096 Canada v. Can. ..................................................................... 167, 179

392980 Ontario v. City of Welland ............................................................ 255
671122 Ontario v. Sagaz Industries Canada ............................................ 162, 163
A. v. Hayden ....................................................................................... 397
A. v. N.S.W ................................................................................... 294, 295
A. (L.L.) v. B. (A.) ................................................................................ 129
A.-G. v. Body Corporate No. 200200 ......................................................... 272
A.G. v. Briant ...................................................................................... 143
A.-G. v. Colchester Corp. .......................................................................... 74
A.G. v. DeKeyser’s Royal Hotel ............................. 21, 22, 189, 190, 357, 362, 415
A.-G. v. Donaldson ................................................................................. 99
A.-G. v. Goldsbrough ............................................................................... 99
A.G. v. Gray ........................................................................................ 382
A.-G. v. Guy Motors ................................................................................ 71
A.-G. v. Jonathon Cape .......................................................................... 131
A.-G. v. Newcastle-upon-Tyne Corp. ........................................................... 90
A.-G. v. Nissan ..................................................................................... 277
A.-G. v. Shillibeer ................................................................................... 95
A.-G. v. South Staffordshire Waterworks Co. ................................................. 99
A.-G. v. Wilson and Horton ..................................................................... 340
A.-G. (Can.) v. Hallet & Carey Ltd. ........................................................... 193
A.-G. (ex rel. Shannon) v. Geelong Harbour Trust Commrs. ............................... 99
A.-G. (N.S.W.) v. Perpetual Trustee Co. ................................................ 265, 339
A.G. B.C., The King v. ........................................................................... 495
A.G. B.C. v. A.G. Can. ........................................................................... 495
A.G.B.C. v. C.P.R. .......................................................................... 359, 455
A.G.B.C. v. Deeks Sand and Gravel Co. ...................................................... 315
A.G.B.C. v. E. & N.Railway .................................................................... 308
A.G. Can. v. A.G. Ont. ........................................................................... 495
A.G. Can. v. A.G. Ont. (Indian Annuities) ................................................... 495
A.G. Can. v. Boeing Co. ......................................................................... 490
A.-G. Can. v. Dennis .............................................................................. 421
A.-G. Can. v. Gordon ............................................................................... 76
A.-G. Can. v. Higbie ......................................................................... 14, 494
A.-G. Can. v. Inuit Tapirisat ....................................................................... 61
TABLE OF CASES
A.-G. Can. v. Law Society of B.C. ........................................................ 93, 492

A.-G. Can. v. Rapanos Bros. ...................................................................... 72
A.-G. Ceylon v. Silva ....................................................................... 323, 383
A.-G. Eng. v. Sorati ............................................................................... 452
A.-G. N.S.W. v. Curator of Intestate Estates ................................................. 387
A.G. N.Z. v. Ortiz ................................................................................. 484
A.-G. Ont. v. MacLean Gold Mines ............................................................. 38
A.G. Ont. v. Mercer ................................................................................. 24
A.-G. Ont. v. Palmer ......................................................................... 99, 419
A.-G. Ont. v. Scott ................................................................................ 428
A.-G. Ont. v. Toronto Junction Recreation Club .............................................. 90
A.-G. Ont. v. Watkins ........................................................... 99, 414, 419, 438
A.-G. Qd. v. Holland ................................................................................ 94
A.-G. Que. v. Expropriation Tribunal ......................................................... 408
A.G. Que. v. Labrecque .................................................................... 305, 312
A.G. Que. v. Nipissing Central Ry. Co. ................................................. 359, 455
A.-G. Que. v. Labrecque .................................................................... 12, 334
A.-G. Que. and Keable v. A.-G. Can. .......................................................... 140
Abdelrazik v. Can. ............................................................................. 23, 26
Aboriginal Dvlpt. Commn. v. Treka Aboriginal Arts and Crafts ......................... 371
Adams v. Borrell .................................................................................. 232
Adams v. Naylor ............................................................................. 155, 180
Addis v. Crocker ................................................................................... 299
Administration of Papua and New Guinea v. Leahy ........................................ 310
Affleck v. The King ................................................................................. 94
Agricultural Products Marketing Act, Re ..................................................... 496
Agriculture Financial Services Corp. v. Redmond .......................................... 439
Ainsworth Lumber Co. v. Can. ................................................................... 92
Air Canada v. Attorney General of British Columbia ........................................ 58
Air Canada v. B.C. ......................................................... 26, 106, 346, 349, 350
Air Canada v. Ont. ................................................................................ 352
Air Canada v. Secretary of State for Trade ............................................. 123, 131
Alberta Government Telephones v. Selk ...................................................... 388
Alberta Home Mortgage Corp. v. Castleridge Apartments Ltd. .......................... 438
Alcock v. Fergie ..................................................................................... 77
Alexander v. The Queen ......................................................................... 163
Alexis v. Toronto Police Services Bd. ......................................................... 107
Alfred Compton Amusement Machines v. Customs and Excise Commrs. ............. 148
Ali v. Cth. ........................................................................................... 278
Al Jedda v. Secretary of State for Defence ................................................... 277
Allen v. Gulf Oil Refining .......................................................... 188, 191, 501
Allpike v. Cth. ..................................................................................... 334
Alta. v. Buys .......................................................................................... 99
Alta. v. Elder Advocates of Alberta Society ............ 241, 244, 345, 351, 376, 379, 408
Alta. v. Nilsson .................................................................................... 363
Alta. Govt. Telephones v. Can. ........ 314, 401, 413, 414, 417, 423, 426, 438, 445, 451,
453, 454
Alta. Mtge & Housing Corp. v. Ciereszko .................................................... 439
xx
TABLE OF CASES
Alta. Mortgage and Housing Corp. v. Klapstein ............................................. 408

Amax Potash v. Government of Saskatchewan ........................................ 106, 349
Amphitrite, The ....................................................................... 277, 305, 324
Anctil v. The Queen .............................................................................. 171
Anderson v. Hamilton ............................................................................ 117
Andres v. Rockell ................................................................................. 408
Andrews v. Law Society of B.C. ................................................................. 10
Anglo-Saxon Petroleum Co. v. Lords Commrs. of Admiralty ............................ 342
Ankin v. London & N.E. Ry. Co. .............................................................. 115
Anns v. Merton London Borough Council ................................ 224, 227, 250, 257
Anthony, The King v. ............................................................... 154, 262, 264
Anti-Cancer Council of Vic.; Ex Parte State Public Services Federation, Re .......... 469
Anti-Inflation Act, Re ................................................................. 14, 397, 495
Anufrijeva v. Southwark L.B.C. ................................................................ 203
Apex Mountain Resort v. B.C. .................................................................. 255
Apotex v. Can. .................................................................................. 57, 58
Apple Meadows v. Man. ......................................................................... 383
Arishenkoff v. B.C. ............................................................................... 159
Aristocrat Restaurants v. Ont. ................................................................... 185
Asiatic Petroleum Co. v. Anglo-Persian Oil Co. ...................................... 114, 115
Assets Co. v. The Queen ......................................................................... 342
Athabasca Chipewyan First Nation v. B.C. .................... 451, 472, 480, 484, 485, 487
Atkinson, The King v. .............................................................................. 94
Attis v. Can. ........................................................................... 232, 238, 244
Attorney General of Quebec v. Expropriation Tribunal .................................... 414
Auckland Harbour Bd. v. The King ................................................. 20, 316, 349
Austin v. Cth. ....................................................................................... 397
Austral Pacific Group v. Airservices Aust. ................................................... 432
Australian Competition and Consumer Commn. v. Baxter Healthcare Pty. ....... 12, 398,
449, 482
Australian National Airlines v. Cth ...................................................... 114, 141
Australian Woollen Mills v. Cth. ............................................................... 310
Auten v. Rayner ................................................................................... 116
Authorson v. Canada ..................................... 36, 37, 318, 319, 320, 361, 367, 378
Avant v. The Queen ............................................................................... 486
Azoff-Don Commercial Bank, Re .............................................................. 416
B. (R.) v. Children’s Aid Society ................................................................. 95
B.C. v. Davies ................................................................................ 296, 297
B.C. v. Henfrey Samson Belair ........................................................... 390, 392
B.C. v. Imperial Tobacco Can. ..................................................... 238, 282, 320
B.C. v. Insurance Corp. of B.C. ................................................................. 175
B.C. v. Lafarge Can. .............................................................................. 464
B.C. Telephone Co. v. Marpole Towing ...................................................... 439
B.D.C. v. Hofstrand Farms ...................................................................... 250
Babcock v. Can. .................................................... 115, 132, 133, 134, 135, 136
Bacon v. Saskatchewan Crop Insurance Corp. ............................................... 320
Bagnell v. Vancouver Police Bd. ............................................................... 238
Bainbridge v. Postmaster-General ........................................................ 276, 476
xxi
TABLE OF CASES
Baird v. The Queen ............................................................................... 174

Ball v. Can. ......................................................................................... 436
Bank of Montreal v. A.-G. Que. .......................................................... 396, 424
Bank of Montreal v. Bole ........................................................................ 473
Bank of Montreal v. M.N.R. .................................................................... 391
Bank of Montreal v. The King .................................................................. 382
Bank of N.S., The Queen v. ..................................................................... 387
Bank voor Handel v. Administrator of Hungarian Property ......................... 446, 467
Bankers’ Case ................................................................................ 313, 342
Bankstown City Council v. Alamdo Holdings Pty. ......................................... 281
Bannon v. Thunder Bay .......................................................................... 110
Baron v. Can. ....................................................................................... 167
Barr v. Matteo ...................................................................................... 302
Barratt v. Corporation of North Vancouver .................................................. 228
Barrett v. Enfield London B.C. .................................................... 230, 261, 270
Barton v. Cth. ................................................................................. 21, 416
Bass v. Permanent Trustee Co. ........... 12, 398, 405, 413, 426, 428, 431, 432, 433, 448
Baume v. Cth. ......................................................................... 153, 173, 174
Bazley v. Curry .............................................................................. 159, 171
Bd. of Trade v. Temperley Steam Shipping Co. ............................................. 330
Bd. of Transport Commrs., The Queen (Ont.) v. ............................... 314, 406, 408
Beardsley v. Ont. .................................................................................. 110
Beatty v. Kozak .................................................................................... 168
Begg v. Can. ........................................................................................ 266
Beaudesert Shire Council v. Smith ....................................................... 196, 197
Bent v. N.S. Farm Loan Bd. ....................................................................... 94
Berardinelli v. Ont. Housing Corp. ....................................................... 102, 281
Berendsen v. Ont. ................................................................................. 102
Bernard v. Attorney General of Jamaica ...................................................... 172
Bertrand v. Quebec ............................................................................. 40, 41
Bigras v. Tasse ..................................................................................... 276
Bisaillon v. Keable ....................................................... 114, 117, 144, 145, 500
Bivens v. Six Unknown Federal Narcotics Agents .......................................... 201
Black v. Chrétien .............................................................. 23, 27, 38, 492, 493
Blackwater v. Plint ................................................................... 162, 165, 379
Blood Band v. Can. ............................................................................... 495
Blundell v. The King ............................................................................. 342
Border Cities Press Club v. A.-G. Ont. ..................................................... 60, 61
Borowski v. Can. .................................................................................. 282
Boucher v. Milner ................................................................................. 281
Bourbonnais v. Can. ........................................................................ 285, 291
Bourgoin SA v. Ministry of Agriculture ...................................................... 199
Bowles v. Bank of England ................................................................. 20, 348
Bow Valley Husky v. Saint John Shipbuilding .............................................. 250
Brabant & Co. v. King ............................................................................ 153
Bradford v. Pickles ................................................................................ 197
Bradken Consolidated v. BHP ............................................... 412, 426, 448, 451
Bradley v. Fisher .................................................................................. 284
xxii
TABLE OF CASES
Breckenridge Speedway v. The Queen ........................................................ 349

Breton, The Queen v. ....................................................................... 179, 437
Breton v. St. Gedeon .............................................................................. 321
Brière v. Canada Mortgage and Housing Corporation ..................................... 476
Brightwell v. Accident Compensation Commn. ....................................... 121, 130
Brisbane City Council v. Group Projects ..................................................... 408
British American Tobacco Aust. v. W.A. ............................................... 202, 431
British Broadcasting Corp. v. Johns ............................................................. 21
British Columbia v. Okanagan Indian Band .................................................... 95
British Columbia Power Corp. Ltd. v. Attorney General .................................. 468
Brodie v. Singleton Shire Council ........................................................ 230, 261
Brooks v. Commr. of Police of the Metropolis ................................. 230, 237, 297
Broome v. Broome ................................................................................ 140
Broome v. P.E.I. .................................................... 162, 165, 231, 240, 260, 379
Bropho v. W.A. .............................................. 398, 399, 403, 413, 426, 427, 443
Brophy v. N.S. ............................................................................... 428, 431
Brown v. B.C. ......................................................................... 225, 227, 263
Brown v. Toronto ................................................................................. 110
Brownhall v. Can. ................................................................................. 266
Buckingham, Re ................................................................................... 408
Bujdoso v. N.S.W. ................................................................................ 263
Burmah Oil Co. v. Bank of England .............................................. 121, 130, 131
Burmah Oil Co. v. Lord Advocate ...................... 20, 23, 78, 189, 190, 265, 277, 358
Buron v. Denman .................................................................................. 277
C.S.S.T. v. Que. .................................................................................... 442
Cain v. Doyle ................................................................................. 441, 442
Caisse populaire Desjardins de l’Est de Drummond v. Can. .............................. 393
Caisse de dépôt et placement du Québec, Re ................................... 408, 422, 450
Calcraft v. Guest ................................................................................... 115
Calder v. A.-G. B.C. ................................................................................ 38
Caltex Oil v. Willemstad ......................................................................... 263
Calvert v. Law Society of Upper Can. ......................................................... 289
Can. v. Adamoski ................................................................................. 384
Can. v. Can. Liberty Net ......................................................................... 492
Can. v. Hislop ........................................................................................ 43
Can. v. Kamel ................................................................................... 23, 26
Can. v. Khadr ........................................................................ 23, 26, 27, 278
Can. v. Lameman .................................................................................. 106
Can. v. McArthur .................................................................. 69, 70, 270, 492
Can. v. N.W.T. ..................................................................................... 128
Can. v. Sask. Water Corp. .................................................................... 47, 48
Can. v. TeleZone ............ 65, 67, 69, 190, 193, 196, 209, 246, 247, 270, 312, 493, 504
Can. (Information Commr.) v. Can. (Minr. of Environment) ............................. 132
Can. Accident & Fire Ins. Co., The King v. .................................................. 419
Can. Dredge & Dock Co. v. The Queen ...................................................... 444
Can. Food and Inspection Agency v. Professional Institute of the
Public Service of Can. ........................................................................... 70
Can. Foundation for Children, Youth and the Law v. Can. .................................. 45
xxiii
TABLE OF CASES
Can. Industrial Gas & Oil v. Govt. of Sask. ................................. 40, 359, 430, 433
Can. Javelin v. The Queen Nfld. ................................................................ 485
Can. Labour Relations Bd. v. Paul L’Anglais ................................................ 492
Can. Saltfish Corp. v. Rasmussen ........................................................ 475, 490
Can. Transport Comm., The Queen (Alta.) v. ................................... 408, 426, 450
Canada v. Grenier ................................................................................... 68
Canada v. Hislop .................................................................................... 35
Canada v. Ont. (1910) .............................................................................. 14
Canada Assistance Plan, Re ............................................................... 318, 324
Canada Central Ry. Co. v. The Queen ................................................... 369, 371
Canada Deposit Insurance Corp. v. Code ..................................... 90, 92, 118, 140
Canada Post v. G3 Worldwide .................................................................. 181
Canadian Commercial Bank v. Belkin ........................................................ 439
Canadian Food Inspection Agency v. Professional Institute of the
Public Service of Can. ................................................................... 158, 270
Canadian Industrial Gas and Oil v. Govt. of Sask. ............................................ 35
Canadian Pacific Airlines v. B.C. ........................................................ 346, 351
Canadian Pacific Railway Co. v. Vancouver ................................................. 365
Canadian Pacific Tobacco Co. v. Stapleton .................................................. 149
Canadian Taxpayers Federation v. Ontario ............................................. 308, 310
Canex Placer v. A.-G. B.C. ........................................................................ 39
Cannon v. Tache ................................................................................... 290
Caparo Industries plc v. Dickman .............................................................. 230
Capital & Counties Plc. v. Hampshire County Council .................................... 263
Capital Brewing Co., The King v. .............................................................. 382
Carey, Re .............................................................................................. 57
Carey v. Cth. ....................................................................................... 334
Carey v. Ont. .................................................................... 121, 125, 128, 130
Carey v. The Queen ......................................................................... 123, 131
Cariboo College, Re .............................................................................. 409
Carlic v. The Queen ................................................................................. 47
Carlson v. Green ................................................................................... 202
Carmarthenshire County Council v. Lewis ................................................... 183
Carpenter’s Investment Trading Co. Ltd. v. Cth. ............................................ 177
Carroll, The King v. .......................................................................... 34, 430
Carseldine v. Director of Children’s Services ................................................ 408
Casamiro Resource Corp. v. B.C. .............................................................. 365
Case of Proclamations ................................................................... 19, 20, 190
Cattanach v. Melchior ............................................................................ 265
Cayzer Irvine & Co. v. Bd. of Trade ........................................................... 419
CBC v. A.-G. Ont. ........................................................ 413, 414, 442, 445, 470
CBC v. The Queen ....................................................... 441, 442, 446, 466, 470
Central Bank v. Ellis ................................................................................ 81
Central Canada Potash, Re .................................................................... 57, 59
Central Canada Potash Co. v. A.G. Sask. ..................................... 90, 93, 205, 486
Century Services v. Can. ......................................................................... 390
Chagos Islanders v. A.-G. ........................................................................ 187
Chapman v. Honig ................................................................................ 197
xxiv
TABLE OF CASES
Chaput v. Romain ................................................................................. 281

Charters v. Harper ................................................................................. 283
Chatterton v. Secretary of State for India ............................................... 300, 301
Chicago, Burlington and Quincy Rd. Co. v. Chicago ...................................... 360
Chief Adjudication Officer v. Foster ............................................................ 65
Childs v. Desormeaux ......................................................... 232, 244, 248, 256
China Navigation Co. v. A.-G. .................................................................. 334
China Shipping Co. v. S.A. ...................................................................... 421
Chinook Aggregates v. Abbotsford ............................................................ 311
Chipman v. The Queen ........................................................................... 371
Christian v. The Queen ........................................................................... 278
Clark v. The Queen ............................................................................... 323
Clarkson Co. v. R. ................................................................................... 72
Clearfield Trust Co. v. U.S. ...................................................................... 498
Cleveland-Cliffs Steamship Co. v. The Queen .............................................. 262
Cliche, The King v. ............................................................................... 153
Clitheroe v. Hydro One .................................................................... 319, 367
Cloutier v. Science Council of Can. ............................................................ 479
C.N.R. v. Croteau ................................................................................... 81
CNR v. Norsk Pacific Steamship Co. .................................................... 230, 250
Codelfa-Cogefar v. A.-G. .......................................................................... 40
Colangelo v. Mississauga .......................................................................... 10
Colledge and Niagara Regional Police Commission, Re ................................... 101
Collége d’arts appliqués, Re ..................................................................... 424
College d’arts appliqués et de technologie La Cité collégiale v. Ottawa (City) ....... 421
Collins v. Hertfordshire County Council ...................................................... 183
Comeau’s Sea Foods v. Can. ....................................................... 251, 256, 272
Commissioner of Inland Revenue v. E.R. Squibb & Sons ........................... 129, 144
Commissioner of State Revenue v. Royal Insurance Australia ........................... 346
Commissioner of Water Resources ............................................................ 456
Commr. for Rwys (N.S.W.) v. Scott ........................................................... 340
Commr. of Inland Revenue v. Medical Council of N.Z. ................................... 464
Commr. of Police of the Metropolis v. Lennon .............................................. 255
Commr. of State Revenue v. Royal Insurance Australia ................................... 352
Commr. of Water Resources and Leighton Contractors Pty., Re ......................... 408
Commrs. of Crown Lands v. Page ............................................................. 330
Commrs. of Taxation (N.S.W.) v. Palmer .................................................... 387
Conseil des Ports Nationaux v. Langelier .................................... 47, 276, 475, 480
Conway v. Rimmer ......................................................................... 120, 130
Cooke v. The King ................................................................................ 334
Coomber v. Berks Justices ....................................................................... 463
Cooper v. Hawkins ................................................................................ 447
Cooper v. Hobart ......................................................... 231, 245, 250, 252, 256
Cooper v. Stuart ..................................................................................... 98
Cooper v. Wandsworth Bd. of Works ......................................................... 195
Corbett v. Social Security Commn. ............................................................ 121
Cosgrave Export Brewing Co., The King v. .................................................... 71
Couch v. A.-G. ............................................................ 230, 234, 244, 261, 272
xxv
TABLE OF CASES
Couette v. The King .............................................................................. 342

Coughlin v. Ont. Highway Tpt. Bd. ...................................................... 428, 496
Council of Civil Service Unions v. Minister for Civil Service ................... 20, 26, 334
Crabb v. Arun District Council ................................................................. 382
Credit Suisse v. Allerdale Borough Council .................................................. 306
Crimmins v. Stevedoring Industry Finance Committee ................. 230, 242, 260, 272
Crinson v. Toronto ................................................................................ 109
Criterion Theatres v. Melbourne and Metro. Bd. of Works ............................... 455
Crombie v. The King ............................................................................. 408
Crowe v. Can. ................................................................................ 170, 187
Crowther v. Attorney General of Canada ..................................................... 388
Cth. v. Burns ....................................................................................... 383
Cth. v. Cigamatic Pty. ............................................................................ 389
Cth. v. Connell ..................................................................................... 172
Cth. v. District Court .............................................................................. 428
Cth. v. Evans Deakin Industries ................................................................ 431
Cth. v. John Fairfax & Sons ....................................................................... 50
Cth. v. Introvigne .................................................................................. 165
Cth. v. Northern Land Council ............................................... 121, 129, 130, 131
Cth. v. Quince ...................................................................................... 339
Cth. v. Verwayen .................................................................................. 384
Cth. v. W.A. .................................................... 12, 398, 405, 432, 434, 451, 453
Cubillo v. Cth. (No. 2) ............................................................................ 175
Curry v. Vancouver ............................................................................... 170
Cushing v. Dupuy ................................................................................. 408
Customs and Excise v. Barclays Bank plc .................................................... 250
Cutler v. Wandsworth Stadium ................................................................. 180
D. v. East Berkshire Community Health N.H.S. Trust ............................... 230, 242
D. v. National Society for Prevention of Cruelty to Children ....................... 114, 144
D.H. v. B.C. ........................................................................................ 244
Dableh v. Ont. Hydro ............................................................................. 486
Dalehite v. U.S. .................................................................................... 226
Danard v. The Queen ............................................................................. 263
Danyluk v. Ainsworth Technologies ............................................................ 64
Darker v. Chief Constable of the West Midlands Police ................................... 298
Darling Island Stevedoring Co. v. Long ...................................................... 173
David Securities v. Commonwealth Bank of Australia .................................... 351
Davis v. Passman .................................................................................. 202
Davis v. Radcliffe ................................................................................. 253
Dechant v. Stevens .......................................................................... 289, 299
Deeks McBride v. Vancouver Associated Contractors ..................................... 421
Defazio Bulldozing v. Stephenson Construction ............................................ 409
De Lancey v. The Queen ........................................................................... 71
Deloitte Haskins and Sells v. Workers’ Comp. Bd. ......................................... 390
Deputy Commr. of Taxation v. Moorebank .................................................. 434
Deputy Minr. of Revenue v. Rainville ................................................... 389, 390
Des Champs v. Conseil des écoles separées catholiques de langue francaise de
Prescott-Russell ................................................................................. 102
xxvi
TABLE OF CASES
Design Services v. Can. ................................................. 231, 249, 250, 251, 311

Dickson v. Combermere ......................................................................... 333
Dickson v. The Queen ............................................................................ 342
Director of Soldier Settlement, Re ............................................................... 99
Director of Soldier Settlement v. King ........................................................ 422
Distribution Can. v. M.N.R. ....................................................................... 57
Dixon v. State of W.A. ........................................................................... 263
Djukic v. Can. ...................................................................................... 491
Doe v. Metropolitan Toronto (Municipality) Commrs. of Police .................. 237, 261
Dolmage v. Ont. ........................................................................ 88, 159, 186
Domestic Converters v. Arctic Steamship Line ........................................ 179, 437
Dominion Building Corp. v. The King ............................................. 56, 408, 450
Donoghue v. Stevenson .......................................................................... 224
Dorman Timber Co. v. B.C. ............................................................... 168, 281
Dorset Yacht Co. v. Home Office ........................................... 173, 226, 263, 270
D’Orta-Ekenaike v. Vic. Legal Aid ............................................................ 265
Double N Earthmovers v. Edmonton .......................................................... 311
Doucet-Boudreau v. N.S. ............................................................ 51, 52, 84, 86
Dowson v. The Queen ............................................................................ 300
Driskell v. Dangerfield ........................................................................... 297
Dubai Aluminium v. Salaam .................................................................... 159
Du-Lude v. Can. ................................................................................... 204
Dumont v. Can. .................................................................................... 266
Dumoulin v. Ont. ............................................................................ 185, 477
Duncan v. Cammell Laird & Co. ................... 114, 115, 117, 120, 122, 125, 129, 141
Duncan v. The Queen ............................................................................. 184
Dunlop v. Woollahra Municipal Council ..................................................... 196
Dunn v. Macdonald ......................................................................... 332, 333
Dunn v. The Queen ............................................................................... 332
Dunsmuir v. N.B. ..................................................................... 271, 305, 335
Dyke and Cochin Pipe Lines, Re ............................................................... 358
Dyson v. Attorney-General (1910) ........................................................... 6, 38
E.D.G. v. Hammer ................................................................................ 165
Eastern Trust Co. v. MacKenzie, Mann & Co. ................................................ 81
East Suffolk Rivers Catchment Board v. Kent ............................................... 258
Eastern Trust Co. v. McKenzie, Mann & Co. ................................................ 396
Edwards v. Law Society of Upper Can. ........................ 231, 234, 245, 253, 260, 289
Electricity Commn. N.S.W. v. Australian United Press .................................... 464
Eliopoulos Estate v. Ont. ......................................................................... 235
Elliott v. Insurance Crime Prevention Bureau ......................................... 298, 299
Ellis v. Home Office ........................................................................ 121, 263
Emerson v. Simpson ................................................................................ 74
Emms v. The Queen .............................................................................. 339
Energy Probe v. Can. ............................................................................... 78
Enever v. The King ............................................................................... 465
Entreprises Sibeca v. Frelighsburg ................................................ 158, 226, 245
Entick v. Carrington ............................................................. 20, 189, 276, 277
Environmental Defence Society v. South Pacific Aluminium ............................ 131
xxvii
TABLE OF CASES
Erie Railroad Co. v. Tompkins ................................................................. 498

Ermineskin Indian Band and Nation v. Can. ........................................... 372, 376
Essendon Corp. v. Criterion Theatres ................................................... 452, 455
Esso Petroleum Co. v. Hall Russell & Co. .................................................... 174
Eurig Estate, Re .................................................................................... 352
Evans v. Finn ....................................................................................... 153
Exchange Bank of Canada v. The Queen ............................................... 387, 435
Exploits Valley v. College of the North Atlantic ............................................ 252
F.A.I. Insurances v. Winneke ..................................................................... 61
Fairford First Nation v. Can. .................................................................... 495
Fairland Overseas Development Co. v. Secretary for Justice ............................. 330
Farley v. Badley ................................................................................... 388
Farm Adjustment Bd. v. Fundy Lamb Producers ............................................ 475
Farm Credit Corp. v. Holowach (Trustee of) ................................................. 439
Farnell v. Bowman ................................................................... 152, 153, 431
Feather v. The Queen ................................................................................ 7
Federal Business Dvlpt. Bank v. Hillcrest Motor Inn .......................... 389, 410, 454
Federal Business Dvlp. Bank v. Que. .......................................................... 390
Federal Business Dvlpt. Bank v. Workers’ Comp. Bd. ............................... 421, 450
Federal Commr. of Taxation v. Official Liquidator of E.O. Farley ...................... 389
Fédération Franco-Ténoise v. Can. .......................................................... 15, 16
Feres v. U.S. ........................................................................................ 267
Ferguson v. A.-G. Can. ............................................................................. 94
Ferron v. Goodier .................................................................................. 297
Fidelity Insurance Co. v. Cronkhite Supply .................................................. 465
Field v. Nott ........................................................................................ 174
Filip v. Waterloo ................................................................................... 101
Fingleton v. R. ..................................................................................... 291
Finney v. Barreau du Québec ....................... 168, 201, 231, 234, 245, 272, 281, 291
First Vancouver Finance v. M.N.R. ............................................................ 393
Fisher v. Oldham Corp. .......................................................................... 174
Fisher v. Ruislip-Northwood Urban District Council ....................................... 263
Fisher v. The Queen ................................................................................ 99
Fitzgerald v. Muldoon ............................................................................ 397
Fletcher Timber v. A.-G. ............................................................ 115, 123, 131
Florence Mining Co. v. Cobalt Lake Mining Co. ..................................... 319, 361
Fonseca v. A.-G. .............................................................................. 74, 385
Fontaine v. Lalonde ............................................................................... 298
Food Controller v. Cork .................................................................... 388, 416
Fortey v. Can. ...................................................................................... 263
Foschia v. Conseil des Écoles Catholique de Langue Française du Centre-Est ........ 197
Fox v. Government of Newfoundland ................................................... 465, 467
Francovich and Bonifacti v. Italy ............................................................... 195
Franklin v. The Queen (No. 2) .................................................................... 76
Fraser, The Queen v. .............................................................................. 419
Fray v. Blackburn ................................................................................. 283
Freeman-Maloy v. Marsden ..................................................................... 198
Friends of the Oldman River Society v. Can. ................................... 408, 411, 414
xxviii
TABLE OF CASES
Fullowka v. Pinkerton’s of Can. .............. 183, 184, 231, 232, 238, 246, 247, 259, 279
Gadutsis v. Milne .................................................................................. 255
Gallant v. The Queen ............................................................................. 334
Gardner v. The Queen ............................................................................ 371
Garnett v. Ferrand ................................................................................. 283
Garrett v. A.-G. .................................................................................... 200
Gartland Steamship Co. v. The Queen ..................................... 408, 421, 438, 439
Gauthier v. Can. ...................................................................... 255, 450, 454
Gauthier v. The King ............................................................................... 56
Gazley v. Lord Cooke of Thorndon ............................................................ 285
Geddis v. Proprietors of Bann Reservoir ................................................ 191, 269
General Medical Council v. Meadow .......................................................... 299
Gerak v. R. in right of B.C. ...................................................................... 177
Gibbons v. Duffell ................................................................................ 300
Gibson v. Young ................................................................................... 262
Gladstone v. Can. ....................................................................... 35, 347, 375
Godin v. N.B. Power Commn. .................................................................. 486
Gooderham & Worts v. C.B.C. ................................................................. 323
Goodfellow v. Commr. of Taxation ............................................................ 464
Goods and Services Tax, Re ..................................................................... 495
Gooliah, Re ...................................................................................... 60, 61
Gooliah v. R. ......................................................................................... 94
Gorecki v. Canada ............................................................................ 35, 375
Gorringe v. Calderdale Metropolitan B.C. ....................................... 230, 233, 259
Gould v. Stuart ..................................................................................... 339
Gouriet v. Union of Postal Workers ............................................................. 40
Grand Council of Crees v. The Queen (Can.) .................................................. 46
Graham Barclay Oysters Pty. v. Ryan ...................................... 230, 236, 242, 261
Grand Restaurants v. City of Toronto ......................................................... 255
Granger v. Can. .................................................................................... 383
Granite Power Corp. v. Ont. ..................................................................... 184
Grant v. Can. ....................................................................................... 186
Gratton-Masuy Environmental Technologies v. Ont. ....................................... 474
Gregoire v. Biddle ................................................................................. 292
Greig v. Univ. of Edinburgh ..................................................................... 463
Grenier v. Can. ..................................................................................... 270
Groat v. Edmonton ................................................................................ 192
Grossman v. The King ...................................................................... 179, 263
Groves v. Cth ....................................................................................... 266
Guaranty Trust Co. v. Fleming ................................................................. 118
Guerin v. The Queen ........................................................................ 370, 373
Guimond v. Que. ..................................................................... 205, 279, 280
H.B. Nickerson & Sons v. Wooldridge ........................................................ 255
H.L. & M. Shoppers v. Town of Berwick .................................................... 255
Haida Nation v. British Columbia .............................................................. 375
Halifax v. David ................................................................................... 255
Halifax v. Halifax Harbour Commrs. .......................................................... 467
Hall v. The Queen ................................................................................. 342
xxix
TABLE OF CASES
Hamer, Re .......................................................................................... 408

Harcourt v. A.-G. .................................................................................. 408
Harder v. N.Z. Tramways Union ................................................................. 40
Harrison Rock & Tunnel Co. v. The Queen (Ont.) ............................................ 92
Harvey v. Derrick .................................................................... 288, 289, 290
Hawley v. Bapoo .................................................................................. 204
Hawthorn Pty Ltd. v. State Bank of South Australia ....................................... 451
Haydon v. Kent County Council ............................................................... 263
Health Care Developers v. Nfld. ................................................................ 321
Health Services and Support-Facilities Subsector Bargaining Assn. v. B.C. ........... 319
Heaslip v. Ont. ..................................................................................... 238
Heath v. Commr. of Police for theMetropolis .......................................... 298, 299
Heddon v. Evans ................................................................................... 267
Hedley Byrne v. Heller ........................................................................... 254
Henco Industries v. Haudenosaunee Six Nations ............................................ 314
Henderson, The Queen v. ........................................................................ 323
Hendricks v. The Queen ......................................................................... 263
Hendry v. The Queen ............................................................................. 171
Henley v. Mayor of Lyme ....................................................................... 197
Henley & Co., Re .................................................................................. 387
Hennessy v. Wright ............................................................................... 117
Henry v. The King ................................................................................ 370
Hercules Managements v. Ernst and Young .................................... 225, 250, 254
Hereford Ry. Co. v. The Queen ................................................................. 371
Hewat v. Ont. ...................................................................................... 338
Hill v. B.C. .......................................................................................... 168
Hill v. Chief Constable of West Yorkshire ............................................. 230, 237
Hill v. Hamilton-Wentworth Regional Police Services Bd. ...... 231, 237, 243, 247, 295
Hill v. N.S. ............................................................................... 56, 382, 384
Hobson v. A.-G. ................................................................................... 200
Hoffmann-La Roche v. Trade Secretary ........................................................ 50
Hogan v. Nfld. ..................................................................................... 309
Hogarth v. The King .............................................................................. 342
Holland v. Sask. ....................................... 181, 184, 231, 240, 245, 247, 253, 269
Hollinger Bus Lines v. Ont. Labour Relations Bd. .......................................... 474
Hollis v. Vabu Pty. ................................................................................ 159
Holtslag v. Alta. ................................................................................... 235
Home v. Bentinck ................................................................................. 117
Home Orderly Services v. Man. ................................................................ 364
Homestake Mining Co. v. Texasgulf Potash Co. ...................................... 118, 149
Hood v. Can. ....................................................................................... 436
Horwitz v. Connor .................................................................................. 58
Houlden v. Smith .................................................................................. 286
Household Realty Corp. v. A.-G. Can. ........................................................ 388
Howell v. Falmouth Boat Construction Co. .................................................. 383
Hudon v. Procureur Général de Québec ...................................................... 153
Humphrey v. Archibald .......................................................................... 143
Hunkin v. Siebert .................................................................................. 339
xxx
TABLE OF CASES
Hunt v. T & N ...................................................................................... 486

Hunter v. Southam .................................................................................. 45
Hupe v. Man. ....................................................................................... 438
Husky Oil Operations Ltd. v. M.N.R. ............................................ 389, 390, 393
IBEW v. Alta. Govt. Telephones ............................................................... 413
Imbler v. Pachtman ............................................................................... 292
Indian Towing Co. v. U.S. ....................................................................... 226
Ingles v. Tutkaluk Construction ................................. 225, 226, 230, 251, 257, 262
Inland Revenue Commrs. v. Rossminster ............................................ 39, 40, 340
Inniss v. A.-G. Saint Christopher and Nevis ................................................. 203
International General Electric Co. v. Commrs. of Customs and Excise ................... 40
International Ry. Co. v. Niagara Parks Commn. ...................................... 333, 478
Invercargill C.C. v. Hamlin ...................................................................... 251
Investors Group Trust Co. v. Eckhoff ................................................... 408, 428
Irish Shipping v. The Queen ............................................................... 92, 185
Itchin Bridge Co. v. The Southampton Bd. of Health ...................................... 152
J. v. North Lincolnshire County Council ...................................................... 183
J.C.R. v. B.C. ....................................................................................... 186
J.W. Abernethy Management & Consulting v. 705589 Alberta Ltd. and
Trillium Homes ................................................................................. 285
Jackson v. Magrath .......................................................................... 300, 302
Jacobsen v. Rogers ............................................................. 443, 449, 451, 456
James v. B.C. ................................................................................. 235, 251
James v. Commonwealth ............................................................ 172, 173, 195
Jamieson v. Downie ............................................................................... 430
Jarratt v. Commr. of Police ...................................................................... 336
Jeu Jang How, The King v. ........................................................................ 62
Jennings v. Buchanan ............................................................................. 299
Johnson v. Cth. ..................................................................................... 333
Johnson v. Lavender .............................................................................. 455
Johnson v. The Queen .............................................................................. 94
Johnstone v. Cth. ..................................................................................... 7
Johnstone v. Pedlar ................................................................................ 277
Jones v. Swansea City Council ................................................................. 198
Joy Oil Co. v. The King .......................................................................... 309
Jung v. District of Burnaby ...................................................................... 255
Just v. B.C. ........................................................... 183, 185, 225, 227, 263, 272
K.L. Tractors, Re .................................................................................. 388
K.L.B. v. B.C. ................. 100, 162, 163, 165, 183, 184, 187, 238, 261, 379, 444, 476
Kamloops (City) v. Nielsen ............................... 225, 227, 228, 235, 251, 252, 256
Karagozlu v. Commr. of Police of the Metropolis .......................................... 198
Kaye v. A.-G. Tas. ................................................................................ 408
Kearney, The Queen v. ........................................................................... 468
Keatings v. Secretary of State for Scot. ....................................................... 185
Keen v. Can. ........................................................................................ 339
Kennedy v. M.N.R. ................................................................................. 99
Kenny v. Cosgrove ................................................................................ 333
Kenora Hydro v. Vacationland Dairy .......................................................... 384
xxxi
TABLE OF CASES
Kent v. Griffiths ................................................................................... 263

Khadr v. Can. ........................................................................................ 23
Kienapple v. The Queen ......................................................................... 385
Kimpton v. Can. ................................................................................... 251
Kingstreet Investments v. New Brunswick ............. 105, 205, 346, 347, 349, 352, 504
Kinloch v. Secretary of State for India ........................................................ 370
Kleinwort Benson v. Lincoln City Council ................................................... 351
Knight v. Imperial Tobacco Can. .................................................. 238, 251, 454
Knight v. Indian Head School Division No. 19 .............................................. 336
Kodeeswaran v. A.-G. Ceylon .................................................................. 334
Koita v. Toronto Police Services Bd. .......................................................... 283
Kopyto v. Judge C.H. Paris ...................................................................... 298
Korchynski v. Sparkle Car Wash ............................................................... 391
Kosko c. Bijimine ................................................................................. 285
Krieger v. Law Society of Alta. ................................................................. 297
Kruger v. Cth. ...................................................................................... 202
Kuddus v. Chief Constable of Leicestershire Constabulary ............................... 198
Kuwait Airways Corp. v. Iraq ................................................................... 484
L. v. Cth. ............................................................................................ 263
L. (A.) v. Ont. ...................................................................................... 235
La Ferme Filiber v. Can. ......................................................................... 365
Laker Airways v. Dept. of Trade ................................................................. 21
Lamoureux v. A.-G. Can. ........................................................................ 436
Langlois v. Can. Commercial Corp. ..................................................... 333, 479
Lapierrière, The King v. .......................................................................... 436
Latta v. Ont. .................................................................................. 108, 109
Launceston Corp. v. Hydro Electric Commn. ................................................ 469
Laurentide Motels v. Beauport ..................................................... 228, 257, 263
Lawpost v. N.B. ................................................................................... 290
Lawrysyn v. Kipling (Town) .................................................................... 192
Leadbeater v. Ont. ................................................................................. 171
Leaman v. The King .............................................................................. 334
Le Blanc, Re ..................................................................................... 58, 59
Legislative Privilege, Re ......................................................................... 148
Leichhardt Municipal Council v. Montgomery ................................. 163, 164, 165
Le Lievre v. Gould ................................................................................ 223
Lethbridge Collieries v. The King .............................................................. 309
Levesque v. A.-G. Can. ....................................................................... 51, 59
Levy Bros., The Queen v. ........................................................... 163, 172, 184
Lewis v. B.C. .......................................................................... 164, 228, 263
Lewis v. P.E.I. ..................................................................................... 167
Liability Solutions v. N.B. ....................................................................... 487
Liebmann v. Can. .................................................................................... 88
Lincoln v. Daniels ................................................................................. 299
Liquidators of the Maritime Bank v. Receiver General of New Brunswick ......... 14, 25
Lister v. Hesley Hall .............................................................................. 171
Little Sisters Book and Art Emporium v. Canada ............................................. 96
Lloyd v. Wallach .................................................................................. 139
xxxii
TABLE OF CASES
Loomis v. Ont. ....................................................................................... 40

Long v. Province of N.B. ........................................................... 169, 173, 174
Lonrho v. Shell Petroleum Co. (No. 2) ........................................................ 197
Lord Advocate v. Dumbarton D.C .................................... 398, 400, 412, 413, 417
Lower Hutt City v. A.-G. ........................................................................ 448
Lucas v. Lucas ................................................................................ 82, 334
Lunt v. Lloyd ....................................................................................... 276
M. (An Infant), Re ................................................................................. 416
M. v. Home Office ............................................ 47, 48, 49, 50, 53, 58, 83, 84, 85
M. (M.I.) v. H. (T.) ................................................................................ 281
M. (S.) v. Ont. ........................................................................................ 88
M.B. v. B.C. ........................................................................................ 165
M. Isaacs & Sons v. Cook ....................................................................... 300
M.J.B. Enterprises v. Defence Construction .................................................. 311
M.L.C. v. Evatt .................................................................................... 254
M.N.R. v. Inland Industries ...................................................................... 383
M.N.R. v. Roxy Frocks Mfg. Co. .............................................................. 408
Macbeath v. Haldimand .......................................................................... 332
Mackay v. A.-G. B.C. ............................................................................ 323
MacKeigan v. Hickman ............................................................. 283, 284, 285
Mackenzie-Kennedy v. Air Council .............................................. 473, 475, 476
Mackin v. N.B. ..................................................................................... 205
MacLean v. Liquor Licence Bd. of Ont. ............................................. 40, 48, 473
MacLean v. The Queen .......................................................................... 263
MacQuarrie v. A.-G. N.S. .......................................................................... 56
Madras Electric Supply Corporation v. Boarland ........................................... 418
Maguire v. Simpson ......................................................................... 431, 433
Maharaj v. A.-G. Trinidad and Tobago (No. 2) ........................................ 203, 283
Malkin v. The King ............................................................................... 342
Mammoliti v. Niagara Regional Police Service ....................................... 205, 295
Man. Govt. Employees Assn. v. Govt. of Man. ......................................... 14, 397
Man. Provincial Judges Assn. v. Man. (Minister of Justice) .............................. 288
Manitoba Fisheries v. The Queen ........................................................ 362, 364
Manitoba Language Rights, Re ............................................................ 42, 277
Mann v. O’Neill ............................................................................. 299, 302
Manson v. Can. .................................................................................... 285
Manufacturers Life Insurance Co. v. Pitbaldo & Hoskin .................................. 255
Manuge v. Can. ............................................................................... 70, 270
Maple Lodge Farms v. Govt. of Canada ........................................................ 59
Marconi’s Wireless Telegraph Co. v. Cth. (No. 2) ............................. 115, 126, 141
Marek v. Cieslak ..................................................................................... 92
Mariner Real Estate v. Nova Scotia ............................................................ 363
Maritime Electric Co. v. General Dairies ..................................................... 383
Markevich v. Can. .............................................................. 100, 103, 410, 438
Marks v. Beyfus ............................................................................. 122, 143
Mar-Lise Industries, Re .................................................................... 389, 428
Marrinan v. Vibart ................................................................................ 299
Marshalsea Case ................................................................................... 286
xxxiii
TABLE OF CASES
Martel Building v. Can. ............................................................. 249, 251, 311

Martin v. Martin ..................................................................................... 81
Martinello & Co. v. McCormick ............................................................... 450
Martineau v. The King ........................................................................... 153
Mason, Re ............................................................................................ 99
Mason v. Ont. ................................................................................ 431, 468
Massein v. The King .............................................................................. 342
Matthews v. Minry. of Defence ................................................................. 267
Mattick Estate v. Ont. ............................................................................. 109
May v. Ferndale Institution ........................................................................ 62
McAfee v. Irving Refinery ....................................................................... 359
McArthur v. The King ...................................................................... 154, 264
McC, Re ................................................................................ 285, 286, 288
McCague v. The Queen .......................................................................... 383
McClintock v. Cth. ................................................................................ 196
McFarlane, The Queen v. ........................................................................ 152
McGillivary v. N.B. ............................................................................... 169
McGraw-Hinds v. Smith ............................................................ 418, 419, 442
McKendrick v. Sinclair ............................................................................. 22
McKesson Corp. v. Florida ...................................................................... 352
McLeod, The Queen v. ........................................................................... 152
McNamara Construction v. The Queen .................................... 490, 493, 499, 500
McNamara (McGrath) v. Consumer Trade and Tenancy Tribunal ....................... 469
McNeil v. N.S. Bd of Censors, Re ............................................................... 39
McPherson v. McPherson ........................................................................ 126
McWilliam, Ex parte ................................................................................ 58
Meade v. Haringey London Borough Council ................................................. 40
Meates v. A.-G. ....................................................................... 254, 255, 322
Medvid v. Sask. .................................................................................... 487
Mellenger v. New Brunswick Dvlpt. Corp. ................................................... 484
Merchant Law Group v. C.R.A. .......................................................... 184, 354
Mersey Docks and Harbour Bd. v. Cameron ................................................. 463
Mersey Docks and Harbour Bd. v. Gibbs ..................................................... 152
Merson v. Cartwright ............................................................................. 203
Metropolitan Asylum District v. Hill ............................................. 190, 191, 192
Metropolitan Meat Industry Board v. Sheedy .......................................... 465, 467
Miazga v. Kvello Estate .......................................................................... 294
Middlesex County Council v. St. George’s Union .......................................... 463
Miguna v. Ont. ............................................................................... 102, 295
Miller v. The King ................................................................................ 369
Milne v. A.G. Tasmania .......................................................................... 310
Minister for Works (W.A.) v. Gulson ........................................................... 14
Minr. of Emplmt. and Immig. and Kahlon, Re ................................................ 59
Minr. of Finance (B.C.) v. The King ............................................................. 58
Minr. of Indian Affairs v. Ranville ............................................................... 58
Minry. of Housing and Local Govt. v. Sharp ................................................ 255
Mirhadizadeh v. Ont. ........................................................................ 11, 101
Mitchell v. Glasgow C.C. ........................................................................ 230
xxxiv
TABLE OF CASES
Mitchell v. Peguis Indian Band ................................................................. 455

Mochinski v. Trendline Industries ....................................................... 164, 263
Moin v. Blue Mountains (Town) ............................................................... 255
Montminy, The Queen v. .......................................................................... 74
Montreal v. Montreal Harbour Commrs. ...................................................... 358
Montreal v. Montreal Locomotive Works Ltd. .............................................. 467
Montreal v. 2952-1366 Que. ...................................................................... 45
Montreal Trust Co. v. The King ................................................................ 454
Morgan v. A.-G. ................................................................................... 263
Morguard Investments v. De Savoye .......................................................... 486
Morier v. Rivard ................................................................ 284, 285, 286, 291
Morissey v. Young .................................................................................. 90
Morton v. Bartlett ................................................................................. 275
Moulton v. Can. .................................................................................... 383
Mount Sinai Hospital Center v. Que. ............................................... 58, 210, 384
Mulcahy v. Ministry of Defence .......................................................... 264, 266
Mulholland v. Australian Electoral Commn. ................................................. 202
Mulroney and Coates, Re ................................................................ 91, 92, 93
Mulvenna v. Lords Commrs. of Admiralty ..................................................... 81
Munro v. Can. ...................................................................................... 171
Munro v. National Capital Commn. ........................................................... 358
Murphy, The King v. ....................................................................... 429, 436
Murphy v. Brentwood D.C. .................................................. 230, 250, 258, 262
Murray, The Queen v. ...................................................................... 422, 438
Murray v. Cold Road ............................................................................. 408
Murray v. Ont. ..................................................................................... 159
Musgrave v. Pulido ............................................................................... 276
Muskoka Mill Co. v. The Queen ............................................................... 152
Mustapha v. Culligan of Canada ............................................................... 211
N.S. Bd. of Censors v. McNeil .................................................................... 39
N.S.P.S.C. v. N.S.G.E.U. ........................................................................ 408
N.S.W. v. Bardolph .................................................................... 77, 314, 316
N.S.W. v. Cth. (No. 3) ............................................................................ 372
N.S.W. v. Ibbett ...................................................................................... 34
N.S.W. v. Lepore .................................................................................. 163
N.T. Power Generation Pty. v. Power and Water Authority .............. 12, 398, 449, 482
Nada v. Knight ..................................................................................... 263
Nakhla v. McCarthy .............................................................................. 284
Named Person v. Vancouver Sun ................................................. 126, 143, 144
Nanaimo Ry. v. Wilson ............................................................................ 38
Neary v. A.-G. N.S. ............................................................................... 422
Nelles v. Ont. ................................................................................. 169, 170
Nelles v. The Queen .............................................................................. 292
Nfld. Continental Shelf, Re ...................................................................... 495
Nicholson v. Haldimand-Norfolk Regional Bd. of Commrs. of Police ................. 336
Nireaha Tamaki v. Baker ..................................................................... 46, 50
Nord-Deutsche, The Queen v. ............................................................ 263, 436
Northern Pipeline Agency v. Perehinec .... 333, 335, 465, 466, 467, 473, 474, 477, 479,
xxxv
TABLE OF CASES
480
Northern Sandblasting Pty. v. Harris .................................................... 163, 164
Northern Territory v. Mengel ............................................................. 195, 200
Northrop Corp. v. The Queen .......................................................... 77, 78, 317
Northwest Territories v. P.S.A.C. ................................................................ 15
Nova Scotia v. Martin .............................................................................. 42
Nova Scotia v. N.S.G.E.U. ........................................................................ 36
Nova Scotia v. Nova Scotia Royal Commission into Marshall ........................... 140
Nova Scotia Govt. Employees’ Assn. v. Civil Service Commn. of N.S. ................ 339
Nova Scotia Power v. Can. ............................................. 445, 451, 464, 466, 468
Novopharm v. B.C. ................................................................................. 40
Nu-Pharm v. Can. ............................................................................ 69, 270
Nykorak v. A.-G. Can. ........................................................................... 339
Oag v. Can. ......................................................................................... 490
Oceanic Crest Shipping Co. v. Pilbara Harbour Services ............................ 173, 174
O’Connor v. Waldron ............................................................................ 299
Odhavji Estate v. Woodhouse ................. 197, 199, 200, 223, 231, 240, 246, 256, 288
O’Donnoghue, Ex parte ............................................................................ 58
Offshore Mineral Rights of B.C., Re .......................................................... 494
OLL v. Secretary of State for Transport ...................................................... 263
Oneil v. Metropolitan Toronto (Municipality) Police Force ............................... 295
Ont. v. Criminal Lawyers’ Assn. ............................................................... 150
Ont. Racing Commn. v. O’Dwyer .............................................................. 201
Ontario v. Mar-Dive Corp. ........................................................................ 73
Ontario Hydro. v. Ont ............................................................................ 454
Oosthoek v. Thunder Bay ........................................................................ 192
Operation Dismantle v. The Queen .............................................................. 26
Oriental Bank Corp., Re .......................................................................... 388
O’Rourke v. Darbishire .......................................................................... 116
P. (D.) v. Wagg .................................................................................... 127
P.E.I. Potato Marketing Bd. v. Willis .......................................................... 496
P.Q. Que. v. Nantel ............................................................................... 442
Pacific National Investments v. Victoria ....................... 326, 329, 330, 331, 344, 504
Pacific National Investments v. Victoria (No. 2) ...... 328, 329, 331, 342, 344, 345, 347
Pacific Western Airlines v. The Queen ........................................................ 490
Padfield v. Minry. of Agriculture and Fisheries ............................................... 58
Palmer v. The King ............................................................................... 435
Parker v. Cth. ................................................................................. 177, 264
Parrish & Heimbecker v. Can. ....................................................... 69, 270, 271
Parsons v. Can. Red Cross Society ............................................................. 488
Pas (The) v. Porky Packers ................................................................ 254, 255
Pasiechnyk v. Saskatchewan (Workers’ Compensation Board) .......................... 178
Patterson Estate v. Storry ........................................................................ 167
Pawis v. The Queen ............................................................................... 371
Pawlett v. A.-G. ....................................................................................... 6
Peabody Fund v. Parkinson & Co. ....................................................... 230, 252
Peaker v. Canada Post ............................................................................ 110
Peccin v. Lonegan ................................................................................. 476
xxxvi
TABLE OF CASES
Peerless Bakery v. Watts ......................................................................... 300

Peeters v. Can. ....................................................................................... 34
Pelletier v. Can. ................................................................. 133, 135, 136, 339
Penikett v. Can. .................................................................................... 371
Peralta v. Minr. of Natural Resources ........................................................... 40
Perre v. Apand Pty. ......................................................................... 250, 265
Peter G. White Management v. Can. ........................................................... 490
Peters v. The Queen (B.C.) ........................................................................ 40
Pettkus v. Becker .................................................................................. 342
Pharmaceutical Manufacturers Assn. of Canada v. B.C. ..................................... 21
Phelps v. Hillingdon London B.C. .......................................... 187, 230, 242, 270
Pisano v. Fairfield City Council ................................................................ 255
Pispidikis v. Scroggie ............................................................................. 283
Placzek v. Green ................................................................................... 282
Plimmer v.Wellington Corp. .................................................................... 382
Portage La Prairie v. B.C. Pea Growers ....................................................... 192
Port of Portland v. Vic. ........................................................................... 325
Premakumaran v. Can. ........................................................................... 255
Premier Mouton Products, The Queen v. ..................................................... 342
Prentice v. Can. .................................................................................... 266
Prete v. Ont. .................................................................................. 101, 106
Pride of Derby v. British Celanese ............................................................. 192
Prohibitions del Roy ................................................................................ 20
Proulx v. Que. ................................................................................ 285, 293
Province of Bombay v. Municipal Corporation of Bombay ............ 399, 411, 413, 456
Province of N.B. v. Mallett ...................................................................... 334
Prud’homme v. Prud’homme ................................................................... 158
Public Service Alliance v. CBC .................................................................. 76
Puntoriero v. Water Administration Ministerial Corp. ..................................... 281
Pyrenees Shire Council v. Day ......................................... 230, 244, 260, 263, 272
Que. v. Caisse populaire Desjardins de Montmagny ....................................... 390
Que. v. Communauté urbaine de Montréal ................................................... 196
Que. v. Lapierre .............................................................................. 196, 214
Que. v. Ont. Securities Commn. ................................................................ 422
Que. Liquor Commrs. v. Moore ................................................................ 476
Quebec North Shore Paper Co. v. Canadian Pacific .................................. 489, 499
Queen (Can.) v. The Queen (P.E.I.), The ..................................................... 495
Queen v. Cognos .................................................................................. 254
Quinland v. Governor of H.M. Prison Belmarsh ............................................ 170
R. v. Ahmad .................................................................................. 137, 138
R. v. Al Klippert ..................................................................................... 67
R. v. Anderson ..................................................................................... 447
R. v. Appleby (No. 2) ............................................................................. 360
R. v. Archer ......................................................................................... 119
R. v. Basi ...................................................................................... 145, 147
R. v. Boulanger .................................................................................... 197
R. v. Bradley ......................................................................................... 38
R. v. C.A.E. Industries ............................................................... 310, 322, 323
xxxvii
TABLE OF CASES
R. v. Campbell .................................................................. 173, 446, 465, 471

R. v. Can. (Dept. of Nat. Def.) ............................................................ 442, 443
R. v. Caron ............................................................................................ 97
R. v. Catagas ....................................................................................... 397
R. v. Chief Constable; Ex parte Wiley .................................................. 115, 121
R. v. Ciarniello ....................................................................................... 94
R. v. Consolidated Maybrun Mines .................................................... 64, 66, 71
R. v. Criminal Injuries Compensation Bd., ex parte Lain ............................... 20, 26
R. v. Davey; Ex parte Freer ........................................................................ 62
R. v. Eldorado Nuclear ............ 406, 408, 414, 426, 442, 445, 458, 466, 468, 470, 481
R. v. Foreign Secretary, ex parte Everett ................................................... 23, 26
R. v. Governor of S.A. .............................................................................. 58
R. v. H and C ....................................................................................... 124
R. v. Hamilton ..................................................................................... 126
R. v. Hape ........................................................................................... 278
R. v. Hardy ......................................................................................... 143
R. v. Home Secretary, ex parte Bentley .................................................... 23, 26
R. v. Home Secretary, ex parte Fire Brigades Union .................................... 21, 22
R. v Home Secretary, ex parte Northumbria Police Authority ....................... 21, 416
R. v. Leipert ........................................................................... 124, 142, 147
R. v. Leong Ba Chai ................................................................................ 58
R. v. McGillivary .................................................................................. 205
R. v. McLeod ....................................................................................... 447
R. v. Meuckon ..................................................................................... 125
R. v. O’Connor ..................................................................................... 124
R. v. Omar .......................................................................................... 146
R. v. Ont. Labour Relations Bd.; Ex parte Ont. Food Terminal Bd. ..................... 464
R. v. Ouellette ......................................................................... 406, 408, 413
R. v. Paulson ...................................................................................... 382
R. v. Powell ........................................................................................... 46
R. v. Power ......................................................................................... 297
R. v. R. (D.) ......................................................................................... 295
R. v. Registrar of Titles ........................................................................... 455
R. v. Rutherford .............................................................................. 420, 438
R. v. Secretary of State for Foreign and Commonwealth Affairs; Ex parte Indian Assn.
of Alta. ............................................................................................. 14
R. v. Secretary of State for Transport, ex parte Factortame (No. 2) ........................ 52
R. v. Snider ............................................................................ 118, 121, 149
R. v. Sparrow ....................................................................................... 374
R. v. Stead .......................................................................................... 397
R. v. Stradiotto ............................................................................... 446, 471
R. v. Stinchcombe ................................................................ 89, 124, 126, 143
R. v. Swain ........................................................................................... 43
R. v. Thomas ....................................................................................... 105
R. v. Thomas Fuller Construction ........................................................ 490, 499
R. v. Toohey; Ex parte Northern Land Council ................................................ 58
R. v. Vanguard Hutterian ........................................................................ 115
R. v. Wicks ...................................................................................... 66, 67
xxxviii
TABLE OF CASES
R. v. Williams ...................................................................................... 183

R. v. Woodburn .............................................................................. 321, 323
R. (Greenfield) v. Secretary of State ........................................................... 203
R. (Man.) v. Thomas ................................................................................ 94
R. (Quark Fishing) v. Secretary of State for Foreign and Commonwealth Affairs ...... 16
Racz v. Home Office ............................................................................. 173
Raleigh v. Goschen ............................................................................... 276
Ramanoop v. A.-G. Trinidad and Tobago .................................................... 203
Rankin v. The King ............................................................................... 408
Rattenbury v. Land Settlement Board .................................................... 47, 473
Ravndahl v. Sask. ........................................................................... 105, 106
Rawlinson v. Rice ........................................................................... 200, 290
Reckley v. Minister of Public Safety (No. 2) .............................................. 23, 26
Reeves v. Commr. of Police of the Metropolis Area ....................................... 261
Regional Municipality of Peel v. Canada ............................................... 343, 352
Regional Municipality of Peel v. MacKenzie ................................................ 343
Registrar, Accident Compensation Tribunal (Vic.) v. Federal Commr.
of Taxation ................................................................................ 405, 466
Reid v. Republic of Nauru ....................................................................... 425
Residential Tenancies Tribunal of N.S.W. and Henderson; Ex parte Defence Housing
Authority, Re ........................................................... 397, 426, 432, 443, 451
Revesz v. Commonwealth ....................................................................... 262
Reynolds v. A.-G. ................................................................................... 61
Rhodes, The King v. ........................................................................ 408, 447
Rhône (The) v. Peter A.B. Widener (The) .................................................... 444
Ribic v. Can. ........................................................................................ 138
Rice v. Chute ....................................................................................... 332
Richardson, The King v. ............................................................ 339, 420, 438
Ridge v. Baldwin .................................................................................. 336
River Valley Poultry Farm v. Can. ............................................................. 238
RJR-MacDonald v. Can. .................................................................... 51, 134
R.L. Belleau, The Queen v. ...................................................................... 425
Roberts v. Can. ..................................................................................... 500
Robinson v. South Australia (No. 2) ........................................................... 120
Rogers v. Home Secretary ....................................................................... 144
Rolls Royce N.Z. v. Carter Holt Harvey ................................................ 230, 250
Roncarelli v. Duplessis .............................................................. 199, 276, 281
Ron Engineering and Construction, The Queen v. .......................................... 311
Rookes v. Barnard ................................................................................... 33
Ross River Dena Council Band v. Can. .................................... 21, 24, 25, 26, 417
Rothfield v. Manolakos ....................................................... 228, 244, 251, 262
Rothmans of Pall Mall v. A.G. ............................................................ 309, 310
Rowe v. Can. ....................................................................................... 490
Rowe and Man., Re ............................................................................... 421
Rowling v. Takaro Properties ...................................................... 229, 247, 280
Royal Aquarium and Summer and Winter Garden Society v. Parkinson ............... 299
Royal Bank v. Black & White Dvlpts. .................................................. 389, 421
Royal Bank v. Scott ................................................................................. 81
xxxix
TABLE OF CASES
Royal Bank v. Sparrow Electric Corp. ........................................................ 392

Royal Bank v. The King ......................................................................... 342
Royal Bank of Can., The King v. ............................................................... 382
Royer and Fortier v. Mignault ............................................................ 285, 298
Royster v. Cavey ............................................................................ 155, 180
Rudolf Wolff & Co. v. Canada (1990) ................................................... 10, 101
Rumley v. B.C. .................................................................................... 185
Rumping v. D.P.P. ................................................................................ 115
Rustomjee v. The Queen ........................................................................... 99
Rutherford v. A.-G. ............................................................................... 255
Rutherford v. Rutherford ......................................................................... 409
Ryan v. Victoria (City) ............................................ 182, 189, 191, 193, 225, 269
S.A.D. v. B.C. ...................................................................................... 159
Samejima v. The King .............................................................................. 62
Samuel Manu-Techv.Redipac Recycling Corp. ............................................. 298
Sanders v. Snell .................................................................................... 200
Sankey v. Whitlam .......................................................................... 121, 131
Sanko Steamship Co. v. Sumitomo ............................................................ 149
San Sebastian v. The Minister .................................................................. 255
Sarvanis v. Can. .................................................................................... 266
Sask. v. Fenwick ................................................................................... 442
Sask. Govt. Ins. Office, Re ...................................................................... 408
Sask. Power Corp. v. Swift Current ............................................................ 184
Sask. Wheat Pool, The Queen v. ...................................... 160, 181, 206, 236, 253
Saugeen Band of Indians v. Can. ................................................................. 47
Sault Ste. Marie, The Queen v. ................................................................. 440
Savage v. Chief Constable ....................................................................... 145
Scaglione v. McLean ............................................................................. 167
Schacht v. The Queen ............................................................................ 263
Schachter v. Canada ................................................................................ 43
Schut v. Magee .................................................................................... 299
Scott v. Scott ....................................................................................... 126
Scowby v. Glendinning .......................................................................... 447
Seaway Trust v. Ontario ........................................................................... 68
Secession of Quebec, Re ................................................................. 2, 41, 319
Secty. for War v. Wynne ........................................................................... 76
Sempra Metals v. Inland Revenue Commrs. ................................................. 352
Serendipity Ventures v. White Rock ........................................................... 255
Shaddock v. Parramatta City Council ................................................... 254, 255
Sharadan Builders v. Mahler .................................................................... 255
Shaw v. The Queen (B.C.) ......................................................................... 40
Shaw Savill & Albion Co. Ltd. v. Cth. .................................................. 177, 264
Shenton v. Smith .................................................................................. 334
Sheppard v. Glossop Corp. ...................................................................... 263
Shewan v. Can. ...................................................................................... 88
Silver Bros., Re ................................................................. 389, 408, 417, 450
Simpson v. A.G. ...................................................................... 170, 202, 281
Sirros v. Moore ................................................................. 284, 286, 287, 288
xl
TABLE OF CASES
Sisters of Charity of Rockingham v. The King .............................................. 362

Smallwood v. Sparling ........................................................ 121, 131, 139, 140
Smerchanski v. Lewis ...................................................................... 117, 118
Smith v. Nova Scotia ............................................................................... 48
Smith v. The Queen ................................................................................. 92
Société Asbestos v. Société Nationale de l’amiante ................................... 51, 359
Société de l’assurance automobile du Québec v. Cyr ....................................... 337
Solicitor General Can. v. Royal Commission (Health Records) .......................... 144
Sorbara v. Can. ..................................................................................... 354
Southend-on-Sea Corp. v. Hodgson (Wickford) ............................................. 384
Southland Acclimatisation Society v. Anderson ............................................. 442
Sparling v. Caisse de dépôt et placement du Québec .................... 421, 422, 424, 438
Spinks v. Can. ...................................................................................... 255
Spitzel v. Beckx ................................................................................... 117
Squamish (District) v. Great Pacific Pumice ................................................. 410
Stanbury v. Exeter Corp. ......................................................................... 174
Standen’s v. Pinkerton’s of Can. ............................................................... 144
State Authorities Superannuation Bd. v. Commr. of State Taxation for the
State of W.A. ................................................................. 397, 413, 443, 455
State of West Bengal v. Corp. of Calcutta .................................................... 399
Stenner v. B.C. ..................................................................................... 280
Stephens v. Richmond Hill ...................................................................... 192
Stephens’ Estate v. M.N.R. ...................................................................... 490
Stern v. The Queen ................................................................................ 342
Stieber v. Can. ............................................................................... 102, 168
St. John’s v. Lake .................................................................................. 192
St. Lawrence Cement v. Barrette ......................................................... 193, 214
St. Louis, The Queen v. .......................................................................... 385
St.-Onge v. Can. ................................................................................... 105
Stockwell v. Society of Lloyd’s ................................................................ 198
Stovin v. Wise ................................................................................ 229, 230
Stuart v. Can. ................................................................................. 179, 436
Stuart v. Kirkland-Veenstra ........................................................ 230, 242, 261
Suche v. R. .......................................................................................... 179
Sullivan v. Moody ........................................................................... 230, 242
Superannuation Fund Investment Trust v. Commr. of Stamps (S.A.) ................... 464
Susan Heyes v. South Coast B.C. Transportation Authority .............................. 193
Sutherland v. Can. ........................................................................... 189, 193
Sutherland Shire Council v. Heyman ........................... 228, 229, 233, 244, 251, 262
Sutton v. A.-G. ..................................................................................... 334
Swanson Estates v. Can. ................................................................... 244, 263
Swinamer v. N.S. ............................................ 183, 185, 186, 226, 228, 235, 263
Syl Apps Secure Treatment Centre v. B.C. ............................................. 238, 246
Sylvain, The Queen v. ............................................................................ 339
T1T2 Limited Partnership v. Can. .............................................................. 331
T.W.N.A. v. Can. .................................................................................. 187
Tame v. N.S.W. .................................................................................... 237
Tamlin v. Hannaford ........................................................................ 464, 466
xli
TABLE OF CASES
Tasman Fruit-packing Assn. v. The King ..................................................... 388

Taylor v. Can. ......................................................................... 284, 286, 296
Telephone Apparatus Manufacturers’ Appln., Re ........................................... 448
TeleZone v. Can. .................................................................................... 92
Telstra v. Worthing ......................................................................... 443, 453
Temelini v. Wright .................................................................................. 93
Tener, The Queen (B.C.) v. ...................................................................... 365
Tepko Pty. v. Water Bd. .......................................................................... 255
Tercon Contractors v. B.C. ................................................................ 311, 312
Tétreault-Gadoury v. Can. ......................................................................... 44
Theodore v. Duncan ................................................................................ 13
The Queen and Heinrichs, Re ................................................................... 408
The Queen and Federal Business Dvlpt. Bank, Re .......................................... 421
Thomas v. The Queen ...................................................................... 7, 32, 90
Thompson v. Turbott ............................................................................. 299
Thorne v. W.A. .................................................................................... 177
Thornhill v. Dartmouth Broadcasting ........................................................... 92
Three Rivers District Council v. Bank of England ........... 196, 199, 200, 201, 208, 288
Tito v. Waddell (No. 2) ........................................................................... 371
Tobin v. The Queen ............................................................................ 7, 152
Tock v. St. John’s Metropolitan Area Bd. ....................................... 191, 192, 193
Toews v. MacKenzie ............................................................................. 263
Torino Motors (1975) v. B.C. ................................................................... 192
Toronto District School Bd. v. Can. ........................................................... 467
Toronto Terminals Ry. Co. , The King v. ..................................................... 349
Toronto Transportation Commn. v. The King ............................................... 421
Town Investments v. Dept. of Environment ............................................. 11, 371
Townsville Hospitals Bd. v. City of Townsville ....................................... 466, 467
Transco v. Stockport Metropolitan B.C. ...................................................... 191
Transfer of Natural Resources to Sask., Re .............................................. 14, 494
Transworld Shipping, The Queen v. ..................................................... 321, 322
Trapp v. Mackie ................................................................................... 299
Trendtex Trading Corp. v. Bank of Nigeria .................................................. 425
Trent Strategic Health Authority v. Jain ................................................ 230, 252
Troops in Cape Breton, Re ................................................................. 14, 494
Truculent, The .......................................................................... 17, 278, 444
Turnbull; Ex parte Taylor, The Queen v. ....................................................... 62
Twinriver Timber v. R. (B.C.) .................................................................. 409
Tyne Improvement Commrs. v. Armemant .................................................. 342
U.S. v. County of Allegheny .................................................................... 498
U.S. v. Gaubert .................................................................................... 226
U.S. v. Johnson .................................................................................... 267
U.S. v. Muniz ...................................................................................... 498
U.S. v. Shearer ..................................................................................... 267
U.S. v. Stanley ..................................................................................... 267
Ukrainian (Fort William) Credit Union v. Nesbitt Burns .................................. 281
Ultramares Corp. v. Touche ..................................................................... 249
Underhill v. Minry. of Food ....................................................................... 40
xlii
TABLE OF CASES
Uni-Jet Industrial Pipe v. Can. .................................................................. 198

Union Oil Co. v. The Queen .................................................................... 486
United Assn. of Journeymen v. CBC .......................................................... 475
United States v. Nixon ............................................................................ 121
United States v. Winstar Corp. .................................................................. 325
Uther v. Federal Commr. of Taxation ......................................................... 454
Vaaro v. The King ................................................................................... 62
Vairy v. Wyong Shire Council .................................................................. 263
Valley Rubber Resources v. B.C. ................................................................ 20
Van Colle v. Chief Constable of the Herfordshire Police .................................. 230
Vancouver v. Ward ......................................................................... 202, 279
Van Mulligen v. Sask. Housing Corp. ........................................................... 51
Vautour v. N.B. ...................................................................................... 13
Verreault v. A.-G. Que. ......................................................... 12, 313, 322, 323
Verwayen v. Cth. (No. 2) ........................................................................ 267
Vic. v. Australian Building Construction Employees ......................................... 83
Victoria, The Queen v. ........................................................................... 409
Violi, Re ............................................................................................. 384
Viscount Canterbury v. The Queen ............................................................... 7
Vriend v. Alta. ....................................................................................... 45
W.A. v. Watson .................................................................................... 444
W.M. Bannatyne & Co., The Queen v. ........................................................ 342
Walker v. Baird .................................................................................... 277
Walsh Advertising Co. v. The Queen .......................................................... 342
Walter’s Trucking Service, Re .................................................................. 389
Waltons Stores v. Maher ......................................................................... 382
Wardle v. Man. Farm Loans Assn. ............................................................... 12
Warren v. Warren ........................................................................... 283, 285
Warwick Shipping v. Can. ....................................................................... 185
Washer v. B.C. Toll Highways and Bridges Authority ..................................... 477
Watkins v. Home Office ......................................................................... 198
Watteau v. Fenwick ............................................................................... 322
Welbridge Holdings v. Greater Winnipeg .............. 158, 196, 205, 226, 228, 245, 289
Welden v. Smith ................................................................................... 153
Wellington v. Ont. ................................................................................. 237
Wellington City v. Victoria University ........................................................ 448
Wells v. Foster ....................................................................................... 81
Wells v. Nfld. ............................................................. 305, 320, 325, 334, 367
Welsh v. The Chief Constable of Merseyside Police ....................................... 170
Wentworth v. A.-G. N.S.W. ....................................................................... 94
Westeel-Rosco v. Bd. of Governors of South Sask. Hospital Centre .............. 465, 467
Western Surety Co. v. Elk Valley Logging ................................................... 486
Westlake v. The Queen ........................................................................... 474
Wewaykum Indian Band v. Can. ......................................................... 103, 374
Whalley v. R.C.M.P. .............................................................................. 473
Wheeler v. Ont. .................................................................................... 408
White v. Can. ....................................................................................... 186
Whitefish Lake Band of Indians v. Can. ........................................................ 34
xliii
TABLE OF CASES
Whiten v. Pilot Insurance Co. ..................................................................... 33

Wiche v. Ont. ...................................................................................... 170
Wiebe v. Can. ...................................................................................... 261
Wildtree Hotels v. Harrow London B.C. ...................................................... 191
Williams v. Can. ............................................................................. 186, 238
Williams v. Howarth ................................................................................ 13
Willion v. Berkley .................................................................... 397, 399, 456
Willmor Discount Corp. v. Vaudreuil ......................................................... 352
Wilson v. The Queen .......................................................................... 64, 65
Windsor and Annapolis Ry. Co. v. R. ............................................................ 7
Windsor Motors v. District of Powell River .................................................. 255
Winnipeg Condominium Corporation No. 36 v. Bird Construction Co. ................ 250
Woolcock Street Investments Pty. v. C.D.G. Pty. ........................................... 250
Woolwich Equitable Building Society v. Inland Revenue Commrs. .............. 352, 354
Woodburn, The Queen v. ........................................................................ 321
Wood’s Estate, Re ................................................................................. 428
Woon v. M.N.R. ................................................................................... 383
Workers’ Comp. Bd. and Federal Business Dvlpt. Bank, Re ................ 421, 425, 451
Workington Harbour and Dock Bd. v. Towerfield .......................................... 179
Workmen’s Comp. Bd., The Queen v. ........................................................ 388
Wynyard Investments Pty v. Commr. for Railways (N.S.W.) ............................ 469
X (Minors) v. Bedfordshire County Council .............................. 181, 242, 269, 270
Yeats v. Central Mortgage and Housing Corp. ................................. 333, 478, 480
Young v. McCreary ............................................................................... 266
Young v. The S.S. Scotia ................................................................... 73, 485
Yuen Kun Yeu v. Attorney-General of Hong Kong ........................... 228, 230, 253
Yukon (Medical Council) v. Yukon (Information and Privacy Commr.) ............... 465
Zachariassen v. Cth. ......................................................................... 177, 180
Zodiak Int’l.Products v. Polish People’s Republic .......................................... 425
xliv
1
Introduction
1.1 Scope of work 1

1.2 Dicey’s idea of equality 2
1.3 History of Crown proceedings 4
(a) Origin of petition of right 4
(b) Equitable relief 6
(c) Contract and tort 6
(d) Royal fiat 8
(e) Statutory reform 8
(f) Judicial reform 10
1.4 Meaning of the Crown 11
(a) Executive branch of government 11
(b) Crown agency 13
(c) Divisibility 13
(d) Corporate character 16
1.5 Powers of the Crown 18
(a) Statutory powers 18
(b) Crown prerogative 19
(c) Judicial review of Crown powers 25
1.1 Scope of work

This book describes the extent to which the Crown (the government) is liable
to provide damages or other redress to persons injured by the exercise of govern-
mental power. This involves an examination of the law of remedies, procedure,
evidence, tort, contract, restitution and statutory interpretation, in its application
to the Crown. We also describe the extent of the Crown’s legal powers and the
limitations on those powers that have been established or recognized by the courts.
The book describes the law of Canada, although, where comparisons seemed
interesting, there are frequent references to the United Kingdom, Australia and
New Zealand, and some to the United States.
1.2 INTRODUCTION
1.2 Dicey’s idea of equality

The leading feature of the British-derived law of governmental liability is
that, with some exceptions, the same law is applied to the government and its
officials as is applied to private citizens. For A.V. Dicey, whose influential book,
The Law of the Constitution, was published in 1885, this “idea of equality” was
an important element of the “rule of law”.1 Sometimes the term “constitutional-
ism” is used to emphasize the subjection of government to law.2 The political
theory that is basic to this idea is that government ought to be under the law, and
not just any law, but the same law as applies to everyone else. In that way,
government is denied the special exemptions and privileges that could lead to
tyranny. Moreover, the application of the law to government is placed in the hands
of the ordinary courts, who are independent of government, and who can be relied
upon to award an appropriate remedy to the citizen who has been injured by
illegal government action. This is the rosy picture that led Dicey to make his
famous boast that “every official, from the Prime Minister down to a constable
or collector of taxes, is under the same responsibility for every act done without
legal justification as any other citizen”.3
Needless to say, Dicey abhorred the European legal systems, where there is
typically a special regime of public law administered by special administrative
courts. Students of these systems have not shared Dicey’s distaste, and have
generally concluded that they succeed in controlling the government and com-
pensating for losses at least as well as the British-derived systems.4 Many scholars
take the view that relations between government and subject ought to be governed
by a distinctive body of law, which would be more sensitive to the unique
1 Dicey, The Law of the Constitution (10th ed., 1959), 193.

2 In Reference Re Secession of Quebec [1998] 2 S.C.R. 217, the Supreme Court of Canada
distinguished the principle of the “rule of law” from that of “constitutionalism”. Whereas the
rule of law requires that all government action comply with the law, including the constitution,
the constitutionalism principle requires that all government action comply with the constitution.
The constitutionalism principle means that governments’ sole claim to exercise lawful authority
rests in the powers allocated to them under the constitution, and that they “must not transgress
its provisions” (para. 72).
3 Dicey, note 1, above, 193.
4 E.g., Jennings, The Law and the Constitution (5th ed., 1959), 230-238; Bell and Bradley (eds.),
Governmental Liability: A Comparative Study (1991); Fairgrieve, Andenas and Bell (eds.),
Tort Liability of Public Authorities in Comparative Perspective (2002); Fairgrieve, State Lia-
bility in Tort (2003). Contrast Harlow, Compensation and Government Torts (1982), 102-106,
and Harlow, State Liability (2004), 134-141, for a less enthusiastic appraisal of the European
model.
2
DICEY’S IDEA OF EQUALITY 1.2
characteristics of government.5 Our view is that Dicey captured a fundamental

attitude towards government that is common to the United Kingdom and the
former colonies that derived their public law from the United Kingdom. Certainly
in Canada, any special regime of public liability would have great difficulty in
achieving political acceptance. A special regime of liability would also create
enormous definitional problems, as courts struggled to determine which acts of
which bodies were subject to the public law, as opposed to the ordinary private
law. If the new regime were administered by a special administrative court, which
is the French model, there would be much wasteful litigation over jurisdiction as
litigants attempted to position themselves in the forum perceived most favourable
to success.6
We conclude that the application of the ordinary law by the ordinary courts
to the activities of government conforms to a widely-held political ideal and
preserves us from many practical problems.7 Moreover, our review of the law
leads us to the conclusion that, for the most part, the “ordinary” law does work a
satisfactory resolution of the conflicts between government and citizen.8 Indeed,
the parts of the law that seem to us to be most unsatisfactory are those where the
courts have refused to apply the ordinary law to the Crown.9 In short, we conclude
5 E.g., Street, Governmental Liability (1953), 185-186; Mitchell, The Contracts of Public Au-
thorities (1954), 6-7; Friedmann, Law in a Changing Society (Pelican ed., 1964), 303; Law
Reform Commn. (Can.), The Legal Status of the Federal Administration (1985), 72-74; Corn-
ford, Towards a Public Law of Tort (2009); Law Reform Commn. (Eng. and Wales), Admin-
istrative Redress (Consultation Paper, 2008; Report, 2010).
6 In Canada, a taste of this problem was provided when the government of Canada could be sued
only in the Federal Court of Canada and private defendants could be sued only in the provincial
courts. This led to much litigation over jurisdiction, multiple proceedings, and difficulties in
resolving multi-party disputes. The problem was alleviated when the Federal Court’s jurisdic-
tion over the government of Canada was amended to become concurrent rather than exclusive:
S.C. 1990, c. 8, amending s. 17 of the Federal Court Act. See ch. 2, Remedies, under heading
2.10, “Collateral attack”, below, and ch. 17, Federal Questions, under heading 17.3(c), “Suits
against Crown in Right of Canada”, below.
7 The subjection of government to ordinary law and ordinary courts also has economic advantages
in that it provides some assurance against the confiscation by government of private property
and contract rights, which is necessary for the security of the long-term investments that are
required for private-sector economic development: M. Olson, “Dictatorship, Democracy, and
Development” (1993) 87 Am. Poli. Sci. Rev. 567.
8 Note, however, the desirability of statutory regimes of compensation where government pro-
grammes or the conduct of third parties will foreseeably cause damage to individuals, for
example, compensation for expropriation, injuries caused by crime, or injuries caused by
vaccination programmes: ch. 6, Tort: General Principles, under heading 6.6(b), “Compensation
based on risk”, below.
9 E.g., Crown’s immunity from injunction, specific performance and mandamus (ch. 2); residual
immunities from tortious liability (ch. 6); doctrine of “fettering legislative power”, servants’
immunity from warranty of authority (ch. 9); relationship between Crown and servants (ch. 9);
presumption that Crown not bound by statutes (ch. 15).
3
1.3(a) INTRODUCTION
that Dicey’s idea of equality provides the basis for a rational, workable and
acceptable theory of governmental liability.10
At the outset it must be conceded that there is and always will be at least one
major exception to the “idea of equality”. As Dicey’s critics have repeatedly
pointed out, the State cannot be equal in all respects to its subjects “because it
has to govern”.11 The business of government requires that officials be given
powers that are not accorded to private individuals and, when exercising those
powers, it is plain that officials are not subject to the “ordinary” law. Dicey was
not unaware of this basic truth,12 but he certainly did not sufficiently emphasize
it in his discussion of the rule of law. For our purposes it is sufficient to note the
existence of a body of constitutional and administrative law which confers powers
upon officials, which defines the limits of those powers, and which prescribes
how, when and to what extent the exercise of those powers is reviewable. More-
over, a finding that government officials have acted outside their legal powers is
normally a precondition of governmental liability in tort. However, once that
precondition is met, it is the ordinary private law, not the constitutional and
administrative law, that governs the government’s legal liability to pay damages
or give other kinds of redress to anyone who has suffered harm. Later chapters
will show that the ordinary private law typically undergoes some modification in
its application to government,13 and there are some special regimes of govern-
mental liability,14 but the idea of equality is the dominant characteristic of the law
governing the liability of the Crown.15
1.3 History of Crown proceedings
(a) Origin of petition of right
Dicey ignored the extensive immunities and privileges which the Crown
enjoyed at the time when he wrote. As his critics have pointed out, it is difficult
10 Accord, Harlow, Compensation and Government Torts, note 4, above, 80, quoting this passage
from the first edition.
11 Jennings, note 4, above, 312; Friedmann, note 5, above, 277. The introduction to Dicey’s 10th
edition, 1959, by E.C.S. Wade includes an excellent critique of Dicey’s thesis.
12 In the quotation that accompanies note 3, above, Dicey makes clear that officials are liable only
for acts done “without legal justification”; and in “The development of administrative law in
England” (1915) 31 L.Q.R. 148 he directed his attention to the powers exercised by officials.
13 E.g., the development of a public-policy exception to the law of negligence: ch. 7, Tort:
Negligence, under heading 7.2(b)(ii), “The policy/operational distinction”, below.
14 E.g., statutory compensation schemes for expropriation, criminal injuries, or public vaccina-
tions. Note also the development of “misfeasance in a public office” and “constitutional torts”:
ch. 6, Tort: General Principles, under headings 6.5(c) and (d), below.
15 The question whether the private law of torts should be replaced by a public law regime
applicable to government is discussed in ch. 6, Tort: General Principles, under heading 6.6,
“Reform”, below.
4
HISTORY OF CROWN PROCEEDINGS 1.3(a)
to reconcile many of these advantages with the “idea of equality”, even if the
need for effective government is admitted as an exception to the principle. But
the history of proceedings against the Crown shows that an idea of equality has
always been influential, and that it eventually gained ascendancy over concepts
of kingship which tended to tug the law in the opposite direction.
In the middle ages, the reason why the King could not be sued in the royal
courts was the feudal principle that a lord could not be sued in his own court.16
But the King was not regarded as above the law; on the contrary, he was regarded
as under a duty — an unenforceable duty, to be sure — to give the same redress
to a subject whom he had wronged as his subjects were bound to give to each
other.17 It was the notion that the King was, by and large, subject to the same law
as his subjects which caused the petition of right, which made a legal claim against
the King, to be marked off from other petitions to the King by aggrieved subjects.
The early history of the petition of right is still obscure, but it seems that the
procedure which developed in the fourteenth century was for each petition to be
referred by the King to commissioners for the purpose of inquiring into the facts
alleged in the petition; if the facts found by the commissioners raised questions
of law which were appropriate for decision by the ordinary courts, then the King
would plead to the questions of law and the petition would be handed over to the
appropriate court to be tried.18
A serious disadvantage of the petition of right was its cumbersome and time-
consuming procedure which was exacerbated by the fact that the King’s “garland
of prerogatives” included a number of privileges in pleading and procedure.19
From the fifteenth until the nineteenth century, the petition of right was largely
supplanted by other remedies which were less dilatory.20
16 Holdsworth, 9 A History of English Law (3rd ed., 1944), 8 (hereafter referred to as “9 H.E.L.”);
see also Holdsworth, 3 A History of English Law (5th ed., 1942), (hereafter referred to as “3
H.E.L.”); Clode, Petition of Right (1887), 2; L. Ehrlich, “Proceedings against the Crown (1216-
1277)” in Vinogradoff (ed.), 6 Oxford Studies in Social and Legal History (1921), 54; Morgan,
“Remedies against the Crown” in Robinson, Public Authorities and Legal Liability (1925),
xvii; Pollock and Maitland, 1 The History of English Law (Lawyers’ Literary Club ed., 1959),
516; Robertson, Civil Proceedings by and against the Crown (1908), 2.
17 The maxim that “the King can do no wrong” originally meant that the King was not privileged
to commit illegal acts; Ehrlich, note 16, above, 42, 127.
18 See Clode, note 16, above, chs. 1 and 2; Ehrlich, note 16, above, passim.
19 9 H.E.L., note 16, above, 22.
20 “Traverse of office” and “monstrans de droit” were better remedies to enforce rights of feudal
tenure, while the petition for a writ of liberate and the petition to the barons of the Exchequer
were better remedies to enforce payment of debts. 9 H.E.L., note 16, above, 23-39; Clode, note
16, above, 20-22, 123-125; Ehrlich, note 16, above, 175-176.
5
1.3(b) INTRODUCTION
(b) Equitable relief
In 1668, it was held that equitable relief was available against the King on a
bill brought in the Court of Exchequer against the Attorney-General.21 In 1841,
the Court of Exchequer’s equitable jurisdiction was transferred to the Court of
Chancery.22 At the time it was not clear whether the jurisdiction transferred
included the power to award equitable relief against the Crown. In fact, after 1841
the Court of Exchequer ceased to exercise the power and the Court of Chancery
did not assume it. The practice of suing the Attorney-General for equitable relief
against the Crown fell into disuse until the decision in Dyson v. Attorney-General
(1910).23 In that case, the Court of Appeal decided that the Exchequer’s power to
give equitable relief had been transferred to Chancery in 1841 and could after the
Judicature Acts of 1873-1875 be exercised by all divisions of the High Court.
The fact that this power had not been exercised between 1841 and 1910, when
Dyson was decided, does not mean that no equitable relief was obtained against
the Crown during that period; equitable relief was available on a petition of right.24
(c) Contract and tort
In the nineteenth century, the petition of right, which had been little used in
the preceding three centuries, enjoyed a revival. Remedies were needed for
breaches of contract and for torts committed by the Crown. The petition of right,
whose cumbersome procedure was simplified in 1860,25 was the only obvious
candidate. There was no doubt that the petition of right lay for the recovery of
property; and the wide conception of property and imperfect recognition of other
legal conceptions in the middle ages had brought within the ambit of the petition
of right some claims that would now be thought of as contractual or tortious.26 In
the nineteenth century it became necessary to decide whether the petition of right
could be used as a remedy in contract and tort generally.
21 Pawlett v. A.-G. (1668) Hardres 465, 145 E.R. 550; discussed, 9 H.E.L., note 16, above, 30.
22 Court of Chancery Act, 1841, 5 Vic., c. 5, s. 1.
23 [1911] 1 K.B. 410 (C.A.).
24 Clode, note 16, above, ch. 11. As to the respective spheres of the petition of right and the Dyson
procedure, see ch. 2, Remedies, under heading 2.3(d), “Dyson procedure”, below. Note as well
that, under both procedures, the Crown was immune from the coercive remedies of injunction
and specific performance: see the discussion of these remedies in ch. 2, Remedies, below.
25 Petitions of Right Act, 1860, 23 and 24 Vic., c. 34.
26 A petition lay for failure to pay an annuity or corody, for example, on the basis that the claim
was to recover an incorporeal thing; and of course it lay for a disseisin and for the recovery of
chattels, both real and personal: Clode, note 16, above, ch. 9; Robertson, note 16, above, book
III, ch. 1; 9 H.E.L., note 16, above, 20, 42.
6
HISTORY OF CROWN PROCEEDINGS 1.3(c)
With respect to contract, the answer was yes. In Thomas v. The Queen
(1874),27 it was held that the petition of right lay to recover from the Crown
unliquidated damages for breach of contract. As Holdsworth says, this decision
was consistent with the principle that had originally led to the recognition of the
petition of right as a remedy, namely, the principle that the subject should receive
redress from the King in those cases where redress would be available from a
fellow subject.28
With respect to tort, however, the answer was no: the courts refused to extend
the petition of right to torts.29 The courts quoted the old maxim that “the King can
do no wrong”, and they concluded that he could neither commit nor authorize the
commission of a tort. In fact this maxim had been used in the middle ages to
produce virtually the contrary result, namely, that when the King infringed the
law he should give redress to an aggrieved subject.30 The courts were also wrong
in supposing that the imposition on the King of vicarious liability in tort neces-
sarily involved imputing to him the commission or the authorization of the tort.
This error was understandable at the time, but it is now obvious that vicarious
liability does not need to rest on any such fiction.31
The exclusion of tort claims from the petition of right procedure immunized
the Crown from liability in tort, because no other remedy was available for the
purpose.32 The injured subject was not necessarily without redress because in
many (but not all) cases an action could be brought against the individual Crown
servant who committed the tort, and in practice the Crown itself would defend
the action and pay any damages. Nonetheless, it was a serious defect in the law
that the Crown itself was not liable as of right. The defect was not remedied in
the United Kingdom until 1947, when tortious liability was finally imposed on
the Crown by the Crown Proceedings Act 1947. In Australia and New Zealand,
all jurisdictions except for the state of Victoria had imposed tortious liability on
the Crown by 1902. But in Canada, nine of the ten provinces did not act until
after the United Kingdom had provided the model; only Quebec and the federal
jurisdiction had imposed tortious (delictual) liability on the Crown before 1947.
The Crown is now liable in tort in all Canadian jurisdictions. A full account of
27 (1874) L.R. 10 Q.B. 31; and see Windsor and Annapolis Ry. Co. v. R. (1886) 11 App. Cas. 607
(P.C.).
28 9 H.E.L., note 16, above, 41-42.
29 Viscount Canterbury v. The Queen (1843) 12 L.J. Ch. 281; Tobin v. The Queen (1864) 16
C.B.N.S. 310, 143 E.R. 1148; Feather v. The Queen (1865) 6 B. & S. 257, 122 E.R. 1191; see
Clode, note 16, above, ch. 7; Robertson, note 16, above, 350; 9 H.E.L., note 16, above, 43.
30 Note 17, above.
31 Chapter 6, Tort: General Principles, under heading 6.2, “Vicarious liability”, below. In John-
stone v. Cth. (1979) 143 C.L.R. 398, 406 (H.C., Aust.), Murphy J. said that if the statutory
imposition of liability were repealed, the Crown would not be immune today.
32 The petition of right was available for some causes of action connected with property which
would now be regarded as torts: note 26, above.
7
1.3(d) INTRODUCTION
the statutory imposition of tortious liability is given in chapter 6, Tort: General

Principles.33
(d) Royal fiat
As a procedural vehicle, the petition of right was unsatisfactory. Although

the procedure was simplified by the Petitions of Right Act of 1860, the petition
of right remained subject to the fundamental limitation that it could proceed to
adjudication only if the King signified his consent by endorsing the petition fiat
justitiae — let right be done. Of course, by 1860 responsible government was
fully developed, so that the discretion to grant or deny the royal fiat was in reality
the discretion of the cabinet. In short, the government could be sued only if it
consented to be sued.
(e) Statutory reform
The law of Crown liability migrated to the British colonies, along with the
rest of the public law of England. The petition of right became the procedure for
suing the colonial governments. After the advent of responsible government, each
colonial government enjoyed the privilege of granting or denying the royal fiat
when faced with a lawsuit. Each colonial government became immune from
liability in tort.
In Australia and New Zealand, the colonial legislatures early embarked on
radical reform. By 1902, all jurisdictions had abandoned the petition of right in
favour of simpler remedies which did not require governmental consent for their
exercise.34 (By that time as well all jurisdictions, except for the state of Victoria,
had imposed tortious liability on the Crown.) In each jurisdiction, the Crown may
now be sued by the same procedure that would apply to any other defendant. In
Australia, proceedings are brought against the Commonwealth or the state, as the
case may be. In New Zealand, the defendant is the appropriate government
department or official or the Attorney General.
In the United Kingdom, developments in the Antipodes were (as usual)
ignored, and the petition of right remained the means of suing the Crown until
33 Chapter 6, Tort: General Principles, under heading 6.1, “History”, below.

34 The early statutes in chronological order were as follows: Claimants’ Relief Act, 1853 (S.A.);
Claims against the Government Act, 1857 (N.S.W.); Claims against the Crown Act 1858 (Vic.);
Claims against Government Act, 1866 (Qld.); Crown Redress Act 1877 (N.Z.); Crown Suits
Act 1881 (N.Z.); Crown Redress Act 1891 (Tas.); Crown Suits Act, 1898 (W.A.); Claims
against the Commonwealth Act 1902 (Cth.). The Crown proceedings statutes now in force in
these jurisdictions are listed in ch. 2, Remedies, note 1, below. In Australia, it is possible that
there is a constitutional foundation for the liability of the Crown in “federal cases”: G. Hill,
“Private Actions against the Government (Part 1)” (2006) 30 Melb. U.L. Rev. 717.
8
HISTORY OF CROWN PROCEEDINGS 1.3(e)
1947. The Crown Proceedings Act 194735 finally abolished the petition of right,
including the requirement of the fiat, and permitted the Crown to be sued in the
same fashion as a private person. (As noted above, this Act also imposed tortious
liability on the Crown.) In the United Kingdom, proceedings are brought against
the appropriate government department or the Attorney General.36
In Canada, the petition of right, including the requirement of the fiat, re-
mained the procedure for suing the Crown in all jurisdictions until after the
enactment of the Crown Proceedings Act 1947 in the United Kingdom. In 1950,
the Conference of Commissioners on Uniformity of Legislation in Canada pre-
pared a Model Act for adoption by Canadian jurisdictions.37 The Model Act was
based on the United Kingdom Act and incorporated its major provisions. Between
1951 and 1974, the Model Act was enacted in substance by all of the Canadian
provinces, except Quebec.38 Quebec did not adopt the Model Act, but it did abolish
the requirement of the fiat in 1965.39 The federal Parliament acted in stages,
abolishing the requirement of the fiat in 1951,40 but retaining the petition of right
as the procedure of suit until 1971 when it too was abolished.41
The present position in Canada42 is that, in general, the Crown may be sued
in the ordinary courts by the procedure that would be appropriate in suits between
subjects. This does not leave the Crown in exactly the same situation as a private
litigant. As succeeding chapters will show, the Crown retains some privileges and
35 10 & 11 Geo. 6, c. 44.

36 Crown Proceedings Act 1947 (U.K.), s. 17.
37 Conference of Commissioners on Uniformity of Legislation in Canada, Proceedings of 1950,
76.
38 Alta.: Proceedings against the Crown Act, S.A. 1959, c. 63. B.C.: Crown Proceedings Act,
S.B.C. 1974, c. 24. (The B.C. Act was preceded by a study of the B.C. Law Reform Commission,
and the Act departs substantially from the Model Act in various points of detail.) Man.:
Proceedings against the Crown Act, S.M. 1951, c. 13. N.B.: Proceedings against the Crown
Act, S.N.B. 1952, c. 10. Nfld.: Proceedings against the Crown Act, S.N. 1973, c. 59. N.S.:
Proceedings Against the Crown Act, S.N.S. 1951, c. 8. Ont.: Proceedings Against the Crown
Act, S.O. 1952, c. 78, was never proclaimed in force. It was replaced by Proceedings against
the Crown Act, S.O. 1962-63, c. 109. P.E.I.: Crown Proceedings Act, S.P.E.I. 1973, c. 28.
Sask.: Proceedings against the Crown Act, S.S. 1952, c. 35. The Crown proceedings statutes
now in force in these jurisdictions are listed in ch. 2, Remedies, note 2, below.
39 S.Q. 1965, c. 80, as am. by S.Q. 1966, c. 21, s. 5, repealing arts. 1011-1024 of the Code of Civil
Procedure and replacing them by arts. 94-94k, now R.S.Q. 1977, c. C-25, ss. 94-100. The
reason why the need for reform was less urgent in Quebec was that the Crown in right of
Quebec had been held liable in tort, whereas the Crown was immune from liability in tort in
the other provinces: see ch. 6, Tort: General Principles, under heading 6.1(b), “Early statutory
reform”, below.
40 Petition of Right Amendment Act, S.C. 1951, c. 33. The Crown Liability Act, S.C. 1952-53, c.
30, s. 3 imposed wider liability in tort on the federal Crown.
41 Federal Court Act, R.S.C. 1985, c. F-7, s. 48.
42 The Crown proceedings statutes in force in the federal jurisdiction and the provinces are listed
in ch. 2, Remedies, note 2, below.
9
1.3(f) INTRODUCTION
immunities with respect to procedure,43 evidence44 and substantive law.45 Some

of these privileges and immunities are necessary to the effective exercise of
governmental power, for example, the Crown’s immunity from execution and the
Crown’s privilege to withhold certain confidential information from the courts.
Most of the Crown’s remaining privileges and immunities are vestiges of out-
dated notions of kingship or sovereignty and could be eliminated without injury
to the task of government. A new phase of reform is needed to complete the
process which was so admirably advanced by the United Kingdom’s Crown
Proceedings Act 1947 and its counterparts in Canada and elsewhere.46
(f) Judicial reform
In Canada, after the adoption of the Charter of Rights in 1982,47 lower courts
began to strike down the special privileges of the Crown (and other public bodies)
on the ground that they violated the guarantee of equality in s. 15.48 However,
when the Supreme Court of Canada decided49 that s. 15 only prohibited discrim-
ination based on the grounds named in s. 15 (race, national or ethnic origin,
colour, religion, sex, age or mental or physical disability), or on grounds analogous
to those named, the special status of the Crown (and other public bodies) was
effectively removed from Charter review. This was made clear in Rudolf Wolff
& Co. v. Canada (1990),50 in which the Supreme Court of Canada rejected a
challenge to the Federal Court’s exclusive jurisdiction over claims against the
Crown in right of Canada. Cory J. for the Court recognized that the Crown’s
immunity from suit in the provincial courts created serious problems for individ-
uals with claims against the Crown. But he pointed out that those individuals
were not a class of people distinguished by any of the personal characteristics
named as grounds of discrimination in s. 15. Nor did they possess any common
characteristic that was analogous to those named in s. 15. They were “a disparate
group with the sole common interest of seeking to bring a claim against the Crown
before a court”.51 It is clear that this line of reasoning is fatal to the success of any
43 See chs. 2, Remedies, and 3, Enforcement of Judgments, below.

44 See ch. 5, Evidence, below.
45 Tort: chs. 6-8, Contract: ch. 9, and Statutes: ch. 15, below.
46 Ontario Law Reform Commission, Report on the Liability of the Crown (1989) recommended
a new phase of reform for Ontario, in which all the unjustified privileges and immunities would
be eliminated. Unfortunately, the recommendations have not been implemented.
47 The Canadian Charter of Rights and Freedoms is Part I of the Constitution Act, 1982, which is
Schedule B of the Canada Act 1982 (U.K.). While the rest of the Charter came into force in
1982, s. 15’s commencement was postponed to 1985.
48 E.g., Colangelo v. Mississauga (1988) 66 O.R. (2d) 29 (C.A.) (striking down seven-day notice
requirement for suit against municipality).
49 Andrews v. Law Society of B.C. [1989] 1 S.C.R. 143.
50 [1990] 1 S.C.R. 695.
51 Id., 702 per Cory J.
10
MEANING OF THE CROWN 1.4(a)
equality-based attack on the privileges or immunities of the Crown (or other

public bodies).52
Although Canadian courts have drawn back from the radical reformation of
Crown proceedings law that would have been entailed by the application of s. 15
of the Charter of Rights, the courts have been profoundly influenced by the same
non-constitutional idea of equality that has guided law reformers and legislative
bodies. And this influence is just as evident in the courts of Australia, New Zealand
and the United Kingdom as well. To be sure, the courts cannot repeal statutory
provisions, but they have shown themselves only too willing to reform common
law rules of which they disapproved and to subject the actions of government to
critical scrutiny. This will be abundantly demonstrated in the chapters that follow,
but a few examples are worth anticipating here: the narrowing of the Crown’s
privilege to withhold documents from litigation;53 the expansion of Crown liability
in tort to peculiarly governmental activity, and the shrinkage of the immunity for
policy decisions;54 the rejection of immunity from tort liability for Crown prose-
cutors;55 the narrowing of the Crown’s immunity from statutes through the crea-
tion of many exceptions;56 and the refusal to accept the automatic transference of
Crown privileges to Crown agents.57 Needless to say, the trend of these devel-
opments is uniformly in the direction of subjecting the Crown to the ordinary law
of the land.
1.4 Meaning of the Crown
(a) Executive branch of government
What is meant by “the Crown”? As an object, the crown is “a piece of

jewelled headgear under guard in the Tower of London”.58 But what does “the
Crown” mean in the context of a discussion of Crown liability? It is surprisingly
difficult to answer this question. The problem is partly a split in the legal and
common meaning of the term.
In its strict legal sense, the term the Crown (which is always capitalized in
this context) is simply a gender-neutral term to mean the Queen (or King, whoever
is on the throne at the time). However, the term refers to the Queen in her public
capacity, not in her private life, and it treats her as the bearer of governmental
52 Accord, Mirhadizadeh v. Ont. (1989) 69 O.R. (2d) 422 (C.A.) (upholding special limitation
period for actions against public authorities).
53 Chapter 5, Evidence, below.
54 Chapters 6, Tort: General Principles, and 7, Tort: Negligence, below.
55 Chapter 8, Tort: Liability of Servants, under heading 8.6, “Prosecutorial immunity”, below.
56 Chapter 15, Statutes, below.
57 Chapter 16, Crown Agents, below.
58 Town Investments v. Dept. of Environment [1978] A.C. 359, 397 (H.L.) (adding that “it sym-
bolizes the powers of government which were formerly wielded by the wearer of the crown”).
11
1.4(a) INTRODUCTION
rights, powers, privileges and liabilities. In addition to her statutory and prerog-
ative powers, which are described later in this chapter, she has the legal personality
of a natural person, enabling her (for example) to hold property, enter into con-
tracts and spend money.59 By attributing the powers of government to an individ-
ual in this way, English constitutional theorists have not usually felt the need to
develop a theory of a unique entity called “the state” as the bearer of governmental
rights, powers, privileges and liabilities.60
In its more common sense, the term the Crown simply refers to the executive
branch of government.61 It is never used for the legislative branch, despite the
fact that the Queen or her representative plays a formal role in the legislative
process, giving “royal assent” to all bills.62 Nor is the term ever used for the
judicial branch, which is independent of the executive and legislative branches.
Despite the fact that we now have a “constitutional monarchy”, in which the role
of the Queen and her representatives in Canada (as well as elsewhere in the
Commonwealth) has become almost entirely formal, the term “the Crown” has
persisted as the name for the executive branch of government. Executive power
is actually exercised by the Prime Minister (or Premiers) and the other ministers
who direct the work of the civil servants in the various government departments
of Canada (and the provinces). This structure within the government of Canada
(and of each province) is the executive branch. It is commonly and accurately
described as “the government”,63 or “the administration”,64 or “the executive”, or
59 Verreault v. A.-G. Que. [1977] 1 S.C.R. 41, 47; A.-G. Que. v. Labrecque [1980] 2 S.C.R. 1057,
1082. The Interpretation Act of each jurisdiction defines “the Crown” in this personal way,
e.g., Interpretation Act, R.S.C. 1985, c. I-21, s. 35(1).
60 However (perhaps like any theory of the state), the natural person theory does leave some
puzzles, for example, the notion of divisibility: sec. 1.4(c), “Divisibility”, below.
61 Judges of the High Court of Australia have expressed reservations about this use of the term
“Crown”, preferring to use “the executive” or some similar term: e.g., Cth. v. W.A. (1999) 196
C.L.R. 392, 409-410; Bass v. Permanent Trustee Co. (1999) 198 C.L.R. 334, paras. 17-18; N.T.
Power Generation Pty. v. Power and Water Authority (2004) 219 C.L.R. 90, para. 163; Aus-
tralian Competition and Consumer Commn. v. Baxter Healthcare Pty. (2007) 212 C.L.R. 1,
paras. 85-131.
62 Wardle v. Man. Farm Loans Assn. [1956] S.C.R. 3, 10, 18, 23 (a vesting of land by statute is
not “an act of the Crown”).
63 Sir William Wade in Sunkin and Payne (eds.), The Nature of the Crown (1999), ch. 2, objects
to usages such as “government” as synonyms for the Crown, because they make no distinction
between the Crown and the Crown’s ministers and officials. He points out that the legal
personalities of the Crown and of Crown ministers and officials were historically distinct, and
for a very important reason. The Crown was generally immune from liability in tort and from
some legal remedies (including injunction and mandamus) and the rule of law was preserved
by fixing liability on Crown ministers and officials. We shall see that this is no longer true in
the context of liability in tort (ch. 6, Tort: General Principles, below), but it is still true in the
context of coercive remedies like injunction and mandamus (ch. 2, Remedies, below). In other
contexts, the distinction is, as Wade acknowledges (p. 26), “highly artificial”.
64 This is the preference of the Law Commission of Canada, note 5, above.
12
MEANING OF THE CROWN 1.4(c)
even “the state”, but lawyers usually use the term “the Crown”.65 Thus, lawyers
speak of the Crown expropriating a house, of the Crown being sued for breach of
contract, or of the Crown being bound by statute.
This book takes as its focus the extent to which the Crown, in the sense of
the executive branch of government, is liable to pay damages or give other redress
to persons injured by the exercise of government power. That is why the book is
entitled “Liability of the Crown”. However, it is important not to forget the strict
legal meaning of the Crown as the Queen, not the entire executive branch. In
some contexts, it is the strict legal meaning that is the right one.66
(b) Crown agency
The Crown includes the departments of government that are headed by a

minister. It is the control of the minister that provides the link to the Crown.
Municipal bodies, school boards, universities, hospitals, regulatory agencies, ad-
ministrative tribunals and public corporations, even if they are performing “gov-
ernmental” functions, are not agents of the Crown, unless they are controlled by
a minister or expressly declared by statute to be an agent of the Crown. A question
often arises as to whether a public body is or is not an agent of the Crown. The
answer will determine whether the public body can render the Crown liable in
tort, or bind the Crown by contract, or take advantage of the various privileges
and immunities of the Crown. The law governing Crown-agent status is described
in chapter 16, Crown Agents, below.
(c) Divisibility
There is only one individual at any time who is the Queen (or King). The
Crown accordingly has a monolithic connotation, which has sometimes been
articulated in dicta such as that the Crown is “one and indivisible”.67 For nearly
all purposes the idea of the Crown as one and indivisible is thoroughly mislead-
65 For extensive discussion of the nature of the Crown, see Sunkin and Payne, note 63, above,
esp. chs. 1-6; A. Twomey, “Responsible Government and the Divisibility of the Crown” [2008]
Public Law 742; Horsman and Morley (eds.), Government Liability (2006, annually supple-
mented), ch. 1 (by Morley). For shorter accounts, see Lordon, Crown Law (1991), 1-7; Seddon,
Government Contracts: Federal, State and Local (4th ed., 2009), 4.4.
66 E.g., note 63, above.
67 Statements of indivisibility are usually to be found in cases holding the Crown in right of a
particular jurisdiction to be bound by (or exempt from) the statute of another jurisdiction: see
ch. 15, Statutes, under heading 15.16, “Federal complications”, below. Occasionally the issue
arises in another setting, e.g., Williams v. Howarth [1905] A.C. 551 (P.C., Aust.) (money paid
by imperial Crown to N.S.W. soldier was a discharge of money owed to soldier by N.S.W.
Crown); Theodore v. Duncan [1919] A.C. 696 (P.C., Aust.) (Qd. Parliament has power to
acquire property for wartime use of imperial Crown); Vautour v. N.B. (1985) 18 D.L.R. (4th)
699 (N.B.C.A.) (judgment against Crown in right of Canada is res judicata for N.B. Crown).
13
1.4(c) INTRODUCTION
ing.68 Within the British Empire (or, later, the Commonwealth), once a territory
acquired a degree of self-government, then, as to matters falling within the scope
of self-government, the Queen was thereafter advised by her colonial ministers,
not her British ministers; and the colonial government, with its power to raise
taxes and create a separate treasury, would assume the responsibility for debts
and other obligations pertaining to matters within the scope of self-government.
When the colony achieved full independence, it became an entirely separate legal
entity from the United Kingdom for all practical purposes, including the making
of contracts, the holding of property and the capacity to sue and be sued. This
was recognized in the Alberta Indians case (1982),69 when several associations
of Canadian native peoples brought suit in the courts of the United Kingdom to
enforce obligations to the native peoples undertaken by the Crown in treaties and
other instruments in early colonial times. The English Court of Appeal held that
these obligations had long since passed to Canada. They were enforceable (if at
all) only against the Crown in right of Canada and in the Canadian courts. The
Crown was thus divisible: the Crown in right of Canada was a separate legal
entity from the Crown in right of the United Kingdom.
Within Canada’s federal system, legal recognition of the divisibility of the
Crown may be dated from Liquidators of the Maritime Bank v. Receiver General
of New Brunswick (1892),70 which decided that a debt owing to a province was
held by the Crown in right of the province, and the Crown in right of the province
was entitled to the prerogative privilege of payment in priority to other creditors.
This case established that each province was a separate legal entity from each
other province and from the federal government. The separate existence of each
province and of the Dominion is, of course, manifested by a separate treasury,
separate property, separate employees, separate courts, and a separate set of laws
to administer.71 Within Australia’s federal system, the position is exactly the
68 For a brilliant critique of indivisibility, see Minister for Works (W.A.) v. Gulson (1944) 69
C.L.R. 338, 350-351 (H.C., Aust.). See also D.P. O’Connell, “The Crown in the British Com-
monwealth” (1957) 7 Int. & Comp. L.Q. 103; G. Winterton, “The Evolution of a Separate
Australian Crown” (1993) 19 Monash U.L.R. 1; Lordon, note 65, above, 29-34; Twomey, note
65, above; Horsman and Morley, note 65, above, sec. 1.20.20. See also ch. 17, Federal Ques-
tions, under heading 17.2, “State immunity in international law”, below.
69 R. v. Secretary of State for Foreign and Commonwealth Affairs; Ex parte Indian Assn. of Alta.
[1982] Q.B. 892 (C.A.).
70 [1892] A.C. 437 (P.C., Can.).
71 The separate legal existence of the various governments is made abundantly clear by the
governments suing each other, making conveyances to each other, and entering into agreements
with each other, some of them judicially enforceable: e.g., Canada v. Ont. [1910] A.C. 637
(P.C., Can.); Re Troops in Cape Breton [1930] S.C.R. 554; Re Transfer of Natural Resources
to Sask. [1932] A.C. 28 (P.C., Can.); A.-G. Can. v. Higbie [1945] S.C.R. 385; Re Anti-Inflation
Act [1976] 2 S.C.R. 373; Man. Govt. Employees Assn. v. Govt. of Man. [1978] 1 S.C.R. 1123.
As to court jurisdiction over intergovernmental suits, see ch. 17, Federal Questions, under
heading 17.3, “Jurisdiction of courts”, below.
14
MEANING OF THE CROWN 1.4(c)
same: each state is a separate legal entity from the other states and from the
Commonwealth.72
In order to reflect this strange notion of a single Queen recognized by many
separate jurisdictions, it is usual to speak of the Crown “in right of” a particular
jurisdiction. Thus, the government of the United Kingdom is described as the
Crown in right of the United Kingdom. Within Canada, the federal government
is the Crown in right of Canada (or the Dominion), and each of the provincial
governments is the Crown in right of British Columbia or whichever province it
may be. Within Australia, the federal government is the Crown in right of Australia
(or the Commonwealth), and each of the state governments is the Crown in right
of the state. This usage is obviously suggestive of indivisibility, but the suggestion
must be resisted. Each government is a separate legal entity. In asking whether
the Crown in right of Ontario, for example, is liable under a contract, we are
asking a question about the legal duties of a legal person, the government of
Ontario. If the answer to the question is yes, then the liability will have to be
satisfied out of the treasury of the province of Ontario. No other government
represented by the Crown has any legal interest in the question.
The status of the three Canadian territories (Yukon, Northwest Territories
and Nunavut) is not entirely clear. Each has its own treasury, property, employees
and territorial laws, and is a separate legal entity for most purposes.73 But the
territories do not have a constitutional status equivalent to the provinces.74 Their
institutions of government are all derived from a delegation from the Parliament
of Canada, which has the power to “make provision for the administration, peace,
72 Note 68, above. An interesting difference between Australia and Canada is that the governors
of the Australian states are appointed by the Queen, who is advised by the premier of the state
with respect to the appointment (Australia Acts 1986 (Cth. and U.K.), s. 7). The lieutenant
governors of the Canadian provinces are not appointed by the Queen, but by the Governor
General in Council (Constitution Act, 1867, s. 58), that is, by the federal government. The
provinces have no direct relationship to the Queen, and a provincial premier never has an
occasion to advise the Queen. Nonetheless, the Crown is divisible in Canada, as was squarely
decided in the Liquidators of the Maritime Bank case, note 70, above, holding that the Crown
prerogatives relating to provincial matters are possessed by the Crown in right of the province,
not the Crown in right of Canada.
73 E.g., Northwest Territories v. P.S.A.C. (2001) 201 D.L.R. (4th) 128 (F.C.A.) (Government of
N.W.T. has standing to bring judicial-review application separately from the Crown in right of
Canada, and is a “person” entitled to a fair hearing under the Canadian Bill of Rights); Fédér-
ation Franco-Ténoise v. Can. (2001) 203 D.L.R. (4th) 556 (F.C.A.) (Commissioner of N.W.T.
is not part of the Crown in right of Canada, and cannot be sued in the Federal Court, although
it can be sued in the courts of the territory). As is explained in ch. 2, Remedies, under heading
2.1, “Introduction”, below, none of the three Canadian territories has enacted a Crown pro-
ceedings statute, but each territorial government can in fact be sued in its territorial court on
the basis of an informal understanding that proceedings can be brought against the territorial
government in accordance with the same procedures as are employed against private defendants.
In Australia, the two territories have enacted Crown proceedings statutes, and a territorial
Crown is recognized: note 77, below.
74 Horsman and Morley, note 65, above, sec. 1.20.20.
15
1.4(d) INTRODUCTION
order, and good government of any territory not for the time being included in
any province”.75 Parliament has exercised this power by enacting a constitutive
statute for each territory, which is similar in many respects, including legislative
power, to the constitution of a province.76 But, as the Federal Court of Appeal has
explained, “whatever the political appearances may be, there is not, in law, a
‘territorial’ Crown, or a ‘territorial’ province, or Her Majesty the Queen ‘in right
of the Territories’”.77 That must mean, for example, that Crown prerogatives are
not possessed by the territories: they remain vested in the Crown in right of
Canada.78
The Crown is still indivisible with respect to the United Kingdom and its
dependent territories, now known as “British overseas territories” (the word “col-
ony” having been banished from polite discourse altogether): they “form one
realm having one undivided Crown”.79 Dependent territories are governed by a
local governor (or commissioner) who is appointed by the Queen (on the advice
of her United Kingdom ministers) and who acts under the direction of the United
Kingdom’s Secretary of State for Foreign and Commonwealth Affairs. A de-
pendent territory may well have a constitution of its own and local institutions of
government that are separate from those of the United Kingdom, but the executive
branch of government remains under the control of the government of the United
Kingdom: the Queen is advised, not by local ministers but by her ministers in the
United Kingdom — and they are responsible only to the Parliament of the United
Kingdom.
(d) Corporate character
The Queen is in fact a natural person, not a corporation, and, as we have

noticed, “the Crown” refers to that individual. However, to make some sense of
a “divisible” Crown, as discussed in the previous section, it is helpful to think of
75 Constitution Act, 1871, s. 4.

76 Yukon Act, S.C. 2002, c. 7; Northwest Territories Act, R.S.C. 1985, c. N-27; Nunavut Act,
S.C. 1993, c. 28.
77 Fédération Franco-Ténoise v. Can. (2001) 203 D.L.R. (4th) 556, para. 43. Compare the situation
of the two Australian territories, whose constitutive statutes each declare that the territory is
“established as a body politic under the Crown”: Northern Territory (Self-Government) Act
1978 (Cth.), s. 5; Australian Capital Territory (Self-Government) Act 1988 (Cth.), s. 7.
78 Lordon, note 65, above, 11.
79 J.M. Finnis, “Commonwealth” in Halsbury’s Laws of England (Lexis Nexis, U.K., 4th ed.,
2003 reissue), vol. 6, para. 716; Twomey, note 65, above, criticizing dicta to the contrary in R.
(Quark Fishing) v. Secretary of State for Foreign and Commonwealth Affairs [2006] 1 A.C.
529 (H.L.) respecting South Georgia, a British overseas territory near the Antarctic, governed
by a commissioner who was also the governor of the Falkland Islands.
16
MEANING OF THE CROWN 1.4(d)
the Crown as analogous to a corporation,80 or rather a series of corporations, one

for Canada and for each province and for each of the other Commonwealth
jurisdictions that recognize the Queen as head of state. Kelsen has demonstrated
that the organization of a state — any state — is essentially the same as that of a
corporation.81 The corporation’s constituting instruments provide rules which
confer authority upon certain individuals — the shareholders or directors — to
perform acts which the law will attribute to the corporation. Likewise, there are
rules of law which confer authority upon certain individuals — usually officials
of one kind or another — to perform acts which the law will attribute to the state.
It follows that a state which is governed by no law at all is, as Kelsen says,
unthinkable; at the very least there must be rules of law defining which acts of
which individuals are to be attributed to the state.82 These are the rules of consti-
tutional and administrative law. But every modern legal order also subjects the
state to many rules of what may loosely be termed “private law”. It is accepted
that the state, which by its legislature makes statutes, may itself be bound by those
statutes; and it is accepted that the state, which by its courts settles disputes, may
itself be bound by judicial decrees; and it is accepted that the state may be the
subject of proprietary, contractual and tortious rights and duties. In short, it is
accepted that the Crown in right of Canada and of each province is a legal person
analogous to a corporation.
Like a corporation, the Crown can only act through human servants or agents.
This does not usually cause difficulty in the creation of rights and duties because
the doctrines of agency and vicarious liability can be used by or against the Crown
to hold it bound by the acts of its servants or agents.83
Even where the law requires personal fault as a prerequisite to the creation
of rights or duties, the Crown is not necessarily excluded from those rights or
duties. Under the theory of “identification”, personal fault will be attributed to a
corporation if the fault is present in an official who can be regarded as the
“directing mind” of the corporation. In The Truculent (1951),84 this doctrine was
applied to the Crown. The Crown in right of the United Kingdom was liable for
loss which had occurred when one of its submarines, which was not displaying
proper lights, collided at night with a merchant ship. The combined effect of the
Merchant Shipping Act 1894 and the Crown Proceedings Act 1947 was that the
80 The analogy is a “corporation sole”, which is the incorporation of a single office-holder, like a
bishop, providing a continuous legal personality distinct from the series of individuals holding
the office. The standard corporation is a “corporation aggregate”, which is made up of a number
of shareholders, and has a legal personality distinct from its members.
81 Kelsen, General Theory of Law and State (1945), part I, ch. 9; part II, ch.1; Kelsen, Pure Theory
of Law (2nd ed., 1960), ch. 6. See also n.b. Tennant, “Servants of the Crown” (1932) 19 Can.
B.R. 155; Maitland, “The Corporation Sole” and “The Crown as Corporation” in Selected
Essays (1936), 73, 104.
82 Kelsen, Pure Theory of Law, note 81, above, 312.
83 See chs. 6, Tort: General Principles, and 9, Contract, below.
84 [1952] P. 1.
17
1.5(a) INTRODUCTION
Crown’s liability for loss caused by a shipping accident was limited, unless the
loss had occurred with the “actual fault or privity” of “His Majesty”, in which
case full liability attached. Willmer J. decided first of all that the words “His
Majesty” in the Crown Proceedings Act were not used “in any personal sense”,
and that the question should be approached on the footing that the appropriate
government department, which was the Admiralty, was in the position of owner
of the submarine. The member of the Admiralty with responsibility for the equip-
ping of naval vessels was the Third Sea Lord, and he was guilty of “actual fault
or privity” because he was aware of the defective lighting on the submarine. Could
his fault or privity be attributed to the Admiralty and thus to His Majesty? Willmer
J. held that it could. In relation to the equipping of naval vessels, the Third Sea
Lord was the “directing mind” of the Admiralty; on the analogy of the cases
concerning corporations, his fault or privity was to be regarded not merely as that
of a servant but as that of the Admiralty itself. The Crown’s claim to limit its
liability was therefore rejected.85
1.5 Powers of the Crown
(a) Statutory powers
There is no statute or legal enactment that provides an exhaustive enumer-

ation or description of the powers of the Crown, an omission that makes it difficult
to offer a precise definition of the exact nature and scope of these powers.
However, it is widely accepted and understood that the powers of the Crown are
derived from two sources, statutes and common law.
Statutory powers of the Crown are those defined or created by an Act of
Parliament. One such statute is the Constitution Act, 1867, an Act of the British
Parliament which confers sweeping powers on the Governor General of Canada.
These powers include the right to appoint senators, superior court judges, and the
lieutenant governors of the provinces (sections 24, 96, and 58); the power to
summon and dissolve the House of Commons (sections 38 and 50); the exclusive
right to recommend money bills (section 54); and the right to assent to legislation,
to refuse assent, or to reserve a bill for consideration of the Queen in Council in
Britain (sections 55-57).86 Aside from the Constitution Act, 1867 (which, as a
constitutional statute, can be regarded as falling within a special category), it is
commonplace for ordinary statutes to delegate powers to the “Governor in Coun-
cil”. The Governor in Council is the Governor General acting with the advice of
the Queen’s Privy Council, which effectively means the cabinet. Grants of power
85 With respect to criminal liability, see ch. 15, Statutes, under heading 15.14, “Criminal liability”,
below.
86 Note that these powers existed at common law as part of the prerogative, and were merely
codified rather than created by the Constitution Act.
18
POWERS OF THE CROWN 1.5(b)
to individual ministers are also commonly found in statutes. Such grants of

delegated authority are so common that today the vast majority of powers of the
Crown (in right of the provinces as well as Canada) are derived from statute.
(b) Crown prerogative
The Crown has common law powers that have their source in the royal
prerogative.87 Dicey described the prerogative as “the residue of discretionary or
arbitrary authority which at any time is left in the hands of the Crown”.88 The
prerogative is normally described as a branch of the common law, because it is
the decisions of the courts that have determined its existence and extent.89
The traditional view, espoused by Blackstone, is that the prerogative should
be confined to powers and privileges that are unique to the Crown.90 According
to this view, powers and privileges that are enjoyed equally with private persons
are not part of the prerogative. For example, the Crown has the power to spend
money, to acquire and dispose of property and to enter into contracts, but Black-
stone would not describe these as prerogative powers because they are possessed
by everyone. Dicey’s definition, on the other hand, is not restricted to powers that
are unique to the Crown: he asserted that “every act which the executive govern-
ment can lawfully do without the authority of an Act of Parliament is done by
virtue of the prerogative”.91 This includes those powers that the Crown possesses
merely by virtue of the fact that it has the powers of a natural person. Although
Blackstone is historically correct, Dicey’s broader view has now become the more
common usage. For example, a non-statutory scheme for making payments to the
87 See D.W. Mundell, “Legal Nature of Federal and Provincial Executive Governments” (1960)
2 Osgoode Hall L.J. 56; Cheffins and Tucker, The Constitutional Process in Canada (2nd ed.,
1976), ch. 4; Munro, Studies in Constitutional Law (2nd ed., 1999), ch. 8; Evatt, The Royal
Prerogative (1987); de Smith and Brazier, Constitutional and Administrative Law (8th ed.,
1998), ch. 6; Sunkin and Payne, note 63, above, 29-32 (W. Wade), 64-73 (M. Loughlin), 77-
110 (S. Payne), 197-232 (B. Hadfield), 267-281 (R. Rowe), 339-362 (R. Brazier); Horsman
and Morley, note 65, above, sec. 1.30; Woolf, Jowell and Sueur, De Smith’s Judicial Review
(6th ed., 2007), 125-130; Hogg, Constitutional Law of Canada (5th ed., 2007, annually sup-
plemented), sec. 1.9.
88 Dicey, note 1, above, 424.
89 Case of Proclamations (1611) 12 Co. Rep. 74, 77 E.R. 1352 (K.B.) (holding that “the King
hath no prerogative but that which the law allows him”).
90 Blackstone, Commentaries on the Law of England (1765), insisted on the distinction, based on
“its etymology (from prae and rogo) something that is required or demanded before, or in
preference to, all others”, from which it followed “that it can only be applied to those rights
and capacities which the king enjoys alone, in contradistinction to others, and not to those
which he enjoys in common with any of his subjects” (vol. 1, p. 232). Sir William Wade has
been a strong proponent of the traditional distinction: W. Wade, “Procedure and Prerogative in
Public Law” (1985) 101 L.Q.R. 180, but he concedes (p. 194) that Dicey’s wider view has now
prevailed. For discussion, see Sunkin and Payne, note 63, above, 29-32 (W. Wade), 64-70 (M.
Loughlin), 78-87 (S. Payne).
91 Dicey, note 1, above, 455
19
1.5(b) INTRODUCTION
victims of crime has been upheld as an exercise of the prerogative,92 as has a non-
statutory program of subsidies for the recycling of old tires.93 In each case, all
that the Crown had to do was make payments to qualified recipients, something
that private individuals could do with funds under their control. However, nothing
practical now turns on the distinction between the Crown’s “true prerogative”
powers and the Crown’s natural-person powers, because (as will be explained in
the next section of this chapter) the exercise of both kinds of powers is reviewable
by the courts.94
The Crown’s prerogative powers have been severely curtailed from the time
when the Stuart Kings (1603-1688) claimed autocratic power by divine right. The
courts have held that the prerogative does not include the power to legislate: only
Parliament can make new laws.95 The English Bill of Rights of 168996 denied the
claimed prerogative power to “suspend” a law for a period of time or to “dispense”
with a law in a particular case. The Bill of Rights also affirmed that only Parliament
could levy taxes,97 and the courts held that only Parliament could authorize the
expenditure of public funds.98 The courts also held that there was no prerogative
power to administer justice: only the courts could adjudicate disputes according
to law.99 These decisions confined the prerogative to executive governmental
powers. Within this area the prerogative was further limited by the doctrine that
executive action that infringed individual liberty or property required the authority
of a statute.100 The courts have also made clear that no new prerogatives can be
92 R. v. Criminal Injuries Compensation Bd., ex parte Lain [1967] 2 Q.B. 864 (C.A.).
93 Valley Rubber Resources v. B.C. (2002) 219 D.L.R. (4th) 1 (B.C.C.A.).
94 Council of Civil Service Unions v. Minister for Civil Service [1985] 1 A.C. 374, 409 (H.L.) per
Lord Diplock.
95 Case of Proclamations, note 89, above (King by proclamation could not prohibit new buildings
in London). An exception was the King’s prerogative power to create the institutions of
government for a colony. In the case of a “conquered” colony (as opposed to a “settled” colony),
the King possessed a general power of legislation, but only until such time as the colony was
granted its own legislative assembly: Campbell v. Hall (1774) 1 Cowp. 204, 98 E.R. 1045. The
prerogative power to legislate for colonies is only of historical interest today, but the consti-
tutions of Nova Scotia, New Brunswick and Prince Edward Island still consist of prerogative
instruments: Hogg, note 87, above, sec. 2.2(c).
96 Note 101, above.
97 Bowles v. Bank of England [1913] 1 Ch. 57 (resolution of parliamentary committee, approved
by House of Commons, cannot levy a tax).
98 Auckland Harbour Bd. v. The King [1924] A.C. 318 (P.C., N.Z.) (money spent by government
without legislative appropriation is recoverable by government); E. Campbell, “Parliamentary
Appropriations” (1971) 4 Adelaide L.R. 145.
99 Prohibitions del Roy (1607) 12 Co. Rep. 63, 77 E.R. 1342 (“The King in his own person cannot
adjudge any case, either criminal . . . or between party and party”).
100 Entick v. Carrington (1765) 19 St. Tr. 1030, 95 E.R. 807 (K.B.) (no prerogative power of search
and seizure). An exception was the taking or destruction of property in time of war, although
the prerogative power was fettered by an obligation to pay compensation: Burmah Oil Co. v.
Lord Advocate [1965] A.C. 75 (H.L.) (Crown ordered to pay compensation for oil installations
in Burma destroyed during Second World War).
20
created: “it is three hundred and fifty years and a civil war too late for the Queen’s
courts to broaden the prerogative”.101
The most severe curtailment of the prerogative has occurred as the result of
the enactment of statutes in most fields of government. The prerogative can be
displaced by statute: it can be abolished or limited or codified by statute, and once
a statute has occupied the field formerly occupied by the prerogative, the Crown
must comply with the terms of the statute.102 The prerogative will even be dis-
placed where a statute that would have that effect has been enacted, but not
proclaimed in force.103 There is some doubt about whether the displacement
doctrine is broad or narrow in its scope. One case has held that a statute can
displace most or all of the prerogative in a given field by way of general language
that simply touches upon the subject matter of the prerogative.104 But the weight
of authority, and the better view, is that a statute will only displace the prerogative
with respect to powers or matters that the statute deals with expressly or by
necessary implication.105 This is consistent with the general rule of statutory
interpretation that the Crown is bound by statute only by express words or nec-
essary implication.106
101 British Broadcasting Corp. v. Johns [1965] Ch. 32, 79 per Diplock L.J. Diplock L.J.’s reference
is to the period of conflict between King and Parliament during the Stuart dynasty (1603-1688),
which included a civil war leading to a short republic under Oliver Cromwell (1649-1660), the
restoration of the Stuarts and their eventual overthrow in the Glorious Revolution of 1688 that
lead to the accession of William and Mary in 1689 and the enactment of the Bill of Rights,
1689, 1 Will. & Mar. sess. 2, c. 2, and the Act of Settlement, 1701, 12 & 13 Wm. 3, c. 2.
Although responsible government did not develop until the nineteenth century, the constitu-
tional monarchy that is subordinate to Parliament essentially dates from this time.
102 A.G. v. DeKeyser’s Royal Hotel [1920] A.C. 508 (H.L.) (Crown ordered to satisfy statutory
requirement of compensation for building occupied in time of war). See also discussion in ch.
15, Statutes, under heading 15.6(d), “Displacement of prerogative”, below.
103 R. v. Home Secretary, ex parte Fire Brigades Union [1995] 2 AC. 513 (H.L.). Query however
the holding of Scarborough v. Ont. (1997) 144 D.L.R. (4th) 130 (Ont. Gen. Div.) that prerogative
displaced by a bill introduced but not enacted.
104 Laker Airways v. Dept. of Trade [1977] Q.B. 643 (C.A.) (Crown foreign policy prerogative
with respect to aviation displaced in its entirety by general words of the Civil Aviation Act
1971).
105 Barton v. Cth. of Australia (1974) 131 C.L.R. 477 (H.C., Aust.) (extradition under prerogative
not displaced by statute); R. v Home Secretary, ex parte Northumbria Police Authority [1989]
Q.B. 26 (C.A.) (prerogative power to supply riot equipment to police not displaced by statute);
R. v. Home Secretary, ex parte Fire Brigades Union , note 103, above, 552 per Lord Browne-
Wilkinson (prerogative powers “remain in existence to the extent that Parliament has not
expressly or by implication extinguished them”); Pharmaceutical Manufacturers Assn. of Ca-
nada v. B.C. (1996) 149 D.L.R. (4th) 613, 629 (B.C.C.A.) (prerogative not displaced unless
statute provides for power in a “particular manner or subject to particular limitations”); Ross
River Dena Council Band v. Can. [2002] 2 S.C.R. 816, para. 54 (Indian Act has limited, but
not ousted the prerogative to create Indian reserves); Delivery Drugs v. B.C. (2007) 286 D.L.R.
(4th) 630 (B.C.C.A.) (prerogative power to enter into health care contracts displaced by statute).
106 Chapter 15, Statutes, under heading 15.6(d), “Displacement of prerogative”, below.
21
1.5(b) INTRODUCTION
Is a prerogative that has been displaced by statute revived if and when the
statute is repealed? There are some dicta suggesting the possibility of revival,107
but the better view is that the prerogative is not revived by the repeal of the
replacing statute. A prerogative that has been displaced by statute is best thought
of as having been repealed in much the same way as a statute is repealed. When
statute A repeals statute B, which had repealed statute C, the enactment of statute
A does not have the effect of reviving statute C. The non-revival of a repealed
statute is uniformly provided for the Interpretation Acts of all Canadian jurisdic-
tions. Most Interpretation Acts also make clear that the same rule of non-revival
applies to common law rules that have been repealed by statute: they too are not
revived by the repeal of the repealing statute.108 In a jurisdiction that has enacted
the rule that repeal does not revive common law, it is clear that the prerogative is
not revived by the repeal of the displacing statute. However, the same result
should follow even in a jurisdiction like Quebec, where the Interpretation Act is
silent on the effect of repeal on the common law. It must be remembered that the
prerogative is a special branch of the common law which cannot be expanded by
the courts.109 To revive a prerogative that had been displaced by statute, albeit a
statute subsequently repealed, would go against the general tendency of progres-
sive diminution of the scope of the prerogative.
Does a prerogative that has never been used in the democratic era fade away
through desuetude? There does not seem to be any doctrine of loss of prerogative
through disuse, just as other legal rules, whether of the constitution or statute or
common law, do not become extinct merely by neglect.110
The common law decisions on the scope of the prerogative that have been
described, and especially the doctrine of statutory displacement, have had the
effect of shrinking the prerogative powers of the Crown down to a very narrow
compass. Professor Rodney Brazier in the United Kingdom has argued that those
prerogatives that remain should be the subject of a careful review to determine
whether they are needed, and, if so, that they should be put into statutory form.111
That sensible suggestion has not been followed by any government, and certainly
107 A.G. v. De Keyser’s Royal Hotel, note 102, above, 540 per Lord Atkinson (prerogative power
“in abeyance” while displacing statute in force); R. v. Home Secretary, ex parte Fire Brigades
Union, note 103, above, 524 per Lord Nichols (but his case concerned a natural-person power
to spend money). Lordon, note 65, above, 69, treats the point as unsettled.
108 E.g., Interpretation Act, R.S.C. 1985, c. I-21, s. 43; Interpretation Act, R.S.O. 1990, c. I.11, s.
14. Quebec is an exception, only expressly precluding the revival of statute law: Interpretation
Act, R.S.Q. 1977, c. I-16, s. 9; Côté, The Interpretation of Legislation in Canada (2000), 102.
109 Notes 95-101, above.
110 But see McKendrick v. Sinclair (1972) S.L.T. 110, 116-117 (H.L.) per Lord Simon (“a rule of
the English common law, once clearly established, does not become extinct merely by disuse,
and remains capable of recrudescence in propitious circumstances, but not when it would be
grossly anomalous and anachronistic”) (emphasis added).
111 Sunkin and Payne, note 63, above, ch. 13 (R. Brazier).
22
no government in Canada. Prerogative powers remain in Canada in a number of

areas:112
Powers relating to the legislature: The Crown summons, prorogues and dissolves
Parliament and the Legislatures pursuant to the prerogative. The power to appoint
the Prime Minister and the other ministers of the Crown is also derived from the
prerogative.
Powers relating to foreign affairs: The conduct of foreign affairs by government is
carried on mainly by reliance on the prerogative, including the declaring of war and
peace, the making of treaties, the appointment of ambassadors, the making of rep-
resentations to foreign governments,113 and the issuing of passports.114
Power relating to the armed forces: The Queen is commander in chief of the armed
forces both by virtue of the prerogative and, in Canada, through s. 15 of the Consti-
tution Act, 1867.115
The “emergency” prerogative: The Crown possesses some ill-defined powers in an
emergency to take actions that are necessary for the defence of the country.116
Appointments and honours: The sovereign is the “fountain of honour” and is au-
thorized by the prerogative to grant honours or awards.117
The prerogative of mercy: The prerogative of mercy authorizes the Queen to grant a
pardon to a person convicted of crime.118
112 Brazier, previous note, reviews the current scope of the prerogative in the United Kingdom.
113 Can. v. Khadr [2010] 1 S.C.R. 44 (representations to U.S. re Canadian prisoner held by U.S.).
114 The issue of passports in Canada is governed by the Canadian Passport Order, SI 81-86, which
is an instrument made by the Governor General in Council under the prerogative. On judicial
review, see R. v. Foreign Secretary, ex parte Everett [1989] Q.B. 811 (C.A.) (refusal of
passport); Khadr v. Can. (2006) 268 D.L.R. (4th) 303 (F.C.) (refusal of passport); Can. v.
Kamel [2009] 4 F.C.R. 449 (C.A.) (refusal of passport); Abdelrazik v. Can. [2010] 1 F.C.R.
267 (F.C.) (refusal of passport).
115 This prerogative was curtailed by the English Bill of Rights of 1689, note 101, above, article
6, which prohibited the King from raising or keeping a standing army in time of peace except
with the consent of Parliament. In Canada, Parliament’s consent is to be found in the National
Defence Act, R.S.C. 1985, c. N-5, ss. 14-52. Section 31 of the Act authorizes the Governor in
Council to place Canadian forces “on active service” anywhere in or beyond Canada. This Act
is sufficiently detailed that it may well have displaced the prerogative. For the position in the
United Kingdom, see Sunkin and Payne, note 63, above, ch. 10 (P. Rowe).
116 Burmah Oil Co. v. Lord Advocate [1965] A.C. 75 (H.L.), holding that, during World War II,
the Crown had prerogative power to destroy oil refineries in Burma to prevent them from falling
into the hands of the enemy; however, the House of Lords held that the Crown was liable to
compensate the owners of the destroyed property. This award of damages was subsequently
reversed by statute. In Canada, emergency powers have always been granted by legislation.
The current federal Act, the Emergencies Act, S.C. 1988, c. 29, provides a comprehensive code
for various classes of emergencies. The prerogative has probably been displaced by this Act.
117 Black v. Chrétien (2001) 54 O.R. (3d) 215 (C.A.) (refusal of honour); discussed in text accom-
panying note 137, below.
118 R. v. Home Secretary, ex parte Bentley [1994] Q.B. 349 (Q.B.) (refusal of pardon); Reckley v.
Minister of Public Safety (No. 2) [1996] 1 A.C. 527 (H.L.) (refusal of pardon). In Canada, the
Criminal Code, by s. 748, contains express statutory powers to grant pardons, but they do not
23
1.5(b) INTRODUCTION
Creation of Indian reserves: Indian reserves are created under a prerogative power
that has not been displaced by the Indian Act.119
Unclaimed property: The Crown is entitled by the prerogative to land on the death
of the owner leaving no heirs (escheat), and to personal property in the same situation
(bona vacantia).120
Immunities and privileges: The Crown enjoys certain prerogative privileges and
immunities, such as immunity from injunction, specific performance and other co-
ercive remedies, the right to withhold evidence on the ground of public interest, and
a presumptive immunity from statutes unless they make clear by express words or
necessary implication that the Crown is to be bound. Many immunities and privileges
have been narrowed or eliminated by statute, but a number continue to exist and are
discussed in the appropriate places in the later chapters of this book.
Before the development of responsible government, prerogative powers were
exercised by the reigning monarch in accordance with his or her own discretion.
Such powers could not survive the growth of democratic ideals, for the monarch
was not (and still is not) an elected official. In most countries, the acceptance of
democratic ideals led to the abolition of the monarchy: governmental power was
entirely vested in elected officials. In the United Kingdom, a “constitutional
monarchy” gradually became subordinate to elected ministers. In the seventeenth
century, the courts held that the monarch was subject to Parliament, and in the
nineteenth century, the conventions of “responsible government” became settled:
the Queen (or King) continued as head of state, but she became bound by con-
vention to exercise her powers only on the “advice” (meaning direction) of her
Prime Minister, who was the leader of the majority party in the House of Com-
mons. In this way, the requirements of representative democracy were satisfied
without giving up the forms of monarchical government.
After responsible government was established in the United Kingdom in the
nineteenth century, it was gradually extended to the colonies. The Colonial Office
directed that each colonial governor was to cease to act on the advice of the
Colonial Office in the United Kingdom, and instead was to rely on the advice of
local ministers who enjoyed the confidence of the local representative assembly.
At first, various matters of imperial concern (for example, treaty-making) were
excluded from responsible government and reserved for British decision, but
eventually local responsible government extended to everything and bound the
King or Queen as well as the local governors.121 The current position is that the
displace the prerogative because s. 749 provides: “Nothing in this Act in any manner limits or
affects Her Majesty’s royal prerogative of mercy”.
119 Ross River Dena Council Band v. Can. [2002] 2 S.C.R. 816, paras. 63-66 (no reserve created).
120 A.G. Ont. v. Mercer (1883) 8 App. Cas. 767 (P.C., Can.) (property devolves by escheat on
provincial, not federal, Crown).
121 See Hogg, Constitutional Law of Canada (Carswell, 5th ed., 2007 annually supplemented), ch.
9.
24
POWERS OF THE CROWN 1.5(c)
prerogative powers in Canada122 continue to be exercised formally by the Queen

(very rarely)123 or by the Queen’s representatives in Canada, namely, the Governor
General of Canada and the Lieutenant Governors of the provinces. But the Queen
and the Governor General act only on the advice of the Prime Minister of Canada,
and each Lieutenant Governor acts only on the advice of the Premier of the
province.124 In this way, as in the United Kingdom, the conventions of responsible
government have subjected the prerogative powers to democratic control. Pre-
rogative powers, like other governmental powers, can be delegated,125 and in
practice, like statutory powers of the Crown, they are mostly exercised by min-
isters or by the civil servants in their departments.
(c) Judicial review of Crown powers
The exercise by the Crown of statutory powers is subject to judicial review

in accordance with the rules of administrative and constitutional law. An exercise
of power that is not authorized by the terms of the statute granting the power, or
that is improperly delegated, or exercised in bad faith, or for an improper purpose
or upon irrelevant considerations, or that is biased or otherwise unfair, are the
kinds of cases that offend the principles of administrative law; in those cases, the
courts will exercise their powers of judicial review by striking down the flawed
exercise of governmental power. Similarly, acts done by the Crown in the pur-
ported exercise of statutory powers that infringe the Charter of Rights or other
provisions of the Constitution of Canada will be struck down by the courts under
principles of constitutional law.
122 Canada being a federal state, the prerogative powers are distributed between the Crown in right
of Canada (the Governor General advised by the Prime Minister) and the Crown in right of
each province (the Lieutenant Governor advised by the Premier) in accordance with the scheme
of the Constitution Act, 1867 for the distribution of legislative powers. This was decided in
Liquidators of Maritime Bank v. Receiver General of New Brunswick [1892] A.C. 437 (P.C.,
Can.), holding that “a Lieutenant Governor, when appointed, is as much the representative of
Her Majesty for all purposes of provincial government as the Governor General himself is for
all purposes of Dominion government” (p. 443). It followed that the federal distribution of
legislative powers entailed a matching distribution of executive power and prerogatives as well.
123 For example, the Queen appoints the Governor General — but only on the advice of the Prime
Minister of Canada. Occasionally, on a royal visit, the Queen may perform some other acts for
Canada as well — but again only on the advice of the Prime Minister.
124 The Queen and her representatives in Canada retain some “personal prerogatives” (or “reserve
powers”) that are exercisable without advice. These are limited to the situation where there is
no ministry that commands the confidence of the elected assembly, and therefore no one
qualified to provide the advice: see Hogg, note 121, above, sec. 9.7, “The Governor General’s
personal prerogatives”.
125 Ross River Dena Council Band v. Can. [2002] 2 S.C.R. 816.
25
1.5(c) INTRODUCTION
In the case of prerogative powers,126 it used to be asserted that their exercise

was not subject to judicial review.127 The assertion is belied by the many cases in
which the exercise of prerogative powers has been reviewed by the courts —
starting as long ago as the seventeenth century. The courts will determine whether
a prerogative power that has been asserted by the Crown does in fact exist and,
if it does exist, what are its limits, whether those limits have been complied with,
and whether the power has been displaced by statute.128 The courts will also
require, not only that prerogative powers be exercised in accordance with the
Charter of Rights129 and other constitutional rules,130 but also that administrative-
law rules such as limits on delegation131 and the duty of fairness be observed.132
The correct position in principle is that an exercise of the prerogative should
be judicially reviewable on essentially the same basis as an exercise of a statutory
power.133 It is the nature of the decision, not its source, that should determine
whether the decision is reviewable.134 The decisions that are reviewable by their
nature are those that affect the rights or legitimate expectations of individuals.135
Comprehensive judicial review of prerogative acts has been largely accepted by
126 In this context, the prerogative includes all powers exercised by the Crown or Crown officials
without the authority of a statute, not merely those common law powers that are unique to the
Crown but also those that are held in common with other persons by virtue of the Crown’s
status as a natural person: notes 90-94, above.
127 The Federal Courts Act, R.S.C. 1985, c. F-7, by s. 28, confers exclusive jurisdiction on the
Federal Court to grant judicial-review remedies against “any federal board, commission or
other tribunal”. Initially the quoted phrase was defined solely in terms of statutory powers, but
it was amended in 1990 (S.C. 1990, c. 8) to include bodies exercising prerogative powers.
129 Operation Dismantle v. The Queen [1985] 1 S.C.R. 441 (weapons testing under prerogative
upheld, but prerogative powers in principle subject to Charter); Can. v. Kamel [2009] 4 F.C.R.
449 (C.A.) (refusal of passport upheld under s. 1 of Charter); Abdelrazik v. Can. [2010] 1 F.C.R.
267 (F.C.) (refusal of passport struck down under s. 6 of Charter); Can. v. Khadr [2010] 1
S.C.R. 44 (representations by government subject to Charter).
130 Air Canada v. B.C. [1986] 2 S.C.R. 539 (mandamus issued to overrule denial of royal fiat for
proceedings against the Crown to recover unconstitutional taxes).
131 Ross River Dena Council Band v. Can. [2002] 2 S.C.R. 816, paras. 63-64 (Governor in Council
would “normally” exercise prerogative power to create Indian reserves, but duly authorized
agent of the Crown could also do so; no agent had authority to do so in this case).
132 R. v. Criminal Injuries Compensation Board, ex parte Lain [1967] 2 Q.B. 864 (C.A.); Council
of Civil Service Unions v. Minister for Civil Service [1985] 1 A.C. 374 (H.L.); R. v. Foreign
Secretary, ex parte Everett [1989] Q.B. 811 (C.A.); R. v. Home Secretary, ex parte Bentley
[1994] Q.B. 349 (Q.B.); Khadr v. Can. (2006), 268 D.L.R. (4th) 303 (F.C.).
133 Woolf, Jowell and Le Sueur, De Smith’s Judicial Review (6th ed., 2007), 125-130.
134 Council of Civil Service Unions v. Minister for Civil Service, previous note, 417 per Lord
Roskill, although he made the confusing suggestion (p. 418) that there were “excluded cate-
gories” of prerogatives that were still immune from judicial review. It is possible that he meant
only that some prerogative acts would not affect the rights or legitimate expectations of indi-
viduals so as to be justiciable.
135 Id., 409 per Lord Diplock, 417 per Lord Roskill.
26
POWERS OF THE CROWN 1.5(c)
the House of Lords in England136 and, in the case of Black v. Chrétien (2001),137
it was fully accepted by the Ontario Court of Appeal.
The issue in Black v. Chrétien was whether advice given to the Queen by
Prime Minister Chrétien, who advised her not to confer a peerage on a Canadian
citizen, could be challenged in an action for a declaration brought by the disap-
pointed aspirant, Conrad Black.138 The Prime Minister had advised the Queen of
a longstanding Canadian policy that was opposed to Canadian citizens receiving
English titles. Assuming this to be unsolicited, incorrect advice motivated by
hostility to the policies of Mr. Black’s newspapers (as alleged in the statement of
claim),139 could a court issue a declaration that the Prime Minister exceeded his
authority in proffering the advice? Laskin J.A., who wrote for the Court, held that
the granting of honours was a prerogative power, and that the Prime Minister had
been exercising that power in communicating his advice to the Queen. The
classification of the action as prerogative did not however insulate it from judicial
review: “Where the rights or legitimate expectations of individuals are affected,
the court is both competent and qualified to judicially review the exercise of the
prerogative.”140 But the refusal of an honour did not rise to the level of a reviewable
act. An honour was a discretionary favour bestowed by the Queen, lacking “a
sufficient legal component to warrant the court’s intervention”.141 No one had a
right to or a legitimate expectation of an honour. Laskin J.A. distinguished refusals
by government of a passport or a pardon — both of which were prerogative acts
that had been held to be subject to judicial review142 — on the basis that “important
individual interests were at stake” in those cases.143 That was not true in the case
of the refusal of an honour. Mr. Black’s proceedings were accordingly dismissed,
not because the refusal of a peerage was a prerogative act, but because it was a
discretionary act that did not engage any liberty, property or economic interests
or expectations that were cognizable to a court of law.
136 Previous two notes.

137 (2001) 54 O.R. (3d) 215, para. 51 (C.A.). The opinion of the Court was written by Laskin J.A.
138 Although, as will be related, Mr. Black lost the case, he later renounced his Canadian citizenship
and the Queen then conferred a life peerage on him: A. Freeman, “Black given seat in House
of Lords”, Globe and Mail newspaper, September 13, 2001, A16.
139 The proceeding before the court was a motion to strike the statement of claim, and its allegations
had to be taken as true for the purpose of the motion. No findings of fact were made. However,
there was no doubt that the Canadian House of Commons had passed the Nickle resolution in
1919 requesting the King not to confer titles on Canadian residents (Canadian citizenship not
existing at that time).
140 (2001) 54 O.R. (3d) 215, para. 51.
141 Id., para. 62.
142 Notes 114, 118, above. But see also Reckley v. Minr. of Public Safety (No. 2) [1996] 1 A.C.
527, 540 (P.C., Bahamas) (prerogative of mercy an “act of grace” available only “where legal
rights end”; refusal of pardon unreviewable).
143 (2001) 54 O.R. (3d) 215, para. 60. Compare Can. v. Khadr [2010] 1 S.C.R. 44 (granting a
declaration for breach of the Charter in exercise of the foreign affairs perogative, but refusing
any more specific remedy).
27
2
Remedies
2.1 Introduction 30
2.2 Damages 32
(a) Definition 32
(b) Crown liability 32
(c) Tortious liability 32
(d) Punitive damages 33
(e) Interest on damages 34
2.3 Declaration 37
(a) Definition 37
(c) Crown proceedings statutes 38
(d) Dyson procedure 38
(e) Interlocutory declaration 39
(f) Suspended declaration 42
(g) Constitutional declaration 44
2.4 Injunction 45
(a) Definition 45
(b) Crown immunity 46
(c) Crown servants 46
(d) Lack of legal authority 48
(e) Mandatory injunction 48
(f) Interlocutory injunction 49
(g) Constitutional injunction 50
(h) Personal or official capacity 52
(i) Justification for Crown immunity 54
2.5 Specific performance 56
(a) Definition 56
2.6 Mandamus 57
(a) Definition 57
(c) Persona designata 57
(d) Constitutional mandamus 58
(e) Justification for Crown immunity 59
2.7 Prohibition and certiorari 60
(a) Definition 60
2.8 Habeas corpus 61
2.1 REMEDIES
(a) Definition 61
(c) Constitutional guarantee 62
2.9 Application for judicial review 63
(a) Definition 63
2.10 Collateral attack 63
(a) Definition of collateral attack 63
(b) Collateral attack in inferior courts 65
(c) Collateral attack in superior courts 65
(d) Collateral attack in criminal proceedings 66
(e) Collateral attack in civil proceedings 67
2.11 Set-off 71
(a) Definition 71
(c) Statutory reform 72
2.12 Proceedings in rem 72
(a) Definition 72
2.13 Proceedings by the Crown 74
2.1 Introduction
This chapter is concerned with remedies, specifically, the extent to which
they are available against the Crown. The previous chapter described the history
of proceedings against the Crown. It relates the story of the emergence of the
petition of right as the principal vehicle for relief against the Crown, and its
eventual replacement by procedures that are generally the same as those employed
against private defendants. Despite this development, some remedial privileges
and immunities continue to apply to the Crown. The current state of the law is
described in this chapter.1 For ease of reference, the Crown proceedings statutes
of Canada are footnoted at this point.2 (In the same footnote are the Crown
1 See also Horsman and Morley (eds.), Government Liability (2006, annually supplemented), ch.
12.
2 In order to avoid repetition of lengthy statute titles, the following statutes are referred to by
jurisdiction only in the footnotes to this chapter.
Canada
Canada: Crown Liability and Proceedings Act, R.S.C. 1985, c. C-
50.
British Columbia: Crown Proceeding Act, R.S.B.C. 1996, c. 89.
Alberta: Proceedings Against the Crown Act, R.S.A. 2000, c. P-25.
Saskatchewan: Proceedings Against the Crown Act, R.S.S. 1978, c. P-27.
Manitoba: The Proceedings Against the Crown Act, C.C.S.M., c.
P140.
Ontario: Proceedings Against the Crown Act, R.S.O. 1990, c. P.27.
Quebec: Code of Civil Procedure, R.S.Q. 1977, c. C-25, chapter 5.
30
INTRODUCTION 2.1
proceedings statutes of the United Kingdom, New Zealand and Australia, because
we also make frequent reference to them.) The three Canadian territories (Yukon,
Nunavut and Northwest Territories) do not have Crown proceedings statutes.
Proceedings are brought against the governments of the territories on the basis of
an informal understanding that proceedings can be brought in accordance with
the same procedures as are employed against private defendants.3
As was explained in the previous chapter,4 the Crown’s immunity from
lawsuits, and hence from judicial remedies, which stemmed from medieval ideas
of feudalism and kingship, has largely been done away with. For the most part,
the Crown proceedings statutes of all Canadian jurisdictions make the Crown
liable to the same remedies as would be available in a suit between private parties.
Most of the statutes provide that “in proceedings against the Crown, the rights of
the parties are as nearly as possible the same as in a suit between person and
person”. This means that when the Crown is sued it is subject to the same remedies,
the same procedure, and even the same substantive law as any other defendant.5
The rights-of-the-parties provision is expressly subject to other provisions of the
Crown proceedings statute, and it is in those other provisions that we find the
residual immunities and special rules applicable to the Crown. In other words,
the idea of equality has become the presumption, and special rules, however
ancient in their origin, are preserved only if modern statutes say so. This chapter
2 deals with the availability of remedies against the Crown; chapter 3 deals with
the enforcement of judgments against the Crown; chapter 4 deals with the pro-
New Brunswick: Proceedings Against the Crown Act, R.S.N.B. 1973, c. P-

18.
Nova Scotia: Proceedings Against the Crown Act, R.S.N.S. 1989, c. 360.
Prince Edward Island: Crown Proceedings Act, R.S.P.E.I. 1988, c. C-32.
Newfoundland: Proceedings Against the Crown Act, R.S.N. 1990, c. P-26.
United Kingdom
United Kingdom: Crown Proceedings Act 1947, 10 & 11 Geo. 6, c. 44.
New Zealand
New Zealand: Crown Proceedings Act 1950.
Australia
Commonwealth: Judiciary Act 1903.
New South Wales: Crown Proceedings Act 1988.
Queensland: Crown Proceedings Act 1980.
South Australia: Crown Proceedings Act 1992.
Tasmania: Crown Proceedings Act 1993.
Victoria: Crown Proceedings Act 1958.
Western Australia: Crown Suits Act, 1947.
Australian Capital Territory: Court Procedures Act 2004, Part 4.
Northern Territory: Crown Proceedings Act 1993.
3 On the status of the three territories, see ch. 1, Introduction, under heading 1.4(c), “Divisibility”,
above.
4 Chapter 1, Introduction, under heading 1.3(a), “Origin of petition of right”, above.
5 See ch. 15, Statutes, under heading 15.11(a), “Rights-of-the-parties provision”, below.
31
2.2(a) REMEDIES
cedure in proceedings against the Crown; and chapter 5 deals with special Crown
privileges in respect of evidence. Succeeding chapters deal with the substantive
law applicable to the Crown.
2.2 Damages
(a) Definition
Damages are compensation in money for a wrong. Damages are of course

the basic common law remedy for causes of action in contract and tort.
(b) Crown liability
In 1874, it was held that the petition of right lay to recover from the Crown
damages for breach of contract.6 It was thus early established that at common law
the Crown enjoyed no immunity from the remedy of damages. Now that the
petition of right has been abolished and replaced by the ordinary action that is
permitted by the Crown proceedings statutes,7 damages continue to be available
under the modern procedure.
(c) Tortious liability
At common law, the Crown was immune from liability in tort, but this
immunity was based upon the supposed impossibility of the Crown committing
a tort: the King could do no wrong – at least no tortious wrong (since the King
could break a contract). It was the Crown’s immunity from the substantive law
of tort that denied the victim of a Crown tort any right to sue for damages. When
the Crown’s immunity from the substantive law of tort was abrogated by statute,
as has now occurred in all jurisdictions in Canada, Australia, New Zealand and
the United Kingdom,8 the remedy of damages automatically became available as
a remedy in tort against the Crown.
It goes without saying that the Crown is liable to pay damages only if the
plaintiff can establish facts that amount to a cause of action against the Crown. A
lawful act by the Crown, even if it causes injury, is not tortious, and therefore
gives rise to no liability to pay damages.9 Even an act that is unauthorized by law
is not necessarily tortious: if the circumstances do not come within a recognized
6 Thomas v. The Queen (1874) L.R. 10 Q.B. 31.

7 See ch. 1, Introduction, under heading 1.3, “History of Crown proceedings”, above.
8 The history is related in ch. 6, Tort: General Principles, under heading 6.1, “History”, below.
9 If the Crown is likely to rely on an official decision as the lawful justification for its action, it
is not necessary to bring a separate application for judicial review of that decision: sec. 2.10,
“Collateral attack”, below.
32
DAMAGES 2.2(d)
head of tortious liability, the Crown will come under no liability to pay damages.10
These are statements of substantive, not remedial law; and the application of the
law of torts to governmental acts is accordingly reserved for the later chapters on
tort liability.11
(d) Punitive damages
Damages are normally “compensatory”: they are intended to compensate

the plaintiff for injury or loss caused by the wrongful act of the defendant.12 An
exceptional class of damages is “punitive” (or “exemplary”) damages:13 they are
intended to punish the defendant (and, of course, they over-compensate the plain-
tiff). An award of punitive damages is justified only when the defendant’s conduct
was not only a tort (or breach of contract or other actionable wrong), but was such
a deliberate or reckless infliction of injury on the plaintiff that it amounted to an
independent wrong deserving of punishment on its own.14
One of the earliest kinds of cases where punitive damages were recognized
as appropriate is “oppressive, arbitrary or unconstitutional action by the servants
of the government”.15 Before the Crown was liable in tort, awards of punitive
damages were made against the individual Crown servants who were guilty of
the oppressive action. That is still possible, of course, but, now that the Crown is
liable in tort, is the deeper pocket of the Crown also available to the plaintiff?
Ordinarily, of course, the vicarious liability of an employer for damages for torts
committed by employees in the course of employment does not imply any fault
on the part of the employer. The question is whether vicarious liability extends
to damages that are intended to punish rather than to merely compensate the
victim. Punishment loses its point when the punitive award is not made against
the actual wrongdoer, although failures of managerial recruitment, training or
control will sometimes be blameworthy on the part of the employer. In fact, the
Crown has been held vicariously liable for punitive damages in cases where a
punitive award is justified by the conduct of a Crown servant acting in the course
10 This limitation does not apply where a breach of a constitutional right has occurred. Courts in
the United States, Canada and New Zealand have awarded damages for breach of a constitutional
right (in the case of New Zealand, a statutory right), for example, the right to be free from
unreasonable search or seizure: ch. 6, Tort: General Principles, under heading 6.5(d), “Consti-
tutional torts”, below.
11 Chapters 6, 7, 8, below.
12 The term “aggravated” damages usually refers only to compensatory damages, although when
damages are aggravated they take account of intangible injuries caused by the defendant, such
as distress or humiliation.
13 The two terms are synonymous, with “exemplary” more common in the United Kingdom and
“punitive” more common in Canada and the United States. See Waddams, The Law of Damages
(3rd ed., 1997, annually supplemented), ch. 11.
14 Whiten v. Pilot Insurance Co. [2002] 1 S.C.R. 595, para. 82.
15 Rookes v. Barnard [1964] A.C. 1129, 1226 (H.L.) per Lord Devlin, citing cases from the 1760s
arising out of the government’s unlawful campaign to suppress the writings of John Wilkes.
33
2.2(e) REMEDIES
of employment. In one case,16 the Crown in right of Canada was held liable to
pay punitive damages for an assault by prison guards on an already-injured
prisoner whom they were taking to hospital. In another case,17 the Crown in right
of New South Wales was held liable to pay punitive damages for a trespass and
assault by police officers who entered the garage of a private home without warrant
or other justification and threatened the owner with a gun. In each case, the
appellate court made a point of finding some fault on the part of managerial
employees, and so the case where the Crown (as employer) is entirely free of fault
has not been decided.
(e) Interest on damages
All Canadian jurisdictions provide by statute for interest to be added to

money judgments dating back to when the cause of action arose (or to when
notice of the claim was given to the defendant).18 The Crown used to be immune
from the payment of prejudgment interest.19 The origin of this immunity is lost
in the mists of time. It is hard to see any reason why the Crown should not, like
any other defendant, have to pay interest on money judgments. After all, interest
merely compensates the plaintiff for the time-value of the monetary award to
which the plaintiff has notionally been entitled since the cause of action arose. In
any event, the rule of immunity has been reversed in all Canadian jurisdictions.
Section 31 of the federal Crown Liability and Proceedings Act provides that the
law of a province relating to prejudgment interest applies to the federal Crown in
any court in respect of a cause of action arising in that province.20 The provincial
Crown proceedings statutes do not speak expressly of prejudgment interest, but
they contain the standard provision that, “in proceedings against the Crown, the
rights of the parties are as nearly as possible the same as in a suit between person
16 Peeters v. Can. [1994] 1 F.C. 562 (F.C.A.) (but Court made an implausible finding of Crown
“complicity” through its corrections managers).
17 N.S.W. v. Ibbett (2006) 229 C.L.R. 638 (H.C., Aust.) (no finding of complicity, but suggestions
of inadequate training of police officers).
18 Waldron, The Law of Interest in Canada (1992), ch. 5; Waddams, note 13, above, ch. 7. As the
authors explain, the statutes differ in their details, especially in the degree to which there is
discretion in the court as to the award and as to the rate of interest.
19 The King v. Carroll [1948] S.C.R. 126 (prejudgment interest cannot be awarded against the
Crown in absence of statute or contract providing for payment of interest).
20 Section 31 was added to the Act in 1992, and was expressly not made retroactive. In Whitefish
Lake Band of Indians v. Can. (2007) 87 O.R. (3d) 321 (C.A.), it was argued that damages for
breach of fiduciary duty by the federal Crown in 1886 could not include pre-1992 interest.
Laskin J.A. for the Court agreed that no award of pre-1992 interest could be made in the case
of common law damages, but he held that “equitable compensation” for breach of fiduciary
duty could include compound interest, because that was a relevant consideration in assessing
the amount of the compensation. He concluded that “a claim for compound interest as an
element of equitable compensation is not a claim for prejudgment interest, and therefore is not
barred by the Crown’s pre-1992 immunity” (para. 91).
34
DAMAGES 2.2(e)
and person”, and this provision has been held effective to make the Crown liable
to an award of prejudgment interest.21
The Crown’s common-law immunity from the payment of interest retains a
residual relevance. Where a statute imposes a duty of payment on the Crown and
is silent about interest on the obligation, then the statute may be interpreted as a
“complete code” in which there is no duty to pay interest. This was the result in
Gladstone v. Canada (2005).22 The federal Department of Fisheries and Oceans,
acting under powers of enforcement conferred by the federal Fisheries Act, had
seized fish from the plaintiffs, but had not succeeded in obtaining an order
forfeiting the fish to the Crown. In that situation, the Act imposed an obligation
on the Crown to return the fish, or the proceeds of their sale, to the persons from
whom the fish were seized. The Crown, which had sold the fish eight years earlier,
paid over the proceeds of sale, but refused to pay interest on the proceeds. The
plaintiffs sued for interest for the eight-year period that the Crown had held onto
the money. The Supreme Court of Canada held that the Crown was under no
obligation to pay interest. According to Major J., who wrote for the Court, the
Fisheries Act was “a complete code dealing with the return of seized property”.23
Since the Act said nothing about interest, no interest was payable.24 He acknowl-
edged that “this may seem unfair”, but “if so, it is for Parliament to correct it”.25
Major J. made no reference to s. 31 of the Crown Liability and Proceedings Act,
and offered no reason why s. 31 did not apply to entitle the plaintiffs to their
interest. Section 31 opens with the phrase “except as otherwise provided in any
other Act of Parliament”, and presumably Major J. thought that the Fisheries Act
by implication provided otherwise.
In Gorecki v. Canada (2006),26 the Ontario Court of Appeal dismissed an
action against the federal Crown for interest on a lump sum payment of retroactive
Canada Pension Plan benefits. The Court reasoned that “the Canada Pension Plan
is a complete statutory code that makes no provision for the payment of interest
on benefits where there is a delay between the date on which the beneficiary
became entitled to the benefit and the date on which the benefit is paid”.27
Therefore, the Crown’s immunity from interest applied, and no interest was
payable. The Court followed Gladstone, and the decision did indeed seem to be
a faithful application of that case. But, in Canada v. Hislop (2007),28 the Supreme
21 Canadian Industrial Gas and Oil v. Govt. of Sask. [1979] 1 S.C.R. 37. The rights-of-the-parties
provision and this case are discussed in ch. 15, Statutes, under heading 15.11(a), “Rights-of-
the-parties provision”, below. As that section explains, Nova Scotia and Quebec lack an explicit
rights-of-the-parties provision, but they do include a similar provision.
22 [2005] 1 S.C.R. 325.
23 Id., para. 9.
24 Arguments based on unjust enrichment and breach of fiduciary duty were also rejected.
25 [2005] 1 S.C.R. 325, para. 12.
26 (2006) 265 D.L.R. (4th) 206 (Ont. C.A.).
27 Id., para. 7 per Sharpe J.A. for the Court.
28 [2007] 1 S.C.R. 429.
35
2.2(e) REMEDIES
Court of Canada unexpectedly reached the opposite conclusion, upholding an

award of interest on a lump sum payment of retroactive Canada Pension Plan
benefits. The Court reasoned that “the CPP is silent on the issue of prejudgment
interest and cannot, as such, reasonably be interpreted as creating an exception
to the entitlement created by s. 31 of the Crown Liability and Proceedings Act”.29
It is unfortunate that this conclusion was reached without reference to either
Gladstone or Gorecki, but, with respect, it seems the better way to approach the
Crown’s liability to pay prejudgment interest. By applying s. 31 in the face of
legislative silence, the Court avoided the unfairness of denying a liability to pay
interest on monies that had been wrongly withheld from the plaintiffs by the
Crown.30
Needless to say, an express statutory provision denying Crown liability to
pay interest on an obligation is effective. This was dramatically demonstrated in
Authorson v. Canada (2003).31 The plaintiff was a veteran who had become
disabled and incompetent in 1944, and whose pension was received by and
accumulated by the Department of Veterans Affairs from that date until 1991,
when the plaintiff became competent and the accumulated pension could be paid
to him. Incredibly, no interest had been credited to the plaintiff for the 47-year
period that the Department had been receiving and holding the payments. Even
more surprising, in 1990 Parliament enacted an amendment to the Department’s
Act that denied any obligation to pay interest on monies held for disabled veterans
prior to 1990. (The legislation did require interest to be paid from 1990 on.) The
Crown paid the plaintiff the face value of the accumulated pension payments, but
refused to pay anything more to compensate him for the withholding of his money
from 1944 to 1990. The plaintiff sued for payment of interest. The Court held
that the Crown had breached a fiduciary duty to the veterans in failing to invest
or pay interest on the funds held for them, and that, in the absence of legislation,
the Crown would have been obliged in equity to pay damages for its default.32
But the Court held that there was no escape from the statutory bar on the payment
of interest. Neither the Charter of Rights nor the Canadian Bill of Rights provided
any relief from what was, in effect, a confiscation of the plaintiff’s property. The
29 Id., para. 135 per LeBel and Rothstein JJ. for the majority, the Court being unanimous on this
issue. LeBel and Rothstein JJ. said (also at para. 135) that they accepted the reasons given by
the Court of Appeal ((2004) 73 O.R. (3d) 641 (C.A.)) for this conclusion, but the Court of
Appeal also gave sparse reasons and did not refer to Gladstone or Gorecki (the latter case not
having been decided by the time of the Court of Appeal’s judgment).
30 Compare Nova Scotia v. N.S.G.E.U. (2004) 238 D.L.R. (4th) 410 (N.S.C.A.) (holding arbitrator
had implied power to award pre-award interest against Crown despite silence of governing
statute and collective agreement, both of which did however bind the Crown).
31 [2003] 2 S.C.R. 40.
32 This would be a matter of damages for breach of fiduciary duty rather than prejudgment interest:
note 20, above.
36
DECLARATION 2.3(b)
Crown was not obliged to pay interest on the money it had been holding for the
plaintiff.33
2.3 Declaration
(a) Definition
A declaration is a judgment that declares the law applicable to the parties

but does not include any coercive order.34 Breach of a declaration is not a contempt
of court and does not attract any other penalty. This deficiency in the remedy is
sometimes cured by accompanying a declaration with coercive relief such as
damages or an injunction or specific performance, but this is not necessary. The
court has the power to make a declaration “whether or not any consequential
relief is or could be claimed”.35
Ironically, the absence of coercive relief has made the declaration an ex-
ceedingly useful public law remedy, because the plaintiff need not make out a
“cause of action” in the traditional sense of facts that would entitle the plaintiff
to coercive relief. Thus, the declaration is commonly used as a remedy for unlaw-
ful administrative action and for unconstitutional statutes. In such cases, the
plaintiff need not establish the commission of a tort or other actionable breach of
duty. Of course, a plaintiff must have a sufficient interest in the matter to be
accorded standing to sue.36
(b) Crown liability
A declaration is a remedy that is available against the Crown. The absence

of a coercive decree avoids the problems of commanding the Crown and enforce-
ment against the Crown, which led the courts to create Crown immunity from
injunction, specific performance, mandamus and discovery. And yet the absence
33 The plaintiff pressed on, with the ingenious argument that he and his fellow veterans were still
entitled to damages for breach of fiduciary duty, although an “interest” figure would have to
be deducted from the damages. This argument was accepted by a superior court judge in
Ontario, who awarded damages against the Crown. However, the damages award was reversed
on appeal by the Court of Appeal, which held that the statutory bar as interpreted in the Supreme
Court decision had denied the plaintiff all relief for the Crown’s breach of fiduciary duty:
Authorson v. Can. (2007) 86 O.R. (3d) 321 (C.A.).
34 See generally Zamir and Woolf, The Declaratory Judgment (3rd ed., 2002); Sarna, The Law of
Declaratory Judgments (3rd ed., 2007).
35 Order 25, rule 5 of the English Rules of the Supreme Court, which was enacted in 1883, has
its counterpart in all jurisdictions in Canada, Australia and New Zealand.
36 Woolf, Jowell and Le Sueur, De Smith’s Judicial Review (6th ed., 2007), 811; Hogg, Consti-
tutional Law of Canada (5th ed., 2007, annually supplemented), sec. 59.2. Note however the
availability to private litigants of discretionary public interest standing: Hogg, above, sec.
59.2(d).
37
2.3(c) REMEDIES
of a coercive decree is seldom a disadvantage when the Crown is the defendant,

because public officials can usually be relied upon to obey the law once it has
been declared by a court.
(c) Crown proceedings statutes
Historically, a declaration could be obtained against the Crown by petition

of right.37 In every jurisdiction in Canada, as well as in Australia, New Zealand
and the United Kingdom, the petition of right procedure has been abolished and
replaced by the ordinary action that is permitted by the Crown proceedings
statutes.38 This means that a declaration may now be sought in an action against
the Crown.39
(d) Dyson procedure
In addition to the petition of right procedure, a declaration against the Crown

could be obtained by an ordinary action against the Attorney General. This means
of obtaining a declaration against the Crown was upheld in Dyson v. Attorney
General (1910),40 in which the English Court of Appeal made a declaration that
a tax notice that had been sent to the plaintiff (and eight million others) was
unauthorized by statute. The defendant in Dyson was the Attorney General, not
the Crown itself. This method of obtaining a declaration against the Crown was
available in Canada, Australia and New Zealand as well.
The Dyson procedure enjoyed a great advantage over the petition of right in
that no royal fiat was needed to institute an action against the Attorney General.41
37 E.g., R. v. Bradley [1941] S.C.R. 270; R. v. Crawford [1960] S.C.R. 527.

38 See ch.1, Introduction, under heading 1.3, “History of Crown proceedings”, above.
39 A declaration is also available in an application for judicial review in those jurisdictions that
have established this general administrative-law remedy: sec. 2.9, “Application for judicial
review”, below. Compare Black v. Chrétien (2001) 54 O.R. (3d) 215 (C.A.), holding that
superior court of province has jurisdiction to award declaration against Prime Minister and
Government of Canada, notwithstanding exclusive Federal Court jurisdiction over judicial
review proceedings.
40 [1911] 1 K.B. 410 (C.A.). For more detail, see ch.1, Introduction, under heading 1.3(b),
“Equitable relief”, above.
41 Concern about the bypassing of the requirement of the fiat led to decisions (which are presum-
ably still good law) that the Dyson procedure was available only where the Crown’s rights were
“indirectly” affected; where the Crown’s rights were “directly” affected, the petition of right
procedure had to be used: Esquimalt and Nanaimo Ry. v. Wilson [1920] A.C. 358 (P.C., Can.)
(no petition of right needed because Crown’s rights only indirectly affected); A.-G. Ont. v.
MacLean Gold Mines [1927] A.C. 185 (P.C., Can.) (petition of right needed for declaration of
Crown’s title to property); Calder v. A.-G. B.C. [1973] S.C.R. 313 (petition of right needed for
declaration of native rights in derogation of Crown title). Outside Canada, this doctrine was
less settled: de Smith, note 36, above, sec. 15-068, treats it as a controversial question.
38
DECLARATION 2.3(e)
Now that the petition of right and the requirement of the fiat have been abolished
in all jurisdictions by the Crown proceedings statutes, there is no longer any
advantage in the Dyson procedure. The usual way of seeking a declaration is the
procedure sanctioned by the Crown proceedings statutes of bringing an action
against the Crown. However, while the Crown proceedings statute of each juris-
diction abolishes the petition of right, in many jurisdictions the statute does not
expressly preclude other modes of suing the Crown.42 It follows in those jurisdic-
tions that the Dyson procedure survives, and a declaration can still be obtained
against the Crown in an action in which the Attorney General is named as the
defendant.43
(e) Interlocutory declaration
Does the court have the power to make a temporary declaration, before
giving a final judgment, in order to hold the defendant to the status quo? Such a
declaration can be described as “interlocutory”, because it is granted at an inter-
locutory stage of the proceedings, or “interim”, because it is granted only for a
temporary period of time.44 The conventional answer is that there is no power to
grant an interlocutory (or interim) declaration. A declaration is by its nature final.
It is “absurd” for a court “to declare one day in interlocutory proceedings that an
applicant has certain rights and upon a later day that he has not”.45 For this reason,
courts have nearly always refused to grant a temporary declaration before there
has been a final determination of the applicable law. In other words, interlocutory
(or interim) relief, which is available in the form of an injunction,46 is not available
in the form of a declaration.
One might well wonder why anyone would seek such a curious object as an
interlocutory declaration. The reason is that, in jurisdictions where the injunction
42 In Canada, only N.B., s. 21, and N.S., s. 25, expressly abolish other proceedings against the
Crown. However, in Re McNeil v. N.S. Bd of Censors (1974) 53 D.L.R. (3d) 259 (N.S.A.D.),
it was held that the Dyson procedure survived this provision of the Nova Scotia Act on the
basis that the action against the Attorney General for a declaration was not a proceeding against
the Crown within the meaning of the Act. Query correctness of this ruling, since the Attorney
General is only a nominal defendant in such a proceeding. The case went on appeal to the
Supreme Court of Canada, which affirmed the N.S.A.D.: N.S. Bd. of Censors v. McNeil [1976]
2 S.C.R. 265. However, the Supreme Court of Canada made no mention of this point, discussing
only the issue of standing, which it described (at 267) as “the only [preliminary objection]
meriting consideration by this Court”.
43 So held in Canex Placer v. A.-G. B.C. (1975) 58 D.L.R. (3d) 241 (B.C.C.A.), interpreting
provisions of British Columbia’s Crown Proceedings Act, 1974, which are identical to those
of Ontario and all the other common law provinces, except for New Brunswick and Nova
Scotia. As to the last two provinces, see previous note.
44 For descriptions of interlocutory and interim injunctions, see sec. 2.4(f), “Interlocutory injunc-
tion”, below.
45 Inland Revenue Commrs. v. Rossminster [1980] A.C. 952, 1027 (H.L.).
46 Section 2.4(f), “Interlocutory injunction”, below.
39
2.3(e) REMEDIES
is not available against the Crown, there is no other way of obtaining interlocutory
relief against the Crown.47 Indeed, the various Crown proceedings statutes that
prohibit injunctive relief against the Crown go on to provide that “in lieu thereof”
the court “may make an order declaratory of the rights of the parties”.48 In our
opinion, the better view is that this provision simply substitutes the declaration
for the injunction, and is not intended to preclude any category of relief. Never-
theless, with only an occasional exception, the courts have refused to make an
interlocutory declaration in lieu of an injunction.49
One notable exception to the general reluctance of the courts to grant an
interlocutory declaration arose in Bertrand v. Quebec (1995).50 In that case, a
private citizen, Guy Bertrand, tried to prevent the provincial government of
Quebec from holding a referendum which would have authorized the province to
secede unilaterally from Canada. Bertrand sought both an interlocutory declara-
tion that the proposed referendum was unconstitutional, and an interlocutory
injunction preventing the government from proceeding with the vote. (He also
sought permanent relief.) One of the arguments that was made against Bertrand
was that his proceeding was premature, since the government had not yet enacted
the legislation providing for the referendum. The Quebec Superior Court rejected
the government’s argument on prematurity and found in favour of Bertrand.
However, the Court refused to grant an interim injunction prohibiting the refer-
endum, mainly on grounds that this would have placed the Court in direct conflict
with the executive and legislature. Instead, Lesage J. granted the declaration
sought by Bertrand on the application for interlocutory relief, finding that the
holding of the referendum would violate the Canadian constitution and amount
to a violation of Bertrand’s constitutional rights. (Despite the ruling, the Quebec
47 Interlocutory injunctions can be obtained against individual officials: sec. 2.4(c), “Crown
servants”, below.
48 Notes 73-75, below.
49 An interlocutory or interim declaration was refused on principle in the following cases: Un-
derhill v. Minry. of Food [1950] 1 All E.R. 591 (Ch. D.); International General Electric Co. v.
Commrs. of Customs and Excise [1962] Ch. 784 (C.A.); Can. Industrial Gas & Oil v. Govt. of
Sask. (1974) 46 D.L.R. (3d) 314 (Sask. Q.B.); MacLean v. Liquor Licence Bd. of Ont. (1975)
9 O.R. (2d) 597 (Div. Ct.); Gouriet v. Union of Postal Workers [1978] A.C. 435 (H.L.); Meade
v. Haringey London Borough Council [1979] 1 W.L.R. 637 (C.A.); Inland Revenue Commrs.
v. Rossminster, note 45, above; Codelfa-Cogefar v. A.-G. [1981] 2 N.Z.L.R. 153 (H.C.); Shaw
v. The Queen (B.C.) (1982) 140 D.L.R. (3d) 178 (B.C.S.C.); Loomis v. Ont. (1993) 16 O.R.
(3d) 188 (Div. Ct.); Novopharm v. B.C. 2008 BCSC 82 (B.C. S.C.). The exceptions are Harder
v. N.Z. Tramways Union [1977] 2 N.Z.L.R. 162 (S.C.); Peters v. The Queen (B.C.) (1982) 42
B.C.L.R. 373 (S.C.); Peralta v. Minr. of Natural Resources (1984) 46 C.P.C. 218 (Ont. H.C.);
and see cases referred to but not followed in Novopharm, above, para. 26. In Loomis, above,
192, the Court suggested that the common element of the exceptional cases was “evidence of
a deliberate flouting of established law by the governmental authority”.
50 (1995) 127 D.L.R. (4th) 408 (Que. Sup. Ct.).
40
DECLARATION 2.3(e)
government still held the referendum, which yielded a narrow majority vote
opposed to the secession of the Province.)51
The exceptional nature of the circumstances facing the Court in the Bertrand
case made the issuance of the declaration in advance of the referendum and of a
final determination of Bertrand’s legal rights both necessary and appropriate. If
the government had won the referendum and proceeded to declare sovereignty in
defiance of the requirements of the Canadian constitutional order, Quebec citizens
may well have been deprived of access to the Canadian courts (on a de facto if
not de jure basis). In such circumstances, it was obviously impractical to wait
until after the government had actually acted on these plans before providing
relief to the plaintiff.52
Interlocutory (or interim) relief is sought in private litigation in Canadian
courts almost every day. It is obvious that this relief would also be useful against
the Crown. So long as the Crown proceedings statutes provide that an injunction
is not available against the Crown, it would be an unfortunate result to immunize
the Crown from interlocutory relief. Of course, the best solution is to abolish by
statute the Crown’s immunity from injunction, as has been done in Australia.53
The second-best solution is to provide by statute for a temporary declaration
against the Crown, as has been done in New Zealand and the United Kingdom.54
Absent the legislative action needed for either of these solutions, the courts ought
to be willing to issue interlocutory declarations against the Crown in lieu of
interlocutory injunctions. We have already suggested that the Crown proceedings
statutes, in substituting the declaration for the injunction in proceedings against
the Crown, should be interpreted as permitting the grant of a declaration against
the Crown in all situations where an injunction would be available against a party
other than the Crown. This interpretation would make the Crown liable to an
interlocutory or interim declaration where it is desirable to freeze the status quo
for a short period of time before the rights of the parties are fully determined.
51 Note also that Bertrand returned to court following the referendum seeking permanent relief
against the holding of any such referendum in the future. The Quebec government sought to
have his proceedings dismissed on grounds, inter alia, that the matter was moot since the 1995
referendum had been completed and it was not certain that another referendum would be held.
The Quebec Superior Court rejected these arguments and ordered the matter for trial (see
Bertrand v. Que. (1996) 138 D.L.R. (4th) 481 (Que. Sup. Ct.)), at which point the federal
government referred a number of questions to the Supreme Court of Canada on whether Quebec
had the right to secede unilaterally: see Re Secession of Quebec [1998] 2 S.C.R. 217.
52 The decision in the Bertrand litigation has some parallels with the willingness of the courts to
grant injunctions and mandamus against the Crown to restrain government from breaching the
constitution or requiring it to comply with constitutional requirements. See sections 2.4(g),
“Constitutional injunction”, and 2.6(d), “Constitutional mandamus”, below.
53 Note 76, below.
54 Judicature Amendment Act 1972 (N.Z.), s. 8(2) (added in 1977); see B.V. Harris, “Interim
Relief against the Crown” (1981) 5 Otago L.R. 92; Civil Procedure Rules (U.K.), r. 25.1(1)(b)
(enacted in 1999); see de Smith, note 36, above, 893.
41
2.3(f) REMEDIES
For those who regard the idea of a temporary declaration as radical, consider
the Supreme Court of Canada’s willingness to grant a suspended declaration of
invalidity when the Court holds that a law is unconstitutional. The suspended
declaration is also temporary and is a more radical remedy than an interlocutory
or interim declaration because the suspended declaration maintains in force an
unconstitutional law for a limited period of time. The suspended declaration is
described in the next section.
(f) Suspended declaration
In constitutional cases, where there is a claim that a law is unconstitutional,

an action against the Crown for a declaration is often the remedy of choice. It will
be the only option where the claimant has no cause of action, and is not a defendant
to a criminal or civil proceeding based on the challenged law, but simply seeks a
ruling that the law is unconstitutional. The declaration can provide that ruling.
When a court holds that a law is unconstitutional, whether in an action for a
declaration or in the context of some other proceeding, and whether on federalism
or Charter grounds, the holding of unconstitutionality is retroactive: the law is
deemed to be “invalid from the moment it is enacted”.55 The enacting legislative
body never had the power to enact the law and the law is deemed to have been a
nullity from the outset.56
Any judicial decision has to be retroactive in order to apply to the facts
before the court, since those facts must have already occurred. In the case of a
holding that a law is invalid, the retroactivity of the holding will create a hiatus
in the law, and sometimes that hiatus has intolerable consequences. The most
extreme example is Re Manitoba Language Rights (1985),57 where the Supreme
Court of Canada held that all of Manitoba’s laws dating back to 1890 were
unconstitutional because they had been enacted in English only in defiance of a
constitutional obligation to enact laws in both French and English. In order to
avoid creating a vacuum of law in the province, the Court held that the existing
body of provincial law, although unconstitutional, was to be given “temporary
force and effect” until such time as the Legislature, acting in accordance with
time-frames stipulated by the Court, could enact the required corrective legislation
in both languages. This was the first time that a holding of invalidity had been
suspended by the Court, and it was a radical result because it gave the force of
law to a body of law that had never been constitutionally enacted by the Legis-
lature. Nonetheless, the idea of suspending a holding of invalidity proved attrac-
tive to the Court in later cases.
55 Nova Scotia v. Martin [2003] 2 S.C.R. 504, para. 28 per Gonthier J. for the Court.
56 Hogg, note 36, above, ch. 58, Effect of Unconstitutional Law.
57 [1985] 1 S.C.R. 721.
42
DECLARATION 2.3(f)
In R. v. Swain (1991),58 for example, the Supreme Court struck down on

Charter grounds the provisions of the Criminal Code that required the automatic
detention in a psychiatric facility of a person acquitted on the ground of insanity.
If the holding had taken immediate effect, all those persons in custody as the
result of their acquittal on the ground of insanity would have been entitled to be
released, regardless of their danger to the public. In order to avoid this result, the
Court created a six-month “period of temporary validity” to enable Parliament to
enact replacement legislation. Another example is Schachter v. Canada (1992),59
where the Court struck down on Charter grounds a provision of the Unemploy-
ment Insurance Act because it granted more generous child-care benefits to
adoptive parents than to natural parents. However, the effect of an immediate
holding of invalidity would have been to deny the benefits entirely to adoptive
parents. In order to avoid this result, the Court decided that it was appropriate to
issue a suspended declaration of invalidity to enable Parliament to enact the
amendment needed to equalize the benefits. (In fact, Parliament had already acted
by the time the case reached the Supreme Court, and no declaration was actually
issued.)
These cases established that a holding of invalidity could be suspended for
a period of time. The suspended declaration of invalidity became one of the
remedies available for an unconstitutional law. A suspended declaration of in-
validity declares the law to be unconstitutional but postpones the operation of the
declaration for a short period of time, typically six months or a year. The purpose
is to enable the competent legislative body to enact a corrective law without the
hiatus that would have been caused by an immediate declaration of invalidity. If
no corrective law is enacted during the period of suspension, then the declaration
of invalidity takes effect with the normal retroactive effect: the unconstitutional
law is deemed to have been a nullity from the moment of its purported enactment.
The Supreme Court of Canada in the Schachter case recognized that the
declaration of invalidity was an extraordinary exercise of the judicial function,
and the Court announced that it would suspend a declaration of invalidity in only
three situations.60 Those were the cases where the immediate striking down of the
legislation: (1) “would pose a danger to the public” (as in Swain), (2) “would
threaten the rule of law” (as in the Manitoba Language case), or (3) “would result
in the deprivation of benefits from deserving persons” (as in Schachter itself).
These guidelines were then ignored by the Court. They were not referred to in
subsequent cases,61 and declarations were often suspended in cases that did not
58 [1991] 1 S.C.R. 933.

59 [1992] 2 S.C.R. 679.
60 Id., 719.
61 An exceptional recognition of the guidelines occurred in Can. v. Hislop [2007] 1 S.C.R. 429,
paras. 121, 161, which was even more puzzling than the previous failures to refer to the
guidelines, because it included no reference to the numerous cases over the previous decade
that did not fit the guidelines.
43
2.3(g) REMEDIES
give rise to the danger, disorder or deprivation that were contemplated by the
guidelines. The reason, entirely unacknowledged by the judges, is that the Court,
after holding that a law is unconstitutional, and knowing that the legislature is
bound to want to enact new legislation, often prefers to give to the legislature the
first opportunity to design the appropriate remedy. “The suspended declaration
of invalidity can be viewed as a form of legislative remand, whereby unconsti-
tutional legislation is sent back for reconsideration in light of the Court’s judg-
ment.”62 Not surprisingly, the legislature invariably does enact corrective legis-
lation during the period of suspension. Of course, if the legislature took no action
during the period of suspension, the declaration of invalidity would take effect
with its normal retroactive force.
(g) Constitutional declaration
The suspended declaration of invalidity (previous section) is only used in

constitutional cases, and only where a court holds that a law is unconstitutional.
But the Supreme Court’s inventive powers have not been exhausted by the sus-
pended declaration of invalidity, as ingenious as that remedy is. A decision that
a law is unconstitutional can yield a variety of declarations that are not suspended
but in some cases are as radical (or even more so) than the suspended declaration.
The most obvious option is the straightforward declaration of invalidity, declaring
that the challenged law is invalid with immediate, retroactive effect. However,
declarations are also occasionally used by the Court to directly repair the consti-
tutional infirmity in a statute and avoid making a declaration of invalidity.
Severance, reading in, and reading down may be accomplished by the issue
of the appropriate declaration.63 Severance is the excision of words from a statu-
tory provision where they are the words that make the provision unconstitutional.
For example, an unconstitutional limitation on eligibility for unemployment in-
surance has been cured by excising from the statute the words imposing an age-
65 bar on benefits.64 Reading in is the addition of words to a statutory provision
that in its unamended form is unconstitutional. For example, a human rights code
that prohibited private discrimination on a wide range of grounds, but violated
the Charter by not including sexual orientation as one of the prohibited grounds,
has been cured by directly adding the words “sexual orientation” to the enacted
62 S. Choudhry and K. Roach, “Putting the Past Behind Us” (2003) 21 Supreme Court L.R. (2d)
205, 232. This article (Table A, p. 253) lists all the suspended declarations issued by Canadian
courts up to the date of the article; there are 42 of them, of which 14 were issued by the Supreme
Court. See also B. Ryder, “Suspending the Charter” (2003) 21 Supreme Court L.R. (2d) 267,
which also has an appendix, this one listing all the declarations of invalidity (immediate and
suspended) in the Supreme Court. Hogg, note 36, above, sec. 40.1(d), also discusses the cases.
63 These remedies are more fully described in Hogg, note 36, above, ch. 40; Roach, Constitutional
Remedies in Canada (2006, annually supplemented), ch. 14.
64 Tétreault-Gadoury v. Can. [1991] 2 S.C.R. 22.
44
INJUNCTION 2.4(a)
list of prescribed grounds.65 Reading down is the interpretation of a statutory

provision that avoids the unconstitutionality of a more obvious reading of the
provision. For example, a municipal by-law that banned the use of sound equip-
ment to carry messages or music from inside a building to the outside was too
broad a limitation on the Charter right to freedom of expression, but it was cured
by “interpreting” the by-law as only applying to noise that adversely affected the
enjoyment of passers-by.66 In all these cases, the Court makes a declaration, not
of the invalidity of the law, but of the new, judicially-imposed meaning of the
law — the meaning that ensures its validity.
When the Supreme Court decides to cure a constitutional defect in a statute
by severance, reading in or reading down, the Court has not been as troubled as
one might expect by the thought that the legislature did not enact the statutory
provision in the terms now declared to be valid, and might not have been willing
to do so. (Indeed, in one case where language was added by the Court it was
known that the legislature had debated and rejected that very language.)67 How-
ever, the Court insists from time to time that it has no power to “reconstruct” an
unconstitutional statute; reconstruction can only be accomplished by the legisla-
ture itself.68 The line between inadmissible reconstruction and the admissible
judicial remedies of severance, reading in and reading down is a matter of judicial
judgment that often divides the Court.69
2.4 Injunction
(a) Definition
An injunction is an order that directs a person not to do, or to do, a specified

act. The prohibitory (or prohibitive) injunction, which directs the defendant not
to do a specified act, is much more common than the mandatory injunction, which
directs the defendant to do a specified act. An injunction may be used as a private-
law remedy to prevent or rectify a tort or a breach of contract or a breach of a
proprietory right. An injunction may also be used as a public-law remedy to
prevent or rectify a breach of a statute or of the constitution.
65 Vriend v. Alta. [1998] 1 S.C.R. 493.

66 Montreal v. 2952-1366 Que. [2005] 3 S.C.R. 141.
67 Vriend, note 65, above, para. 4. Major J. dissented from the reading-in remedy and would have
left the constitutional problem to be revisited by the legislature.
68 E.g., Hunter v. Southam [1984] 2 S.C.R. 145, 169.
69 E.g., Can. Foundation for Children, Youth and the Law v. Can. [2004] 1 S.C.R. 76, where
dissenting opinions argued that the reading-down remedy applied by the majority was in fact
improper reconstruction.
45
2.4(b) REMEDIES
(b) Crown immunity
At common law, injunction is not available against the Crown.70 The com-
mon law refused to allow a coercive order to be made against the Crown. The
orders of injunction, specific performance, mandamus and discovery were all
unavailable against the Crown. The reasons for the immunity were twofold: the
incongruity of the Queen’s courts issuing an order against the Queen, and the
impossibility of punishing the Queen for contempt of court.71 These reasons are
critically examined later in this chapter, where it is suggested that they retain little
modern force.72 The Crown proceedings statute of every Canadian jurisdiction
expressly prohibits relief by way of injunction (or specific performance) against
the Crown, and provides that the court “in lieu thereof may make an order
declaratory of the rights of the parties”.73 This provision is modelled on a United
Kingdom provision,74 and it also has a counterpart in New Zealand.75 By statute,
the injunction is available against the Crown in all Australian jurisdictions.76
(c) Crown servants
At common law, a prohibitory injunction77 is available against a Crown

servant to restrain an unlawful act. For example, in Nireaha Tamaki v. Baker
(1901),78 the Privy Council held that an injunction would lie to restrain a Crown
officer from acting outside his statutory powers in selling land to which the
70 Grand Council of Crees v. The Queen (Can.) [1982] 1 F.C. 599 (C.A.); Spry, The Principles
of Equitable Remedies (5th ed., 1997), 346; Sharpe, Injunctions and Specific Performance (3rd
ed., 2000), sec. 3.1040; Horsman and Morley, note 1, above, sec. 12.30.20.
71 See R. v. Powell (1841) 1 Q.B. 352, 361, 113 E.R. 1166, 1170 (holding Crown immune from
mandamus).
72 Section 2.4(i), “Justification for Crown immunity”, below.
73 Can., s. 22; B.C., s. 11; Alta., s. 17; Sask., s. 17; Man., s. 14; Ont., s. 14; N.B., s. 14; N.S., s.
16; P.E.I., s. 13; Nfld., s. 15. In Quebec, s. 94.2 of the Code of Civil Procedure (as amended in
1992) provides that: “No extraordinary recourse or provisional remedy lies against the govern-
ment”; and the Code includes injunction as a provisional remedy. Section 100 of the Code also
prohibits an extraordinary recourse or provisional remedy against ministers and officers subject
to certain conditions. In the Quebec provisions, no reference is made to declaratory relief in
lieu of injunctive relief.
74 U.K., s. 21. For the position in Scotland, see Edwards, “Interdict and the Crown in Scotland”
(1995) 111 L.Q.R. 34.
75 N.Z., s. 17.
76 Cth., ss. 60, 64; N.S.W., s. 5; Qd., ss. 9, 10; S.A., s. 7; Tas., s. 8; Vic., s. 25; W.A., s. 5; A.C.T.,
s. 8; N.T., s. 8; Spry, note 70, above, 354-359. Three Australian jurisdictions (S.A., Tas., N.T.),
while permitting injunctive relief against the Crown, expressly forbid the grant of a mandatory
injunction against the Crown.
77 The availability of a mandatory injunction against a Crown servant is discussed in sec. 2.4(e),
“Mandatory injunction”, below.
78 [1901] A.C. 561 (P.C., N.Z.).
46
INJUNCTION 2.4(c)
plaintiff claimed title. In Rattenbury v. Land Settlement Board (1929),79 the

Supreme Court of Canada held that an injunction would lie against the Land
Settlement Board, although it was an agent of the Crown, to restrain the Board
from levying an ultra vires tax on the plaintiff. In Conseil des Ports Nationaux v.
Langelier (1969),80 the Supreme Court of Canada held that an injunction would
lie against the National Harbours Board, although it was an agent of the Crown,
to restrain the Board from committing a tort.81
The principle underlying these cases is that an individual Crown servant or
a corporate Crown agent whose act is unauthorized by statute or the prerogative
is personally liable for that act to the same extent as a private individual would
be liable. When an injunction is sought against a Crown servant (or a corporate
Crown agent) no issue is raised as to whether the Crown itself can be enjoined,
for the Crown servant is personally liable when he or she acts without legal
justification.82 That is why, at common law, an injunction may be obtained against
a Crown servant in those jurisdictions where the Crown itself is not liable to be
enjoined.83
The standard Crown proceedings statute not only prohibits the award of an
injunction against the Crown, but also prohibits the award of an injunction “against
a servant of the Crown if the effect of granting the injunction . . . would be to
give [injunctive] relief against the Crown”. This provision (or something like it)
exists in all Canadian jurisdictions except Quebec, as well as in the United
Kingdom and New Zealand (but not in any Australian jurisdiction).84 What does
it mean? There have been occasional suggestions that the provision precludes
injunctions against Crown servants even when they are acting outside their pow-
ers.85 It has even been suggested that it is appropriate that Crown servants should
be free to act unlawfully without risk of judicial restraint when compelling state
79 [1929] S.C.R. 52.

80 [1969] S.C.R. 60.
81 Accord, Can. v. Sask. Water Corp. (1993) 106 D.L.R. (4th) 250 (Sask. C.A.) (injunction awarded
against Crown agent to prevent breach of contract); M. v. Home Office [1994] 1 A.C. 377 (H.L.)
(mandatory injunction awarded against minister to require compliance with undertaking given
to court).
82 Conseil des Ports Nationaux v. Langelier, note 80, above, 70-75.
83 In Carlic v. The Queen (1967) 65 D.L.R. (2d) 633 (Man. C.A.), the Court issued an injunction
against federal immigration officials and against the federal Crown itself. The Court justified
the joinder of the Crown on the basis that the injunction would be effective against the officials.
This is probably bad law, but the practical point is correct: once an injunction has been issued
against the responsible officials, the Crown is effectively bound.
84 Notes 73 to 75, above. Can., s. 22(2) prohibits the award of relief against a servant of the Crown
“that it is not competent to grant or make against the Crown”. This has been interpreted as
being no different from the standard provision in the provinces, that is, as merely declaratory
of the common law: Saugeen Band of Indians v. Can. [1992] 3 F.C. 576, 598 (T.D.).
85 B.L. Strayer, “Injunctions against Crown Officers” (1964) 42 Can. Bar Rev. 1, 37; M.H.
Matthews, “Injunctions, Interim Relief and Proceedings against Crown Servants” (1988) 8
Oxford J. Legal Studies 154, 162.
47
2.4(d) REMEDIES
interests so require, for example, in an emergency.86 Such an exception to the rule

of law has been described by Street as “particularly objectionable”.87 Sharpe has
pointed out that such a radical interpretation should require a much clearer leg-
islative intent than the equivocal language of the Crown proceedings statutes.88
The best view of the no-injunction provision of the Crown proceedings statutes
is that it is merely declaratory of the common law.89 It does not affect the power
of the courts to grant an injunction against a Crown servant to restrain an unlawful
act, whether it be a tort, a breach of a contract or property right, a breach of statute
or other unauthorized act. Such an injunction is premised on the personal liability
of the individual Crown servant,90 and its effect is to give relief against the
individual and not the Crown. The no-injunction provision would only bar an
injunction against a Crown servant if it was sought to compel performance of a
duty owed by the Crown itself. In that case, the effect of the injunction against
the Crown servant would be to give relief against the Crown itself, which is what
the statutory provision prohibits.
(d) Lack of legal authority
Both at common law and under the standard statutory provision, no injunc-
tion can be issued against a Crown servant to prevent the servant from acting
under the authority of a statutory or prerogative power. There is no basis for an
injunction where the Crown servant is acting lawfully.91 This limitation on the
availability of the injunction remains even in jurisdictions where the Crown’s
immunity has been repealed. No injunction – or any other remedy, for that matter
— lies against the Crown to prevent action that is authorized by a statute or the
prerogative, for the obvious reason that there will be no cause of action.
(e) Mandatory injunction
There are very few cases in which a mandatory (as opposed to a prohibitory)
injunction has been sought against the Crown or its servants. Where a mandatory
injunction is sought to compel the setting right of an unauthorized act, there is no
86 Barnes, “The Crown Proceedings Act, 1947” (1948) 26 Can. Bar Rev. 387, 395.
87 Street, Governmental Liability (1953), 142.
88 Sharpe, note 70, above, para. 3.1150.
89 MacLean v. Liquor Licence Bd. of Ont., note 49, above, 610; Can. v. Sask. Water Corp., note
81, above, 269, 279; M. v. Home Office, note 81, above, 413; Smith v. Nova Scotia (2004) 244
D.L.R. (4th) 649 (N.S. C.A.), paras. 93-98; Sunkin and Payne (eds.), The Nature of the Crown
(1999), 26-29 (W. Wade).
90 See ch. 1, Introduction, under heading 1.2, “Dicey’s idea of equality”, above.
91 In this context, it is irrelevant and confusing to pay attention to the question of whether a Crown
servant is sued in an “official capacity” or a “personal capacity”: see sec. 2.4(h), “Personal or
official capacity”, below.
48
INJUNCTION 2.4(f)
reason to suppose that it would be governed by principles any different from those
governing the prohibitory injunction.92 But where the mandatory injunction is
sought to compel the performance of an authorized act, then it is sought as a
substitute for mandamus, and the courts apply the same rule to the mandatory
injunction as they apply to mandamus. The rule is that mandamus is not available
against the Crown, and is not available against a Crown servant or agent to compel
the performance of a duty owed by the Crown, but is available against a Crown
servant or agent to compel the performance of a duty owed by the particular
servant or agent (that is, where the statute imposing the duty designates that
particular official to perform the duty).93
This is the effect of the decision of the House of Lords in M. v. Home Office
(1993),94 where a judge of the High Court had issued a mandatory injunction
against the Minister in charge of the Home Office ordering him to return a refugee
claimant who was in the process of being deported from the United Kingdom by
the Home Office. The Minister did not comply with the injunction and was found
guilty of contempt. In upholding the finding of contempt, the House of Lords
held that a mandatory injunction was available against an officer of the Crown
who had failed to perform a public duty owed specifically by that officer. In that
case, the duty flowed from an undertaking given on behalf of the Minister that
the refugee claimant would be returned to the United Kingdom. The standard no-
injunction provision of the Crown proceedings statute did not bar the injunction,
because the injunction was not sought against the Crown itself, and was not
sought against the Minister to compel performance of a duty owed by the Crown
itself.95 The M. case is important, because statutory duties are commonly imposed
on ministers (as opposed to the Crown itself), and the case confirms that such
duties can be enforced by injunction (or mandamus), provided the proceedings
are brought against the minister and not the Crown.
(f) Interlocutory injunction
An injunction may be granted before trial to prevent irreparable harm from

being caused to the plaintiff by things done by the defendant before the rights of
the parties have been finally adjudicated by the court. The terms “interlocutory
injunction” or “interim injunction” are often used as generic terms to mean any
injunction granted before trial (as opposed to the “final” or “permanent” injunction
that is granted at the trial). Sometimes, a more precise terminology is employed.
Under the more precise terminology, the term “interlocutory injunction” is re-
served for a pre-trial injunction restraining the defendant until the trial. An “in-
92 However, in three Australian jurisdictions where injunctions are available against the Crown,
there is an express prohibition of mandatory injunctions: note 76, above.
93 Section 2.6, “Mandamus”, below.
94 [1994] 1A.C. 377 (H.L.).
95 Section 2.4(c), “Crown servants”, above.
49
2.4(g) REMEDIES
terim injunction” is a pre-trial injunction that applies not until the trial but for a
shorter, more specific time, usually a few days to permit the defendant to prepare
material in reply.96
The most unfortunate result of the Crown’s immunity from injunction is that
it has been interpreted as denying the availability of interlocutory (or interim)
relief against the Crown. In the previous section of this chapter, “Declaration”,
we argued that the Crown proceedings statutes should be interpreted as author-
izing the award of an interlocutory declaration against the Crown.97 Of course,
the best solution would be to amend the Crown proceedings statutes so as to make
the remedy of injunction available against the Crown. This has occurred in all
Australian jurisdictions, but nowhere in Canada, the United Kingdom or New
Zealand.98
We have already noticed that, in those jurisdictions where the Crown is
immune from injunction, the remedy is available against a servant (or officer) of
the Crown to restrain unlawful action by the servant or to require the performance
of a duty owed by the servant.99 In M. v. Home Office (1993),100 the House of
Lords held that the power to issue an interim or interlocutory injunction is co-
extensive with the power to issue a final injunction. On that basis, the Court
upheld an interim injunction that had been granted against a minister to compel
him to perform a duty owed by the minister (to return a refugee claimant to the
United Kingdom).101
(g) Constitutional injunction
There is one exception to the Crown’s immunity from injunction. Where an

injunction is sought to prevent a violation of the Constitution, then the courts will
96 An applicant for an interlocutory or interim injunction must give an undertaking to pay any
damages suffered by the defendant in the event that the applicant loses the case at trial. The
Crown is exempt from this requirement where it is the applicant for an injunction to enforce
the law, but not where the purpose of the injunction is to enforce the Crown’s proprietary or
contractual rights: Hoffmann-La Roche v. Trade Secretary [1975] A.C. 295 (H.L.) (no under-
taking required); Cth. v. John Fairfax & Sons (1980) 147 C.L.R. 39 (H.C., Aust.) (undertaking
required); Sharpe, note 70, above, para. 2.480.
97 Section 2.3(a), “Interlocutory declaration”, above.
98 Section 2.4(b), “Crown immunity”, above. Note, however, that the U.K. and N.Z. provide for
an interim declaration: note 54, above.
99 Section 2.4(c), “Crown servants”, above.
100 Note 81, above. See discussion in text accompanying note 94, above.
101 See also Nireaha Tamaki v. Baker [1901] A.C. 561 (P.C., N.Z.) (interlocutory injunction granted
against the Commissioner for Crown Lands); Smith v. N.S. (2004) 244 D.L.R. (4th) 649 (N.S.
C.A.) (interlocutory injunction granted against Deputy Minister).
50
INJUNCTION 2.4(g)
issue an injunction even against the Crown.102 The Crown cannot use its remedial
immunity to shield an unconstitutional act. Later in this chapter, we will notice
the same exception applies to Crown immunity from mandamus.103 This doctrine
applies to all of the provisions of the Constitution,104 not just the Charter of Rights;
but, where the injunction is sought to remedy a breach of the Charter of Rights,
the doctrine is reinforced by s. 24 of the Charter. Section 24 authorizes a court of
competent jurisdiction to grant “such remedy as the court considers appropriate
and just in the circumstances”. Section 24 overrides Crown immunities.105
When an injunction is issued against the Crown under s. 24, the issuing court
can retain jurisdiction to supervise compliance with the order. This is what hap-
pened in Doucet-Boudreau v. Nova Scotia (2003),106 where a superior judge in
Nova Scotia, acting on the application of French-speaking parents, in order to
give effect to minority language educational rights in the Charter, ordered the
government of the province to build five French-language schools. The order was
unusual in that it not only specified the dates by which each school should be
built, but it provided that “the Court shall retain jurisdiction to hear reports from
[the government] respecting the [government’s] compliance with the order”.
Under this last provision, the judge presided over a series of “reporting hearings”
throughout the period of construction of the schools. For each hearing, the judge
required the government to file an affidavit reporting on the progress of construc-
tion, he permitted affidavits in rebuttal to be filed by the parents, and he permitted
the cross-examination of all deponents. The province appealed only the part of
the judge’s order that retained jurisdiction to hear reports of compliance. By the
time the appeal reached the Supreme Court of Canada, the hearings were com-
pleted, the schools were all built, and the appeal was moot. However, the Court
decided the question anyway, upholding the supervisory order by a narrow five-
four majority. For the majority of the Court, the remedial power of s. 24 should
be given a large and liberal construction, and could extend to “novel and creative
features when compared with traditional and historical remedial practice”.107 In
this case, the majority held, the supervisory order was justified by the judge’s
concerns that the government might not comply with the order.
102 Société Asbestos v. Société Nationale de l’amiante [1979] C.A. 342 (Que. C.A.) (interlocutory
injunction granted to prevent implementation of legislation that was unconstitutional by reason
of its enactment in French only in breach of s. 133 of the Constitution Act, 1867); Van Mulligen
v. Sask. Housing Corp. (1982) 23 Sask. R. 66 (Q.B.) (interlocutory injunction granted to prevent
transfer of civil servant in breach of s. 2 of the Charter of Rights); RJR-MacDonald v. Can.
[1994] 1 S.C.R. 311, 331 (interlocutory injunction against Crown refused, but jurisdiction
affirmed); Doucet-Boudreau v. N.S. [2003] 3 S.C.R. 3, para. 70 (mandatory injunction granted
to compel building of French-language schools as required by s. 23 of Charter).
103 Section 2.6(d), “Constitutional mandamus”, below.
104 E.g., Asbestos case, note 102, above.
105 In the Van Mulligen case, note 102, above, the Court did not rely on s. 24, but it was invoked
in Levesque v. A.-G. Can. [1986] 2 F.C. 287 (T.D.) to deny Crown immunity from mandamus.
106 [2003] 3 S.C.R. 3.
107 Id., para. 59 per Iacobucci and Arbour JJ. for majority.
51
2.4(h) REMEDIES
In Doucet-Boudreau, the dissenting minority took the view that the judge
had fully discharged his duty when he ordered the schools to be built. After that,
no legal issue remained, just the practical details of implementation, and that was
the function of the executive not the judicial branch. The minority concluded that
courts should “resist the temptation to directly oversee and supervise the admin-
istration of their orders”.108 In the unlikely event that government did not comply
with a s. 24 order, contempt proceedings would be available to the parents to
enforce compliance.109 Neither the minority nor the majority judges referred to
the extensive American experience with judicial orders of supervision to achieve
the desegregation of school systems, police forces and public facilities, and to
impose constitutional standards on living conditions in prisons and mental hos-
pitals. But the American courts were driven to these highly controversial expe-
dients by the intransigent refusal of some state governments to comply with their
constitutional duties, even after having been ordered by federal courts to do so.
Supervision orders are remedies of last resort.110 As the dissenters in Doucet-
Boudreau pointed out, Canada has no history of governmental defiance of court
orders made on constitutional grounds. Unless and until that unhappy day arrives,
there is much to be said for the dissenting view that judicial supervision orders
are an unwarranted incursion by courts into the function of the executive.
The United Kingdom lacks an entrenched written constitution, but the Eur-
opean Communities Act 1972 provides for the supremacy of European Com-
munity law over Acts of Parliament “passed or to be passed”. In the Factortame
case (1990),111 the House of Lords issued an interim injunction against the Crown
to prevent the enforcement of a United Kingdom statute that contradicted Euro-
pean Community law. (The statute was the Merchant Shipping Act 1988, and the
conflicting provision was one that imposed British-ownership requirements on
vessels that sought registration as British fishing vessels.) The House of Lords
held that both the United Kingdom statute and the rule that an injunction will not
lie against the Crown were overridden by Community law.
(h) Personal or official capacity
When an injunction (or other remedy) is sought against a Crown servant (or
officer), it is irrelevant whether the Crown servant was acting in a “personal” or
108 Id., para. 111 per LeBel and Deschamps JJ. for dissenting minority.
109 Id., para. 136. The majority judges also assumed (para. 70) that contempt proceedings would
be available against the Crown for breach of a court order made under s. 24. See ch. 3,
Enforcement of Judgments, under heading 3.3, “Contempt”, below.
110 D.L. Horowitz, “Decreeing Organizational Change: Judicial Supervision of Public Institutions”
[1983] Duke L.J. 1265, 1281; M.L. Pilkington, “Enforcing the Charter: The Supervisory Role
of Superior Courts” (2004) 25 Supreme Court L.R. (2d) 77.
111 R. v. Secretary of State for Transport, ex parte Factortame (No. 2) [1991] 1 A.C. 603 (H.L.).
52
INJUNCTION 2.4(h)
“official” capacity.112 Where a Crown servant has breached a private-law duty,

for example, one founded in tort, contract or property law, injunction will be
available against the servant regardless of whether the act was a personal one
(throwing garbage over the back fence of the Crown servant’s home, for example)
or an official one (entering property without legal authority to conduct an official
search, for example). In both these cases, a trespass will have been committed,
and the victim will be able to obtain an injunction against the tortfeasor. Under
Dicey’s theory of equality, when a Crown servant acts without legal authority, he
or she is treated as a private citizen, and is personally liable for any breach of a
private-law duty.113 It is not helpful to say that the Crown servant was acting in a
“personal” capacity when she threw garbage onto her neighbour’s lawn, and in
an “official” capacity when she made a search for a violation of the Income Tax
Act. When a private duty has been breached, the question is whether the act sought
to be enjoined was authorized, either by statute or the prerogative. If the act was
authorized, then no remedy will be available against the Crown servant. If not,
the Crown servant is liable, regardless of the “capacity” in which she was acting.
Where a Crown servant has breached a public-law duty, which would be a
duty imposed by statute or (occasionally) the prerogative, then obviously any
remedy would relate to the “official” capacity of the Crown servant as a govern-
ment official. However, this is irrelevant to the question of whether the servant
will be protected by Crown immunity. Crown immunity will protect the servant
if the duty was one owed by the Crown itself, but it will not protect the servant if
the duty was one owed by the particular Crown servant. In M. v. Home Office
(1993),114 the House of Lords upheld an injunction against a minister requiring
him to bring a refugee claimant back to the United Kingdom so that proceedings
to review the claimant’s status could continue. Lord Woolf for a unanimous House
made clear that, because the duty was owed by the minister, Crown immunity
was not available to block the injunction.
In M. v. Home Office, the House of Lords considered the question of whether
the injunction should have been issued against “Kenneth William Baker” (which
was the name of the minister) or against “the Secretary of State for Home Affairs”
(which was the minister’s official title). The law lords held that the injunction
should have been issued against the Secretary of State for Home Affairs, but they
made clear that Mr. Baker would still be personally responsible for compliance
with the order.115 The Secretary of State for Home Affairs had no legal personality
112 The question is important for some issues, for example, the vicarious liability of the Crown for
the tort of a servant, which applies only if the servant was acting in the course of employment.
113 Chapter 1, Introduction, under heading 1.2, “Dicey’s idea of equality”, above.
114 [1994] 1 A.C. 377 (H.L.).
115 Id., 427. It is not clear to us from this passage why there was any significance to the way in
which the minister was described. The suggestion that “there is an element of unfairness in the
finding against him personally” is particularly obscure, since (as Lord Woolf acknowledges in
the same passage) the finding could only be against Mr. Baker personally, however he was
described. Perhaps the concern was to frame the order so that it did not imply personal fault on
53
2.4(i) REMEDIES
separate from the natural person who held the office.116 Therefore, Mr. Baker was
personally liable for contempt of the court when he failed to comply with the
injunction. He was only ordered to pay costs, but had the punishment been
imprisonment, it would have been Mr. Baker who would have gone to prison.
(i) Justification for Crown immunity
The principal reason why injunction, specific performance, mandamus and

discovery were not available against the Crown was the refusal of the courts to
attempt to coerce the Crown.117 This refusal draws on two related ideas. One is
the alleged incongruity of one branch of government (the courts) commanding
another (the executive). The second is the difficulty of enforcing the command,
which raises the possibility of a damaging or even irreconcilable constitutional
confrontation.
The alleged incongruity of the judicial branch commanding the executive
branch is surely no longer a problem. The Crown has from the earliest times been
obliged to pay damages ordered by courts. Discovery is now available against the
Crown in all jurisdictions. The Crown is for most purposes treated by the courts
as a legal person which is capable of suing and being sued. There is no reason of
principle why the Crown should not be subject to the same remedies as other
legal persons.
The difficulty of enforcement is a more serious concern. Breach of an in-
junction is a contempt of court, exposing the contemnor to imprisonment or a
fine. Obviously, the Crown cannot be imprisoned, but neither can a corporation.
The Crown, like a corporation, could pay a fine; and the officers or servants of
the Crown, like those of a corporation, could be imprisoned. In the next chapter,
Enforcement of Judgments, we argue that the Crown should be liable to civil
contempt for breach of a court order.118 However, even if the Crown were never
made liable to civil contempt, it should still be amenable to injunction (and the
other coercive remedies). The full range of remedies ought to be available against
the Crown, so that in litigation involving the Crown, the court is in a position to
make whatever order is required in the situation. If the court order were not
enforceable by contempt, the order would still be worth making. The issue of
enforcement would rarely arise because the Crown would nearly always obey the
order. To be sure, in the rare case where the Crown refused to obey, the plaintiff
would have no further legal recourse. But that rare case is not a sufficient reason
the part of the minister, who had throughout acted on the (admittedly erroneous) advice of his
officials.
116 Note, however, that a minister who is made a corporation sole by statute will have a legal
personality distinct from the natural person who holds the office.
117 Section 2.4(b), “Crown immunity”, above.
118 Chapter 3, Enforcement of Judgments, under heading 3.3(c), “Justification for Crown immu-
nity”, below.
54
INJUNCTION 2.4(i)
for denying the court the power to make an injunction against the Crown in all
cases.
A possible justification for Crown immunity from injunction is that the
remedy of declaration is available against the Crown. Why not be content with
the non-coercive remedy of declaration? That is, of course, the policy underlying
the standard no-injunction provision of the Crown proceedings statutes, which
directs that a declaration be granted in lieu of an injunction. In principle, however,
it is undesirable to have a special regime of remedial law applicable to the Crown.
That is the effect of substituting the declaration for the injunction in proceedings
against the Crown. Moreover, there is an important distinction between the two
remedies that makes the declaration an inadequate substitute for the injunction.
As explained earlier in this chapter, there are cases that decide that interlocutory
relief is not available in the form of a declaration119 and interlocutory relief ought
to be available against the Crown.
Another justification for Crown immunity from injunction is that the Crown
ought to be free to act unlawfully without risk of judicial intervention when
compelling interests of state require, as, for example, in an emergency.120 This
suggestion has been aptly criticized as too sweeping an exception to the rule of
law.121 Even if one grants the possibility that some unforeseen crisis might compel
illegal action by the Crown, an injunction is a discretionary remedy, and the courts
can be relied upon to take account of any compelling state interests that would
be injured by the grant of an injunction.
Our conclusion is that the Crown proceedings statutes ought to be amended
to enable an injunction to issue against the Crown. This is already the position in
all Australian jurisdictions.122 No reported case or learned article suggests that
this has caused any problems. The Law Reform Commission of British Columbia
and the Ontario Law Reform Commission have both recommended that the
Crown’s immunity from injunction be abolished in those provinces.123 Unfortu-
nately these recommendations have not been implemented, and all Canadian
jurisdictions forbid the granting of an injunction against the Crown.124
119 Section 2.3(e), “Interlocutory declaration”, above.

120 Note 86, above.
121 Note 87, above.
122 Note 76, above.
123 Law Reform Commission of B.C., Legal Position of the Crown (1972), 31; Ontario Law Reform
Commission, Report on the Liability of the Crown (1989), 53.
124 Note 73, above.
55
2.5(a) REMEDIES
2.5 Specific performance

(a) Definition
An order of specific performance directs the defendant specifically to per-

form a contractual obligation. It is an equitable remedy that is available only
where compensatory damages would be an inadequate remedy for the defendant’s
breach of contract.
(b) Crown immunity
At common law, specific performance was not available against the Crown,
because of the difficulty of enforcing the order.125 However, the courts would
make a declaration as to the right of a plaintiff to specific performance against
the Crown.126 The Crown’s immunity did not therefore deprive the deserving
plaintiff of a remedy.
The Crown proceedings statutes contain a provision that expressly prohibits
relief by way of specific performance (or injunction) against the Crown, and
provides that the court “in lieu thereof may make an order declaratory of the rights
of the parties”.127 This provision exists in all Canadian jurisdictions, except for
Quebec, as well as in the United Kingdom and New Zealand.128 Specific perfor-
mance is available against the Crown in all Australian jurisdictions.129 It should
be available elsewhere as well, so that the full range of remedies is available
against the Crown.130
125 Fry, Specific Performance (6th ed., 1921), 65-66; Gauthier v. The King (1915) 15 Ex. C.R.
444.
126 Dominion Building Corp. v. The King [1933] A.C. 533, 548 (P.C.).
127 A declaration in lieu of specific performance was made in MacQuarrie v. A.-G. N.S. (1972) 32
D.L.R. (3d) 603 (N.S.S.C.); Hill v. N.S. [1997] 1 S.C.R. 69.
128 The statutory provisions are the same ones as preclude injunctions against the Crown: note 73,
above. Que., s. 94 allows specific performance against the Crown, and ss. 94.2 and 100 do not
prohibit it, since specific performance is neither an “extraordinary recourse” nor a “provisional
remedy”.
129 Cth., s. 64; N.S.W., s. 5; Qld., ss. 9, 10; S.A., s. 5; Tas., s. 5; Vic., s. 25; W.A., ss. 5, 12; A.C.T.,
s. 21; N.T., s. 5.
130 The argument is essentially the same as that advanced with respect to injunction in sec. 2.4(i),
“Justification for Crown immunity”, above. The Ontario Law Reform Commission, note 123,
above, 53, recommends that specific performance be available against the Crown.
56
MANDAMUS 2.6(c)
2.6 Mandamus
(a) Definition
The prerogative writ of mandamus131 lies to compel the performance of a

public duty. Mandamus is like a mandatory injunction,132 but the remedy of
injunction is available to compel the performance of private as well as public
duties; mandamus is restricted to public duties.133
(b) Crown immunity
At common law, the writ of mandamus does not lie against the Crown.134
The courts would not order the Crown to perform a public duty. Two reasons
have been given for the immunity. First, the courts were the Queen’s courts and
“there would be an incongruity in the Queen commanding herself”.135 Secondly,
it would be impossible to punish a breach of the order by committing the Queen
for contempt.136 We have already noticed that the same reasons were given for
Crown immunity from injunction and other coercive remedies.137 In the case of
mandamus, the various Crown proceedings statutes in all jurisdictions in Canada,
Australia, New Zealand and the United Kingdom have not taken away the Crown’s
immunity.
(c) Persona designata
The rule that mandamus will not lie against the Crown cannot be evaded by
seeking the order against a Crown servant. The order will not lie against a Crown
servant if the effect of the order is to compel the performance of a duty owed by
the Crown itself.138 However, if the statute imposing the public duty designates
the particular servant who is to perform the duty, and thereby imposes the duty
on the servant as persona designata, then mandamus will lie against the designated
131 Several jurisdictions have replaced the writ of mandamus, as well as the writs of prohibition
and certiorari, with a new remedy called an application for judicial review: see sec. 2.9,
“Application for judicial review”, below.
132 Section 2.4(e), “Mandatory injunction”, above.
133 On the distinction between a duty and a discretion, see Distribution Can. v. M.N.R. (1993) 99
D.L.R. (4th) 440 (F.C.A.); Apotex v. Can. [1994] 1 F.C. 742 (C.A.).
134 de Smith, note 36, above, 886-888; Horsman and Morley, note 1, above, sec. 12.30.10(1).
135 Note 71, above.
136 Id.
137 Id.
138 Re Carey [1920] 3 W.W.R. 329 (B.C.S.C.); Re Central Canada Potash (1972) 32 D.L.R. (3d)
107 (Sask. C.A.); Re Le Blanc (1980) 117 D.L.R. (3d) 600 (Sask. C.A.).
57
2.6(d) REMEDIES
person.139 In this way, the courts have carved an important exception out of the
rule of Crown immunity. We have noticed that the courts have applied the same
rule to injunctions, so that in jurisdictions where the Crown is immune from
injunction the remedy can be obtained against a Crown servant to compel perfor-
mance of a duty owed by that particular servant.140
When mandamus (or injunction) is sought against a Crown servant, it is a
question of statutory interpretation whether the duty is owed by the Crown, in
which case mandamus will not lie, or by the servant as a designated person, in
which case mandamus will lie. Generally speaking, if a statute that imposes a
duty names a particular official, the courts will hold that the named official is
persona designata, even if he or she is a minister or other Crown servant.141 The
attraction of this interpretation of the statute is that it diminishes the scope of the
Crown’s immunity. Since it is common for statutes establishing government
departments or programmes to impose duties on ministers, as opposed to the
Crown itself, mandamus (or injunction) will often be available to enforce the
duties.142
(d) Constitutional mandamus
In Air Canada v. Attorney General of British Columbia (1986),143 the Su-

preme Court of Canada issued mandamus against the Attorney General of British
Columbia directing him to advise the Lieutenant Governor to grant the fiat that
was necessary to enable a suit against the Crown to proceed. (The cause of action
had arisen before the abolition of the requirement of the fiat.) Considering that
the Attorney General’s role was advisory only, had always in the past been
regarded as discretionary, and was a prerogative power that was not contained in
any statute or other written instrument, the grant of mandamus was a significant
inroad in the Crown’s immunity. The explanation given for this result was that
139 Minr. of Finance (B.C.) v. The King [1935] S.C.R. 278; R. v. Leong Ba Chai [1954] S.C.R. 10;
R. v. Toohey; Ex parte Northern Land Council (1981) 151 C.L.R. 170 (H.C., Aust.). Compare
Minr. of Indian Affairs v. Ranville [1982] 2 S.C.R. 518 (rejecting concept of persona designata
for purpose of judicial review under the Federal Court Act).
140 Sections 2.4(c), “Crown servants”, and 2.4(e), “Mandatory injunction”, above.
141 Note, however, the cases where mandamus is sought against the Crown’s representative, who
has refused to carry out a public duty on ministerial advice: R. v. Governor of S.A. (1907) 4
C.L.R. 1497 (H.C., Aust.) (mandamus against state Governor denied); Ex parte McWilliam
(1947) 47 S.R. (N.S.W.) 401 (F.C.) (mandamus against state Governor denied); compare Ex
parte O’Donnoghue (1874) 2 N.Z.C.A. 495; Horwitz v. Connor (1908) 6 C.L.R. 38, 40 (H.C.,
Aust.).
142 E.g., Padfield v. Minry. of Agriculture and Fisheries [1968] A.C. 997 (H.L.) (mandamus
granted); M. v. Home Office, [1994] 1 A.C. 377 (H.L.) (injunction granted); Apotex v. Can.
[1994] 3 S.C.R. 1100 (mandamus granted); Mount Sinai Hospital Center v. Que. [2001] 2
S.C.R. 281 (mandamus granted); H.W.R. Wade, “Injunctive Relief against the Crown and
Ministers” (1991) 107 L.Q.R. 4, 5.
143 [1986] 2 S.C.R. 539.
58
MANDAMUS 2.6(e)
the lawsuit for which the fiat was sought alleged an unconstitutional act by the
Crown in right of British Columbia, namely, the retention of an unconstitutional
tax. The Court would not permit the Crown’s immunity from mandamus to shelter
an unconstitutional act.144
Where a duty is imposed by the Charter of Rights, it has been held that the
Crown’s immunity from mandamus is abolished by s. 24 of the Charter, which
authorizes a court of competent jurisdiction to grant “such remedy as the court
considers appropriate and just in the circumstances”. In Levesque v. Attorney
General of Canada (1985),145 the Federal Court Trial Division directed mandamus
against the federal Crown to require the Crown to permit inmates in federal
penitentiaries to exercise their Charter right to vote in a provincial election.146
(e) Justification for Crown immunity
Although the Crown’s immunity from mandamus has been eroded by the
expansion of the persona designata doctrine, the core of the immunity remains.
For the reasons given in the earlier discussion of injunction,147 in our view, the
Crown’s immunity from mandamus ought to be abolished. The Crown ought to
be treated like any other litigant, and the full range of remedies ought to be
available against the Crown. A justification that has been offered for Crown
immunity from mandamus is that “the propriety of executive action or inaction
raises questions suitable for political, not judicial, determination”.148 Such a doc-
trine of judicial restraint has no place in this context. The immunity rule is only
relevant when the Crown has been subjected, usually by statute, to a peremptory
duty149 that would normally be enforceable by mandamus. Surely, the breach of
such a duty is eminently suitable for judicial determination. It must be remembered
as well that mandamus is a discretionary remedy, and the courts would not ignore
considerations of public policy that were invoked by the Crown to excuse its
failure to comply with a statutory duty.
144 Id., 549.

145 Note 105, above.
146 Constitutional cases have carved a similar exception out of Crown immunity from injunction:
sec. 2.4(g), “Constitutional injunction”, above.
147 Section 2.4(i), “Justification for Crown immunity”, above.
148 Strayer, note 85, above, 7.
149 Mandamus will not lie to compel a discretionary power to be exercised in any particular way:
Re Central Canada Potash, note 138, above; Re Le Blanc, note 138 above; Re Minr. of Emplmt.
and Immig. and Kahlon [1986] 3 F.C. 386 (C.A.); Maple Lodge Farms v. Govt. of Canada
[1982] 2 S.C.R. 2.
59
2.7(a) REMEDIES
We conclude that the immunity of the Crown from mandamus is a grave

defect in the remedial law which ought to be corrected by amendments to the
Crown proceedings statutes.150
2.7 Prohibition and certiorari

(a) Definition
The prerogative writ of prohibition lies to prohibit a tribunal from exceeding

its jurisdiction. The prerogative writ of certiorari lies primarily to quash a decision
made by a tribunal in excess of its jurisdiction. The principal distinction between
the two remedies is that prohibition must be invoked at an earlier stage in the
proceedings than certiorari. Prohibition will not lie unless something remains to
be done that a court can prohibit. Certiorari will not lie unless something has been
done that a court can quash.151 In most other respects, the rules governing the two
remedies are the same, and they are usually treated by text-writers as a pair.152
(b) Crown immunity
The Crown is immune from prohibition and certiorari, for the same reasons
that the Crown is immune from mandamus.153 Like mandamus, prohibition and
certiorari take the form of a command by the Queen, and there is the same
incongruity in the Queen commanding herself154 and subjecting herself to con-
tempt of court. Unlike mandamus, however, the Crown’s immunity from prohi-
bition and certiorari is of little practical importance. This is because the remedies
are available only against bodies that are under a duty to act judicially (or at least
to act fairly).155 The remedies will lie against Crown servants, including ministers,
150 Accord, Law Reform Commission of B.C., note 123, above, 34; Ontario Law Reform Com-
mission, note 123, above, 58. Unfortunately, the recommendations to abolish the immunity
have not been carried out.
151 de Smith, note 36, above, 784-794; Horsman and Morley, note 1, above, sec. 13.30.10(2). .
152 In Quebec, the two remedies have been merged into a single remedy called evocation, which,
like the other “extraordinary recourses”, is not available against the Crown: Que., s. 94.2. In
several jurisdictions, the two remedies, as well as mandamus, have been replaced by a new
remedy called an application for judicial review: sec. 2.9, “Application for judicial review”,
below.
153 de Smith, note 36, above, 886-888. But compare Re Gooliah (1967) 63 D.L.R. (2d) 224 (Man.
C.A.), described in note 156, below.
154 Border Cities Press Club v. A.-G. Ont. [1955] O.R. 14, 22 (C.A.).
155 The traditional requirement of a duty to act judicially has been attenuated in recent cases: de
Smith, note 36, above, ch. 7.
60
HABEAS CORPUS 2.8(a)
when they are under a duty to act fairly; and there is no reason to seek the remedy
against the Crown itself.156
It is the duty to act fairly which probably explains the availability of prohi-
bition and certiorari against Crown servants. When an adjudicatory function is
conferred upon an official or tribunal, that official or tribunal is personally liable
to carry out the function judicially (or fairly).157 In effect, the adjudicator is persona
designata,158 although that description is never used in this context. The one class
of case where Crown immunity has been applied is where prohibition or certiorari
is sought against a Governor General or Lieutenant Governor in Council. The
Ontario Court of Appeal and the New Zealand Court of Appeal have held that
the remedies will not lie in such a case.159 It is probable, however, that these cases
are wrongly decided, and that the remedies will lie against the Governor General
or Lieutenant Governor in Council in those rare cases when that body is under a
duty to act judicially (or fairly) in the exercise of a statutory power.160
2.8 Habeas corpus
(a) Definition
The prerogative writ of habeas corpus requires the person having control of
a prisoner to bring the prisoner before the court, together with the cause of the
detention, in order to enable the court to inquire into the legality of the detention.
If the cause of detention is legally sufficient, the court will return the prisoner to
custody; if not, the court will release the prisoner.
156 In Re Gooliah, note 153, above, the Crown was named as respondent to the application for
certiorari. Freedman J.A. (at 236) dismissed this objection to the application as a “technical
point” on the basis that the application could properly have been brought against the Crown
servant against whom bias was alleged. Guy J.A. agreed with Freedman J.A. on this point.
Monnin J.A., dissenting on the merits, also dismissed the objection, relying on habeas corpus
cases to hold that this “new” point (at 239) ought to be reviewed by the Supreme Court of
Canada (at 240).
157 Compare A. Lucas, “Judicial Review of Crown Corporations” (1987) 25 Alta. L. Rev. 363.
158 Section 2.6(c), “Persona designata”, above.
159 Border Cities Press Club v. Ont., note 154, above (certiorari will not lie to Lieutenant Governor
in Council); Reynolds v. A.-G. (1909) 29 N.Z.L.R. 24 (C.A.) (certiorari will not lie to Governor
in Council); F.A.I. Insurances v. Winneke (1982) 151 C.L.R. 342, 351, 403-404 (H.C., Aust.)
(obiter dicta to same effect).
160 The fact that the Crown representative acts on advice has discouraged the courts from treating
him or her as persona designata in mandamus cases: note 141, above, but it would not be
possible to act on advice in the exercise of a duty to act judicially or fairly. Compare A.-G. Can.
v. Inuit Tapirisat [1980] 2 S.C.R. 735, 748, 752, holding the decisions of the Governor General
in Council to be reviewable, although denying review in the instant case. In that case, an
application for certiorari had been abandoned after the judgment at first instance, and only a
declaration was sought before the Supreme Court of Canada.
61
2.8(b) REMEDIES
(b) Crown liability
The writ is directed to the person having control of the prisoner, for example,
the governor of the prison. That person is often a Crown servant, acting in the
course of employment. In many cases, the writ has been directed to a minister.161
The writ should not be directed to the Crown itself because the respondent should
be an individual with power to release the prisoner.162 However, there is no Crown
immunity from habeas corpus, despite the fact that, like the other prerogative
remedies, habeas corpus takes the form of a command by the Queen. It is obviously
vital to the effectiveness of the writ that it be available against ministers and
Crown servants, even when they are not persona designata.
(c) Constitutional guarantee
Since 1982, the availability of habeas corpus has been guaranteed by the
Charter of Rights, s. 10(c) of which confers on everyone who is arrested or
detained the right “to have the validity of the detention determined by way of
habeas corpus and to be released if the detention is not lawful”. That is declaratory
of the common law right, but its inclusion in the Charter means that the writ
cannot be denied or suspended by statute.163 The right to habeas corpus is less
important in light of s. 24 of the Charter, which authorizes a court of competent
jurisdiction to award an “appropriate and just” remedy for breach of the Charter.
Any unlawful detention would be a breach of the Charter (s. 9 protects against
arbitrary detention), and the release of the prisoner would obviously be an appro-
priate and just remedy under s. 24. However, the guarantee of habeas corpus is
not completely eclipsed by s. 24. Section 24 has strict standing requirements: a
person other than the prisoner himself could probably not apply for a remedy
under s. 24,164 whereas third party applications for habeas corpus are allowed.165
In May v. Ferndale Institution (2005),166 a prisoner in a federal penitentiary
sought habeas corpus, not to secure his liberty but to review the validity of his
transfer from a minimum-security prison to a medium-security prison. He was
aggrieved by the procedure that had been followed by correctional officials in re-
classifying him. The Supreme Court of Canada held that habeas corpus was
available for this purpose. Although the prisoner was not seeking his release from
161 Sharpe, The Law of Habeas Corpus (2nd ed., 1989), 176, citing many cases.
162 In some cases the Crown itself has been named without objection as respondent in an application
for habeas corpus, e.g., The King v. Jeu Jang How (1919) 59 S.C.R. 175; Samejima v. The King
[1932] S.C.R. 640; Vaaro v. The King [1933] S.C.R. 36; R. v. Davey; Ex parte Freer (1936)
56 C.L.R. 381 (H.C., Aust.); The Queen v. Turnbull; Ex parte Taylor (1968) 123 C.L.R. 28.
163 Like other Charter guarantees, it is subject to reasonable limits prescribed by law under s. 1
and to legislative override under s. 33.
164 Hogg, note 36, above, sec. 40.2(d).
165 Sharpe, note 161, above, 222.
166 [2005] 3 S.C.R. 809.
62
COLLATERAL ATTACK 2.10
the penitentiary system, he was entitled to review by habeas corpus, because his
transfer to a more restrictive form of custody was a reduction in his “residual
liberty”. The Court also held that the applicant was not defeated by his failure to
exercise internal avenues of appeal within the correctional system culminating in
judicial review by the Federal Court. Because the writ of habeas corpus was
guaranteed by the Charter, and because of its historic importance as an instrument
of personal liberty, the writ was available in the superior court of a province
notwithstanding the existence of other remedies. A majority of the Court found
that the transfer of the prisoner was unlawful and granted habeas corpus. Needless
to say, the order did not free the prisoner, but it did require that he be released
from the medium-security level custody to which he had been transferred and
returned to the minimum-security level of custody to which he was entitled before
his transfer.
2.9 Application for judicial review

(a) Definition
In Ontario, British Columbia, Prince Edward Island and Canada, the prerog-
ative writs of mandamus, prohibition and certiorari (but not habeas corpus) have
been replaced with a single new remedy, styled an application for judicial re-
view.167
(b) Crown immunity
While the reforms differ in their details, much of the pre-reform law contin-
ues to cling to the orders that can be obtained under the new application for
judicial review. Generally speaking, if the order sought is in the nature of man-
damus, prohibition or certiorari, the Crown retains its immunity.
2.10 Collateral attack
(a) Definition of collateral attack
A collateral (or “indirect”) attack on an official decision is “an attack made

in proceedings other than those whose specific object is the reversal, variation or
167 Brown and Evans, Judicial Review of Administrative Action in Canada (2007, annually sup-
plemented), ch. 2. The U.K., N.Z. and most of Australian jurisdictions have enacted a similar
reform.
63
2.10 REMEDIES
nullification of the [decision]”.168 A direct attack on an official decision is a

challenge to the decision that is made in proceedings that are established for that
purpose.
The statute authorizing an official decision may provide for an appeal from
the official or tribunal that made the decision to a higher tribunal or to a court.
That is the clearest example of a “direct” attack on an official decision. When
there is no right of appeal from an official decision, or the right of appeal has
been exercised, a direct attack on the validity of the decision is still normally
available (albeit on narrower grounds than an appeal) through the judicial-review
remedies of mandamus, prohibition and certiorari, or the application for judicial
review that has replaced them in some jurisdictions. Those remedies exist for the
purpose of determining the validity of official decisions. The invalidity of a
decision does not by itself give rise to any governmental liability for damages,
and the judicial-review remedies do not authorize an award of damages to the
successful applicant. In order to recover damages, a separate action must be
brought, and it will be necessary to establish that the government has committed
an actionable wrong, such as a tort, a breach of contract or a breach of fiduciary
duty. If a person dissatisfied with an official decision has never directly attacked
the decision by means of an appeal or one of the judicial-review remedies, is it
still open to that person to bring an action against the government claiming
damages on the basis that the official decision was an actionable wrong? In such
an action, the plaintiff would have to attack the validity of the official decision
because if the decision were valid it could not be an actionable wrong.169 That
attack would be a collateral attack on the decision, because the validity of the
decision would be one of the issues to be resolved in a proceeding that is not
normally used for the purpose of judicial review of official decisions.170
Collateral attacks on official decisions raise some difficult issues of admin-
istrative law and indeed the rule of law and access to justice. A collateral attack
by-passes the procedure established by law for the purpose of challenging the
decision. Short time limits may have been established for direct judicial review
with a view to bringing finality to the decision at an early stage and thereby
affording security to those who enforce or comply with the decision. A particular
tribunal or court may have been designated for direct judicial review, and that
168 Wilson v. The Queen [1983] 2 S.C.R. 594, 599 per McIntyre J.; see also Danyluk v. Ainsworth
Technologies [2001] 2 S.C.R. 460, para. 20 per Binnie J. For discussion, see Rubinstein,
Jurisdiction and Illegality (1965), 37-38; de Smith, note 36, above, 208-216; Brown and Evans,
note 167, above, sec. 5:0300; Horsman and Morley, note 1, above, sec. 11.20.
169 A governmental decision that is duly authorized by statute or prerogative cannot be tortious:
ch. 6, Tort: General Principles, under heading 6.4, “Lack of legal authority”; ch. 7, Tort:
Negligence, under heading 7.4, “Invalidity”, below.
170 A criminal prosecution is often the forum for a collateral attack on an official decision, for
example, when the accused is being prosecuted for the offence of not complying with the
decision and defends the case by arguing that the decision was not valid: see discussion of R.
v. Consolidated Maybrun Mines [1998] 1 S.C.R. 706, at note 176, below.
64
COLLATERAL ATTACK 2.10(c)
forum may have been chosen for its expertise and perhaps granted discretion in
its disposition of cases.171 The trial of a civil action for damages may not be as
suitable a forum to deal with the issues of administrative law that arise when an
official decision is challenged. These considerations argue against the availability
of collateral attack.
On the whole, however, the balance of argument is in favour of the availa-
bility of collateral attack. When an official decision is relevant to a civil action
for damages or a criminal prosecution, if a collateral attack on that decision is not
permitted, a litigant may be forced to bring a separate judicial-review proceeding
in order to achieve a just result in the civil or criminal case. When a litigant is in
front of a court that has to reach a conclusion about civil or criminal liability, and
that can decide all the relevant issues in the one proceeding, it seems wrong to
condemn the litigant to “a cumbrous duplicity of proceedings”.172 And this con-
clusion is even more unsatisfactory if the litigant is out of time to bring the
judicial-review proceeding; in that event, the court trying the civil action or the
criminal charge may have to reach an unjust result by giving effect to what is in
truth an invalid official decision.
(b) Collateral attack in inferior courts
An inferior court usually lacks the power to review official decisions, and
so collateral attack is not generally available in an inferior court.173
(c) Collateral attack in superior courts
A superior court generally has the power to review official decisions, and so
the availability of collateral attack in a superior court is not foreclosed. In the
United Kingdom, collateral attack is generally available in a superior court. The
dominant view there is that, in order to avoid two proceedings, a challenge to an
official decision should, wherever possible, be determined in whatever forum it
is made, even if that is not the forum designated for judicial review of that kind
171 In the case of federal agencies and officials, the Federal Court was chosen for judicial-review
purposes because of a concern about fragmented review with inconsistent results in provincial
superior courts. The vesting of judicial-review jurisdiction in the Federal Court, with the same
nation-wide jurisdiction as the federal agencies and officials, was intended to solve that problem:
Can. v. TeleZone 2010 SCC 62, para. 50.
172 Chief Adjudication Officer v. Foster [1993] A.C. 754, 766-767 (H.L.) per Lord Bridge (per-
mitting collateral attack).
173 Wilson v. The Queen [1983] 2 S.C.R. 594 (collateral attack on wiretap authorizations outside
jurisdiction of provincial court).
65
2.10(d) REMEDIES
of decision.174 The position in Canada, however, is more nuanced, with a distinc-

tion between criminal and civil proceedings.175
(d) Collateral attack in criminal proceedings
In R. v. Consolidated Maybrun Mines (1998),176 a mining company was

prosecuted for failure to comply with an order of an official of the Ontario Ministry
of the Environment which had been made under the province’s Environmental
Protection Act. The order required the company to clean up contaminated oil that
had spilled on its property. Under the Act, the company had a right of appeal
within 15 days to the Environmental Appeal Board, a tribunal established by the
Act for this purpose. The company had not exercised that right of appeal. The
company’s defence to the prosecution was that the order was outside the power
of the official who made it and therefore invalid. The company was tried in
provincial court, where this defence was successful and the company was ac-
quitted despite its failure to clean up the contamination. On appeal, however, the
company’s defence was rejected as an inadmissible collateral attack on the official
order, and a conviction was substituted for the acquittal. The Supreme Court of
Canada acknowledged that the rule of law required that citizens be permitted to
question purported exercises of governmental power, but, according to
L’Heureux-Dubé J. who wrote for the unanimous Court,177 “the rule of law does
not imply that the procedures for achieving it can be disregarded, nor does it
necessarily empower an individual to apply to whatever forum he or she wishes
in order to enforce compliance with it”. It was necessary to interpret the enabling
legislation to determine “not whether a person can challenge the validity of an
order that affects his or her rights,” — that was a given — “but whether the law
prescribes a specific forum for doing so.” In this case, the legislative purpose of
protecting the environment required rapid and effective compliance with the
Ministry’s orders. In order to safeguard individual rights and counterbalance the
broad powers of the Director, the Act had established a specialized tribunal with
judicial procedures to permit an expert review of any contested decision, and to
do so “as quickly as possible”. It was contrary to the purpose of the Act for the
company to disregard the Ministry’s order, disregard the right of appeal, and wait
for charges to be laid before asserting its position. (In fact, 11 years had elapsed
by the time the issue reached the Supreme Court!) The Court rejected the collateral
174 de Smith, note 36, above, 213. Note, however, the authors’ important exception for the legis-
lative scheme that implicitly precludes collateral attack, citing R. v. Wicks [1998] A.C. 92
(H.L.); note 178, below.
175 M.H. Morris and R. Lee, “Civil Action Challenges to Government Decisions” (2007) 20 Can.
J. of Admin. Law and Practice 181.
176 [1998] 1 S.C.R. 706.
177 Id., paras. 45-46.
66
COLLATERAL ATTACK 2.10(e)
attack and affirmed the conviction of the company without addressing the com-
pany’s contention that the official order was invalid.
In a criminal case like Maybrun, where the accused is prosecuted for failing
to comply with an official decision, it is understandable that a court will be
resistant to a collateral attack on the decision when the accused has ignored a
statutory right of appeal. After all, if the appeal were successful, the accused
would have got everything that it wanted: the official order would be reversed (or
would be modified to the satisfaction of the accused) and the prospect of criminal
prosecution would disappear. And, even if the appeal were unsuccessful, an
application to a superior court for judicial review of the decision rendered by the
appellate tribunal would normally be possible. Moreover, a criminal court (the
trial court in Maybrun was an inferior court, which is typical) is not a normal
forum for judicial review of official action. This may explain why collateral attack
has often been refused in criminal cases.178
(e) Collateral attack in civil proceedings
In a civil case, the position is more complicated, because the remedy sought
by the plaintiff (for example, damages for a tort or breach of contract) will not be
available in an administrative appeal or in an application for judicial review. A
rejection of collateral attack condemns that plaintiff to two sets of proceedings,
one to review the official decision and the other to pursue the civil remedy.
Moreover, if the civil remedy is sought in a superior court, that court will have
judicial-review jurisdiction, at least in some situations, and, while the court will
not be an expert tribunal, its competence to engage in judicial review of official
decisions is not in doubt.
The provinces all have a bifurcated procedural structure for applications for
judicial-review remedies and actions for damages. In Ontario, for example, there
is a special procedure for an application for judicial review, which yields orders
in the nature of mandamus, prohibition, certiorari or declaration in relation to
official decisions.179 Applications for judicial review “shall” be made to the
Divisional Court,180 which is a court composed of three superior-court judges. An
action for damages against the Crown in right of Ontario would normally be
178 E.g., R. v. Al Klippert [1998] 1 S.C.R. 737 (in a criminal prosecution for failure to comply with
order made under planning legislation that had not been appealed, collateral attack on order
rejected); R. v. Wicks [1998] A.C. 92 (H.L.) (same decision). See also the comments by Binnie
J. in the TeleZone case, note 200, below.
179 Judicial Review Procedure Act, R.S.O. 1990, c. J.1.
180 Id., s. 6.
67
2.10(e) REMEDIES
brought in the superior court,181 where the trial court is composed of a single
superior-court judge. The two-track structure invites the question whether an
action for damages can form the vehicle for a collateral attack on an official
decision by an Ontario agency. The Ontario Court of Appeal in Seaway Trust v.
Ontario (1983)182 has taken the view that a judge hearing an action for damages
in the superior court also has the power to review the validity of official decisions
by Ontario agencies. The Court wanted to avoid a multiplicity of proceedings,
and also thought that the full trial of the action with oral evidence and full
discovery would facilitate the judicial-review issues no less than the damages
issues.
In the federal jurisdiction,183 the Federal Courts Act184 provides, by s. 17,
that the Federal Court has “concurrent” jurisdiction over all cases in which relief
is sought against the Crown in right of Canada. And s. 21 of the Crown Liability
and Proceedings Act185 provides that the superior court of each province has
“concurrent” jurisdiction over claims against the Crown in right of Canada that
arose in that province. The limitation period for bringing an action against the
Crown for relief (such as damages) is the limitation period of the province in
which the cause of action arose,186 a period that is rarely less than two years, and
sometimes as long as six years, from when the cause of action arose (or was
discovered). The Federal Courts Act goes on to provide, by s. 18, that the Federal
Court has “exclusive” jurisdiction to issue an injunction, certiorari, prohibition,
mandamus, quo warranto or declaration against “a federal board, commission or
tribunal” (a phrase that captures all federal agencies and officials), and that those
remedies may be obtained “only on an application for judicial review”. An ap-
plication for judicial review must be brought within 30 days of the making or
notification of the decision.187 These separate tracks for an action for damages
and an application for judicial review invite the question whether the action for
damages can be the vehicle for a collateral attack on the decision of a federal
agency.
In Canada v. Grenier (2006),188 the plaintiff sued the Crown in right of
Canada in the Federal Court for damages for the tort of false imprisonment. The
181 The Proceedings against the Crown Act, R.S.O. 1990, c. P.27, s. 13, generally subjects the
Crown in right of Ontario to the same procedure as in a suit between subjects, so that an action
for damages could be brought in an inferior court if it were for a sum within the jurisdiction of
that court. However, if the action were brought in an inferior court, no collateral attack on an
official decision would be possible in that forum: note 173, above.
182 Seaway Trust v. Ont. (1983) 41 O.R. (2d) 532 (C.A.).
183 M.F. Donovan, “When Public and Private Law Collide: The Relationship between Judicial
Review and Tort Remedies in Claims against the Federal Government” (2007) 33 Advocates’
Quarterly 355.
184 R.S.C. 1985, c. F-7.
185 R.S.C. 1985, c. C-50.
186 Id., s. 32.
187 Federal Courts Act, R.S.C. 1985, c. F-7, s. 18.1(2).
188 [2006] 2 F.C.R. 287 (C.A.). Létourneau J.A. wrote the opinion of the Court.
68
COLLATERAL ATTACK 2.10(e)
plaintiff was a prisoner in a federal penitentiary who had been placed in “admin-
istrative segregation” for 14 days by the warden of the penitentiary following an
altercation between the plaintiff and a prison guard. If the decision of the warden
were valid, then the plaintiff could not succeed in his action for false imprison-
ment. He had not, however, brought an application for judicial review to review
the decision. The 30-day period for bringing the application had expired long
before he brought the action for damages, which was filed three years after the
impugned decision. The Federal Court of Appeal held that “a litigant who seeks
to impugn a federal agency’s decision is not free to choose between a judicial
review proceeding and an application for damages; he must proceed by judicial
review in order to have the decision invalidated”.189 The Court reasoned that
collateral attack in a civil action for damages was inconsistent with the exclusive-
jurisdiction language of s. 18 of the Federal Courts Act and the policy of the Act
to bring early finality to the decisions of federal agencies. Since the plaintiff could
not succeed without first establishing the invalidity of the official decision, and
since it was too late to apply for judicial review, the Court struck out the plaintiff’s
claim.
After Grenier, the Crown in right of Canada routinely defended actions for
damages against it, whether brought in the Federal Court (as in Grenier) or in the
superior court of a province, on the ground that, because the action would require
an inadmissible collateral attack on the decision of a federal agency or official,
the action should have been preceded by an application for judicial review in the
Federal Court. In due course, six cases found their way up to the Supreme Court,
and were decided at the same time. The Court overruled Grenier and in each case
permitted a collateral attack on the decision of a federal agency or official in an
action for damages against the federal Crown. The principal opinion was written
by Binnie J. in Canada v. TeleZone (2010),190 which was an action for damages
for breach of contract brought in the Ontario Superior Court of Justice by a
company that had been denied a telecommunications licence by a federal minister.
The second case191 was very similar to Grenier. It was an action for damages for
false imprisonment brought in the Ontario Superior Court of Justice (not the
Federal Court as in Grenier) by a prisoner who had been placed in administrative
segregation by the warden of a federal penitentiary. The third case192 was an action
for damages, also framed in tort, brought in the Federal Court by a company that
had been denied a federal licence to import wheat by the Canadian Food Inspection
Agency. The fourth case193 was an action for damages, also in tort, also in the
Federal Court, by a drug company that had been denied permission to sell a drug
189 Id., para. 20.

190 [2010] 3 S.C.R. 585. Binnie J. wrote the opinion of the Court. In the other five cases (next five
notes), the opinion written for the Court is brief, mainly relying on the reasons in TeleZone.
191 Can. v. McArthur [2010] 3 S.C.R. 626.
192 Parrish & Heimbecker v. Can. [2010] 3 S.C.R. 639.
193 Nu-Pharm v. Can. [2010] 3 S.C.R. 648.
69
2.10(e) REMEDIES
by Health Canada. The fifth case194 was an action for damages in delict brought
in the Quebec Superior Court by slaughterhouses whose meat had been destroyed
under an order of the Canadian Food Inspection Agency. The sixth case195 was
an action for damages for breach of fiduciary duty and restitution brought in the
Federal Court by an injured soldier whose disability benefits had been reduced
by the administrator of the federal benefit plan. The Supreme Court ruled that
each of these cases could proceed to trial despite the likelihood that the plaintiff
would have to make a collateral attack on an official decision in order to obtain
the damages that were claimed.
The six TeleZone cases had several elements in common. Each was an action
for damages against the federal Crown based on a private-law cause of action
(contract, tort, delict, breach of fiduciary duty, restitution). In each case, a decision
of a federal agency or official was a key element in the factual history of the case,
and the validity of that decision would be relied upon by the Crown as justification
for the action complained of by the plaintiff. And, in each case, the plaintiff had
not applied to the Federal Court for judicial review before bringing the action for
damages. The Supreme Court ruled that the trial court, whether Federal Court or
provincial superior court, had jurisdiction over the parties, the subject matter and
the remedy in each action, and that the jurisdiction extended to every legal and
factual element necessary for the granting or withholding of the damages. The
trial court therefore had the power to review the validity of any official decision
that if valid would be a bar to the relief claimed by the plaintiff. Binnie J., who
wrote the opinion for the Court in TeleZone, acknowledged that s. 18 of the
Federal Courts Act granted exclusive jurisdiction to award judicial-review rem-
edies against federal agencies and officials, but the plaintiffs in the six cases were
not seeking judicial-review remedies; they were seeking damages, a remedy that
could not be obtained under s. 18. While it was possible for Parliament to take
away jurisdiction from provincial superior courts (except in constitutional
cases),196 as indeed Parliament had done in s. 18, that result could be accomplished
only by clear language and the clear language of s. 18 should not be extended by
“inferences and implications”.197 In any case, s. 18 had to be read with s. 17 of
the same Act, which expressly grants “concurrent” jurisdiction to the provincial
superior courts “in all cases in which relief is claimed against the Crown”. Section
17 would be undermined by the Grenier ruling that the provincial superior courts
lacked the jurisdiction to determine a central issue in an action for damages against
the federal Crown.
194 Can. Food and Inspection Agency v. Professional Institute of the Public Service of Can. [2010]
3 S.C.R. 657.
195 Manuge v. Can. [2010] 3 S.C.R. 672.
196 In McArthur, note 191, above, para. 14, Binnie J. held that Parliament could not in any case
deprive the provincial superior courts of jurisdiction over a constitutional claim, and one of the
plaintiff’s claims in that case was for compensation under s. 24(1) of the Charter for a breach
of the plaintiff’s Charter rights.
197 [2010] 3 S.C.R. 585, para. 5.
70
SET-OFF 2.11(b)
At bottom, the TeleZone cases were about access to justice. The legal system,
Binnie J. said, should provide procedures that minimize unnecessary cost and
complexity”.198 “Access to justice required that the claimant be permitted to
pursue its chosen remedy directly and, to the greatest degree possible, without
procedural detours.”199 The Grenier prohibition on collateral attack in civil cases
against the Crown200 would have required split proceedings (often in different
forums), imposing additional costs on the parties and wasting judicial resources,
and would have subjected most actions for damages against the Crown to a
draconian 30-day limitation period.201 The effect of the TeleZone cases is to
overrule Grenier and enable civil actions against the federal Crown to take place
in a single proceeding, either in the Federal Court or in the superior court of the
province in which the cause of action arose, governed by the normal rules of court
and a normal limitation period. By the standard of access to justice, this was
clearly the right answer.
2.11 Set-off
(a) Definition
A person who owes a debt to another person, and is owed a debt by that
other person, may “set off” the one debt against the other so as to reduce or
eliminate his or her obligation.202 Compensation is the civil law term for set-off.
(b) Crown immunity
At common law, the Crown was immune from set-off, on the ground that a
claim against the Crown could be enforced only by petition of right.203 The Crown,
however, could plead set-off against a subject.204
198 Id., para. 18.

199 Id., para. 19.
200 Binnie J. (para. 41) distinguished the Consolidated Maybrun case, note 176, above, where the
Supreme Court had concluded that collateral attack would undermine the effectiveness of the
penal statute. In the present case, a prohibition on collateral attack would undermine the
effectiveness of the provisions of the Federal Courts Act authorizing claims against the federal
Crown.
201 Binnie J. (para. 78) left open the case where the damages claim was essentially “a claim for
judicial review with only a thin pretence to a private wrong”. That was argued by the Crown
in the Manuge case, note 195, above, but rejected by the Court on the ground that the pleadings
disclosed reasonable causes of action for breach of fiduciary duty and restitution.
202 See generally Derham, The Law of Set-off (3rd ed., 2003), paras. 13.109-13.115 (The Crown).
203 A.-G. v. Guy Motors [1928] 2 K.B. 78; The King v. Cosgrave Export Brewing Co. [1928] Ex.
C.R. 103.
204 De Lancey v. The Queen (1871) L.R. 6 Ex. 286.
71
2.11(c) REMEDIES
(c) Statutory reform
The Crown’s immunity has probably been removed in all jurisdictions except
Quebec205 by the provision of each Crown proceedings statute that enables a claim
to be made against the Crown in the same manner as a claim against a subject, or
which provides that in proceedings against the Crown the rights of the parties are
to be the same as in a suit between subjects.206 In those jurisdictions that followed
the United Kingdom model of Crown proceedings statute, some restrictions have
been placed on the right of set-off against the Crown. In particular, set-off cannot
be used against a claim by the Crown to taxes, duties or penalties; nor can set-off
generally be used against a debt owed by a different department of government
than the department whose activities generated the claim by the Crown.207
2.12 Proceedings in rem

(a) Definition
A proceeding in rem is an action that is brought against property (or a thing),

rather than against a person (in personam). Proceedings in rem establish title to
or enforce a right in property. The court’s ruling binds not only the litigants in
the proceedings, but also third parties who may have an interest in the property.
205 The Civil Code of Quebec provides for compensation (set-off) in article 1672, but goes on to
provide: “Compensation may not be claimed from the State, but the State may claim it”.
206 See ch. 15, Statutes, under headings 15.11, “Provincial Crown as defendant”, 15.12, “Federal
Crown as defendant”, 11.13, “Crown as plaintiff”, below. But see R. Decary, “Compensation
against the Federal Crown” (1976) 22 McGill L.J. 321, arguing that set-off is not available
against the federal Crown in the Federal Court of Canada. However, when the federal Crown
sues in the court of a province, it subjects itself to the rules of the court, including the liability
to setoff: A.-G. Can. v. Rapanos Bros. (1980) 29 O.R. (2d) 92 (H.C.). It may be that the same
idea could be invoked in the Federal Court as well.
207 U.K., s. 35; N.Z., s. 30. In Canada: B.C., s. 11; Alta., s. 19; Sask., s. 17; Man., s. 14; Ont., s.
16; N.B., s. 14; N.S., s. 16; P.E.I., s. 13; Nfld., s. 17. In Alta., Ont. and P.E.I., these prohibitions
are absolute. In the other six common-law provinces, a defendant may, with the leave of the
court, take advantage of set-off against a debt owed to a government department other than the
department with respect to which the proceedings are brought by the Crown. Counterclaims
against the Crown are dealt with in the same sections of the provincial statutes and are subject
to the same restrictions as set-off. In the federal jurisdiction, see Financial Administration Act,
R.S.C. 1985, c. F-11, s. 155 (dealing only with set-off by the Crown); applied in Clarkson Co.
v. R. [1979] 1 F.C. 630 (C.A.). In Australia, the position is simply covered by the rights-of-the-
parties provision of the Crown proceedings statutes.
72
PROCEEDINGS IN REM 2.12(b)
(b) Crown immunity
At common law, a proceeding in rem is not available against the Crown.208

In this way, the Crown’s immunity is similar in scope and breadth to its immunity
against injunction, specific performance, adverse possession and execution of
judgment. All of these remedies and/or actions show a solicitude for Crown
property. In more recent years, most of the Crown proceedings statutes in Canada
at both the federal and provincial level have preserved the Crown’s common law
immunity, either expressly or by necessary implication.209 In the United Kingdom
and New Zealand, proceedings in rem against the Crown are unequivocally
prohibited.210
In Ontario v. Mar-Dive Corp. (1996),211 two private parties and the Crown
in right of Ontario were involved in a dispute over the ownership of the Atlantic,
which was the name of a ship that sank in Canadian water in Lake Erie in 1852.
The wreck was discovered in 1984 by a Canadian citizen who had removed a
number of artifacts. In 1990, an American corporation had removed additional
artifacts and, in 1992, the American corporation obtained a default judgment from
a California court granting it salvage rights to the wreck and title to cargo in its
possession.212 Proceedings were commenced in Ontario to determine ownership
of the wreck. Lissaman J. of the Ontario Court General Division rejected the
claims of both the Canadian who had discovered the ship in 1984 and the American
corporation, finding that the ship was the property of the Crown in right of Ontario
on the basis that it had been abandoned by the original owner and was embedded
in 13 feet of mud on the lakebed of Lake Erie. The provincial Crown thus acquired
title through the royal prerogative.213 Once the Crown in right of Ontario was
established as the owner of the Atlantic, its claim to the ship necessarily prevailed
208 See, for example, Young v. The S.S. Scotia [1903] A.C. 501 (P.C., Nfld.).
209 The following Crown proceedings statutes expressly preserve the common law immunity:
Canada, s. 14; Alta., s. 22; Ont., s. 19; N.S., s. 17(3); P.E.I., s. 15; Nfld., s. 20. Other Canadian
provinces contain a generally worded section that precludes an order for the recovery of Crown
property or land, but permits declaratory relief. For example, s. 11(6) of the B.C. Crown
Proceedings Act states the following: “In proceedings against the Crown in which the recovery
of land or other property is claimed, the Court shall not make an order for the recovery of the
land or the delivery of the property; but may, instead, make an order declaring that the claimant
is entitled, as against the Crown, to land or property or to possession of it.”
210 U.K.: s. 29; N.Z., s. 28.
211 (1996) 141 D.L.R. (4th) 577 (Ont. Gen. Div.).
212 The common law recognized a right to salvage where a recognized subject of salvage has come
into a position of danger, necessitating a salvage service to preserve it from loss or damage,
and where the salvor successfully or meritoriously contributes to success in preserving the
subject from danger. See the discussion in Mar-Dive, previous note 591-92.
213 Under the royal prerogative related to Crown land, the Crown acquires title to wrecks or treasure
trove found on Crown land. Section 109 of the Constitution Act, 1867 granted the Crown in
right of the province (as opposed to the Crown in right of Canada) all royal prerogatives
associated with Crown land.
73
2.13 REMEDIES
over that of either of the private parties. Lissaman J. relied on the fact that the
Crown was immune from proceedings in rem, including claims for salvage, both
at common law and pursuant to the terms of the Proceedings Against the Crown
Act, which expressly preserve the common law immunity.214 Lissaman J. also
found that any attempt to enforce a foreign in rem judgment against the Crown is
barred as a matter of conflicts law.215
While there are sound reasons for protecting Crown property from in rem
claims, the result in Mar-Dive, which denies entirely any form of compensation
for the valuable time and effort expended by the private salvors, is open to some
question. The effect of the ruling in Mar-Dive is to eliminate any incentive for
private parties to invest resources in discovering or recovering abandoned prop-
erty such as wrecks in Canadian water. The ultimate effect is to deprive the
community of the valuable social, archeological and economic benefits that re-
sponsible salvors may provide through the raising of ruins. While it may be
difficult for the courts to strike a more appropriate balance between public and
private rights in this context, this is an area that seems ripe for legislative reform.216
2.13 Proceedings by the Crown

Under the general law, the Crown had a number of prerogative remedies
which were available to enforce Crown rights, but which were not available to
subjects.217 In addition, the Crown had the right to waive the prerogative remedies
and adopt the remedies which were available to subjects.218 In Canada, the eleven
Crown proceedings statutes are all silent on the availability of the old prerogative
remedies, and do not stipulate how proceedings are to be brought by the Crown.
Therefore, the remedies are probably still available, but they never seem to be
used, and proceedings by the Crown are typically brought in accordance with the
ordinary procedures available to subjects.219
214 See Proceedings Against the Crown Act, R.S.O. 1990, c. P.27, ss. 19, 21.
215 Ownership in favor of the Crown in right of Ontario was declared by way of the theory of
embeddedness, or, in the alternative, by way of royal prerogative.
216 Note that the federal Crown Liability and Proceedings Act, s. 5, provides for a right of civil
salvage in respect of Crown property, subject to certain limitations.
217 The principal remedies were inquisition of office, Latin information, English information, writ
of extent, writ of diem clausit extremum and writ of scire facias. Full accounts of the remedies
may be found in Chitty, Prerogatives of the Crown (1820); Robertson, Civil Proceedings by
and against the Crown (1908); Short and Mellor, Crown Office Practice (1890); Law Reform
Commn. of N.S.W., Report on Proceedings by and against the Crown (1975), 28-32.
218 Chitty, previous note, 245.
219 A scattering of relatively modern cases recognize the remedies: e.g., Fonseca v. A.-G. (1889)
17 S.C.R. 612 (scire facias); The Queen v. Montminy (1899) 29 S.C.R. 484 (scire facias); A.-
G. v. Colchester Corp. [1955] 2 Q.B. 207, 215 (scire facias); Emerson v. Simpson (1962) 38
W.W.R. 466 (B.C.S.C.) (writ of extent).
74
3
Enforcement of Judgments
3.1 Execution 75
(a) Definition of execution 75
(c) Duty to pay judgment debts 76
(d) Interest on judgment debts 78
(e) Legislative nullification 78
(f) Justification for Crown immunity 79
3.2 Garnishment 80
(a) Definition of garnishment 80
(b) Crown as judgment debtor 80
(c) Crown as garnishee 81
3.3 Contempt 82
(a) Definition of contempt 82
(c) Justification for Crown immunity 84
3.1 Execution
(a) Definition of execution
Execution is a procedure for the enforcement of judgments. It consists of the

seizure and sale by the sheriff (or other court official) of the judgment debtor’s
property. The proceeds of sale are used by the sheriff to pay the sum due to the
judgment creditor.1
(b) Crown immunity
The Crown was immune from execution at common law.2 The reason for
the immunity seems to have been the same reluctance to make a coercive order
1 The text describes the most common form of execution, which applies to judgments for the
payment of money, and which is levied by a writ of fieri facias, which in many jurisdictions is
now called by an English name, as in Ontario, where it is called a writ of seizure and sale. There
3.1(c) ENFORCEMENT OF JUDGMENTS
against the Crown that led to the Crown’s immunities from injunction, specific
performance, mandamus and discovery.3 The immunity has also been justified
on the basis that the seizure of Crown property could cause intolerable interrup-
tions in public services.4 Yet another justification holds that execution against the
Crown is unnecessary, because the Crown would always satisfy a judgment
against it.5 The last point is not as weak as it seems, because, as will be explained
later, most modern Crown proceedings statutes impose a statutory duty to satisfy
a judgment rendered against the Crown.
The Crown’s immunity from execution is now statutory. The Crown pro-
ceedings statute of Canada and each of the ten provinces expressly provides that
no execution or similar process shall be issued out of any court against the Crown.6
There is a similar provision in the Crown proceedings statute of the United
Kingdom,7 New Zealand8 and each of the Australian jurisdictions,9 except for
Queensland, where execution is expressly permitted against the Crown.10
(c) Duty to pay judgment debts
Although execution is not available in Canada to enforce a judgment against

the Crown, the Crown proceedings statute of Canada and each of the ten provinces
makes provision for the payment of judgment debts. Each statute provides that
the Treasurer (or Minister of Finance) “shall” pay out of the Consolidated Revenue
Fund the amount due by the Crown under a court order.11 This mandatory language
are other writs of execution, adapted for particular purposes, for example, writs of possession
(seizure of land), delivery (seizure of goods), and sequestration (seizure of rents and profits).
Garnishment (or attachment of debts) and contempt orders are the topics of later sections of
this chapter.
2 Chitty, Prerogatives of the Crown (1820), 376; R. v. Central Ry. Signal [1933] S.C.R. 555. The
immunity extended to all the writs of execution, not just fieri facias (previous note).
3 See ch. 2, Remedies, under headings 2.4, “Injunction”, 2.5, “Specific performance”, 2.6, “Man-
damus”, above, and ch. 4, Procedure, under heading 4.2, “Discovery”, below.
4 Law Reform Commission of Canada, The Legal Status of the Federal Administration (1985),
76. This may be why distress is also not available against the Crown: Secty. for War v. Wynne
[1905] 2 K.B. 845; A.-G. Can. v. Gordon (1924) 56 O.L.R. 48 (H.C.).
5 Franklin v. The Queen (No. 2) [1974] 1 Q.B. 205, 218 (C.A.).
6 Can., s. 29; B.C., s. 13; Alta., s. 25; Sask., s. 19; Man., s. 16; Ont., s. 21; Que., s. 94.9; N.B., s.
17; N.S., s. 20; P.E.I., s. 17; Nfld., s. 24. See Public Service Alliance v. CBC [1976] 2 F.C. 145
(T.D.) (no execution against property of CBC, a Crown agent). For full references to the statutes,
see ch. 2, Remedies, note 2, above.
7 Crown Proceedings Act 1947 (U.K.), s. 25.
8 Crown Proceedings Act 1950 (N.Z.), s. 24.
9 Cth., s. 65; N.S.W., s. 7; S.A., s. 10; Tas., s. 11; Vic., s. 26 (but see also ss. 15, 16); W.A., s.
10; A.C.T., s. 29; N.T., s. 11. For full references to the statutes, see ch. 2, Remedies, note 2,
above.
10 Qld., s. 11. For full references to the statutes, see ch. 2, Remedies, note 2, above.
11 Can., s. 30; B.C., s. 13; Alta., s. 24; Sask., s. 19; Man., s. 16.1; Ont., s. 22; Que., s. 94.10; N.B.,
s. 17; N.S., s. 20; P.E.I., s. 17; Nfld., s. 23.
76
EXECUTION 3.1(c)
imposes a duty on the Treasurer to pay all judgment debts. The position is the
same in the United Kingdom12 and Australia,13 except for the state of Victoria. In
Victoria14 and in New Zealand,15 the provision for payment is merely empowering:
the Crown’s duty to pay the judgment debt is derived only from the judgment
itself.
Each statutory provision for the payment by the Crown of judgment debts,
whether mandatory or permissive, obviously constitutes authority to make the
required payment. In three Australian jurisdictions, it is provided that the payment
is to be made out of funds that have been appropriated for the purpose.16 In these
jurisdictions, the rule that a payment by the Crown must be authorized by a vote
of the legislature17 applies, even though the payment is to discharge a judgment
debt: if the judgment debt is not covered by an appropriation, it cannot be paid.18
This is not the rule in any Canadian jurisdiction. The Canadian statutes do not
qualify the duty to pay a judgment debt with any requirement that there be an
available appropriation of the necessary funds. In effect, each Canadian statute is
itself a permanent appropriation of funds for the satisfaction of judgment debts.19
This is also the position in the United Kingdom, New Zealand and the Australian
states of South Australia, Tasmania, Victoria and Western Australia.20 In these
jurisdictions, as in Canada, the judgment creditor is entitled to be paid even if the
debt is not covered by a legislative appropriation.
All but two of the statutory provisions for payment by the Crown of judgment
debts require that the debt be a judgment debt, which means that judgment must
have been entered against the Crown. Only in Ontario21 and British Columbia22
does the duty to pay extend to a sum agreed to in an out-of-court settlement. In
those provinces, when the Crown settles an action against it, the amount agreed
upon in the settlement is treated as if it were a judgment debt. Elsewhere, a
settlement would have to be followed by an entry of judgment in order to give
12 U.K., s. 25.
13 Cth., s. 66; N.S.W., s. 7; Qld., s. 11; S.A., s. 10; Tas., s. 11; W.A., s. 10; A.C.T., s. 29; N.T., s.
11.
14 Vic., s. 26 (“it shall be lawful . . . to cause to be paid”).
15 N.Z., s. 24 (“may cause to be paid”).
16 Cth., s. 66 (moneys must be “legally available”); N.S.W., s. 7 (moneys must be “legally
available”); Qld., s. 11 (moneys must be “lawfully applicable” or “appropriated”).
17 See ch. 9, Contract, under heading 9.4(c), “Legislative appropriation”, below.
18 N.S.W. v. Bardolph (1934) 52 C.L.R. 455, 497, 506, 509, 531 (H.C., Aust.).
19 Northrop Corp. v. The Queen [1977] 1 F.C. 289 (T.D.).
20 A payment provision that is merely empowering, and makes no reference to appropriation, is
interpreted as not disturbing the rule that an appropriation of funds is necessary before payment
of the judgment debt can actually be made: Alcock v. Fergie (1867) 4 W.W. & a’B.(L) 285
(Vic. S.C.). However, the current provisions of Victoria and New Zealand (notes 14 and 15,
above), which are merely empowering, explicitly state that no appropriation is necessary.
21 Ont., s. 22.
22 B.C., s. 14.
77
3.1(d) ENFORCEMENT OF JUDGMENTS
rise to the Crown’s statutory authority and (in most jurisdictions) duty to pay.23
An out-of-court settlement that was not followed by an entry of judgment could
not be satisfied by the Crown unless funds were available that had been appro-
priated for the purpose.
(d) Interest on judgment debts
We have already noticed that the common-law immunity of the Crown from
obligations to pay interest has been reversed in the case of prejudgment interest:
the Crown is now liable to an award of prejudgment interest when it is held liable
to pay damages.24 The same is true in the case of postjudgment interest. There is
a statutory duty to pay interest on unsatisfied judgments in all jurisdictions in
Canada.25 In the case of judgments against the Crown, the Crown proceedings
statute of each jurisdiction provides that the Crown is under the same obligation
to pay interest on a judgment debt as a private judgment debtor.26
(e) Legislative nullification
In contemplating the open-ended character of the Crown’s liability to pay

all judgments entered against it, no matter how numerous or how large, it should
not be overlooked that the competent legislative body can limit or abrogate the
Crown’s liability by legislation. This can be done before the fact by denying or
capping the Crown’s liability for a particular kind of damage, for example, liability
arising out of a nuclear accident.27 It can also be done after the fact by retroactively
reversing or modifying a judgment awarded against the Crown.28 The Canadian
Charter of Rights does not prohibit retroactive laws of this kind.29 Nor does the
Charter of Rights require that compensation be paid for the expropriation of
23 Northrop Corp. v. The Queen, note 19, above, refusing to enter a consent judgment against the
Crown on the ground that the entry of judgment would cause a large unappropriated sum to be
payable out of the Consolidated Revenue Fund by virtue of s. 57(3) of the Federal Court Act.
24 Chapter 2, Remedies, under heading 2.2(e), “Interest on damages”, above.
25 Waldron, The Law of Interest in Canada (1992), ch. 6.
26 Can., s. 31.2; B.C., s. 12; Alta., s. 23; Sask., s. 18; Man., s. 15; Ont., s. 20; Que., s. 94 is not
explicit; N.B., s. 16; N.S., s. 19; P.E.I., s. 16; Nfld., s. 22. The rule is the same in the U.K. (s.
24), N.Z. (s. 19) and Australia (rights-of-the-parties provision in each statute).
27 E.g., Nuclear Liability Act, R.S.C. 1985, c. N-28; constitutional challenge rejected in Energy
Probe v. Can. (1994) 17 O.R. (3d) 717 (Gen. Div.).
28 This was done by the United Kingdom Parliament in the War Damage Act 1965 (U.K.),
retroactively denying compensation that had been awarded against the Crown in Burmah Oil
Co. v. Lord Advocate [1965] A.C. 75 (H.L.). For other examples, see A. Palmer and C. Sampford,
“Retrospective Legislation in Australia” (1994) 22 Fed. L. Rev. 217, 245.
29 Section 11(g) of the Charter prohibits retroactive penal laws, but not other kinds of retroactive
laws: see Hogg, Constitutional Law of Canada (5th ed., 2007, annually supplemented), s. 51.8;
New Zealand Bill of Rights Act 1990, s. 26, is similar.
78
EXECUTION 3.1(f)
private rights.30 Therefore, the extent of Crown liability is not entirely at the mercy
of judicial decisions. Public control can be asserted through the competent leg-
islative body.
(f) Justification for Crown immunity
The Treasurer’s statutory duty to pay any judgment debt out of the Consol-
idated Revenue Fund provides the creditor with an excellent assurance of pay-
ment.31 A refusal to carry out the statutory duty is possible,32 but it is highly
unlikely. This being so, the judgment creditor ought not to be affected by the
Crown’s immunity from execution. While a number of explanations have been
offered in justification of the Crown’s immunity,33 the one that is most persuasive,
in our judgment, is that it would be disruptive of government if public property
were vulnerable to seizure and sale at the instance of a private party.
Execution against the Crown is permitted in only one jurisdiction, namely,
the Australian state of Queensland.34 Queensland exempts the property occupied
by the Governor, the legislative buildings, court houses and prisons. These ex-
emptions are undoubtedly prudent, but they surely do not exhaust the categories
of Crown property that should be exempt from private seizure and sale. A study
paper published by the Law Reform Commission of Canada has recommended
that “all state property should be subject to compulsory execution”. The paper
suggests that “some exceptions might be expressly enumerated by statute”, and
that the court should have the power to exempt property shown to be “essential
to the organization and operation of the public service”.35 In our view, a right to
execution that is qualified in this way is of little real value. Moreover, as argued
30 Section 7 of the Charter protects “life, liberty and security of the person”, but not property.
There is no clause in the Charter or elsewhere in the Constitution of Canada requiring compen-
sation for the taking of property. Nor is there any such requirement in the United Kingdom,
New Zealand or the Australian states. The Commonwealth of Australia, however, is empowered
to make an “acquisition of property” only “on just terms”: Constitution of Australia, s. 51(xxxi).
See ch. 11, Taking, below.
31 In a few jurisdictions, some elements of risk remain; these arise from the permissive form of
the payment provision in Victoria and New Zealand (notes 14 and 15, above), and the require-
ment of an appropriation in the Commonwealth, New South Wales and Queensland (note 16,
above). In practice, of course, these risks add up to approximately zero.
32 If the Treasurer did refuse, mandamus would not lie to compel performance unless the Treasurer
were held to be persona designata: see ch. 2, Remedies, under heading 2.6, “Mandamus”, above.
33 Section 3.1(b), “Crown immunity”, above.
34 Note 10, above.
35 Law Reform Commission of Canada, Immunity from Execution (1987), 74, 84-85.
79
3.2 ENFORCEMENT OF JUDGMENTS
above, it seems to us that a judgment debt owed by the Crown is sufficiently

secure that execution against the Crown is not necessary.36
3.2 Garnishment
(a) Definition of garnishment
Garnishment, or the attachment of debts, is a procedure for the enforcement

of judgments that consists of the seizure of debts owing by a third party to the
judgment debtor. The judgment creditor obtains a garnishment order against the
third party (the garnishee) who owes money to the judgment debtor; the order
“attaches” the debt, requiring that it be paid to the sheriff, who uses the funds to
pay the judgment creditor.
(b) Crown as judgment debtor
At common law, the Crown’s immunity from execution naturally extended

to the attachment of debts owing to the Crown. Garnishment was therefore not
available as a means of enforcing a judgment against the Crown. This immunity
is confirmed in all Canadian jurisdictions, the United Kingdom, New Zealand
and all but one Australian jurisdiction by statutory provisions that prohibit at-
tachment of debts, as well as execution, against the Crown.37 As a matter of policy,
the case for Crown immunity from garnishment is not as strong as the case for
immunity from execution. The attachment of a debt owing to the Crown is not as
disruptive of public services as would be the seizure of a courthouse or prison.
But the statutory duty of the Treasurer (or Minister of Finance) to pay any
judgment entered against the Crown, which exists in nearly all jurisdictions,38
makes the judgment debt so secure that the judgment creditor does not need any
additional means of enforcement.
36 The Law Reform Commission paper (previous note) recommends not only that execution be
available against Crown property (as explained in the text), but also that the Minister of Finance
be under a duty to pay all judgments, that failure to pay be a cause of action for damages, that
(as an alternative to execution) a financial penalty be imposed on the Crown for each day of
default (this is the French remedy of astreinte), and that the creditor be permitted to set off the
debt against the creditor’s liability to pay tax (83-89).
37 The statutory provisions are the same ones that prohibit execution against the Crown: notes 6-
9, above. Queensland, the only jurisdiction that permits execution against the Crown (note 10,
above), is silent on the availability of attachment of debts.
80
GARNISHMENT 3.2(c)
(c) Crown as garnishee
Can a garnishment order be made against the Crown as garnishee? That

question is relevant where the Crown is not the judgment debtor, but is the third
party who owes money to the judgment debtor. It is difficult to see why a
garnishment order should not be available against the Crown. The purpose of the
order is to enforce a judgment debt owed by a private debtor, not by the Crown
itself. No public interest seems to be impaired when a debt owed by the Crown
is attached, because the only result is that the Crown is required to pay the debt
to the sheriff instead of to the Crown’s original creditor (who is now a judgment
debtor in default). Nevertheless, at common law, the Crown is immune from a
garnishment order.39 The supposed difficulty of making an order against the
Crown, which is the source of so much Crown immunity, seems to have been the
main reason here.40 The common law immunity is confirmed by statute in most
(but not all) jurisdictions.41
An important consequence of the Crown’s immunity from a garnishment
order was that, when a Crown servant failed to pay a judgment debt, the judgment
creditor could not attach the servant’s wages. Instead of deploring the inequality
between Crown servants and other wage-earners, the courts supported this result
on the public policy ground that Crown servants ought not to be denied their
wages in case “the temptations of poverty” affected the performance of their
duties.42 In most jurisdictions, it is now specially provided by statute that the
39 C.N.R. v. Croteau [1925] S.C.R. 384, allowing attachment of wages owed by C.N.R. (a Crown
agent), but only because the common law rule had been modified by the Canadian National
Railways Act; Royal Bank v. Scott [1971] 4 W.W.R. 491 (N.W.T. Terr. Ct.), denying attachment
of wages owed by Government of Northwest Territories.
40 C.N.R. v. Croteau, previous note, 388; Royal Bank v. Scott, previous note, 503. As Duff J.
pointed out in the former case (at 388), “equitable execution” in the form of an appointment of
a receiver to receive a judgment debtor’s debts and pay them to the judgment debtor’s creditors
was available as an alternative to garnishment of debts owed by the Crown. Equitable execution
did not involve an order against the Crown, because it operated as an order against the judgment
debtor, prohibiting him or her from receiving the payment. Payment of the money by the Crown
to the judgment debtor would not breach the order. Receipt of the money by the judgment
debtor would do so, and would be a contempt of court by the judgment debtor. See Martin v.
Martin (1981) 33 O.R. (2d) 164 (H.C.), where a receiver was appointed to receive wages
payable by the Crown in right of Canada that were not subject to garnishment. Compare Eastern
Trust Co. v. MacKenzie, Mann & Co. [1915] A.C. 750 (P.C.) (payment by Crown to debtor
instead of receiver exposed debtor to contempt of court for wrongful receipt of payment).
41 Note 37, above. Ont., s. 21, N.S., s. 21; U.K., s. 27; N.Z., s. 26; are provisions permitting
attachment of debts owing by the Crown to a judgment debtor. Note that such provisions may
also be found in statutes other than the Crown proceedings statute.
42 Wells v. Foster (1841) 8 M. & W. 149, 151 E.R. 987 (Ex.); Central Bank v. Ellis (1893) 20
O.A.R. 364 (Ont. A.D.); Mulvenna v. Lords Commrs. of Admiralty [1926] S.C. 842 (Ct. of
Sess.); Royal Bank v. Scott, note 39, above, 505-507 (rejecting the public policy argument). In
one case, the attachment of a Crown servant’s wages was denied on the basis that a Crown
servant has no right to sue for his wages; therefore there was no debt owed by the Crown that
81
3.3(a) ENFORCEMENT OF JUDGMENTS
wages of Crown employees may be garnished.43 The risk of reducing the employee
to poverty is seen as equally applicable to private employees, and is met in all
jurisdictions by provisions that exempt a portion of the wages of any employee
from attachment.
Debts other than wages that are owed by the Crown to judgment debtors are
still generally immune from attachment — but for no good reason.44 The Law
Reform Commission of British Columbia,45 the Law Reform Division of the New
Brunswick Department of Justice46 and the Ontario Law Reform Commission47
have all recommended that all debts owed by the Crown to a judgment debtor
should be available to the judgment creditor by way of garnishment.
3.3 Contempt
(a) Definition of contempt
Disobedience of a court order (other than a judgment for the payment of

money) is contempt of court, which is punishable by imprisonment or fine. Any
court order that requires a person to do or not to do an act may be enforced by a
contempt order. Contempt is thus the means of enforcement of orders of man-
damus, injunction, specific performance or discovery. Contempt is not the initial
means of enforcement of a judgment for the payment of money, where execution
can be levied against the debtor’s property and the debtor’s debts can be attached
(or garnished). Of course, the writs of execution and attachment involve orders
against the debtor, and breach of those orders would be a contempt of court.
(b) Crown immunity
Contempt has never been available against the Crown itself. Indeed, in origin,
disobedience of a court order was punishable on the ground that it was contemp-
the judgment creditor could attach: Lucas v. Lucas [1943] P. 68. This line of reasoning has
been generally condemned as wrong: see ch. 9, Contract, under heading 9.8, “Contracts with
Crown servants”, below.
43 E.g., Ont., s. 21(2); Garnishment, Attachment and Pension Diversion Act, R.S.C. 1985, c. G-
2.
44 For an account of the law, see Ontario Law Reform Commission, Report on the Enforcement
of Judgment Debts and Related Matters, Part II (1981), 146-150.
45 Report on Attachment of Debts Act (1978), 53.
46 Third Report of the Consumer Protection Project, Vol. II, Legal Remedies of the Unsecured
Creditor After Judgment (1976), 39.
47 Note 44, above. This report has been partially implemented by a series of amendments to Ont.,
s. 25, under which there is now an extensive, but not a complete, right to garnish debts owed
by the Crown in right of Ontario.
82
CONTEMPT 3.3(b)
tuous of the King’s (or Queen’s) authority.48 It was therefore impossible for the
King (or Queen) to be in contempt. It was also unthinkable that the courts could
imprison or fine the King (or Queen). In fact, the courts never permitted the
question to be raised, because the courts refused to issue the orders of mandamus,
injunction, specific performance or discovery, or the writs of execution or attach-
ment, against the Crown. Nor would the courts issue an order against an officer
or servant of the Crown as an indirect means of enforcing a duty owed by the
Crown. However, the courts would issue an order against an officer or servant of
the Crown where the purpose was to enforce a statutory duty owed by the partic-
ular officer or servant (as opposed to the Crown).49 And an order would also issue
against an officer or servant of the Crown where the officer or servant in the
course of his or her duties became personally liable in contract or tort.50
If an order can be made against an officer or servant of the Crown, then the
order can be enforced by civil contempt. When an order is made against an officer
or servant of the Crown, it is because the defendant personally owes the duty. In
that case, no immunity is available. The vulnerability to suit is an application of
Dicey’s theory of equality: “every official from the Prime Minister down to a
constable or collector of taxes, is under the same responsibility for every act done
without legal justification as any other citizen”.51 For example, in M. v. Home
Office (1993),52 the House of Lords upheld a finding of contempt against a Minister
of the Crown. The Minister had failed to comply with a High Court injunction
ordering him to return a refugee claimant to the United Kingdom. The law lords
held that the High Court had jurisdiction to issue the injunction against the
Minister, who was invested by statute with the duty to administer the refugee-
determination process. The jurisdiction to make a finding of contempt was co-
extensive with the jurisdiction to issue the injunction (or any other order that
would normally be enforceable by contempt). Therefore, the Minister was prop-
erly found guilty of contempt. As a penalty, the Minister (whose personal fault
was mitigated by the fact that he had relied on the advice of senior officials) was
not sent to prison or fined, but he was ordered to pay the costs of the contempt
proceedings.53
48 C.G. Watkins, “The Enforcement of Conformity to Law through Contempt Proceedings” (1967)
5 Osgoode Hall L.J. 125, 126. See also Law Reform Commission of Canada, note 35, above,
39-42.
49 See ch. 2, Remedies, under headings 2.4, “Injunction” and 2.6, “Mandamus”, above.
50 See ch. 16, Crown Agents, under heading 16.4. “Liability of Crown agent”, below.
51 Dicey, The Law of the Constitution (10th ed., 1959), 193; and see ch. 1, Introduction, under
heading 1.2, “Dicey’s idea of equality”, above.
52 [1994] 1 A.C. 377 (H.L.).
53 Compare Vic. v. Australian Building Construction Employees (1982) 152 C.L.R. 25 (H.C.,
Aust.) (members of royal commission, appointed under statute, would be guilty of contempt if
their proceedings interfered with the administration of justice in the Federal Court; held, there
was no such interference).
83
(c) Justification for Crown immunity
M. v. Home Office illustrates that contempt is available for the enforcement

of many public duties. So long as the duty is imposed on a particular minister or
official (as opposed to the Crown), which is in fact the most common way of
drafting statutory duties, then mandamus and injunction will lie against the re-
sponsible person, and any default will expose the responsible person to contempt
proceedings. For this reason, the Crown’s immunity from contempt will rarely
be an impediment to the enforcement of statutory duties.
The Crown’s immunity from contempt is also of limited significance in those
jurisdictions where the orders of mandamus and injunction are not available
against the Crown; in those jurisdictions, the issue of disobedience of those orders
by the Crown cannot arise. However, injunction and specific performance are
available against the Crown in Australia, and orders of discovery and garnishment
(at least of civil servants’ wages) are available against the Crown everywhere.
The issue of enforcement of court orders against the Crown is therefore a live
one, and would become more important if, as we have urged in the previous
chapter, the full range of remedies were made applicable to the Crown.54
What is to be done if the Crown disobeys a court order? A possible answer
to that question would be this: if the Crown is intransigent in its refusal to obey
a court order, then there is nothing that a court ought to do to enforce compliance.
Any attempt to enforce compliance would lead to a damaging confrontation
between the judicial and executive branches of government which in the end the
judicial branch is bound to lose. The making of the order is as far as the court
ought ever to go. On this view, obedience to an order against the Crown would
be voluntary. However, since the Crown would rarely choose to disobey, the
aggrieved citizen would nearly always obtain his or her remedy. In the highly
unusual situation where the Crown did disobey, this could safely be assumed to
be a decision reached by the executive upon the basis of some grave public-policy
objection to the court order. In that situation the court should not try to override
the executive judgment.
There is no doubt that the foregoing reasoning has force. On balance, how-
ever, we believe that the contempt order ought to be available to enforce orders
against the Crown. Our first point is that public policy considerations will often
have been taken into account by the court before the order was made against the
Crown in the first place. For example, before the Crown is ordered to produce
documents, the Court must consider any claim of public interest immunity for the
documents. In the case of other kinds of orders, the issuing court normally has
54 Orders of injunction and mandamus are available against the Crown in constitutional cases: ch.
2, Remedies, under headings 2.4(g), “Constitutional injunction” and 2.6(d), “Constitutional
mandamus”, above. In Doucet-Boudreau v. N.S. [2003] 3 S.C.R. 3, paras. 70, 136, all judges
assumed (without any discussion) that contempt proceedings would be available for breach of
a court order made on constitutional grounds.
84
CONTEMPT 3.3(c)
some discretion, and it is unlikely that they would be granted in the face of a
strong public-policy objection. Secondly, once an order has been finally made
against the Crown, if the executive still refuses to comply, the citation for contempt
will provide a new hearing and another opportunity to persuade a court that there
are good and sufficient reasons for disobedience. There is no rule that requires a
contempt order to be made whenever a court order is breached, and if a contempt
order is made there is no mandatory penalty. Finally, the competent legislative
body has the power retroactively to nullify the contempt order.55
Although orders against the Crown are not now enforceable by contempt,
they are, of course, nearly always obeyed. The respect for the rule of law by
governments and the people who elect them makes compliance the morally correct
and politically prudent course of action. At the cabinet level, no doubt an Attorney
General would always counsel compliance. But it is reasonable to anticipate
occasional cases of non-compliance.56 In our view, the contempt power is needed
to provide courts with the ability to monitor compliance with their orders.
If the Crown were liable for contempt for breach of a court order, it could
be subjected to the same rules as a corporation.57 The Crown, like a corporation,
could not be imprisoned, but the Crown could be ordered to pay a fine.58 The
court should also have the power, on finding the Crown to be in contempt, to
make an order against an officer or servant of the Crown.59 Such an order could
direct a particular person to carry out the duty that had been broken, or it could
order the imprisonment or fining of the person responsible for the Crown being
55 See sec. 3.1(e), “Legislative nullification”, above.

56 M. v. Home Office, note 52, above, is an example, although contempt was in fact available,
because the order had been made against a Minister, not the Crown. A similar case occurred in
Canada in 1988, when the federal government failed to obey a Federal Court order to produce
documents in the possession of the Canadian High Commission in India. The Federal Court
found that two Ministers were guilty of contempt of court. The two Ministers had not been
personally aware of the court order or of its disobedience by their officials, and they promised
to secure compliance. The Court did not fine them, but did order them to pay the costs of the
litigant who was awaiting production of the documents. Globe and Mail, Toronto, March 31,
1988 (“Two Ministers ordered to pay court costs”).
57 Another approach is suggested by a study paper prepared for the Law Reform Commission of
Canada, note 35 above, (1987), 51-57, 71-72. The suggestion is that instead of the sanction of
contempt, a new sanction of “astreinte” (copied from France) should be available against the
Crown to enforce court orders. An order of astreinte would impose a monetary penalty on the
Crown for each day of default. A disadvantage of this idea is that astreinte is foreign to Canadian
law and would be applicable only to the Crown. The contempt order is familiar to Canadian
law, and is applicable to all persons subject to a court order, including officers and servants of
the Crown when they are invested with statutory duties or commit a tort or breach of contract
in the course of their duties.
58 For an argument that in appropriate cases the Crown should be liable to pay a fine, see ch. 15,
Statutes, under heading 15.14, “Criminal liability”, below.
59 The power to make an order against officers or servants also exists with respect to a corporation’s
contempt. In some jurisdictions, sequestration of corporate assets is an additional remedy for a
corporation’s contempt; that would be neither necessary nor desirable in the case of the Crown.
85
in default.60 This would enable the contempt power to penetrate into the bureauc-
racy and fasten on particular individuals, which would surely be the most efficient
way of securing compliance with an order that is being blocked by bureaucratic
resistance.
60 Compare Doucet-Boudreau v. N.S. [2003] 3 S.C.R. 3, upholding an order made under the
Charter that that also required the Crown to appear at “reporting hearings” and file affidavits
reporting on its compliance with the order: see ch. 2, Remedies, under heading 2.4(g), “Con-
stitutional injunction”, above.
86
4
Procedure
4.1 General rule 87

4.2 Discovery 89
(a) Definition 89
(d) Designation of Crown representative 91
(e) Residual immunity 92
(f) Crown privilege 93
4.3 Costs 94
(a) Definition 94
(d) Advance costs 95
4.4 Interest 98
(a) Prejudgment interest 98
(b) Postjudgment interest 98
4.5 Limitation of actions 98
(a) Definition 98
(c) Statutory reform of limitation law 99
(d) Limitation periods in the provinces 100
(e) Limitation periods in the federal jurisdiction 102
(f) Constitutional claims 105
4.6 Notice requirements 107
(a) Definition 107
(b) Post-accident notice 108
(c) Pre-action notice 110
(d) Constitutional notice 111
4.1 General rule

Chapter 1, Introduction, has described the history of proceedings against the
Crown, culminating in the enactment of modern Crown proceedings statutes in
4.1 PROCEDURE
Canada, as well as in the United Kingdom, New Zealand and Australia.1 The
general rule established by these statutes is that the Crown is sued by the same
procedure that is used against a private party, and in proceedings against the
Crown the rights of the parties are the same as in private proceedings.2 In chapter
2, Remedies, and chapter 3, Enforcement of Judgments, we noticed that in some
jurisdictions the Crown remains immune from some remedies, notably, injunc-
tion, specific performance, mandamus and execution of judgments. In this chapter,
we will notice some residual immunities and special rules of procedure that apply
in proceedings against the Crown. But, in the absence of any immunity or special
rule, the default position is that proceedings are brought against the Crown under
the same procedure that would be applicable in the case of any other defendant.
In Canada’s federal jurisdiction, suits against the Crown in right of Canada
may be brought in either the Federal Court or the superior court of the province
in which the claim arises.3 There is some variation as to the appropriate defendant.
The Federal Courts Act provides that proceedings against the Crown in the Federal
Court may be taken in the name of “Her Majesty the Queen”.4 The Crown Liability
and Proceedings Act provides that proceedings against the federal Crown in any
court may be taken in the name of the Attorney General of Canada.5 In the Federal
Court, both names can be used;6 in a provincial court, the Attorney General is
correct. In the provinces, proceedings are brought against Her Majesty in right of
the particular province (Alberta, British Columbia, Newfoundland and Labrador
and Ontario) or the Attorney General (Nova Scotia and Quebec) or the Govern-
ment of the province (Prince Edward Island, Saskatchewan and Manitoba) or the
province itself (New Brunswick). Proceedings against the territorial governments
may be brought against the Government of the Territory or the Commissioner of
the Territory.7
1 All the Crown proceedings statutes in force in Canada, the United Kingdom, New Zealand and
Australia are listed in note 2 of ch. 2, Remedies, above. The only jurisdictions that lack Crown
proceedings statutes are the three Canadian territories (Yukon, Northwest Territories and Nu-
navut), where proceedings are brought against the governments on the basis that the procedure
and the rights are the same as in proceedings against a private defendant. On the status of the
three territories, see ch. 1, Introduction, under heading 1.4(c), “Divisibility”, above.
2 The petition of right procedure is still the correct one in respect of events occurring before the
commencement of the Crown proceedings statutes. e.g., aboriginal land claims, historical abuse
claims: M. (S.) v. Ont. (2003) 67 O.R. (3d) 97 (C.A.); Dolmage v. Ont. 2010 ONSC 1726
(S.C.J.).
3 Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50, s. 21(1); Federal Courts Act, R.S.C.
1985, c. F-7, s. 17. See ch. 17, Federal Questions, under heading 17.3(c), “Suits against Crown
in right of Canada”, below. Applications for judicial review are not governed by the Crown
proceedings statutes; they are brought against the tribunal or other decision-maker whose
decision is attacked.
4 Federal Courts Act, R.S.C. 1985, c. F-7, s. 48 and Schedule.
5 Crown Liability and Proceedings Act, s. 23(1).
6 Liebmann v. Can. [1994] 2 F.C. 3, 21 (T.D.).
7 See Shewan v. Can. (1994) 27 C.P.C. (3d) 244 (Ont. Gen. Div. Master) (adding Yukon Territory
as defendant in action against Canada).
88
DISCOVERY 4.2(a)
Naming the Crown correctly is mandatory.8 In particular, a suit against the

Crown cannot be brought against a ministry (or department of government), even
if the cause of action arose from wrongful acts by civil servants in that ministry.
That is because a ministry or department is not a suable entity. Nor can a minister
be named as defendant as a representative of the Crown. A minister is a person
who can be sued, but only if personal liability is sought for a wrongful act of that
minister. A minister is not vicariously liable for the wrongful acts of the civil
servants in his or her ministry or department; nor is the deputy minister or other
senior official. That is because it is the Crown that is the employer of the civil
servants, not the minister or other official (who are just fellow employees); only
the employer is vicariously liable for the wrongful acts of employees. A minister
or civil servant (unless protected by statutory immunity) is personally liable for
any tort personally committed by him or her, and that is true even if the tort is
committed in the course of employment, although in that case the Crown is also
(vicariously) liable. An individual minister or civil servant who has committed a
tort can be named as an additional defendant in a suit against the Crown if the
plaintiff so chooses.9
4.2 Discovery
(a) Definition
Discovery is the name for procedures that enable a party to civil litigation10
to discover information about the other side’s case before the trial. Discovery of
documents is a pre-trial procedure that enables a party to require an opposing
party to disclose the existence of documents relevant to the litigation and to
produce documents for inspection.11 Examination for discovery is a pre-trial
procedure that enables a party to examine an opposing party, either in the form
of oral questions and answers, or in the form of written questions (interrogatories)
and answers. Traditionally, discovery was available only against a party to liti-
gation, but in some jurisdictions it is also available against non-parties.
8 Horsman and Morley (eds.), Government Liability (2006, annually supplemented), sec. 1.60.
Unfortunately, there are a few statutes that specifically call for suits against the Crown to be
taken in a name different from that in the Crown proceedings statute, e.g., Public Transportation
and Highway Improvement Act, R.S.O. 1990, c. P.50, s. 33(7) (suits arising out of failure to
repair highway); obviously, if one of those rare statutes applies, it must be complied with.
9 For full discussion, see ch. 8, Tort: Liability of Servants, below.
10 Discovery does not exist in criminal proceedings. The Crown is under a constitutional obligation
to disclose to the defendant all relevant material in its possession (including statements by
persons interviewed by the police): R. v. Stinchcombe [1991] 3 S.C.R. 326. The defendant is
under no obligation to make any disclosure to the Crown.
11 Most jurisdictions now have freedom of information legislation, and, in advance of litigation
against the Crown, counsel often seek relevant documents through freedom-of-information
requests.
89
4.2(b) PROCEDURE
(b) Crown immunity
At common law the Crown was immune from discovery.12 The reason orig-
inally given for the immunity was the mundane one that the Crown could not
swear an affidavit of documents,13 but later cases assumed that the immunity
flowed from the prerogative.14 Of course, the rationale for Crown immunity from
injunction, specific performance and mandamus also applied to discovery: all
these remedies required that an order be made against the Crown.15 The Crown
had the right to refuse discovery even though it could obtain discovery itself.16
And the right of refusal was not lost even when the Crown was the plaintiff:17 the
courts never accepted the argument that the burden of discovery ought to fall on
the Crown when as plaintiff it invoked the benefit of the rules of procedure.18
In Australia, the courts interpreted the general language of Crown proceed-

ings statutes enacted early in the twentieth century as placing the Crown on the
same footing as a subject with respect to discovery.19 The result is that discovery
is available against the Crown in all Australian jurisdictions.20
Outside Australia, the Crown’s immunity persisted until the wave of reform
that started with the United Kingdom’s Crown Proceedings Act 1947. This Act,
among its many other reforms, abolished the Crown’s immunity from discovery
by providing that, in civil proceedings to which the Crown was a party, the Crown
could be required to make discovery of documents, to produce documents for
12 In Canada Deposit Insurance Corp. v. Code (1988) 49 D.L.R. (4th) 57 (Alta. C.A.), it was held
that Crown agents and servants were not immune from a subpoena requiring attendance at trial
to testify as a witness, including a subpoena duces tecum, which requires the witness to bring
relevant documents. It was only the pre-trial, discovery procedures from which the Crown was
immune. Of course, some answers or documents requested at trial would be inadmissible by
reason of Crown privilege: see ch. 5, Evidence, below.
13 See, e.g., Thomas v. The Queen (1874) L.R. 10 Q.B. 44.
14 See, e.g., A.-G. v. Newcastle-upon-Tyne Corp. [1897] 2 Q.B. 384, 395 (C.A.); Cth.v. Miller
(1910) 10 C.L.R. 742, 745 (H.C., Aust.); Crombie v. The King (1922) 52 O.L.R. 72, 74 (A.D.).
15 See ch. 2, Remedies, under headings 2.4, “Injunction”, 2.5, “Specific performance”, and 2.6,
“Mandamus”, above.
16 A.-G. v. Newcastle-upon-Tyne Corp., note 14, above, 395.
17 Central Canada Potash Co. v. A.G. Sask. (1974) 50 D.L.R. (3d) 560 (Sask. C.A.).
18 “The right to withhold discovery is a prerogative of the Crown which it does not relinquish by
instituting litigation”: A.-G. Ont. v. Toronto Junction Recreation Club (1904) 8 O.L.R. 440,
442 (H.C.).
19 Morissey v. Young (1896) 17 L.R. (N.S.W.) (Eq.) 157; Cth. v. Miller, note 14, above.
20 Cth., s. 64; N.S.W., s. 5; Qld., s. 9; S.A., s. 5; Tas., s. 5; Vic., s. 25; W.A., ss. 5, 12; A.C.T., s.
21; N.T., s. 21.
90
DISCOVERY 4.2(d)
inspection, and to answer interrogatories.21 New Zealand enacted a similar pro-

vision in 1950.22
In Canada, the United Kingdom Act became the basis for the Uniform Model
Act of 1950, which in turn became the basis for provincial Crown proceedings
statutes.23 Each province has now subjected the Crown to discovery.24 So has the
federal Parliament.25
(d) Designation of Crown representative
With respect to examination for discovery against the Crown, provision had
to be made to identify the person who was to answer written interrogatories26 or
who was to attend to be examined orally. The Uniform Model Act, by section 11,
simply provided that the rules of procedure regarding discovery “apply in the
same manner as if the Crown were a corporation”. This supplied a ready-made
solution to the problem of identifying the representative who was to attend to be
examined for discovery. In each Canadian province, the rules permit a party
seeking discovery from a corporation to designate the person who shall attend as
representative of the corporation; the corporation has the right to apply for an
order of substitution if the corporation considers that an inappropriate person has
been designated.
Six Canadian provinces have adopted the Uniform Model Act’s provision
and have assimilated the Crown to a corporation for discovery purposes.27 Man-
itoba and New Brunswick reverse this model by providing that the Crown (the
Attorney General) is to designate the official who is to be examined; however,
the court has the power to designate a different official.28 The rules applicable to
proceedings against the federal Crown are essentially the same as those of Man-
21 U.K., s. 28.
22 N.Z., s. 27.
23 See ch. 1, Introduction, under heading 1.3, “History of Crown proceedings”, above.
24 B.C., s. 9; Alta., s. 11; Sask., s. 13; Man., s. 9; Ont., s. 8; N.B., s. 10; N.S., s. 11; P.E.I., s. 8;
Nfld., s. 9. In Quebec alone there is no special section dealing with discovery, but the Crown
is liable by virtue of s. 94 of the Code of Civil Procedure (as am. by S.Q. 1992, c. 57, s. 202),
which provides that anyone with a claim against the Crown “may exercise it in the same manner
as if it were a recourse against a person of full age and capacity, subject only to the provisions
of this chapter”. The chapter goes on to exempt the Crown from any “extraordinary recourse”
or “provisional remedy”, but discovery (ss. 397-413) is outside the provisions of the Code on
those two topics.
25 Can., s. 27; Crown Liability and Proceedings (Provincial Court) Regulations, SOR/91-604, ss.
7, 8.
26 In the U.K. and N.Z., where examination for discovery is by written interrogatories, the Acts
provide that the court is to direct by which officer the interrogatories are to be answered: U.K.,
s. 28; N.Z., s. 27.
27 B.C., s. 9; Alta., s. 11; Sask., s. 13; N.S., s. 11; P.E.I., s. 8; Nfld., s. 9. There seems to be no
such provision in Quebec: note 24, above.
28 Man., s. 9; N.B., s. 10.
91
4.2(e) PROCEDURE
itoba and New Brunswick.29 Ontario’s Act provides that the Deputy Attorney
General is to designate the person who shall attend to be examined for discovery;
and there is no power in the court to substitute a different person.30 The Ontario
rule encourages plaintiffs to bring proceedings against individual Crown servants
as well as the Crown. If an individual minister31 or Crown servant is one of the
defendants, the plaintiff is entitled to examine him or her.32
Restrictions on the pre-trial discovery of ministers and Crown servants do
not apply to testimony at trial. In any proceeding, including a proceeding against
the Crown alone, an individual minister33 or Crown servant with some knowledge
of the facts may be compelled by subpoena to attend and testify at the trial and
to bring relevant documents.34
(e) Residual immunity
These statutory provisions have not completely abolished the Crown’s im-
munity from discovery. The statutory provisions in nine provinces (all except
British Columbia) apply only to proceedings against the Crown.35 The Crown as
plaintiff accordingly retains its common law immunity from discovery. In the
United Kingdom, New Zealand, most Australian jurisdictions, the Canadian fed-
eral jurisdiction and British Columbia, the Crown is subject to discovery whenever
it is a “party”. Even in these jurisdictions, the Crown would be immune from
discovery if it was not a party.36
The constitutional basis for each Canadian statute subjecting the Crown to
discovery is the authority of each legislative body over the liability of the Crown
29 Federal Court Rules, r. 456(3), (4); for analysis, see Irish Shipping v. The Queen [1974] 1 F.C.
445 (T.D.); Smith v. The Queen [1981] C.T.C. 476 (F.C.T.D.).
30 Ont., s. 8; Harrison Rock & Tunnel Co. v. The Queen (Ont.) (1980) 31 O.R. (2d) 573 (S.C.
Master).
31 Ainsworth Lumber Co. v. Can. (2003) 226 D.L.R. (4th) 93 (Alta. C.A.) (minister named as
defendant obliged to attend examination for discovery except during parliamentary sessions,
when he is excused by parliamentary privilege); TeleZone v. Can. (2004) 69 O.R. (3d) 161
(C.A.) (same decision, but extending the privilege for 40 days before and after a parliamentary
session).
32 This tactic is usually available in a tort case. In a contract case, however, the Crown may be
the only possible defendant.
33 Like other members of parliament, the minister is excused by parliamentary privilege while
Parliament or the Legislature is in session: note 31, above.
34 Canada Deposit Insurance Corp. v. Code (1988) 49 D.L.R. (4th) 57 (Alta. C.A.).
35 This is explicit in each of the statutory provisions, including that of Quebec, note 24, above.
36 Thornhill v. Dartmouth Broadcasting (1981) 45 N.S.R. (2d) 111 (S.C.); Re Mulroney and
Coates (1986) 54 O.R. (2d) 353 (H.C.). In Marek v. Cieslak (1974) 4 O.R. (2d) 348 (H.C.),
Goodman J. held that the Crown had no prerogative right to refuse discovery where the Crown
was not a party to the litigation. With respect, this seems to be a misreading of the English
sources relied upon by the judge: they were silent on the prerogative right of the Crown as a
non-party only because discovery was not available against a non-party in England in any
event.
92
DISCOVERY 4.2(f)
in right of its own government. But a Canadian legislative body has no power to
take a prerogative immunity away from another government. For example, the
province of Saskatchewan cannot make the Crown in right of Alberta liable to
discovery in Saskatchewan courts.37 Only the Legislature of Alberta could accom-
plish this result. The federal Crown is the only Canadian jurisdiction that has
subjected itself to discovery in the courts of other jurisdictions.38 Since no Ca-
nadian province has chosen to subject the Crown in right of its government to
discovery in all courts, residual immunities persist where a provincial government
is involved in litigation outside its own jurisdiction.39
(f) Crown privilege
Crown privilege (or public interest immunity) may be claimed by the Crown
(or any other party) whenever the disclosure of a document or the answer to a
question would be injurious to the public interest. If the claim is upheld, the
evidence will be inadmissible. Crown privilege is available at the discovery stage
as well as the trial stage of an action. Crown privilege is the subject of chapter 5,
Evidence, below.
37 Central Canada Potash Co. v. A.-G. Sask., note 17, above (federal Crown, which was a co-
plaintiff in the Saskatchewan courts, was not obliged to give discovery); Re Mulroney and
Coates, previous note (federal Crown ministers not obliged to submit to examination for
discovery in proceedings in the Nova Scotia or Ontario courts).
38 Where proceedings against the federal Crown are brought in the court of a province, the Crown
Liability and Proceedings (Provincial Court) Regulations, SOR/91-604, ss. 7, 8, make discovery
available on terms similar to those applicable to a corporation. Moreover, in Temelini v. Wright
(1999) 44 O.R. (3d) 609 (C.A.), the Ontario Court of Appeal held that section 27 of the federal
Crown Liability and Proceedings Act has the effect of subjecting the Crown to the applicable
rules of practice and procedure even in proceedings to which the Crown is not a party. In
Temelini the Crown was ordered to produce documents in its possession that were relevant to
a material issue in an action, even though the Crown was not a party to the action, since the
Ontario Rules of Civil Procedure made provision for such an order.
39 The Crown may be the plaintiff in another jurisdiction, as in the Central Canada Potash case,
note 17, above. Or discovery may be sought against a Crown in another jurisdiction where
discovery is available against a non-party, as in Re Mulroney and Coates, note 36, above. A
Crown has rarely been a defendant in another jurisdiction, because it has generally been thought
that the Crown can be sued only in its own jurisdiction. However, there are exceptions even to
this rule, e.g., A.-G. Can. v. Law Society of B.C. [1982] 2 S.C.R. 307 (federal Crown may be
sued in provincial court where constitutional validity of a federal statute is in issue). Since
1992, the federal Crown Liability and Proceedings Act, by s. 21, has permitted a claim against
the federal Crown to be brought in either the Federal Court or the superior court of the province
in which the claim arises. Note also the suggestion in Chapter 17, Federal Questions, under
heading 17.3(b), “Suits against Crown in right of provinces”, below, to the effect that provinces
should not be immune from suit in other provincial courts where the matter has a real and
substantial connection to the province in which the litigation is commenced.
93
4.3(a) PROCEDURE
4.3 Costs
(a) Definition
Costs are the costs of litigation, namely, court fees, counsel fees and other
expenses. The practice in the United Kingdom, also followed in Canada, Australia
and New Zealand, is for the court to order the unsuccessful party to civil litigation
to pay the costs of the successful party. That is not the practice in criminal cases,
where costs are not routinely awarded, although they are exceptionally awarded
against the Crown where there has been misconduct by the prosecution.40 Costs
are also occasionally awarded against the Crown as a remedy for breach of the
Charter of Rights.41
(b) Crown immunity
At common law, the Crown neither received nor paid costs.42 Blackstone
explained that “as it is his [the King’s] prerogative not to pay them to a subject,
so it is beneath his dignity to receive them”.43
The common law rule could of course be changed by a statute that bound
the Crown by express words or necessary implication, and the courts were not
slow to find a necessary implication in statutes authorizing the award of costs.44
Indeed, it is probably safe to say that the common law rule no longer obtains
anywhere. In most jurisdictions, there is now express statutory provision making
the Crown liable to pay costs and entitling the Crown to receive costs according
to the same rules as apply in proceedings between subjects.45 In those jurisdictions
40 R. v. Ciarniello (2006) 81 O.R. (3d) 561, paras. 31-37 (C.A.).

41 Hogg, Constitutional Law of Canada (5th ed., 2007, annually supplemented), sec. 40.2(g.3),
“Costs”.
42 Johnson v. The Queen [1904] A.C. 817 (P.C., Sierra Leone); A.-G. Qd. v. Holland (1912) 15
C.L.R. 46 (H.C., Aust.).
43 Blackstone, Commentaries on the Laws of England (Oxford at Clarendon, 1768), book 3, ch.
24, 400.
44 E.g., The King v. Atkinson [1905] V.L.R. 698 (S.C.); Affleck v. The King (1906) 3 C.L.R. 608;
R. (Man.) v. Thomas [1948] 2 W.W.R. 444 (Man. C.A.); Gooliah v. R. (1967) 59 W.W.R. 705
(Man. C.A.); Ferguson v. A.-G. Can. [1971] 2 W.W.R. 637 (B.C.S.C.); Bent v. N.S. Farm Loan
Bd. (1978) 30 N.S.R. (2d) 552 (N.S.A.D.); Wentworth v. A.-G. N.S.W. (1984) 154 C.L.R. 518
(H.C., Aust.).
45 Canada: Can., s. 28; B.C., s. 11; Alta., s. 16; Sask., s. 17; Man., s. 14; Ont., s. 13; N.B. s. 14;
N.S., s. 16; P.E.I., s. 13; Nfld., s. 14. United Kingdom: Administration of Justice (Miscellaneous
Provisions) Act 1933, s. 7. New Zealand: N.Z., s. 18. Australia: Cth., s. 64; N.S.W., s. 5; Qld.,
s. 9; Vic., ss. 18, 25; N.T., s. 10.
94
COSTS 4.3(d)
where there is no express provision, the same position obtains by reason of general
language that expressly or impliedly places the Crown in the same position as a
subject46 with respect to civil procedure.47 When costs are awarded to the Crown,
the Crown is entitled to receive the same costs that a private litigant would receive,
even when the Crown has been represented by law officers who are paid a fixed
annual salary.48
(d) Advance costs
The general rule is that “costs follow the event”. They cannot be awarded
until the end of the trial, when the outcome is known. At that time an award is
made against the unsuccessful party requiring that party to pay the costs of the
successful party. The trial judge has a discretion to depart from the general rule,
which is occasionally exercised by making no award of costs, leaving the parties
to bear their own costs. In litigation against the Crown, an unusual exercise of
discretion was to require the Crown to pay the costs of the unsuccessful party. In
B. (R.) v. Children’s Aid Society (1995),49 a case where Jehovah’s Witnesses
argued unsuccessfully that a blood transfusion given to their daughter against
their wishes was a violation of their Charter rights, the trial judge awarded costs
against the Crown, although it was the successful party. In the Supreme Court,
La Forest J., for the majority, described the award as “highly unusual”, but said
(without elaboration) that the case “raised special and peculiar problems”.50 On
this basis, he allowed the award to stand.
A more radical inroad into the deep pocket of the Crown is an award of
“advance costs” (or “interim costs”), ordering the Crown to pay the costs of a
person suing it, and to do so in advance of the trial and regardless of the ultimate
outcome.51 This innovation came in British Columbia v. Okanagan Indian Band
(2003).52 In that case, four Indian bands were logging on Crown land without a
licence from the provincial government. The government served the bands with
46 Ont., s. 13; Que., s. 94; Cth., s. 64; N.S.W., s. 5; W.A., ss. 5, 9; Tas., s. 5; A.C.T., s. 21.
47 With respect to criminal cases, see R.S. Reid and P.T. Burns, “The Power to Award Costs in
Criminal Cases” (1982) 24 Crim. L.Q. 455; M. Orkin, The Law of Costs (Canada Law Book,
Toronto, 2001), ch. 15; K. Jull, “Costs, the Charter and Regulatory Offences” (2002) 81 Can.
Bar Rev. 646.
48 A.-G. v. Shillibeer (1849) 4 Ex. 606, 154 E.R. 1356. In some jurisdictions, it is enacted that
costs are payable to the Crown even if the Crown was represented by a salaried officer, e.g.,
Can., s. 28(2); Courts of Justice Act, R.S.O. 1990, c. C.43, s. 131(2); P.E.I., s. 18.
49 [1995] 1 S.C.R. 315.
50 Id., para. 122.
51 Horsman and Morley, note 8, above, sec. 12.30.40(1). A less radical order that can be made in
advance of a trial is a “protective” order, which guarantees the public-interest claimant that no
costs order will be made against the claimant at the conclusion of the proceedings. Of course,
that does not finance the proceedings; it merely mitigates the risk of loss.
52 [2003] 3 S.C.R. 371. LeBel J. wrote for a six-judge majority; Major J. wrote for a three-judge
dissenting minority.
95
4.3(d) PROCEDURE
stop-work orders, and when logging continued commenced proceedings to en-

force the orders. The bands claimed that they had aboriginal title over the land,
and that the statutory requirement of a licence was unconstitutional. The bands
applied for an advance costs award, which the trial judge refused on the ground
that there was no precedent for advance costs being awarded in proceedings
involving the Crown, and to award them would appear to be prejudging the
outcome of the case. On appeal, the Court of Appeal granted the bands their
advance costs award against the Crown, and that decision was affirmed by the
Supreme Court of Canada. LeBel J., for the six-judge majority of the Supreme
Court, held that three criteria had to be present in order to justify an advance costs
award: (1) the applicants must be unable to afford to pay for the litigation; (2) the
applicants must have a “prima facie meritorious” case; and (3) the case must raise
issues of “public importance”.53 Since all three criteria were present in this case,
the trial judge had a discretion to order that the impecunious party’s costs be paid
in advance by the Crown, and he fell into error in not making that order. Major
J., writing for the three-judge dissenting minority, thought the trial judge’s reasons
for refusing the award were correct. He described the award as “a form of judicially
imposed legal aid” which was more properly the function of the law societies and
legislatures.54
One problem with the three criteria postulated in Okanagan is that they
would be applicable to many cases in which proceedings are brought against the
Crown (or defended) on Charter or aboriginal-right or other public-interest
grounds. They certainly seemed to be applicable in Little Sisters Book and Art
Emporium v. Canada (2007),55 where advance costs were sought by Little Sisters,
a Vancouver bookstore that catered to the gay and lesbian community in the city.
The bookstore had brought proceedings based on freedom of expression to secure
the release of books and magazines the importation of which was being blocked
by Canada Customs. The bookstore had already depleted its meagre resources by
taking an earlier case up to the Supreme Court of Canada, where it had secured a
ruling that Customs practices were tainted by systemic discrimination and unlaw-
ful interference with freedom of expression. The second case was necessary,
according to the bookstore, because Customs had not complied with the Court’s
ruling in the first case. The trial judge made an order for advance costs in favour
of the bookstore, finding that the three criteria of impecuniosity, prima facie merit
and public importance were all present, and that it was a proper case for such an
award. In the Supreme Court of Canada, Binnie J. would have deferred to the
discretion of the trial judge, but that was a dissenting view. Bastarache and LeBel
JJ., writing for the majority, now insisted that Okanagan was not intended “to
53 Id., para. 40.

54 Id., para. 63.
55 [2007] 1 S.C.R. 38. Bastarache and LeBel JJ. wrote for the five-judge majority; McLachlin
C.J. wrote for a two-judge concurring minority; Binnie J. wrote for a two-judge dissenting
minority.
96
COSTS 4.3(d)
create a parallel system of legal aid”, that “access to justice” was “not the para-
mount consideration in awarding costs”, that only the most “special”, “excep-
tional” and “rare” cases would qualify for advanced costs, and — most signifi-
cantly — that the facts of Okanagan “created a situation that would hardly ever
recur”.56
Little Sisters left the impression that the Court had changed its collective
mind about the wisdom of judicial orders forcing the Crown to finance public-
interest litigation brought against it. However, in R. v. Caron (2011),57 the Court
unanimously upheld another award of advance costs. Caron was charged with a
minor traffic offence (an illegal left turn) in Alberta which he defended on what
he argued was a constitutional ground, namely, that his traffic ticket was in English
only. He was refused legal aid by the province. He received $70,000 from the
federal Court Challenges Program, and he asked for more, but the program was
abolished before the request could be considered. The trial in provincial court
stretched on for months as both sides adduced expert evidence on the history of
French-language rights in the Northwest Territories and Alberta. During the trial,
the defendant ran out of funds and applied to the Court of Queen’s Bench for an
advance costs order against the Crown to enable him to pay the lawyers and
experts required to continue the proceeding. The Court of Queen’s Bench made
the order, the Crown paid the defendant, and the trial was completed. (The
provincial court accepted the defendant’s constitutional argument and acquitted
him on that ground.) After the trial was over, the Crown brought proceedings to
set aside the advance costs order, and that issue went on up to the Supreme Court.
Binnie J., who had dissented in Little Sisters, now wrote the opinion of the eight-
judge majority (and the ninth judge concurred in the result and had no significant
disagreement with his reasons). He held that the three Okanagan criteria of
impecuniosity, prima facie merit and public importance were satisfied. He re-
garded the case as “special” because of the radical nature of the constitutional
issue and the fact that the trial of the issue was well under way at the time of the
application for costs and could not be completed without an advance payment of
costs. He therefore affirmed the advance costs order. This was a criminal case
where costs are not normally ordered at all, let alone advance costs, but Binnie J.
said the case was “more in the nature of regular constitutional litigation conducted
by an impecunious plaintiff for the benefit of the Franco-Albertan community
generally”.58 Binnie J. also denied that he was creating an alternative legal aid
56 Id., paras. 5, 35, 36, 38, 40, 78. McLachlin C.J., concurring, emphasized that only in a “rare
case” would “special circumstances” justify the “extraordinary” award of advance costs: Id.,
paras. 88, 104-111.
57 2011 SCC 5. Binnie J. wrote the opinion of the eight-judge majority; Abella J. wrote a concurring
opinion that did not disagree with Binnie J’s opinion.
58 Id., para. 49.
97
4.4(a) PROCEDURE
scheme by judicial fiat or judicially reinstating the Court Challenges Program59

— although the case could easily be characterized in either of those ways.
4.4 Interest
(a) Prejudgment interest
We have already noticed that the Crown’s common law immunity from
prejudgment interest has been reversed in the Crown proceedings statutes. When
damages are awarded against the Crown, the Crown is also liable to an award of
interest on the principal sum dating back to the date when the cause of action
arose or when notice of the claim was given to the Crown.60
(b) Postjudgment interest
We have also noticed that the Crown is liable to pay interest on judgments
against the Crown from the date of the judgment to the date when the judgment
is paid.61
4.5 Limitation of actions
(a) Definition
Statutes of limitation are statutes that impose time limits on the commence-
ment of legal proceedings. If a proceeding is not commenced within the applicable
limitation period, the plaintiff’s right of action against the defendant is barred.
The purpose of statutes of limitation is to ensure that lawsuits are brought within
a reasonable time, before evidence has been lost or become unreliable, and so
that potential defendants are not subjected indefinitely to the risk of being sued.
(b) Crown immunity
The common law rule is that statutes of limitation do not bind the Crown.62
This means that if the Crown commences proceedings outside the applicable
59 Id., para. 37.

60 Chapter 2, Remedies, under heading 2.2(e), “Interest on damages”, above.
61 Chapter 3, Enforcement of Judgments, under heading 3.1(d), “Interest on judgment debts”,
above.
62 Does the doctrine of laches, which was developed by courts of equity to bar stale claims for
equitable remedies, bind the Crown when it seeks equitable remedies? The weight of authority
says no: Street, Governmental Liability (1953), 159, cites early cases; add to those Cooper v.
98
LIMITATION OF ACTIONS 4.5(c)
limitation period, the defendant is not permitted to plead the statute of limitation.63
It is said that time does not run against the Crown; but this maxim is simply an
application of the common law presumption that statutes do not bind the Crown.64
Most of the early statutes of limitation did not bind the Crown by express words
or necessary implication.
Although the common law position is that the Crown as plaintiff is not bound
by statutes of limitation, the Crown as defendant can take advantage of statutes
of limitation, using them to bar untimely proceedings against the Crown.65 The
reason for this asymmetrical result is that the presumption that the Crown is not
bound by statutes applies only when the statute would operate to the prejudice of
the Crown. There is no presumption that a statute conferring a benefit does not
apply to the Crown.66
(c) Statutory reform of limitation law
It is difficult to justify special privileges for the Crown with respect to the
limitation of actions.67 It is true that the Crown is, in every jurisdiction, a huge
organization which has to make and meet a large number of claims of various
kinds, and it is true that the litigation burdens which these present are different in
Stuart (1886) 7 L.R. (N.S.W.) (Eq.) 1; Kennedy v. M.N.R. [1929] Ex. C.R. 36; Re Director of
Soldier Settlement (1971) 18 D.L.R. (3d) 94 (Sask. Q.B.); contra, A.-G. v. Goldsbrough (1889)
15 V.L.R. 638 (F.C.). Also, laches may not be imputed to the A.-G. seeking an injunction to
prevent ultra vires action by a statutory body: A.-G. v. South Staffordshire Waterworks Co.
(1909), 25 T.L.R. 408 (Ch.D.); A.-G. (ex rel. Shannon) v. Geelong Harbour Trust Commrs.
[1933] V.L.R. 244 (S.C.). Nonetheless, Street argues by analogy to equitable estoppel (which
does bind the Crown: see ch. 13, Estoppel, under heading 13.2, “Crown bound by estoppel”,
below) that laches would now bind the Crown. The Crown proceedings statutes of Canada, the
United Kingdom, New Zealand and Australia are silent on the issue.
63 A.-G. Ont. v. Watkins (1975) 8 O.R. (2d) 513 (C.A.).
64 A.-G. v. Donaldson (1842) 10 M. & W. 117, 123-124, 152 E.R. 406, 408-409 (Ex. Div.). Contra,
Alta. v. Buys (1989) 59 D.L.R. (4th) 677, 688 (Alta. C.A.) (describing the Crown’s immunity
as “a special prerogative quite separate and apart from the notion that the Crown is not bound
by statute unless expressly stated”).
65 So held in A.-G. Ont. v. Palmer (1979) 28 O.R. (2d) 35 at 47 (C.A.). Contra, Rustomjee v. The
Queen (1876) 1 Q.B.D. 487; affd. (1876) 2 Q.B.D. 69 (C.A.); Fisher v. The Queen (1900) 26
V.L.R. 460 (S.C.). In these last two cases, the point does not seem to have been well argued.
The decisions are explicable on the basis that each concerned a petition of right, ordinary actions
not then being available against the Crown, and the terms of the relevant statutes of limitation
were construed as apt to include only ordinary actions. This construction was reinforced by the
circumstance that when the Crown could be sued only by petition of right, it could protect itself
from stale claims by refusing to endorse the petition: In re Mason [1929] 1 Ch. 1, 8 (C.A.).
66 See ch. 15, Statutes, under heading 15.7, “Benefit of statutes”, below.
67 Actions in tort against the Crown that are based on acts or omissions that occurred before the
in-force date of the applicable Crown proceedings statute are barred, not by virtue of any statute
of limitations, but because the Crown proceedings statutes did not remove Crown immunity
from tort with retroactive effect: ch. 1, Introduction, under heading 1.3(e), “Statutory reform”,
above.
99
4.5(d) PROCEDURE
scale from those of large private organizations. But there is no unique character-
istic of government activity in general which would justify special limitation
periods for proceedings by or against the Crown. In any event, as we shall see,
the common law with respect to limitation of actions is now mainly supplanted
by statute in all jurisdictions of Canada, as well as Australia, New Zealand and
the United Kingdom. Limitation periods of general application typically apply to
proceedings by and against the Crown, so that the Crown is placed in the same
position as other litigants.
(d) Limitation periods in the provinces
In eight provinces, the general limitation statute is binding on the Crown. In

five provinces,68 that result is accomplished by express words binding the Crown
in the limitation statute. In two provinces,69 the same result comes from the
definition of an “action” in the limitation statute, which includes a proceeding by
or against the Crown. In British Columbia,70 the limitation statute is binding on
the Crown without any express indication because the presumption of Crown
immunity from statutes has been reversed in British Columbia. That leaves two
provinces,71 Manitoba and Nova Scotia, with limitation statutes that do not bind
the Crown. The Crown proceedings statutes of those two provinces are silent
about the application of the general limitation statute to the Crown. They each
contain the usual provision that, in proceedings against the Crown, the rights of
the parties are as nearly as possible the same as in a suit between person and
person;72 but of course it was in proceedings by the Crown that the Crown
benefited from its immunity from limitation periods. Although there are no re-
ported cases illustrating the point, the conclusion is that in Manitoba and Nova
Scotia the Crown remains immune from limitation periods.
There are some special limitation provisions in the statute books that grant
advantages to the Crown. In Ontario, for example, the Crown as plaintiff is
68 Alta.: Limitations Act, R.S.A. 2000, c. L-12, s. 2(5); Sask.: Limitations Act, S.S. 2004, c. L-
16.1, s.4; Ont.: Limitations Act, 2002, S.O. 2002, c. 24, s. 3; Que.: Civil Code of Quebec, s.
2877; Nfld.: Limitations Act, S.N.L 1995, c. L-16.1, s. 4.
69 N.B.: Limitation of Actions Act, R.S.N.B. 1973, c. L-8, s. 1; P.E.I.: Statute of Limitations,
R.S.P.E.I. 1988, c. S-7, s. 1. Note that an express indication is no longer necessary to bind the
Crown in P.E.I.: next note.
70 B.C.: Limitation Act, R.S.B.C. 1996, c. 266 has no words binding the Crown, but no express
words are needed to make statutes, including limitation statutes, binding on the Crown, because
in B.C. (and P.E.I.) the presumption of Crown immunity from statute has been reversed. In
Markevich v. Can. [2003] 1 S.C.R. 94, para. 46, it was held that the Limitation Act of B.C.
applied to a claim by the Crown despite the absence of express words binding the Crown: note
87, below. Compare K.L.B. v. B.C. [2003] 2 S.C.R. 403 (tort claim against B.C. Crown statute-
barred).
71 Man.: Limitation of Actions Act, C.C.S.M., c. L150; N.S.: Limitation of Actions Act, R.S.N.S.
1989, c. 258.
72 Man., s. 14(1); N.S., s. 16(1) is to similar effect.
100
LIMITATION OF ACTIONS 4.5(d)
relieved by statute from limitation periods for the recovery of taxes, fines, pen-
alties and student loans.73 The Crown as defendant is occasionally given the
benefit of short periods of limitation,74 sometimes coupled with notice require-
ments.75 These special limitation periods have generally survived constitutional
scrutiny.76
The special limitation period that proved to be the most troublesome, based
on the volume of litigation it generated, was Ontario’s Public Authorities Protec-
tion Act, which, by s. 7, imposed a six-month limitation period for an act done
“in pursuance or execution or intended execution of any statutory or other public
duty or authority”. This provision was modelled on an old English statute (re-
pealed in the United Kingdom in 1954) that had been incorporated into the law
of a number of Commonwealth jurisdictions, including Ontario, Saskatchewan
and Manitoba.77 The provision applied to proceedings against the Crown, Crown
servants and other bodies exercising statutory authority.78 Because the provision
was often overlooked, and because six months was a very short time limit, many
claims against the Crown and other public authorities were barred by the provi-
sion. The courts often described the provision as “drastic” or “draconian”, and
gave it an artificially narrow (strict) interpretation in order to limit its application,
73 Limitations Act, 2002, S.O. 2002, c. 24, s. 16.

74 E.g., Man. s. 2 (two-year limitation period for claim against the Crown arising out of “the
condition of a highway” or “drainage works”); P.E.I., s. 2 (same as Man.); Municipal Act,
2001, S.O. 2001, c. 25, s. 44(7) (three-month limitation period for claim against municipality
for failure to repair highway or bridge). For Ontario, the Limitations Act, 2002, S.O. 2002, c.
24, Schedule, conveniently lists all statutory provisions imposing special limitation periods. In
most jurisdictions, they are hard to find. The Uniform Law Conference of Canada has recom-
mended the Ontario schedule approach (as well as a provision binding the Crown) in its proposed
uniform Limitations Act: Uniform Law Conference of Canada, Report on Uniform Limitations
Act, 2005.
75 Section 4.6, “Notice requirements”, below.
76 Special limitation periods treat a person injured by a public authority differently from other
injured persons. However, this is not a denial of equal protection under s. 15 of the Charter
because the difference is not one that is based on a ground listed in s. 15 or analogous to a listed
ground: Mirhadizadeh v. Ont. (1989) 69 O.R. (2d) 422 (C.A.) (six-month limitation period
upheld); Rudolph Wolff & Co. v. Can. [1990] 1 S.C.R. 695 (denial of provincial court jurisdiction
over federal Crown upheld); Filip v. Waterloo (1992) 98 D.L.R. (4th) 534 (Ont. C.A.) (notice
requirement for action against municipality upheld). With respect to constitutional claims,
however, see Prete v. Ont. (1993) 16 O.R. (3d) 161 (C.A.), discussed in sec. 4.5(f), below.
77 Re Colledge and Niagara Regional Police Commission (1984) 44 O.R. (2d) 289, paras. 14-17
(C.A.) per Dubin J.A. (discussing the history of the Ontario provision).
78 The primary application was of course to the provincial Crown and its servants and agents, but
by virtue of s. 32 of the federal Crown Liability and Proceedings Act (discussed in the next
section of this chapter) it also applied to the federal Crown in respect of any cause of action
arising in the province.
101
4.5(e) PROCEDURE
developing doctrine that was counterintuitive and difficult to apply.79 There is no

point in an extended discussion of this doctrine because in 2002 Ontario repealed
the six-month limitation period — at the same time as it adopted a new limitation
statute.80 Saskatchewan had a similar statute, the Public Officer’s Protection Act,
with a (less drastic) limitation period of one year, which the province repealed in
2004 at the same time as it adopted a new limitation statute.81 Manitoba still has
a similar statute, the Public Officers Act,82 but with the important difference that
the limitation period is two years. Manitoba’s failure to repeal this limitation
period is unfortunate, since, in our view, it is objectionable in principle to have a
special limitation period for the Crown and public authorities. However, Mani-
toba’s two-year period is much more liberal than the six-month period formerly
required by the Ontario Act;83 it has not in the past given rise to any reported
cases, and it is unlikely to be very troublesome in the future.
(e) Limitation periods in the federal jurisdiction
So far as the Crown in right of Canada (the federal Crown) is concerned, the
governing provision84 is s. 32 of the Crown Liability and Proceedings Act, which
provides that:
32. Except as otherwise provided in this Act or in any other Act of Parliament, the laws
relating to prescription and the limitation of actions in force in a province between
subject and subject apply to any proceedings by or against the Crown in respect of
any cause of action arising in that province, and proceedings by or against the Crown
in respect of a cause of action arising otherwise than in a province shall be taken
within six years after the cause of action arose.
79 The leading cases were Berardinelli v. Ont. Housing Corp. [1979] 1 S.C.R. 275 (six-month
limitation period inapplicable to a public housing authority because removal of ice from public
areas was a “private and operational matter”); Des Champs v. Conseil des écoles separées
catholiques de langue francaise de Prescott-Russell [1999] 3 S.C.R. 281 (six-month limitation
period inapplicable to school board because reorganization of board’s educational services was
“of an internal or operational nature, having a predominantly private aspect”); Berendsen v.
Ont. [2001] 2 S.C.R. 849 (six-month limitation period inapplicable to the Crown because
dumping of waste asphalt from road-making was “an operational decision of a predominantly
private character”).
80 Limitations Act, 2002, S.O. 2002, c. 24, s. 25.
81 Limitations Act, S.S. 2004, c. L-16.1, s. 29.
82 C.C.S.M., c. P230, s. 21(1).
83 Two years has replaced six years as the general limitation period in the 21st century Canadian
statutes of Alta. (2000), Ont. (2002) and Sask. (2004).
84 Note that, as in other jurisdictions, there are federal statutes that give the Crown or Crown
servants the benefit of special, usually short, limitation periods, e.g., National Defence Act,
R.S.C. 1985, c. N-5, s. 269 (six-month limitation for action arising out of exercise of military
authority). In Stieber v. Can. (2004) 24 B.C.L.R. (4th) 49 (C.A.), the Court relied on the doctrine
laid down in Berardinelli and Des Champs (note 79, above) to hold the six-month period in the
National Defence Act inapplicable to an injury suffered on a military base.
102
LIMITATION OF ACTIONS 4.5(e)
Section 32 provides a limitation period for proceedings by or against the federal

Crown, namely, the limitation period of the province in which the cause of action
arose.85 For the case where the cause of action did not arise in a province (an
accident might have occurred offshore, for example), a six-year period is pre-
scribed.
Proceedings against the federal Crown may be brought either in the Federal
Court or in the superior court of the province in which the cause of action arose.86
By virtue of s. 32, the limitation period is the same no matter which forum is
chosen by the plaintiff. It is the limitation period of the province in which the
cause of action arose. Where the cause of action did not arise in a province, the
proceedings can only be brought in the Federal Court and the limitation period is
six years.
Section 32 also applies to proceedings by the federal Crown, thereby revers-
ing the Crown’s common law immunity from statutes of limitation. In Markevich
v. Canada (2003),87 the question arose whether s. 32 imposed a limitation period
on the collection of unpaid federal income taxes, which are declared by the federal
Income Tax Act to be debts owed to the federal Crown. It was argued on behalf
of the Crown that the Income Tax Act was a complete code that should be
interpreted as permitting the Crown to enforce an obligation to pay taxes at any
time. The Supreme Court of Canada unanimously rejected this contention. Major
J., who wrote for the majority of the Court,88 started from the premise that s. 32
was excluded only if the Income Tax Act “otherwise provided”. The Act expressly
allowed the Minister of National Revenue to issue an assessment “at any time”
— and the issue of the assessment created the liability to pay the tax — but the
Act made no similar provision for the institution of collection proceedings. There-
fore, s. 32 applied to impose a limitation period on the collection proceedings.
Major J. held that the Crown’s cause of action arose otherwise than in a province,
because the tax was imposed on the world income of residents of Canada and it
was owed to the federal Crown “which is not located in any particular province”.89
He also thought that the equitable treatment of taxpayers called for a single
85 Section 32 is an “ambulatory” or “anticipatory” incorporation by reference, meaning that s. 32

incorporates provincial limitation periods as they stand from time to time, and not simply the
limitation period in existence in a province at the time when s. 32 was enacted: Wewaykum
Indian Band v. Can. [2002] 4 S.C.R. 245, para. 116 (so holding with respect to the similar
incorporation by reference in s. 39 of the Federal Courts Act).
86 Federal Courts Act, R.S.C. 1985, c. F-7, s. 17; Crown Liability and Proceedings Act, R.S.C.
1985, c. C-50, s. 21.
87 [2003] 1 S.C.R. 94. Major J. wrote the opinion of the seven-judge majority. Deschamps J. (with
Gonthier J.) wrote a short concurring opinion.
88 The Court was unanimous in the result and in the reasons, save for one issue which did not
affect the result. That issue was whether the federal Crown’s cause of action in the collection
proceedings arose in a province. Major J. for the majority said no; Deschamps J. for the
concurring minority said yes: next two notes.
89 Id., para. 40. Deschamps J., in her concurring opinion, disagreed, saying (para. 53) that “the
federal Crown is located in every province and not ‘otherwise than in a province’”.
103
4.5(e) PROCEDURE
limitation period to apply throughout the country, rather than different periods in
different provinces.90 He concluded that the six-year period stipulated by s. 32
was the applicable one. Since the taxes owing by the taxpayer in this case had
been assessed more than six years before the Crown instituted proceedings to
recover them, the taxpayer was entitled to a declaration that the Crown was statute-
barred from collecting the taxes. (After this decision, Parliament amended the
Income Tax Act to replace the six-year limitation period with a ten-year period
for the recovery of taxes.)91
Markevich also had to decide whether the taxpayer’s provincial income taxes
were statute-barred from collection by the federal Crown.92 This was an issue,
because the federal Crown had entered into tax-collection agreements with all
provinces except Quebec, under which the federal Crown, “as agent of the prov-
ince”, undertook to collect the provincial income tax of the residents of each
agreeing province. In return, the agreeing provinces undertook to keep their
income taxes in harmony with the federal income tax. These arrangements enabled
the residents of the agreeing provinces to file a single tax return with the federal
government reporting income for both federal and provincial tax purposes. In this
system, the assessment of the taxpayer in Markevich included provincial as well
as federal taxes. Whether the provincial tax collections were statute-barred de-
pended on the law of British Columbia, where the taxpayer was resident, not s.
32 of the federal Crown Liability and Proceedings Act. The province’s Income
Tax Act, like the federal Act, was silent on the point. The province’s Limitation
Act included a limitation period of six years for proceedings not specifically
provided for in another Act. The Limitation Act was binding on the provincial
Crown.93 Therefore the province’s right to collect back taxes was subject to a
limitation period of six years, and the federal Crown’s right to collect the taxes,
being derived from a delegation from the province, was no greater than that of
the province. Therefore, the collection of the taxpayer’s unpaid provincial taxes
was also governed by a six-year limitation period and was also statute-barred.
90 Id., para. 40. Deschamps J. again disagreed, saying (para. 55) that the cause of action arose in
B.C., where the taxpayer was resident, was employed and received his income. She also pointed
out (para. 56) that, since the federal Crown also collected provincial income taxes in all
provinces except Quebec, there were efficiency reasons for binding the federal tax collections
in each province to the same limitation period as the provincial tax collections. Deschamps J.’s
different view on this point did not lead her to dissent, because B.C.’s limitation period was
also six years, the same as prescribed by s. 32.
91 S.C. 2004, c. 22, s. 50, enacting new s. 222(4) of the Income Tax Act.
92 [2003] 1 S.C.R. 94, paras. 42-50.
93 B.C. has reversed the presumption of Crown immunity from statutes. Its Interpretation Act
provides that, unless a statute specifically provides otherwise, it is binding on the provincial
government: see ch. 15, Statutes, under heading 15.4(b), “Reversal of presumption”, below.
Since the Limitation Act did not provide otherwise, Major J. (para. 46) held that the Act applied
to proceedings by the provincial government (and its agent the federal government).
104
LIMITATION OF ACTIONS 4.5(f)
(f) Constitutional claims
Can the Crown as defendant rely on a limitation period to bar a remedy

based on constitutional law?94 In principle, the answer should be yes. In general,
constitutional claimants are not liberated from the rules of practice and procedure
of the court in which a claim is made, despite the fact that failure to comply with
the rules will often defeat proceedings. In the case of limitation periods, the policy
reasons for bringing finality to disputes and relieving defendants of the risk of
stale claims, when evidence is likely to be lost or unreliable, do not disappear
whenever the constitution is invoked by a claimant.95 Indeed, the Supreme Court
of Canada has required persons convicted of unconstitutional crimes to serve out
their time in prison if they were outside the time limits for appeals from convic-
tion.96
In Kingstreet Investments v. New Brunswick (2007),97 the Supreme Court of
Canada confirmed that the answer was indeed yes: the Crown was entitled to the
benefit of an applicable limitation period even when the claim against it was
based on constitutional law.98 Kingstreet was an action against the Crown in right
of New Brunswick to recover taxes that had been imposed by the provincial
Legislature without constitutional authority. (The taxes, which were on the sale
of liquor, were held to be indirect and outside the provincial power of taxation,
which is limited to “direct” taxes.) Bastarache J., who wrote the opinion of the
Court, was at pains to emphasize that unconstitutional taxes were recoverable,
not by virtue of the private law of restitution, but “as a matter of constitutional
right”.99 Nevertheless, he held that the recovery was subject to the province’s
94 An action for a declaration that a statute is unconstitutional is not subject to any limitation
period, and if the action is successful the rights and obligations of all persons affected by the
statute will be governed by the declaration as from the date of invalidity: Ravndahl v. Sask.
[2009] 1 S.C.R. 181, paras. 25-27. The question in the text concerns the case where a “personal
remedy” — more than a mere declaration of the law — is sought on constitutional grounds, for
example, the payment of a pension, the recovery of taxes, or damages. The limitation period
of general application is applicable to the personal remedy: Id., para. 24.
95 But see M. Pal, “The Supreme Court of Canada’s Approach to the Recovery of Ultra Vires
Taxes: At the Border of Private and Public Law” (2008) 66 U. Toronto Fac. L. Rev. 65, 88-91,
arguing that these policies in favour of limitation periods are outweighed by constitutional
values; the author concludes that constitutional claims should be free of limitation periods, at
least in some cases, for example, those for the recovery of ultra vires taxes. One of the three
co-authors of this book, Wade Wright, prefers Pal’s view to that expressed in the text.
96 R. v. Thomas [1990] 1 S.C.R. 713 (person convicted of felony-murder three years before the
offence was held to be unconstitutional could not obtain relief because accused no longer “in
the judicial system”).
97 [2007] 1 S.C.R. 3. Bastarache J. wrote the opinion of the Court.
98 Accord, St.-Onge v. Can. 2001 FCA 308 (F.C.A.) (Ontario’s general limitation period at that
time of six years barred Charter remedy).
99 Id., para. 34. For full discussion, see ch. 10, Restitution, under heading 10.6, “Recovery of
unauthorized taxes”, below; Hogg, Constitutional Law of Canada (5th ed., 2007, annually
supplemented), sec. 58.8.
105
4.5(f) PROCEDURE
limitation statute, which included a residuary limitation period (for all actions not
otherwise provided for) of six years after the cause of action arose. That period
applied to the plaintiffs’ action, and their recovery was accordingly limited to
those taxes that had been paid during the six-year period preceding the com-
mencement of the action.
In Kingstreet, Bastarache J. distinguished the Supreme Court’s earlier de-
cision in Amax Potash v. Government of Saskatchewan (1977),100 where the Court
had struck down a provincial law that purported to bar the recovery of unconsti-
tutional taxes. The bar had been enacted for the sole purpose of denying relief for
things done under an unconstitutional law. The invalidity of the bar was said to
be demanded by a principle of federalism: a constitutional restriction on the power
of the province to tax could not be evaded by the indirect means of barring the
recovery of a tax that had been levied in violation of the restriction.101 In Kings-
treet, Bastarache J. drew a distinction between a law that was enacted for the
purpose of barring the recovery of an unconstitutional tax from the Crown (Amax
Potash) and a law of general application that imposed a limitation period on a
class of generally-described causes of action. There was no reason, he said, why
a general limitation statute should not be effective to bar stale claims for the
recovery of unconstitutional taxes.102
The distinction between the limitation period of general application in Kings-
treet and the specific bar on the recovery of an unconstitutional tax in Amax
Potash is clear and sound in principle. There is, however, a middle case exem-
plified by Prete v. Ontario (1993).103 In that case, the plaintiff brought an action
for damages under s. 24 of the Charter of Rights (the remedy provision) alleging
various Charter breaches by the law officers of the Crown, who had prosecuted
him unsuccessfully. The plaintiff brought his action outside the six-month limi-
tation period that was then prescribed for proceedings against the Crown and
public officials by Ontario’s Public Authorities Protection Act . The Ontario Court
of Appeal held that the limitation period did not bar the action. Carthy J.A., who
wrote for the Court on this issue, explained that governments should not, even by
statute, be permitted “to decide when they would like to be free of [constitutional]
100 [1977] 2 S.C.R. 576.

101 Amax Potash was followed in Air Canada v. B.C. [1986] 2 S.C.R. 539 (petition of right to
recover unconstitutional taxes, levied at a time when the petition of right was the only means
of suing the Crown, cannot be blocked by discretionary refusal of fiat).
102 [2007] 1 S.C.R. 3, paras. 59-61. Accord, Can. v. Lameman [2008] 1 S.C.R. 372, paras. 13-18
(aboriginal-right claim against Crown statute-barred); Ravndahl v. Sask. [2009] 1 S.C.R. 181,
para. 17 (claim for widow’s benefit under provincial workers compensation legislation based
on s. 15 of Charter statute-barred).
103 (1993) 16 O.R. (3d) 161 (C.A.). Carthy J.A. wrote for the majority; Weiler J.A. dissented on
another point, but agreed with the majority that the limitation period was inapplicable.
106
NOTICE REQUIREMENTS 4.6(a)
controls”.104 The result was that the plaintiff was allowed to proceed with his
action, although an action framed in tort for malicious prosecution (which the
plaintiff’s constitutional claim closely resembled) would have been statute-barred.
Prete was decided before Kingstreet, and was (surprisingly) not referred to
in Kingstreet.105 It is possible that Prete has been implicitly overruled by Kings-
treet. The limitation period in the Public Authorities Protection Act had not been
passed for the specific purpose of barring constitutional claims, and it was not
limited to constitutional claims. On the other hand, the Public Authorities Protec-
tion Act was hardly a law of general application, since it applied only to proceed-
ings against public authorities (including the Crown) and imposed a very short
limitation period on those proceedings. In our view, Prete was rightly decided,
and for the reason given by Carthy J.A. The Crown should not be allowed to
immunize itself from constitutional controls by enacting special, short limitation
periods for proceedings against itself. Fortunately, as related earlier in this chapter,
the Public Authorities Protection Act has now been repealed in Ontario; a similar
statute that existed in Saskatchewan has also been repealed; and the only remain-
ing one is in Manitoba, where it prescribes a relatively forgiving period of two
years.106 For the most part, in all Canadian jurisdictions except Manitoba, it is the
general limitation statute that applies to proceedings against the Crown, and
Kingstreet establishes that the general limitation statute will apply to constitu-
tional as well as non-constitutional causes of action. Unfortunately, however, the
Canadian statute books have not been entirely cleansed of special limitation
periods in favour of the Crown.107 These special limitation periods are, of course,
effective to bar claims in tort or contract or other non-constitutional causes of
action,108 but in our view they will not apply to constitutional claims.
4.6 Notice requirements
(a) Definition
Notice requirements are provisions in some Crown proceedings statutes (or

other legislation) that require a person wishing to sue the Crown to give notice of
the claim to the Crown before commencing legal proceedings. The purpose of
104 Id., 168. The only limitation Carthy J.A. suggested was the doctrine of laches. In this case, the
action had been commenced within 18 months, which he evidently did not consider to be the
kind of unreasonable delay that would amount to laches.
105 Nor was Prete referred to in Lameman and Ravndahl, which followed Kingstreet, note 102,
above. However, the lower courts have adopted the reading of Prete that we defend below:
Alexis v. Toronto Police Services Bd. 2009 ONCA 847 (C.A.) provides citations.
106 Note 77 and accompanying text, above.
107 Notes 74, 76, above.
108 Constitutional challenges based on the equality guarantee of s. 15 of the Charter have been
unsuccessful: note 76, above.
107
4.6(b) PROCEDURE
these provisions is to provide an opportunity for the Crown to investigate claims

against it with a view to their settlement or more effective defence and to assist
the Crown in estimating potential financial liability. Failure to provide the notice
typically bars the proceedings, although some notice provisions permit a court to
relieve against the requirement when the claimant has a reasonable excuse for the
failure to provide the notice or when barring the proceedings would produce an
unjust result (as it normally would).
Notice requirements have been aptly described by the Ontario Law Reform
Commission as a “trap for the unwary”.109 This is particularly true for persons
who are not legally represented, or who consult a lawyer too late, although lawyers
often miss the requirements too. Notice requirement are special advantages for
the Crown in litigation, because private defendants are not protected by similar
requirements. They offend the theory of equality under which the Crown should
be subject to the same rules as other litigants. They cannot be blamed on archaic
Crown prerogatives: they are the product of deliberate choice by Canadian leg-
islators. Fortunately, the modern tendency has been for notice requirements to be
repealed, and they are now few and far between.
(b) Post-accident notice
The first kind of notice requirement, which we describe as a post-accident

notice, requires a potential plaintiff to give notice of a claim within a short period
of time after the accident or other event giving rise to the claim against the Crown.
The purpose of this requirement is to give the government the opportunity to
investigate the claim while the circumstances are still fresh.
Ontario’s Crown proceedings statute, by s. 7(3), requires notice to be given
to the Crown within ten days of an incident giving rise to a claim of breach of
occupier’s liability110 by the Crown. Failure to serve the notice within ten days
bars the action against the Crown. The provision includes no discretion in the
court before which the proceedings are brought to lift the bar in case of reasonable
excuse or injustice. Manitoba’s Crown proceedings statute, by s. 2(3), has a seven-
day notice requirement for claims against the Crown arising out of “the condition
of a highway, including a sidewalk”. Failure to serve the notice within seven days
bars the action, not only against the Crown, but also against “any servant of the
Crown”. Manitoba’s requirement is softened by a judicial power to permit the
action to proceed if the court considers that there was a “reasonable excuse” for
the failure to provide the notice. Prince Edward Island’s Crown proceedings
statute, by s. 2(3), has a similar notice requirement for claims against the Crown
arising out of the condition of a highway, including a sidewalk, although the
109 Ontario Law Reform Commission, Report on the Liability of the Crown (1989), 79.
110 The notice requirement applies to a claim under the Occupiers’ Liability Act, which was enacted
in 1985, and not just to a claim under the common law that governed before 1985: Latta v.
Ont., note 113, below.
108
NOTICE REQUIREMENTS 4.6(b)
P.E.I. notice period is 90 days (rather than seven), and a failure to give the notice
bars the claim only against the Crown (not against a servant of the Crown). The
Crown proceedings statutes of the federal jurisdiction111 and the other seven
provinces have no similar post-accident notice requirements; nor do the Crown
proceedings statutes of Australia, New Zealand or the United Kingdom. However,
there are post-accident notice requirements buried in a few other statutes.112
Since a notice requirement is a form of privative clause, barring entry to the
courts, one might expect the courts to have been ingenious in trying to avoid the
drastic consequence of a failure to give notice. What the courts have done is
recognize that a claimant has not usually consulted a lawyer within the ten-day
period following the accident, and that if the claimant did write a report or letter
of complaint within the ten-day period, that report or letter should be treated as a
valid notice even if it is somewhat vague in its notification of incident, time, place
and nature of legal claim.113 Where there is a “reasonable excuse” exception, this
has been interpreted as protecting the claimant who suffered a serious injury and
failed to give notice during a long period of treatment and rehabilitation.114 But
the courts have not given an artificially narrow interpretation to the notice re-
quirements. They have said that “normal principles of statutory interpretation”,
rather than a “strict approach”, should be applied.115 In Latta v. Ontario (2002),116
the question arose whether Ontario’s notice requirement, which was introduced
into the Crown proceedings statute in 1965 when occupiers’ liability was governed
by the common law, should be treated as applicable to a claim under the Occupiers’
Liability Act, which was enacted in 1985. The Ontario Court of Appeal answered
yes: the Occupiers’ Liability Act simply replaced a common law duty with a
statutory duty, and the ten-day notice requirement of the Crown proceedings
statute survived the change and continued to apply. This is undoubtedly the right
answer, applying normal principles of statutory interpretation, but the Court could
have decided differently if it were determined to restrict the effect of the notice
requirement by a strict interpretation.
In most cases, of course, there is not much room for interpretation of the
categorical language of the notice requirements, which expressly bar actions
brought in breach of the requirements. The courts have accordingly barred the
111 A post-accident notice requirement in Can., s. 12, was repealed by S.C. 1999, c. 31, s. 70.
112 E.g., Public Transportation and Highway Improvement Act, R.S.O. 1990, c. P.50, s. 33(4) (10-
day notice of claim against Crown for failure to repair road); Municipal Act, 2001, S.O. 2001,
c. 25, s. 44(7) (10-day notice of claim against municipality for failure to repair highway or
bridge).
113 Latta v. Ont. (2002) 62 O.R. (3d) 7, paras. 23-35 (C.A.) per MacPherson J.A. for the majority,
citing a line of previous cases.
114 Crinson v. Toronto (2010) 100 O.R. (3d) 366 (C.A.) (interpreting reasonable excuse in Munic-
ipal Act, note 112, above, s. 44(12)).
115 Mattick Estate v. Ont. (2001) 52 O.R. (3d) 221 , 225-226 (C.A.) per Goudge J.A. for the Court.
116 Latta v. Ont., note 113, above, following Mattick Estate, previous note.
109
4.6(c) PROCEDURE
action when a notice is required and has not been given.117 However, if a notice
requirement applies only to the Crown, a failure to give the notice will not bar
the action against other defendants, including Crown servants, to whom the notice
requirement does not apply.
(c) Pre-action notice
A second kind of notice requirement, which we describe as a pre-action

notice, requires a potential plaintiff to give notice of a claim within a stipulated
period before initiating legal proceedings against the Crown to enforce the claim.
The purpose of this requirement is obscure, but it is probably intended to encour-
age the investigation and settlement of claims before the expense of litigation has
been incurred.
Ontario’s Crown proceedings statute, by s. 7(1), provides that no action may
be brought to enforce a claim against the Crown unless the claimant has given
notice of the claim at least sixty days before the commencement of the action.
The Crown proceedings statutes of New Brunswick, Nova Scotia and Prince
Edward Island contain a similar pre-action notice requirement.118 Where timely
notice is not given, the plaintiff’s action against the Crown is barred, and there is
no discretion in the court before which the action is brought to lift the bar in case
of reasonable excuse or injustice. Sometimes, the bringing of an action without
prior notice can be remedied by serving a proper notice and bringing a new action
after the required notice period, but that will not work if the defect is only
discovered after the expiry of the limitation period when it is too late for corrective
action.119 An action that is barred by failure to give timely notice can still proceed
against other defendants, including individual Crown servants, who are not enti-
tled to the notice.120 The Crown proceedings statutes of the federal jurisdiction121
and the remaining six provinces have no similar pre-action notice requirements;
nor do the Crown proceedings statutes of Australia, New Zealand and the United
Kingdom.
117 E.g., Bannon v. Thunder Bay (2000) 48 O.R. (3d) 1 (C.A.) (post-accident notice not provided);
Beardsley v. Ont. (2001) 57 O.R. (3d) 1 (C.A.) (pre-action notice not provided); Brown v.
Toronto (2004) 70 O.R. (3d) 417 (C.A.) (post-accident notice not provided); Miguna v. Ont.
(2005) 262 D.L.R. (4th) 222 (Ont. C.A.) (pre-action notice not provided).
118 N.B., s. 15 (two months); N.S., s. 18 (two months); P.E.I., s. 10 (90 days).
119 Ont., s. 7(2), expands the limitation period for the case where the notice is served before the
expiry of the limitation period but less than 60 days before the expiry of the limitation period.
120 Beardsley v. Ont. (2001) 57 O.R. (3d) 1 (C.A.); Miguna v. Ont. (2005) 262 D.L.R. (4th) 222
(Ont. C.A.).
121 A pre-action notice requirement in Can., s. 23, was repealed by S.C. 1990, c. 8, s. 29. This
followed the decision in Peaker v. Canada Post (1989) 68 O.R. (2d) 8, 23 (H.C.), which struck
down s. 23 for breach of the equality guarantee (s. 15) of the Charter. The decision was wrong
in light of the cases referred to in note 76, above.
110
NOTICE REQUIREMENTS 4.6(d)
(d) Constitutional notice
All Canadian jurisdictions have enacted a requirement that notice be given

to the Attorney General of any proceedings in which the constitutionality of a
statute is to be challenged.122 The statutes then give the Attorney General the right
to intervene in the proceedings. This requirement is not unique to proceedings
involving the Crown, because it applies to all kinds of proceedings, including
civil litigation between private parties. Indeed, it is in litigation to which the
Crown is not a party that the requirement is really needed, although it also applies
to litigation to which the Crown is a party. Unlike the post-accident and pre-
action notice requirements discussed in the previous sections of this chapter, the
constitutional notice requirement has a strong public purpose, and that is to ensure
that the Attorney General has the opportunity to participate in proceedings in
which a statute is under challenge. The law officers of the Crown have the
experience and resources to make a strong constitutional argument to the court,
and a statute should not be held invalid without first hearing from counsel for the
Attorney General — as occasionally happened before notice requirements were
enacted.
In the Federal Court123 and the Supreme Court of Canada,124 the notice must
be given to all eleven Attorneys General. In the provinces,125 the general rule is
that both the federal and the provincial Attorney General must be served; in two
provinces,126 only the provincial Attorney General need be served even if it is a
federal statute that is under challenge. The statutes forbid the court in which the
proceedings are taken from deciding the constitutional question if notice has not
been served on the requisite Attorneys General. However, from time to time, a
court does decide a constitutional question although no notice has been given.
When that happens, the dominant view is that the decision on the constitutional
question is a nullity, although there are cases that hold that the decision is voidable
122 Hogg, Constitutional Law of Canada (5th ed., 2007, annually supplemented), sec. 59.6(a).
123 Federal Courts Act, R.S.C. 1985, c. F-7, s. 57.
124 Supreme Court Act, R.S.C. 1985, c. S-26, s. 53 (references); Rules of the Supreme Court of
Canada, 1983, rules 18 (appeals and references), 32 (appeals).
125 B.C.: Constitutional Question Act, R.S.B.C. 1996, c. 68, s. 8; Alta.: Judicature Act, R.S.A.
2000, c. J-2, s. 24; Sask.: Constitutional Questions Act, R.S.S. 1978, c. C-29, s. 8; Man.:
Constitutional Questions Act, C.C.S.M., c. C-180, s. 7; Ont.: Courts of Justice Act, R.S.O.
1990, c. C.43, s. 109; Que.: Code of Civil Procedure, R.S.Q. 1977, c. C-25, s. 95; N.B.: Judicature
Act, R.S.N.B. 1973, c. J-2, s. 22; N.S.: Constitutional Questions Act, R.S.N.S. 1989, c. 89, s.
10; P.E.I.: Supreme Court Act, R.S.P.E.I. 1988, c. S-10, s. 41; Nfld: Judicature Act, R.S.N.L.
1990, c. J-4, s. 57. The relevant provisions for the three territories are Yukon: Constitutional
Questions Act, R.S.Y. 2002, c. 39, s. 2; Nunavut: Judicature Act (Nunavut), S.N.W.T. 1988, c.
34, s. 1, s. 58; N.W.T.: Judicature Act, R.S.N.W.T. 1988, c. J-1, s. 59.
126 N.S. and Que. In practice, however, the courts of those provinces require that the federal
Attorney General be notified of challenges to the constitutional validity of federal legislation.
111
4.6(d) PROCEDURE
only, requiring a demonstration of prejudice on the part of the Attorney General

to nullify the decision.127
127 For more detail, see Hogg, note 122, above.
112
5
Evidence
5.1 Definition of public interest immunity 114

5.2 Comparison with other privileges 114
5.3 Procedure 116
(a) General 116
(b) Form of claim 116
(c) Claim made before trial 117
(d) Claim made during trial 118
(e) Representation of Crown 119
5.4 Judicial review 120
(a) History 120
(b) Balancing of interests 122
(c) Balancing in criminal cases 124
(d) Inspection 125
(e) Disclosure 125
(f) Disclosure of Crown brief 126
(g) Disclosure under Canada Evidence Act 128
5.5 Class claims 129
(a) General rule 129
(b) Candour in public service 129
5.6 Cabinet documents 130
(a) Common law 130
(b) Canada Evidence Act, s. 39 132
5.7 National security 136
5.8 Oral evidence 140
5.9 Real evidence 142
5.10 Informer privilege 142
(a) Nature of informer privilege 142
(b) Scope of informer privilege 146
(c) Other confidential information 148
5.11 Confidentiality laws 148
5.12 Freedom of information laws 149
5.1 EVIDENCE
5.1 Definition of public interest immunity

The doctrine of “public interest immunity”, or “Crown privilege” (as it used
to be called),1 is a rule of evidence,2 which may be shortly stated as follows:
evidence that is relevant and otherwise admissible must be excluded if its admis-
sion would be injurious to the public interest.
The doctrine of public interest immunity excludes from litigation some
material that is peculiarly sensitive. A clear case is information that must be kept
secret on grounds of national security, for example, a letter dealing with the
supply of oil to naval vessels in wartime,3 or the plans of a new submarine.4
Another clear case is information identifying a police informer which, if disclosed,
would endanger the informer and eliminate police sources of information.5 Oth-
erwise, there are not many clear cases. As the ensuing account will show, there
is no hard-and-fast rule as to the kind of injury to the public interest that will
support a claim of Crown privilege. It is for the court to which the claim is made
to assess the gravity of the risk to the public interest that would be caused by
disclosure, and to balance that risk against the risk to the administration of justice
that would be caused by denial of the evidence to the litigants. Such a balancing
process is inherently discretionary.6
5.2 Comparison with other privileges

The term “public interest immunity” has now generally replaced “Crown
privilege” as the name for the doctrine. The objections to the term “Crown
privilege” are twofold. First, although the doctrine is often invoked by the Crown,
the claimant need not be the Crown,7 and the excluded evidence need not be in
1 See Horsman and Morley (eds.), Government Liability (2006, annually supplemented), sec.
12.20.30; Hubbard, Magotiaux and Duncan, The Law of Privilege in Canada (2008, annually
supplemented), chs. 2-5; Cooper, Crown Privilege (1990); Sopinka, Lederman and Bryant, The
Law of Evidence in Canada (2nd ed., 1999), ch. 15; Lordon, Crown Law (1991), ch. 13.
2 It is a rule of evidence in the sense that it addresses the admissibility of evidence. A.W. Mewett,
“State Secrets in Canada” (1985) 63 Can. Bar Rev. 358 argues that, for the purpose of Canada’s
federal distribution of powers, public interest immunity is not part of the law of evidence. This
argument is supported by Bisaillon v. Keable [1983] 2 S.C.R. 60, which decided that the police
informer rule, which prohibits the disclosure of the identity of police informers, was a rule of
criminal law that could be altered only by the federal Parliament and was not affected by a
provincial codification of the law of evidence. The court did take the view (at 96) that the police
informer rule was not a branch of Crown privilege. However, the traditional view is otherwise:
heading 5.10, “Informer privilege”, below.
3 Asiatic Petroleum Co. v. Anglo-Persian Oil Co. [1916] 1 K.B. 822 (C.A.).
4 Duncan v. Cammell Laird & Co. [1942] A.C. 624 (H.L.).
5 Section 5.10, “Informer privilege”, below.
6 Section 5.4, “Judicial review”, below.
7 E.g., Australian National Airlines v. Cth. (1975) 132 C.L.R. 582 (H.C., Aust.); D. v. National
Society for Prevention of Cruelty to Children [1978] A.C. 171 (H.L.).
114
COMPARISON WITH OTHER PRIVILEGES 5.2
the possession of the Crown.8 Secondly, the doctrine is not a “privilege” of the
same kind as other privileges conferred by the law of evidence, such as the
privilege not to incriminate oneself, or the privilege not to disclose communica-
tions with one’s spouse or one’s legal adviser.
There are several important differences between the “true privileges” of the
law of evidence and public interest immunity. The first difference is that each of
the true privileges exists for the protection of the individual who is entitled to
assert the privilege, and the privilege may be waived by the individual if he or
she is willing to give evidence. Public interest immunity, however, exists for the
protection of the public interest and may not be waived by any individual;9 indeed,
it is “a rule on which the judge should, if necessary, insist, even though no
objection is taken at all”.10
A second difference is that matters in respect of which one of the true
privileges is claimed can always be proved by the evidence of other witnesses
who are not entitled (or do not wish) to assert the privilege. But if the public
interest will be injured by the admission of certain evidence, it will be equally
injured by other evidence tending to disclose the same facts. For example, sec-
ondary evidence is admissible to prove the contents of a document excluded by
reason of a true privilege,11 but is inadmissible to prove the contents of a document
excluded by reason of public interest immunity.12 And, by the same token, evi-
dence that would be injurious to the public interest if disclosed becomes admis-
sible if it has previously been published;13 since the damage was done on the
occasion of the previous publication, and the information is no longer secret, it
8 Ibid.
9 The conventional wisdom is that the immunity cannot be waived even by a minister. In theory,
once a minister has concluded that disclosure of information would be harmful to the public
interest, the minister is under a duty to claim public interest immunity. In practice, assessment
of harm to the public interest is a matter of discretion, especially if the minister also pays
attention to the significance of the information for the litigation, as ministers in the United
Kingdom are now instructed, both by the courts and by government, to do: R. v. Chief Constable;
Ex parte Wiley [1995] 1 A.C. 274, 298 (H.L.) per Lord Woolf; G. Ganz, “Volte-Face on Public
Interest Immunity” (1997) 60 Mod. L.R. 552, 555. The immunity certainly cannot be waived
by any official below the level of minister, let alone a private party.
10 Duncan v. Cammell Laird & Co., note 4 above, 642.
11 Calcraft v. Guest [1898] 1 Q.B. 759 (C.A.); Rumping v. D.P.P. [1964] A.C. 814 (H.L.).
12 Asiatic Petroleum Co. v. Anglo-Persian Oil Co., note 3, above (copy letter); Ankin v. London
& N.E. Ry. Co. [1930] 1 K.B. 527 (C.A.) (copy report).
13 Marconi’s Wireless Telegraph Co. v. Cth. (No. 2) (1913) 16 C.L.R. 178 (H.C., Aust.) (radio
apparatus for which privilege was claimed was the subject of a patent); R. v. Vanguard Hutter-
ian [1979] 4 W.W.R. 173 (Sask. C.A.) (no privilege for statements made at public meetings);
Babcock v. Can. [2002] 3 S.C.R. 3, para. 33 (documents had already been produced). Any
documents that are accessible to the public under a freedom of information statute cannot be
the subject of a successful claim of public interest immunity: Fletcher Timber v. A.-G. [1984]
1 N.Z.L.R. 290, 302, 305-306 (C.A.); see also section 5.12, “Freedom of information laws”,
below.
115
5.3(a) EVIDENCE
would be unfair and unrealistic to withhold the material from litigation in which
it is relevant.
A third difference is that the right to withhold evidence by reason of a true
privilege can be displaced by proof of fraud,14 but the right to withhold evidence
by reason of public interest immunity cannot be so displaced.15
5.3 Procedure
(a) General
A claim of public interest immunity may be made in any proceedings, civil

or criminal, before any court or tribunal, and at any stage of the proceedings.16
The claim need not be made by the Crown: it can be made by a private party (or
private witness)17 or even by the court of its own motion.18
(b) Form of claim
Whoever makes the claim of public interest immunity, it is customarily

supported by the affidavit or certificate19 of a minister or deputy minister20 as-
serting that the public interest would be injured by disclosure of the evidence.
14 O’Rourke v. Darbishire [1920] A.C. 581 (H.L.).

15 Auten v. Rayner [1958] 1 W.L.R. 1300 (C.A.).
16 In Canada, there are rules regarding the forum and procedure only in the federal jurisdiction.
The Canada Evidence Act, R.S.C. 1985, c. C-5, ss. 37-39, establishes three categories of public
interest immunity: (1) claims based on a “specified public interest”, discussed in sec. 5.4(g),
“Disclosure under Canada Evidence Act”, below; (2) claims based on “international relations
or national defence or national security”, discussed in sec. 5.7, “National security”, below; and
(3) claims based on “a confidence of the Queen’s Privy Council for Canada”, discussed in sec.
5.6(b), “Canada Evidence Act, s. 39”, below.
17 Note 7, above.
18 Note 10, above.
19 The Report of the Federal/Provincial Task Force on Uniform Rules of Evidence (Uniform Law
Conference of Canada; published by Carswell Co., 1982), 448, 460, expressed a preference for
a certificate over an affidavit as the vehicle for a claim of Crown privilege. The Report argued
that a certificate is the usual means of informing a court as to the official position of a
government, as opposed to the personal testimony of a witness. Moreover, a certificate, unlike
an affidavit, does not expose the person who gives it to cross-examination. It is a certificate
that is required under Canada Evidence Act, ss. 37, 39; note 16, above.
20 In some Canadian provinces, e.g., Ont. (Evidence Act, R.S.O. 1990, c. E.23, s. 30), there is
explicit authority for a claim of public interest immunity to be made by “the deputy head or
other officer of the ministry”. Such a provision is not necessary to enable the claim to be made
by the deputy minister (permanent head) of a department: see next note and accompanying
quotation.
116
PROCEDURE 5.3(c)
The importance of a ministerial certificate was emphasized by Viscount Simon

L.C. in Duncan v. Cammell Laird:21
The essential matter is that the decision to object should be taken by the minister
who is the political head of the department, and that he should have seen and
considered the contents of the documents and himself have formed the view that on
grounds of public interest they ought not to be produced. . . . Instances may arise
where it is not convenient or practicable for the political minister to act (e.g. he may
be out of reach, or ill, or the department may be one where the effective head is a
permanent official), and in such cases it would be reasonable for the objection to be
taken, as it has often been taken in the past, by the permanent head.
This requirement of a ministerial certificate cannot be regarded as absolute,22
for that would be inconsistent with another equally well-settled rule (which was
also mentioned by Viscount Simon) that the judge should himself insist on the
withholding of material which would be injurious to the public interest, “even
though no objection is taken at all”.23 If evidence can be excluded on no objection
at all, then clearly it can be excluded on an informal objection; and in a number
of the old cases, evidence was excluded on no more than the submission of counsel
appearing for one of the parties.24
(c) Claim made before trial
A claim of public interest immunity may be made before trial. Usually, this
will occur at the discovery stage of proceedings. Now that discovery is generally
available against the Crown,25 this method of claiming the immunity can be used
by the Crown in civil proceedings to which it is a party.26 Although discovery is
not available in criminal proceedings, in Canada the Crown is constitutionally
obliged to make pre-trial disclosure of all material in its possession that might be
relevant to the conduct of the defence (the “Crown brief”).27 If public interest
immunity is claimed for a document that would normally be disclosed, the claim
would be made at the time when the Crown brief is disclosed. Another way in
21 [1942] A.C. 624, 638 (H.L.).

22 Note, however, s. 39 of the Canada Evidence Act, R.S.C. 1985, c. C-5, which provides that
upon the filing of a certificate stating that documents contain “cabinet confidences”, the doc-
uments cannot be disclosed and no court is permitted to examine them to determine if the claims
in the certificate are valid. See sec. 5.6(b), “Canada Evidence Act, s. 39”, below.
23 Note 10, above, 642.
24 Anderson v. Hamilton (1816) 2 Brod. & B. 156, note (b), 129 E.R. 917, note (b); Home v.
Bentinck (1820) 2 Brod. & B. 130; 129 E.R. 907; Hennessy v. Wright (1888) 21 Q.B.D. 509;
Spitzel v. Beckx (1890) 16 V.L.R. 661. A rare modern example is Smerchanski v. Lewis (1981)
31 O.R. (2d) 705, 710 (C.A.) (counsel’s explanation of the objection to disclosure held suffi-
cient). Counsel’s objection has always sufficed in the police informer cases: see Bisaillon v.
Keable [1983] 2 S.C.R. 60, 97.
25 Chapter 4, Procedure, under heading 4.2, “Discovery”, above.
26 In some jurisdictions, discovery is available against non-parties as well.
27 Section 5.4(c), “Balancing in criminal cases”, below.
117
5.3(d) EVIDENCE
which the claim can be made before the trial is where a subpoena duces tecum is
served on a Crown official28 (or other witness) calling for the production of
documents by the witness at the trial. Public interest immunity can be claimed
for the documents in an application to quash the subpoena.29 When a claim is
disposed of before the trial, there will normally be an immediate avenue of appeal
to the losing party.
(d) Claim made during trial
Sometimes a claim of public interest immunity is not made until the trial is
under way. Discovery is not available in criminal proceedings, and pre-trial
disclosure by the Crown may be defective or late. Discovery will not necessarily
raise the issue in civil proceedings, especially if the Crown is not a party. Sub-
poenas are not always served well in advance of the trial date. In these situations,
the trial judge may have to rule on a claim of public interest immunity in the
course of the trial.
In most jurisdictions, the rules of civil procedure reflect a policy against the
interruption of a trial, so that an evidentiary ruling in mid-trial cannot be appealed
until the trial is over. This is not a serious problem if the court accepts the claim
of public interest immunity, so that the disputed evidence is not disclosed. In that
case, if the decision is wrong, the consequence is no different from any other
erroneous decision in the course of a trial, and the question of an appeal can await
the outcome of the trial. But if the court rejects the claim, then the judge will
obviously order that the disputed evidence must be disclosed. In that case, if the
decision is wrong, the disclosure of the evidence will cause injury, perhaps
irreparable injury, to the public interest. And yet there may be no immediate
appeal from the decision.30
This situation arose in R. v. Snider (1954),31 which was a criminal prosecution
for gambling offences. A subpoena duces tecum was served during the course of
the trial by the Crown prosecutor on an official of the Department of National
Revenue. The subpoena called for the production of the accused’s income tax
returns. The Minister of National Revenue objected to the production on the
28 Crown agents, officers and servants have no immunity from a subpoena (order to attend as a
witness), including a subpoena duces tecum (order to attend as a witness bringing relevant
documents): Canada Deposit Insurance Corp. v. Code (1988) 49 D.L.R. (4th) 57 (Alta. C.A.).
29 E.g., Carey v. Ont. [1986] 2 S.C.R. 637.
30 In some jurisdictions, in civil proceedings, where an order to produce documents is made
against a non-party (who would have no right of appeal from an adverse decision at the end of
the trial), the order is treated as final (rather than interlocutory), which opens up an avenue of
appeal: Guaranty Trust Co. v. Fleming [1946] O.R. 817 (C.A.); Homestake Mining Co. v.
Texasgulf Potash Co. (1977) 76 D.L.R. (3d) 521 (Sask. C.A.); Smerchanski v. Lewis (1980) 30
O.R. (2d) 370 (C.A.); G.D. Watson, “Finality and Civil Appeals – A Canadian Perspective”
(1984) 47 Law & Contemp. Probs. 11.
31 [1954] S.C.R. 479.
118
PROCEDURE 5.3(e)
ground of Crown privilege (public interest immunity). The trial judge overruled
the objection and ordered the production of the income tax returns. This order
could not be appealed under the normal rules of criminal procedure. The order
was in fact indirectly appealed by the intervention of the government of British
Columbia, which directed a reference to the British Columbia Court of Appeal
essentially asking whether the trial judge was right to hold that the documents
were not privileged. In the format of a reference, this issue was determined by
the British Columbia Court of Appeal, and ultimately by the Supreme Court of
Canada (which agreed with the trial judge’s ruling). Although none of the reports
says so, presumably the trial judge cooperated with the reference by staying the
order to produce and adjourning the trial pending the disposition of the reference.
It is obviously unsatisfactory that the appeal of an order that was seen by the
Minister of National Revenue as impairing the integrity of the self-assessment
policy of the Income Tax Act should be possible only by the extraordinary
intervention of a government and the discretionary cooperation of the trial judge.
Section 37 of the Canada Evidence Act, which applies to cases involving
the Crown in right of Canada and to prosecutions under the Criminal Code, confers
an immediate right of appeal from a ruling on public interest immunity; that right
is available even in the midst of a trial.32 In Quebec, the Code of Civil Procedure
allows an immediate appeal from a ruling by a trial court rejecting a claim of
Crown privilege.33 The general policy against interrupting a trial is seen as out-
weighed by the risk of damage that could be caused by the wrongful disclosure
of privileged information. This right of appeal ought to be provided for in other
jurisdictions.
(e) Representation of Crown
In litigation to which the Crown is a party, the Crown may be represented

as of right, and no difficulty arises as to who should make and argue any claim
of public interest immunity. In litigation to which the Crown is not a party, one
of the parties may be willing or even eager to object to the production of state
documents or other evidence which might injure the public interest. Of course,
any such objection will generally be motivated by considerations of self-interest
rather than public interest, but that need not affect the quality of the argument. In
most cases, the party objecting to the admission of the evidence will have had to
obtain a ministerial certificate or affidavit,34 so that the court will be directly
informed of the position of the government on the claim. Nevertheless, it is
obviously desirable for Crown counsel to be present for the purpose of taking and
32 R. v. Archer (1989) 65 Alta. L.R. (2d) 183 (C.A.). However, the court indicated (at 189) that,
where the claim of immunity is sustained by the trial judge, the appeal, which must be initiated
within 10 days, should not normally be pursued until the end of the trial.
33 Code of Civil Procedure, R.S.Q. 1977, c. C-25, s. 29.
34 Section 5.3(b), “Form of claim”, above.
119
5.4(a) EVIDENCE
arguing the privilege point. Especially is this so if none of the parties is interested
in objecting to the evidence.35 In all cases in which a claim of public interest
immunity is made, counsel for the Crown ought to be given leave to appear. In
fact, the point never seems to be controversial, and counsel for the Crown has
appeared to claim the immunity in many cases in which the Crown was not a
party.36
5.4 Judicial review
(a) History
In Duncan v. Cammell Laird (1942),37 the House of Lords upheld a claim of

Crown privilege in respect of the plans and specifications of a secret type of
submarine. This decision, especially in its wartime context, was clearly correct,
but Viscount Simon went beyond the necessity of the case to assert that a minis-
terial claim of privilege was conclusive and could not be reviewed by the Court.
In particular, the Court could not examine the documents (or other evidence) in
order to satisfy itself of the validity of the claim; nor could the Court question the
need to withhold a whole class of public documents, even where the contents of
the particular documents in issue were admittedly innocuous.
The Duncan ruling was inconsistent with an earlier decision of the Privy
Council, Robinson v. South Australia (No. 2) (1931).38 In that case, the state of
South Australia was being sued for negligence in the storage of wheat, which had
been exposed to water and mice while in the possession of the state. On discovery,
the state claimed Crown privilege for 1,894 documents.39 The Privy Council,
overruling the High Court of Australia, held that the Minister’s affidavit in support
of this claim was not conclusive: the court had the power to call for the documents,
examine them, and determine the validity of the claim for itself. The Privy Council
accordingly remitted the case to the trial court with a direction to examine the
documents “in order to determine whether the facts discoverable by their produc-
tion would be prejudicial or detrimental to the public welfare in any justifiable
sense”.40 Not only was this order squarely in conflict with the later ruling in
Duncan, the whole tone of the judgment was different. The Privy Council stated
35 E.g., Conway v. Rimmer [1968] A.C. 910 (H.L.).

36 Ibid.
37 [1942] A.C. 624 (H.L.)
38 [1931] A.C. 704 (P.C., Aust.).
39 For more than 20 years the state struggled to avoid the proceedings being tried on the merits.
Various phases of the litigation were disposed of in the Privy Council (on three occasions) and
the High Court of Australia (on two occasions). The history, which was related in the first
edition of this book (1971), 51-53, demonstrates the need for judicial as opposed to executive
determination of privilege claims.
40 Note 38, above, 725.
120
JUDICIAL REVIEW 5.4(a)
that the privilege was “a narrow one, most sparingly to be exercised”41 and that
cases in which privilege could validly be claimed for documents “relating to the
trading, commercial or contractual activities of a State” would, “especially in
time of peace, be rare indeed”.42
After 1942, when the House of Lords decided Duncan, the courts were left
with a conflict between the House of Lords and the Privy Council. The initial
tendency was to follow the later decision in Duncan and treat ministerial decisions
as conclusive. But in many jurisdictions the Crown took advantage of the absence
of judicial review to claim privilege for innocuous documents to the detriment of
the ends of justice.43 A reaction set in. The Supreme Court of Canada was the first
final appellate court to reject Duncan in favour of Robinson. In R. v. Snider
(1954),44 the Court rejected a claim of Crown privilege for the income tax returns
of the defendant, who was charged with gambling offences. In Conway v. Rimmer
(1968),45 the House of Lords itself overruled Duncan; their lordships rejected a
claim of Crown privilege for police reports that were relevant to an action for
malicious prosecution. In Sankey v. Whitlam (1978),46 the High Court of Australia
fell into line, rejecting a claim of Crown privilege for cabinet documents relevant
to a prosecution of a former Prime Minister. These decisions had their counterparts
in New Zealand as well.47 By 1978, it was firmly established in Canada48, the
United Kingdom, Australia and New Zealand49 that any claim of Crown privilege
(public interest immunity) was subject to judicial review.50
41 Id., 714.
42 Id., 715.
43 E.g., Ellis v. Home Office [1953] 2 Q.B. 135, 137 (C.A.) (plaintiff’s claim defeated by denial
of prison reports; judge confessed to “an uneasy feeling that justice may not have been done”).
44 [1954] S.C.R. 479; and see also Smallwood v. Sparling [1982] 2 S.C.R. 686; Carey v. Ont.
[1986] 2 S.C.R. 637.
45 [1968] A.C. 910 (H.L.); and see also Burmah Oil Co. v. Bank of England [1980] A.C. 1090
(H.L.); R. v. Chief Constable; Ex parte Wiley [1995] 1 A.C. 274 (H.L.).
46 (1978) 142 C.L.R. 1 (H.C., Aust.); and see also Cth. v. Northern Land Council (1993) 176
C.L.R. 604 (H.C., Aust.).
47 Corbett v. Social Security Commn. [1962] N.Z.L.R. 878 (C.A.); and see also Brightwell v.
Accident Compensation Commn. [1985] 1 N.Z.L.R. 132 (C.A.).
48 The Canada Evidence Act, s. 37, which applies to claims by the federal government based on
a “specified public interest” is, in substance, declaratory of the common law, but s. 38, which
applies to claims based on international relations, national defence or national security, and s.
39, which applies to claims for federal cabinet confidences, especially the latter, restrict the
scope of judicial review: sec. 5.4(g), “Disclosure under Canada Evidence Act”, below. No
province has copied the federal legislation, or otherwise restricted judicial review.
49 But note restrictions on the disclosure of the existence of documents certified by the Prime
Minister or Attorney General as privileged: Crown Proceedings Act, s. 27(3) (N.Z.).
50 The law of executive privilege in the United States is similar: United States v. Nixon (1974)
418 U.S. 683.
121
5.4(b) EVIDENCE
(b) Balancing of interests
In the period since Duncan v. Cammell Laird was decided, the issues in-
volved in public interest immunity claims have become much clearer than they
had appeared to the House of Lords during the second world war. The crux of the
matter is that, when a claim of public interest immunity is made, “one public
policy is in conflict with another public policy”.51 The Crown can assert that a
public policy affecting one of its departments requires the withholding of relevant
evidence, but the litigants can reply that another public policy requires that all
relevant material be before the court to enable justice to be done. The flaw in
Viscount Simon’s reasoning in Duncan v. Cammell Laird was his assumption
that the departmental policy must always be paramount, no matter how tenuous
that policy may be, and no matter how vital the withheld material may be to the
litigation. Lord Blanesburgh, speaking for the Privy Council in Robinson, did not
fall into this error. He pointed out that “the fact that the documents, if produced,
might have [an] effect on the fortunes of the litigation is of itself a compelling
reason for their production – one only to be overborne by the gravest considera-
tions of State policy or security”.52
It is now recognized that this approach — the balancing of competing
interests — is the correct one. It does not seek to contradict a ministerial assertion
of executive interest; on the contrary, it recognizes that interest, but it insists that
the executive interest must be weighed in the balance with the competing interest
in the administration of justice. On this approach there can be no hard-and-fast
rules about which types of evidence are privileged and which are not. Every claim
has to be considered on its own merits. It involves three judgments: (1) How
much injury would be caused to executive interests by disclosing the evidence?
(2) How much injury would be caused to the interests of justice by withholding
the evidence? (3) Which interest should prevail? Even if one acknowledges that
a minister can answer (1) he certainly cannot answer (2) or (3), and therefore his
decision should not be treated as conclusive.
When a claim of public interest immunity is made, it is for the court to
balance the injury to the public interest that would be caused by the admission of
the evidence against the injury to the administration of justice that would be
caused by the exclusion of the evidence. The factors to be weighed in the balance
were discussed by the Supreme Court of Canada in Carey v. Ontario (1986).53
These may be summarized as including the following: (1) the nature of the public
51 Marks v. Beyfus (1890) 25 Q.B.D. 494, 498 (C.A.).

52 Note 38, above, 716.
53 [1986] 2 S.C.R. 637. La Forest J. wrote the opinion of the Court. He discusses the factors at
pp. 670-673. See also Horsman and Morley, note 1, above, sec. 12.20.30. The Report of the
Federal/Provincial Task Force on Uniform Rules of Evidence, note 19, above, 459, lists the
factors and recommends their inclusion in a Uniform Evidence Act; this recommendation has
not been accepted in any jurisdiction in Canada.
122
JUDICIAL REVIEW 5.4(b)
interest; (2) the injury to the public interest that would be caused by disclosure;
(3) the level of decision-making within government; (4) the age and current
relevance of the information; and (5) the relevance and necessity of the infor-
mation to the court proceeding. The Carey case was a claim against the govern-
ment of Ontario for breach of contract arising out of the sale of a tourist lodge
from the plaintiff to the government. The Crown claimed public interest immunity
for all documents that went to or came from cabinet or cabinet committees, thus
relying on the level of decision-making within government (factor (3)).54 The
Court agreed that this was a relevant factor, but pointed out that the nature of the
public interest in developing a tourist resort in northern Ontario was “hardly
world-shattering” (factor (1)) and that the transaction took place over twelve years
earlier (factor (4)). The Supreme Court could not itself conduct the balancing
exercise, because it had not inspected the documents for which immunity was
claimed. Without inspecting the documents it was impossible to assess the injury
to the public interest that would be caused by their disclosure (factor (2)) or the
relevance and necessity of the information in the court proceeding (factor (4)).
The Court therefore sent the claim back to the trial judge to inspect the documents
and decide on a case-by-case basis whether the claim of public interest immunity
should be upheld.55 (The trial judge inspected the documents and disallowed the
claim of public interest immunity in the case of every one of them.)56
What happens if the reviewing judge concludes that the factors for and
against disclosure are evenly balanced? It is then that the burden of proof will
determine whether or not the judge should uphold the claim of public interest
immunity. Who bears the burden of proof? In the English case of Air Canada v.
Secretary of State for Trade (1983),57 the House of Lords held that a party seeking
production of documents for which immunity has been claimed must establish
that the documents would be of assistance in proving that party’s case.58 In Carey,
the Supreme Court of Canada rejected this approach on the ground that it imposed
an impossible burden on a party who had never seen the documents.59 The Su-
preme Court held that the presumption was in favour of full disclosure by gov-
ernment, and the burden of establishing reasons weighty enough to overcome the
presumption rested with the government.60
54 See sec. 5.6, “Cabinet documents”, below.

55 See sec. 5.4(d), “Inspection”, below.
56 Carey v. The Queen, May 11, 1987, unreported decision of Catzman J.
57 [1983] 2 A.C. 394 (H.L.).
58 The Air Canada case was not a criminal case, and even in the U.K. no such burden would be
imposed on an accused: sec. 5.4(c), “Balancing in criminal cases”, below.
59 [1986] 2 S.C.R. 637, 678.
60 Id., 681-683, following Fletcher Timber v. A.G. [1984] 1 N.Z.L.R. 290 (C.A.).
123
5.4(c) EVIDENCE
(c) Balancing in criminal cases
The appropriate balance between the interest asserted by the Crown in a

claim of public interest immunity and the countervailing interest in the adminis-
tration of justice is different in criminal cases than it is in civil cases. This is
because of the heavy weight that is accorded by the courts to the accused’s right
to make full answer and defence to a criminal charge. As long as the liberty of
the accused is at risk, it is more difficult for the Crown to withhold information
that might be relevant to the innocence of the accused.61 In Canada, it has been
held that the accused has a constitutional right, under section 7 of the Charter of
Rights, to pre-trial disclosure of all material in the possession of the Crown that
might be relevant to the conduct of the accused’s defence (the “Crown brief”).62
This constitutional right is not absolute. In some circumstances, the Crown can
withhold the identity of informers63 and sexual assault counselling records,64 but
for most kinds of information in the possession of the Crown full disclosure is a
constitutional imperative. In jurisdictions where the rights of the accused are not
entrenched in a constitution, the common law right of an accused to make full
answer and defence is jealously guarded by the courts, so that the right is not very
different from a constitutional right.65
In all jurisdictions, therefore, only the weightiest considerations of public
policy would be accepted by the courts as justifying the withholding of a document
(or other evidence) that might be relevant to the defence of an accused person. In
practice, if the Crown is considering a claim of public interest immunity to
withhold a document that could affect the outcome of a criminal trial, the Crown
will often be put to a difficult election: it will either have to waive its claim and
produce the document or use its discretion to stay the proceedings. A stay of
61 Note however that, where public interest immunity is claimed to protect the identity of an
informer, the claim is automatically upheld unless the court is persuaded that the disclosure of
the identity of the informer would help to show the innocence of the accused: section 5.10,
“Informer privilege”, below.
62 R. v. Stinchcombe [1991] 3 S.C.R. 326. In the U.K., the Crown obligation is less stringent: “if
material does not weaken the prosecution case or strengthen that of the defendant, there is no
requirement to disclose it”: R. v. H and C [2004] 2 A.C. 134, para. 35 (H.L.), per Lord Bingham
for the Court.
63 R. v. Leipert [1997] 1 S.C.R. 281, paras 23-25 (constitutional requirement does not overcome
informer privilege); section 5.10, “Informer privilege”, below.
64 In R. v. O’Connor [1995] 4 S.C.R. 411 the Supreme Court held that restricting the access of an
accused to such records was an infringement of an accused’s constitutional right to make full
answer and defence. Parliament subsequently amended the Criminal Code to restrict the pro-
duction of certain records (S.C. 1997, c. 46, s. 1, adding ss. 278.1-278.91 to the Code) and these
new restrictions were upheld as valid in R. v. Mills [1999] 3 S.C.R. 668.
65 R. v. H and C [2004] 2 A.C. 134, para. 35, per Lord Bingham for the Court (checklist of
questions to ensure maximum possible disclosure consistent with secrecy concerns).
124
JUDICIAL REVIEW 5.4(e)
proceedings is a radical solution to the problem, since the accused goes free, but
it is “the ultimate safeguard of the privileged information”.66
The disclosure of the Crown brief in civil proceedings is discussed later in
this chapter.67
(d) Inspection
In Duncan v. Cammell Laird (1942),68 Viscount Simon, denying the possi-

bility of a judicial inquiry into the validity of a claim of Crown privilege (public
interest immunity), said that such an inquiry was one “which cannot take place
in private, and which taking place in public may do all the mischief which it is
proposed to guard against”. If the premise were right, the conclusion would follow.
But it is now well established that the reviewing court may inspect documents for
which Crown privilege is claimed, and that the inspection may take place in
private without disclosure to the parties who are not in possession of the docu-
ments.
In Carey v. Ontario (1986),69 the Supreme Court of Canada said that the
court ought to make a private inspection of the documents in all cases where the
minister’s certificate does not make clear that the balance of public interest is in
favour of confidentiality.70 In that case, the lower courts had, without inspection,
given effect to a certificate of public interest immunity in respect of provincial
cabinet documents relating to a government acquisition of a tourist resort. The
Supreme Court held that, having regard to the government’s burden of proof, the
certificate did not make out a clear enough case for confidentiality; the court
accordingly remitted the issue to the trial judge to inspect the documents in private,
and then to decide whether or not to order that the documents be produced.
(e) Disclosure
Rejection of a claim of public interest immunity obviously entails an order

to produce the documents for which the immunity was unsuccessfully claimed.
However, production may be made subject to conditions. The documents may
not be sufficiently sensitive to warrant their complete exclusion from the litigation,
and yet there may be real grounds for concern at the prospect of unlimited
66 R. v. Meuckon (1990) 57 C.C.C. (3d) 193, 200 (B.C.C.A.) per Lambert J.A. The Canada
Evidence Act, R.S.C. 1985, c. C-5, s. 37.3 authorizes a judge presiding at a criminal trial to
stay proceedings, dismiss counts, or find against the Crown on issues affected by non-disclosure.
67 Section 5.4(f), “Disclosure of Crown brief”, below.
68 [1942] A.C. 624 (H.L.), 639.
69 [1986] 2 S.C.R. 637; discussed at note 53, above.
70 The Canada Evidence Act, by s. 39, makes an exception for federal cabinet confidences;
inspection by the reviewing court is expressly prohibited: sec. 5.6(b), “Canada Evidence Act,
s. 39”, below.
125
5.4(f) EVIDENCE
publication. In that case, the documents could be given only a limited publication.
There are a number of choices open to the reviewing court. The proceedings, or
part of the proceedings, could be heard in camera;71 or the documents could be
“edited” (or “redacted”) by concealing secret parts but disclosing the balance;72
or the documents could be disclosed to the parties only on their undertaking not
to reveal the contents to anyone (breach of the undertaking would be contempt);73
or a mixture of these methods could be ordered. The point has been made that
“the Administration itself knows many classes of security document, ranging
from those merely reserved for office use to those which can be seen only by a
handful of Ministers or officials rigorously screened and bound by oath of se-
crecy”; and there is no reason why the courts should not use a similar system of
grading.74
(f) Disclosure of Crown brief
We have already noticed that in criminal proceedings in Canada there is a

constitutional obligation on the Crown to make disclosure of all material in the
possession of the Crown that might be relevant to the conduct of the accused’s
defence. This is entailed by the constitutional right of a person charged with a
criminal offence to make full answer and defence.75 For this purpose, the Crown
assembles a body of material which is known as the “Crown brief”. It is in the
possession of the Crown, but it is unlike other documents in the possession of the
Crown. The Crown brief has been created by the Crown through the exercise of
police and prosecutorial functions, using the force of the state if necessary, for
the purpose of prosecuting a criminal charge. Depending on the charge, the Crown
brief may contain statements by the accused, by complainants and by potential
witnesses, information about police methods and police informants, photographs,
videotapes, wiretap recordings, DNA records, surveillance reports, autopsy re-
ports, and medical and psychiatric records. Some of this material (for example,
the identification of police informants and methods) may be subject to public
interest immunity, and could be withheld by the Crown on that ground; but most
of the Crown brief will not be covered by public interest immunity (or any other
privilege). Nevertheless, some of the material may be highly sensitive, confiden-
tial, personal information that should not and would not be gathered by the state
71 Scott v. Scott [1913] A.C. 417 (H.L.); R. v. Hamilton (1930) 30 S.R. (N.S.W.) 277 (F.C.);
McPherson v. McPherson [1936] A.C. 177 (P.C., Can.); Named Person v. Vancouver Sun
[2007] 3 S.C.R. 253.
72 Marconi’s Wireless Telegraph Co. v. Cth. (No. 2) (1913) 16 C.L.R. 178 (H.C., Aust.) (part of
radio apparatus concealed); Sankey v. Whitlam (1978) 142 C.L.R. 1 (H.C., Aust.) (one document
edited before production).
73 J.E.S. Simon, “Evidence Excluded by Considerations of State Interest” [1955] Camb. L.J. 62.
74 Id., 76.
75 R. v. Stinchcombe [1991] 3 S.C.R. 326; for discussion, see sec. 5.4(c), “Balancing in criminal
cases”, above.
126
JUDICIAL REVIEW 5.4(f)
except for the important purpose of prosecuting a criminal charge. The Crown
must disclose this information to the accused in the criminal proceedings for
which it was prepared because the Charter of Rights so requires. But must the
Crown produce the Crown brief in civil proceedings in which the Crown is a
party and in which the Crown brief is relevant? And remember that the accused
also comes into possession of a copy of the Crown brief: must he or she produce
the brief in civil proceedings in which its contents are relevant?
In P. (D.) v. Wagg (2004),76 the plaintiff sued a gynaecologist for damages,
alleging that he had sexually assaulted her in the course of a medical examination.
She had complained to the police, who had conducted an investigation and
charged the defendant with sexual assault. A Crown brief was prepared, which
included statements made to the police by the defendant, and a copy was given
to the defendant. The criminal case never went to trial because the proceedings
were stayed for unreasonable delay on the part of the prosecution. However, in
her civil action for assault against the defendant, the complainant sought discovery
of the Crown brief from the defendant, and when he refused she applied to the
court to compel production. The Ontario Court of Appeal agreed that, like any
civil plaintiff, she was entitled to an affidavit of documents from the defendant,
disclosing the existence of documents in his possession, and that included the
Crown brief, along with a general description of its contents. However, because
of the unique features of the Crown brief, she was not entitled to production of
all material in the brief simply on the basis of its relevance to the action. The
Court did not stipulate what kinds of documents could be withheld, but seemed
primarily concerned about confidentiality and privacy. The Court held that it had
the power to put in place a screening process to limit the use of the Crown brief
outside the criminal proceeding for which it had been prepared. The screening
process would work in the following way. Before any part of the Crown brief is
produced in a civil proceeding, the Crown brief must be examined by the Attorney
General77 to determine, not merely whether the documents are subject to privilege,
including public interest immunity, but also whether there are unprivileged doc-
uments that should be withheld or redacted (edited) for a reason that overrides
the interest in the administration of justice in the civil case. If the Attorney General
agrees to full disclosure, then full production must be made. If less than full
disclosure is agreed to, then the judge hearing the motion for production must
determine the extent of the production. In this case, the required screening process
took place, and the Attorney General objected only to the identification of another
of the defendant’s patients and her medical treatment. The Court ordered that the
Crown brief be produced to the plaintiff for the purpose of her civil action, but
76 (2004) 71 O.R. (3d) 229 (C.A.). Rosenberg J.A. wrote the opinion of the Court.
77 Although Rosenberg J.A. mentions the police separately from the Attorney General, presumably
it is the Attorney General that would determine the Crown’s position with respect to disclosure
— no doubt after consulting with the police.
127
5.4(g) EVIDENCE
with the name and medical treatment of the other patient redacted from the
videotape and transcript where they appeared.78
(g) Disclosure under Canada Evidence Act
Evidence in the possession of the Government of Canada has a special regime

of public interest immunity codified in the Canada Evidence Act.79 The general
rule is set out in s. 37, and it makes no substantive change to the common law
rule as prescribed by the Supreme Court in Carey v. Ontario (1986).80 Section 37
allows a minister or other official to object to the disclosure of information before
a court or other tribunal “by certifying orally or in writing . . . that the information
should not be disclosed on the grounds of a specified public interest.” The objec-
tion normally takes the form of a written certificate, which must specify the public
interest that is invoked for non-disclosure. The objection is subject to judicial
review, either by a provincial superior court or by the Federal Court. If the
reviewing court agrees that disclosure would encroach on the specified public
interest, but also determines that the public interest in disclosure (the just reso-
lution of the litigation) outweighs the public interest in confidentiality (the need
for government secrecy), then the court has the power to order the disclosure of
the certified information, subject to any conditions deemed necessary to limit the
encroachment on the specified public interest. In carrying out its duty to balance
the public interests for and against disclosure, the reviewing court has the power
to inspect in private the documents for which confidentiality is claimed.81
Section 37 of the Canada Evidence Act provides the general rule of public
interest immunity for information in the possession of the Government of Canada,
and it is in substance, if not in detail, declaratory of the common law. However,
the Act goes on in s. 38 to enact a special regime of public interest immunity for
78 In civil proceedings, there is an implied undertaking, which is explicit in the rules of some
jurisdictions, for example, Ont. Rules of Civil Procedure, rule 30.1.01(3), by parties and their
counsel not to use any evidence or information obtained through the discovery process for any
purpose other than that of the proceedings in which the evidence was obtained. Thus, once the
plaintiff had obtained the Crown brief from the defendant through the civil discovery process,
she would be forbidden from using it for any purpose other than her action against the defendant.
Rosenberg J.A. (para. 45) noted that an implied undertaking rule had been enacted in the United
Kingdom to protect the Crown brief from disclosure or unauthorized use by the defendant to
whom it has been provided in the criminal proceedings. He held (para. 47) that there were
“compelling reasons for recognizing such a rule” in Canada, but because the point had not been
fully argued, and because the case could be decided on the basis of the screening process
mandated by the Court, he did not decide the point.
79 R.S.C. 1985, c. C-5, ss. 37-39.
80 [1986] 2 S.C.R. 637; discussed at notes 53 and 69, above.
81 The Act is silent on the point of inspection, but the gap is filled by the common-law rule of
Carey, which includes the power of inspection: Can. v. N.W.T. 2001 FCA 259 (C.A.), paras. 6
(revealing that Court had inspected the documents), 11 (affirming that Carey is governing) per
Evans J.A. for the Court.
128
CLASS CLAIMS 5.5(b)
information respecting international relations, national defence and national se-

curity.82 And s. 39 enacts a different regime for federal cabinet confidences.83
Those two special categories of information are treated separately later in this
chapter.
5.5 Class claims
(a) General rule
A document whose particular contents are innocuous may be protected from

disclosure by public interest immunity if it belongs to a class of documents that
ought to be kept secret. For example, the New Zealand Court of Appeal has held
that information about New Zealand taxpayers supplied by the tax authorities of
Australia under a taxation treaty that included an undertaking of secrecy was an
example of a class of documents that should be protected by public interest
immunity.84 Of course, no class of documents is absolutely immune from disclo-
sure: the balancing task that has been described earlier in this chapter85 will
occasionally result in the disclosure of documents that belong to a class that has
a strong claim to secrecy.86 As well, the history of Crown privilege that has been
related87 has invested the courts with considerable scepticism about claims of
immunity for entire classes of documents. The result is that class claims (as
opposed to contents claims) are rarely successful.88
(b) Candour in public service
In Duncan v. Cammell Laird (1942),89 Viscount Simon, again straying far

beyond the necessity of the case, said that it was a sufficient ground for a class-
based claim of Crown privilege (public interest immunity) that disclosure of a
particular document might prejudice the “candour and completeness” of com-
82 Section 5.7, “National security”, below.

83 Section 5.6(b), “Canada Evidence Act, s. 39”, below.
84 Commissioner of Inland Revenue v. E.R. Squibb & Sons (1992) 6 P.R.N.Z. 601 (C.A.).
85 Section 5.4(b), “Balancing of interests”, above.
86 Cth. v. Northern Land Council (1993) 176 C.L.R. 604, 617-618 (H.C., Aust.) (immunity of
class of documents recording recent cabinet deliberations “not absolute”, but disclosure would
be “exceptional”). Informer privilege, sec. 5.10, below, is almost absolute, subject only to the
“innocence at stake” exception.
87 Section 5.4(a), “History”, above.
88 E.g., A. (L.L.) v. B. (A.) [1995] 4 S.C.R. 536 (rejecting class-based claim for therapeutic records
of sexual assault victims); R. v. Chief Constable; Ex parte Wiley [1995] 1 A.C. 274 (H.L.)
(rejecting class-based claim for documents generated by investigation into complaints against
police).
89 [1942] A.C. 624 (H.L.).
129
5.6(a) EVIDENCE
munications within a government department90 or might “impair the proper func-

tioning of the public service”.91 When these generous definitions of injury to the
public interest were combined with Viscount Simon’s assertion that there could
be no judicial review, the power of a minister to successfully resist disclosure of
government documents was broad indeed. It is now clear, however, that any claim
of Crown privilege is reviewable by the courts, and that vague appeals to “can-
dour” within the public service or the “proper functioning” of the public service
are unlikely to outweigh the competing value of having all relevant material
available in litigation.92 The candour argument is strongest with respect to cabinet
documents, a topic that is taken up in the next section of this chapter.
5.6 Cabinet documents
(a) Common law
As a general proposition, “it is in the public interest that the deliberations of

cabinet should remain confidential in order that the members of cabinet may
exchange differing views and at the same time maintain the principle of collective
responsibility for any decision which may be made”.93 It was formerly thought
that cabinet documents constituted a class that enjoyed an absolute immunity
from production.94 But this is no longer accepted. The leading Canadian case is
Carey v. Ontario (1986),95 where the Crown in right of Ontario, which was the
defendant in an action for breach of contract arising out of the Crown’s acquisition
of a tourist lodge, claimed Crown privilege for documents that went to or came
from the cabinet and cabinet committees. The claim was not based on the actual
contents of the documents, which were not revealed in the Deputy Minister’s
certificate, but on the need for confidentiality of cabinet documents as a class.
Disclosure of cabinet documents, it was claimed, would prejudice the candour
and completeness of future cabinet deliberations. The Supreme Court of Canada
held that this was not by itself a sufficient reason to justify confidentiality,
although it was a relevant factor for the court to consider in determining the claim
of Crown privilege. Other factors were the sensitivity of the issue under discus-
sion, the contents of the documents, the time elapsed since the creation of the
documents, and, on the other side of the scale, the importance of the documents
90 Id., 635.
91 Id., 642.
92 Claims based on candour are nearly always rejected, e.g., Brightwell v. Accident Compensation
Commn. [1985] 1 N.Z.L.R. 132 (C.A.), and Lord Wilberforce seems to be alone in his view
that the candour argument has received an “excessive dose of cold water”: Burmah Oil Co. v.
Bank of England [1980] A.C. 1090, 1112 (H.L.).
93 Cth. v. Northern Land Council (1993) 176 C.L.R. 604, 615 (H.C., Aust.).
94 Conway v. Rimmer [1968] A.C. 910, 952 (H.L.)
95 [1986] 2 S.C.R. 637; discussed at notes 53, 69, 80, above.
130
CABINET DOCUMENTS 5.6(a)
to the litigation.96 The Court held that, in this case, these factors could be properly
assessed only after inspection of the documents. The Court remitted the issue to
the trial judge to inspect the documents and decide whether or not to order
production.97
The Carey case makes clear that in Canada, at common law,98 cabinet
documents are no longer a privileged class.99 This is consistent with decisions of
the highest courts in England,100 Australia101 and New Zealand,102 in which claims
of public interest immunity for cabinet documents have been reviewed and some-
times rejected. Of course, when documents record the “actual deliberations of
cabinet” on a matter that is still “current and controversial”, the case for immunity
will be strong (although “not absolute”).103 And, as the Carey court acknowledged,
a class claim of immunity could be effective if it were made in respect of a sub-
class of cabinet documents on a topic that plainly called for secrecy, for example,
national security or diplomatic relations.104 In the Carey case, however, the doc-
uments concerned the acquisition of a tourist lodge in northern Ontario which the
court described as “hardly world-shaking”.105
96 Id., 670-671.
97 The trial judge ordered that every one of the documents for which the Crown had claimed
immunity was to be produced: Carey v. The Queen, unreported decision of Catzman J., May
11, 1987.
98 The position with respect to federal Cabinet confidences is regulated by statute: sec. 5.6(b),
“Canada Evidence Act, s. 39”, below.
99 See also Smallwood v. Sparling [1982] 2 S.C.R. 686 (oral testimony of cabinet discussions
ordered, subject to Crown privilege in respect of particular disclosures that could be proved to
injure public interest); discussed at note 150, below.
100 Burmah Oil Co. v. Bank of England [1980] A.C. 1090 (H.L.) (production of cabinet minutes
denied, but only after judicial inspection); Air Canada v. Secretary of State for Trade [1983] 2
A.C. 394 (H.L.) (production of cabinet documents denied without judicial inspection); cf. A.-
G. v. Jonathon Cape [1976] Q.B. 752 (injunction to restrain publication of cabinet discussions
denied).
101 Sankey v. Whitlam (1978) 142 C.L.R. 1 (H.C., Aust.) (production of cabinet minutes ordered
after judicial inspection).
102 Environmental Defence Society v. South Pacific Aluminium [1981] 1 N.Z.L.R. 153 (C.A.)
(production of cabinet documents denied, but only after judicial inspection); Fletcher Timber
v. A.-G. [1984] 1 N.Z.L.R. 290 (C.A.) (production of cabinet documents ordered after judicial
inspection).
103 Cth. v. Northern Land Council (1993) 176 C.L.R. 604 (H.C., Aust.) (production of cabinet
minutes denied, and trial judge’s order of inspection overruled).
104 Note 95, above, 671; but see now Canada Evidence Act, s. 38: sec. 5.7, “National security”,
below.
105 Id., 672.
131
5.6(b) EVIDENCE
(b) Canada Evidence Act, s. 39
The Canada Evidence Act106 enacts a special rule of public interest immunity
for cabinet documents at the federal level.107 Section 39 of the Act provides:
Where a minister of the Crown or the Clerk of the Privy Council objects to the
disclosure of information before a court, person or body with jurisdiction to compel
the production of information by certifying in writing that the information constitutes
a confidence of the Queen’s Privy Council for Canada, disclosure of the information
shall be refused without examination or hearing of the information by the court,
person or body.
Under s. 39, if the Clerk of the Privy Council (the most senior civil servant
in the federal government) or a minister of the Crown108 certifies in writing to a
court that a relevant document is “a confidence of the Queen’s Privy Council for
Canada” (a cabinet confidence),109 disclosure of the document “shall be refused
without examination or hearing” by the court.110 Section 39 provides much
stronger protection for federal Cabinet confidences than does the common law as
laid down in Carey, which applies to cabinet documents in all the provinces. In
particular, under s. 39, the courts are not able to review a claim of public interest
immunity by examining the documents and balancing the litigation interest in
disclosure against the secrecy interest asserted by government.
The constitutionality of s. 39 was challenged in Babcock v. Canada (2002),111
where the argument was made that it offended the unwritten constitutional prin-
ciple of judicial independence. The ability of government to withhold relevant
documents from litigation without effective judicial review was said to compro-
mise the adjudicative independence of the judges, since it forced them to decide
cases involving the federal government with the scales weighted in favour of the
106 R.S.C. 1985, c. C-5.

107 See Lokan and Dassios, Constitutional Litigation in Canada (2006, annually supplemented),
sec. 9.5.
108 The practice has been for the Clerk to make the determination.
109 The kinds of documents that count as “a confidence of the Queen’s Privy Council for Canada”
are defined broadly in s. 39(2). The “Queen’s Privy Council for Canada” is defined in s. 39(3)
as including “Cabinet and committees of Cabinet”. The Queen’s Privy Council for Canada is
established by s. 11 of the Constitution Act, 1867, but it has evolved into a purely ceremonial
body with a large membership, its only active component being the cabinet: Hogg, Constitu-
tional Law of Canada (5th ed., 2007, annually supplemented), sec. 9.4(b), “The cabinet and
the Privy Council”.
110 Section 39(4) makes an exception for cabinet confidences that are 20 years old and for a
“discussion paper” which had yielded a governmental decision that had either been made public
or if not made public had been made more than four years earlier. See Can. (Information
Commr.) v. Can. (Minr. of Environment) (2003) 224 D.L.R. (4th) 498 (F.C.A.) (discussion
paper not necessarily stand-alone document, but could be part of another document).
111 [2002] 3 S.C.R. 3. McLachlin C.J. wrote the opinion of the eight-judge majority. L’Heureux-
Dubé J. wrote a concurring opinion, disagreeing with the majority on a point of interpretation
of s. 39. On the constitutional issue, the Court was unanimous.
132
CABINET DOCUMENTS 5.6(b)
government. The Supreme Court of Canada rejected this argument. McLachlin

C.J. for the unanimous Court held that Parliament had the power to enact laws
that “some would consider draconian” provided that they did not “fundamentally
interfere with the relationship between the courts and the other branches of
government”.112 Bearing in mind that cabinet confidences had always been treated
differently from private documents in a commercial lawsuit, she held that s. 39
did not make a fundamental change in the relationship between the courts and
the executive. The constitutionality of the section was upheld.113
The lawsuit in Babcock was brought by lawyers in the Vancouver office of
the Department of Justice, who sued the federal Crown for breach of contract for
paying them less than their colleagues in the Toronto office. Despite the apparently
routine nature of the issue, the Clerk of the Privy Council objected to the disclosure
of 51 documents, which she certified as cabinet confidences. There was room for
suspicion that the government was using s. 39 as a tactic to defeat the plaintiffs,
because the certificate was unjustifiably broad. One of the certified documents
was an affidavit that had been filed in court by the Crown in these proceedings
in support of an (unsuccessful) application by the Crown to change the venue
from British Columbia to the Federal Court in Ottawa. Five of the certified
documents were actually in the possession of the plaintiffs and another twelve
had been produced to the plaintiffs before the certificate was filed. The plaintiffs
understandably sought judicial review of the Clerk’s certificate. The case went
on up to the Supreme Court of Canada, but the plaintiffs achieved only modest
success. The Court did hold that s. 39(1) “applies only to compel disclosure”, and
“cannot be applied retroactively to documents that have already been produced
in litigation”.114 It followed that the affidavit, the five documents in the plaintiffs’
possession and the twelve documents already produced could not now be withheld
from the litigation.115 However, the Court refused to take the further step (which
had been taken by the British Columbia Court of Appeal) of holding that the
Crown’s disclosure of so many documents in the same class of cabinet confidences
should be treated as a waiver of its privilege over the entire class of certified
documents. The Supreme Court held that, for the remaining 33 certified docu-
ments, s. 39 made the certificate conclusive: the documents were not to be
produced, and no judicial review could be undertaken of the Clerk’s decisions.
The Court in Babcock made clear that “selective disclosure designed to
prevent getting at the truth would not be a proper exercise of the Clerk’s s. 39
powers”.116 That was an appropriate concern given the facts of the case. The same
comment would apply in spades to no disclosure at all where that was employed
112 Id., para. 57.

113 For further discussion, see Hogg, note 109, above, sec. 7.1(c), “Tenure of provincial judges”.
114 [2002] 3 S.C.R. 3, para. 36.
115 Inadvertent disclosure by the Crown does not, however, destroy the immunity: Pelletier v. Can.
[2005] 3 F.C.R. 317 (C.A.). This point had been left open in Babcock, para. 26.
116 [2002] 3 S.C.R. 3, para. 36.
133
5.6(b) EVIDENCE
as a litigation tactic. The Court made clear that the Clerk was to exercise the
certification power in good faith. The purpose of s. 39 was only to protect Cabinet
confidences. If it were used “to thwart public inquiry” or “to gain tactical advan-
tage in litigation”, the certificate could be set aside — like any other exercise of
statutory power for an improper purpose. These dicta are not particularly reas-
suring because, without the judicial power to examine contested documents, there
is really no way of determining whether documents have been withheld for good
public-policy reasons.
The Court in Babcock suggested that “the refusal to disclose information
may permit a court to draw an adverse inference”, and offered the case of RJR-
MacDonald v. Canada (1995)117 as an example. The issue in that case was whether
a federal statute banning tobacco advertising infringed the Charter of Rights. The
statute was plainly a limit on freedom of expression, and the question was whether
it could be justified as a reasonable limit under s. 1 of the Charter of Rights. The
Crown objected to disclosure of no less than 500 documents, all of which were
duly certified under s. 39 as cabinet confidences. However, a description of one
of the certified documents was sufficient to make clear that the document was a
study reviewing less intrusive legislative policies than the total ban that was
ultimately legislated. McLachlin J., writing for the majority of the Court, drew
an adverse inference from the Crown’s failure to disclose this document: “one is
hard-pressed not to infer that the results of the studies must undercut the govern-
ment’s claim that a less invasive ban would not have produced an equally salutary
result”.118 Pointing out that the burden of proving s. 1 justification rested with the
Crown, she held that the Crown had not established an important element of
justification, namely, that the statute was a minimum impairment of freedom of
expression. The tobacco companies were therefore successful in their action for
a declaration that the statute was unconstitutional.
Obviously, it will be a rare case where a court can be persuaded that the
withholding of a document by the Crown justifies an adverse inference of the
determinative kind that was made in the tobacco case. It goes without saying that
the power of the Crown to withhold 500 relevant documents from litigation would
normally redound to the advantage of the Crown. In Babcock, in what was
undoubtedly a well-intentioned effort to reduce this advantage, McLachlin C.J.
held that the duty of the certifying Clerk was not merely to satisfy herself that
each certified document was within the statutory definition of a Cabinet confi-
dence, but was also to engage in the balancing exercise that, at common law,
would be the duty of a reviewing court. The role of the reviewing court was
simply shifted by s. 39 to the certifying Clerk, who was supposed to take into
account the competing interest in disclosure before certifying a document that the
government wished to keep confidential.119 This was the point on which
117 [1995] 3 S.C.R. 199.

118 Id., para. 166.
119 [2002] 3 S.C.R. 3, paras. 17, 22, 28.
134
CABINET DOCUMENTS 5.6(b)
L’Heureux-Dubé J. disagreed with her eight colleagues: in her view, the “une-
quivocal language” of s. 39 imposed no such balancing duty on the Clerk.120 Her
view was that the duty of the Clerk was simply to determine (1) whether the
document is a cabinet confidence; and (2) whether it is a document that the
government wishes to protect from disclosure. Her view was certainly the ortho-
dox one before Babcock: Parliament in enacting s. 39 had set the balance in favour
of the confidentiality of cabinet confidences.
The majority view in Babcock imposes an extraordinary task on the Clerk,
who would not normally be a lawyer,121 and who would have to fully understand
all the issues in the litigation and the relevance of each document to those issues,
in order to assess the strength of the interest in disclosure, which is to be balanced
against the government’s desire for secrecy. For a person busy with manifold
other duties, it is also an extremely time-consuming task, especially if (as in the
tobacco case) the government wishes to withhold several hundred documents.
For a person whose other duties are entirely devoted to carrying out government
policy, it is an awkward duty to have to overrule government policy on secrecy,
which is what she would have to do from time to time in carrying out the balancing
exercise. Moreover, there seems no way of knowing whether the balancing duty
has in fact been carried out in a conscientious fashion.122 The certificate is not an
affidavit and presumably does not expose the Clerk to cross-examination as to
her understanding of the issues in the litigation and the steps she took to assess
the importance of each document to those issues. With respect, it is not a plausible
interpretation of s. 39 to read it as imposing on a civil servant or minister the
heavy burden of balancing the interest in disclosure against the government’s
policy of secrecy. But that is what the majority in Babcock has decided.
The Court in Babcock also imposed a formal requirement on the s. 39 power
that had not been routine government practice before Babcock. The Court said
that the certificate claiming immunity “must provide a description of the infor-
mation sufficient to establish on its face that the information is a cabinet confi-
dence and that it falls within the categories of s. 39”. To this end, “the date, title,
author and recipient of the document containing the information should normally
be disclosed”.123 That should provide some assurance to litigants that government
has not cast the immunity net wider than s. 39 allows. However, a failure of
120 Id., para. 65.

121 Although the Clerk could be assisted by Department of Justice lawyers, they could not include
the lawyers actually engaged in the litigation, who would surely have a conflict in undertaking
to assist in any “balancing” exercise.
122 In Pelletier v. Can. [2005] 3 F.C.R. 317 (C.A.), the trial judge had actually seen one of the
certified documents because the Crown had inadvertently disclosed it, and the judge concluded
(with good reason) that the Clerk “could not reasonably find that it was in the public interest
to keep confidential this document”. Held, the trial judge erred in examining the document and
was bound by the s. 39 certificate.
123 [2002] 3 S.C.R. 3, para. 28.
135
5.7 EVIDENCE
specificity does not entail the production of a document that is indeed a cabinet
confidence, but merely an order that a more specific certificate be filed.124
The conclusion is that a certificate issued by the Clerk of the Privy Council
under s. 39 will normally be effective to exclude the certified documents from
the litigation to which they are relevant. While Babcock made clear that judicial
review of the Clerk’s certificate is available in whatever court or tribunal has the
power to order production of documents in the litigation,125 the scope for judicial
review is very narrow. A reviewing court would not be able to examine the
challenged documents because that is expressly forbidden by s. 39. A claim that
a challenged document is not a cabinet confidence would generally have to be
confined to reviewing the sufficiency of the Clerk’s list and evidence of prior
disclosure of the document. A claim that the Clerk had acted for an improper
purpose would also be restricted to information on the face of the certificate and
“such external evidence as the challenger may be able to provide”.126 The Babcock
Court was forced to conclude (in a nice understatement) that “these limitations
may have the practical effect of making it difficult to set aside a s. 39 certifica-
tion”.127
5.7 National security
The Canada Evidence Act,128 by ss. 38 to 38.16 (as amended by the Anti-
terrorism Act129 of 2001) enacts an elaborate scheme for the protection of infor-
mation relating to “international relations or national defence or national secu-
rity”,130 described in the Act as “sensitive information” or “potentially injurious
information”.131 The protection is not invoked by a government objection to the
124 Pelletier v. Can., note 122, above.

125 [2002] 3 S.C.R. 3, paras. 42-43, rejecting suggestion that only the Federal Court was competent
to review the Clerk’s certificate.
126 Id., para. 40. External evidence does not include inadvertently disclosed information: Pelletier
v. Can., note 122, above, (trial judge erred in examining document that had been inadvertently
disclosed and concluding that Clerk could not reasonably have found that it was in the public
interest to keep the document confidential; trial judge was bound by s. 39 certificate).
127 Id., para. 40.
128 R.S.C. 1985, c. C-5.
129 S.C. 2001, c. 41.
130 See Lokan and Dassios, note 107, above, sec. 9.6.
131 The protection is extended to (1) “sensitive information”, which is information relating to
international relations or national defence or national security that is in the possession of the
Government of Canada and which the Government is taking measures to safeguard, and (2)
“potentially injurious information”, which is information (not necessarily in the possession of
the Government of Canada) that, if it were disclosed to the public, could injure international
relations or national defence or national security. Note that the definition of sensitive infor-
mation does not require that disclosure be injurious to the public interest; the definition is
therefore applicable to information which would not be protected by public interest immunity
at common law.
136
NATIONAL SECURITY 5.7
court that has power to order disclosure, as is the case for claims of public interest
immunity related to a specified public interest (s. 37)132 or Cabinet confidences
(s. 39).133 In the case of information relating to international relations or national
defence or national security, the protection is invoked by a notice to the federal
Attorney General (s. 38.01). The duty to serve the notice is imposed on “a
participant”, who is a party, witness or counsel in court proceedings, and who is
in possession of sensitive information or potentially injurious information that he
or she is required to disclose or expects to be required to disclose (s. 38.01(1)-
(2)). The notice to the Attorney General can also be given by an official who is
not a participant in the proceedings, but who believes that there is a danger of
disclosure of sensitive information or potentially injurious information (s.
38.01(3)-(4)).
The effect of the notice to the Attorney General is to preclude disclosure of
the information (s. 38.02) unless the Attorney General decides to authorize the
disclosure (s. 38.03). Indeed, even the fact of notice having been given to the
Attorney General is prohibited from disclosure (s. 38.02(1)). If the Attorney
General does not authorize disclosure, an application can be made to the Federal
Court to authorize disclosure (s. 38.04). No court other than the Federal Court
has the power to order disclosure of information relating to international relations
or national defence or national security, even if the proceedings that carry the risk
of disclosure are before another court or tribunal.134 The judge of the Federal
Court who is designated to determine the application decides whether or not to
hold a hearing, and if so who should be given notice of the hearing and who
should be permitted to make representations (s. 38.04).135 If a hearing is held, it
will, as a general rule, be held in private (with only the parties present), but part
of the hearing may be ex parte (with only the Attorney General present) (s. 38.11).
If the designated judge agrees that the disclosure of the information would be
injurious to international relations or national defence or national security, the
judge must consider whether the public interest in disclosure (a just result in the
proceedings) outweighs the public interest in non-disclosure (the need for gov-
ernment secrecy), and, if it does, the judge may authorize disclosure of all or part
of the information and may impose whatever conditions the judge considers
appropriate to limit the injury to international relations or national defence or
national security (s. 38.06). The Act is silent as to whether the judge has the power
to examine the documents before balancing the competing interests, but it has
132 Section 5.4(g), “Disclosure under Canada Evidence Act”, above.

133 Section 5.6(b), “Canada Evidence Act, s. 39”, above.
134 The denial of jurisdiction to the trial court was upheld against constitutional attack in R. v.
Ahmad 2011 SCC 6; discussed at note 138, below.
135 In Ahmad, previous note, paras. 39-40, the Court held that, in the context of criminal proceed-
ings, notice must be provided by the Federal-Court judge to the trial judge, and should, absent
compelling reasons to the contrary, be provided to the accused.
137
5.7 EVIDENCE
been held that the judge does have that power.136 There is an appeal from the
designated judge of the Federal Court to the Federal Court of Appeal (s. 38.09),
and from there, with leave, to the Supreme Court of Canada (s. 38.1).
Finally, there is a surprise ending to the complex provisions for judicial
review of the decision by the Attorney General to prohibit disclosure of infor-
mation. The Act (s. 38.13) confers on the same Attorney General the power to
simply overrule the decisions of the courts! The Attorney General is given the
power to issue a certificate prohibiting the disclosure of information that the
designated judge of the Federal Court (or, on appeal, the Federal Court of Appeal
or the Supreme Court of Canada) has ordered to be disclosed. The certificate must
be issued “personally” by the Attorney General and must be published in the
Canada Gazette. The Act says nothing about the balancing of interests and nothing
about holding a hearing. All that is required is that the Attorney General must act
either (1) “for the purpose of protecting information obtained in confidence from,
or in relation to, a foreign entity”, or (2) “for the purpose of protecting national
defence or national security”. The certificate is subject to judicial review by a
single judge of the Federal Court of Appeal, who has the power to vary or cancel
the certificate only if the judge concludes that the information does not in fact
relate to either of the two purposes for which the Attorney General is empowered
to issue the certificate (s. 38.131). No balancing of interests is involved.137 If the
reviewing judge does vary or cancel the Attorney General’s certificate, that is the
end of the line: the Attorney General is given no power to overrule the judge’s
decision.
The constitutionality of the s. 38 scheme was challenged in R. v. Ahmad
(2011),138 a criminal case in which the defendants were charged with plotting
terrorist attacks on Parliament and other targets. The trial was to be held in
Ontario’s superior court. The provincial Crown Attorney notified the federal
Attorney General, in accordance with s. 38, that there was a risk of disclosure of
“potentially injurious information” or “sensitive information”. The Attorney Gen-
eral brought the disclosure issue before a judge of the Federal Court, who ordered
that the accused be designated as respondents in the Federal-Court proceedings,
that a hearing be held and that notice of the proceedings be given to the trial
judge. The accused then brought an application to the provincial superior court
challenging the constitutionality of s. 38, and the Federal Court halted its pro-
ceedings pending resolution of that application. The provincial superior court
136 Ribic v. Can. [2005] 1 F.C. 33 (C.A.); Abou-Elmaati v. Can. (2011) 104 O.R. (3d) 81, para. 25
(C.A.); Ahmad, note 134, above (implying at various points that the judge has the power to
examine the documents).
137 In Ahmad, note 134, above, no constitutional challenge was brought to this provision, but the
Court (para. 23) commented that “this narrow right of review provides no effective judicial
means for challenging or correcting a debatable decision by the Attorney General in balancing
the public interest in non-disclosure against the public and private interests in disclosure of the
subject information”.
138 2011 SCC 6. The unanimous decision was by “the Court”.
138
NATIONAL SECURITY 5.7
held that s. 38 was unconstitutional to the extent that it conferred exclusive

jurisdiction on the Federal Court over s. 38 privilege determinations. By depriving
the trial court of the power to make decisions about disclosure in the criminal
proceedings, s. 38 was held to offend two constitutional provisions: (1) s. 96 of
the Constitution Act, 1867, which guarantees a “core” of superior-court jurisdic-
tion, and (2) s. 7 of the Charter of Rights, which guarantees the accused’s right
to make full answer and defence. The Attorney General appealed this decision to
the Supreme Court of Canada. The Supreme Court, in a unanimous opinion of
“the Court”, held that s. 38, properly interpreted, did not violate either s. 96 or s.
7. The bifurcation of criminal proceedings required by s. 38 was accordingly
upheld.
The Supreme Court in Ahmad began its decision by “interpreting” the s. 38
scheme as it applies to criminal proceedings. The provincial superior court had
assumed that a judge presiding over criminal proceedings in respect of which
information was being withheld under s. 38 had no way of learning the nature of
the information and without that knowledge would be unable to protect the rights
of the accused. The Supreme Court agreed that s. 38 allowed relevant information
to be withheld from a criminal court, but the Court did not agree that this was a
necessary result under s. 38. In some cases, of course, full disclosure could be
authorized; in others, sufficient disclosure to inform the parties to the criminal
proceedings, or a limited form of disclosure, such as to a security-cleared “special
advocate”139 would be possible. The Court suggested that disclosure to the crim-
inal-court judge alone, “for the sole purpose of determining the impact of non-
disclosure on the fairness of the trial” will often be “the most appropriate op-
tion”.140 The Court emphasized s. 38.14 of the Act, which expressly authorizes
the trial judge to make “any order that he or she considers appropriate in the
circumstances to protect the right of the accused to a fair trial”, and which goes
on to specify as possible remedies the dismissal of some counts, limiting a charge
to a lesser offence, or a stay of all proceedings. This provision, said the Court,
implied that all steps should be taken to provide the criminal-court judge “with
the information required to discharge both the duty to safeguard the fair trial
rights of the accused as well as the obligation to Canadian society not to grant
unwarranted stays of proceedings”.141 Such steps would have to include as much
disclosure as possible to the criminal-court judge. If those steps were not taken,
and the criminal-court judge was unable to conclude affirmatively that the ac-
cused’s right to a fair trial had not been compromised, s. 38.14 authorized the
radical remedy of a stay of proceedings.
These interpretative points led the Court to reject the constitutional objec-
tions to s. 38. The denial of the criminal-court judge’s power to rule on the
disclosure of potentially injurious or sensitive information withheld by the Crown
139 Id., para. 47.

140 Id., para. 45.
141 Id., para. 37.
139
5.8 EVIDENCE
was not a breach of s. 96. Provincial superior courts had not historically had this
power, and so it was not part of the “core jurisdiction” protected by s. 96. In any
case, the s. 38 scheme did not prevent criminal court judges from carrying out
their duty to protect the fair-trial right of the accused — as s. 38.14 expressly
recognized. For similar reasons, the s. 38 scheme did not violate the accused’s
right to make full answer and defence under s. 7. Although the criminal-court
judge could not order disclosure of all relevant information, or order that docu-
ments be produced for judicial inspection, the judge retained the power to protect
the accused’s right to make full answer and defence by making an order under s.
38.14.
Ahmad contains strong language to the effect that notice and disclosure to
the presiding judge should be the norm.142 But Ahmad was a criminal case, and
the Court relied on s. 38.14 and s. 7 of the Charter. Section 38.14 applies only to
criminal proceedings, and s. 7 of the Charter applies mainly to criminal proceed-
ings, extending only to those rare civil proceedings where the “life, liberty or
security of the person” are at stake.143 Nevertheless, we would hope that Federal-
Court judges administering s. 38 would be similarly attentive to the fair-trial
values that are implicated when information is withheld from a civil trial raising
only economic issues. In any event, apart from the suggestion of a security-
cleared special advocate,144 Ahmad does not contemplate the disclosure of with-
held information to the parties or their lawyers,145 but only to the presiding judge.
5.8 Oral evidence

Most claims of public interest immunity have concerned documents, and the
rule is generally stated with reference to documents, rather than evidence in
general. But it is obvious that oral testimony could be as injurious to the public
interest as any document. It is accordingly well established that the immunity
may be claimed in respect of oral testimony.146
How is oral testimony to be excluded? Public interest immunity does not
afford a general immunity for the oral testimony of a minister of the Crown or a
public servant: he or she is as competent and compellable as any other individual
142 Id., para. 45.

143 Hogg, note 109, above, sec. 44.19(a), “The right to a fair trial”.
144 Note 138, above, para. 47.
145 Disclosure to lawyers, but not their clients, was not ruled out but was strongly discouraged:
Id., para. 49.
146 Lloyd v. Wallach (1915) 20 C.L.R. 299 (H.C., Aust.); Smallwood v. Sparling [1982] 2 S.C.R.
686.
140
ORAL EVIDENCE 5.8
if called upon to testify in proceedings in which the testimony is relevant.147 Thus

an application to quash a subpoena or an application for an injunction before the
trial will be unsuccessful, unless it can be established that everything the witness
could say would be protected by public interest immunity. Sometimes, although
the witness is required to testify, ground rules can be established in advance to
keep the questioning away from the protected area. For example, in one case, an
Attorney General was ordered to testify about discussions in cabinet, but with the
restriction that he was not to disclose the opinions or comments of any particular
individual member of cabinet.148 If general rules of this kind cannot be established
in advance, then any claim of public interest immunity would have to be made
during the testimony at trial (or in the examination for discovery) in respect of
answers to specific questions.149
In Smallwood v. Sparling (1982),150 the Supreme Court of Canada held that
Joseph R. Smallwood, the former Premier of Newfoundland, was obliged to
comply with a subpoena requiring his testimony at a federal inquiry into the
affairs of a corporation which had had dealings with the Newfoundland govern-
ment while Mr. Smallwood was Premier. Mr. Smallwood sought an injunction to
prevent the compelling of his testimony on the ground that his testimony would
relate exclusively to his duties as Premier and would involve the disclosure of
cabinet confidences. The Supreme Court of Canada held that there was no general
immunity applicable to the testimony of ministers (or former ministers) of the
Crown; and that even with respect to specific kinds of oral testimony (or specific
documents) Crown immunity was not absolute but relative, involving an issue-
by-issue determination by the courts in which the claimed injury to the public
147 This is the common law rule in a court of law: Canada Deposit Insurance Corp. v. Code (1988)
49 D.L.R. (4th) 57 (Alta. C.A.). Outside a court of law, for example, in an administrative
tribunal or commission of inquiry, the compellability of witnesses has to be created by statute.
Any statute purporting to make witnesses compellable would have to be within the power of
the enacting Parliament or Legislature. In A.-G. Que. and Keable v. A.-G. Can. [1979] S.C.R.
218, it was held that a provincial Legislature could not authorize an inquiry into the “admin-
istration and management” of the federal police force, the Royal Canadian Mounted Police;
and, even for the purpose of an inquiry that was within provincial competence, could not compel
federal ministers of the Crown to testify. In Smallwood v. Sparling, previous note, it was held
that no similar disability stopped the federal Parliament from authorizing a commission of
inquiry into the affairs of a federally-incorporated company to compel the testimony of a former
provincial minister of the Crown. It is not clear whether it would have been different if the
witness was still a provincial minister of the Crown. This case is discussed in the text that
follows. The degree to which provincial law may bind the federal Crown, and the degree to
which federal law may bind the provincial Crown, is discussed in Hogg, note 109, above, sec.
10.9.
148 Nova Scotia v. Nova Scotia Royal Commission into Marshall (1988) 54 D.L.R. (4th) 153
(N.S.A.D.), affd [1989] 2 S.C.R. 788.
149 This requires that the minister’s certificate as to the apprehended injury to the public interest
must be sufficiently specific to enable the court to rule on each objection: Broome v. Broome
[1955] P. 90 (rejecting this procedure in the absence of a fuller certificate).
150 [1982] 2 S.C.R. 686. Wilson J. wrote the opinion for a unanimous bench.
141
5.9 EVIDENCE
interest caused by disclosure would have to be balanced against the injury to the
administration of justice caused by non-disclosure. The injunction was therefore
denied as being too sweeping in its scope and premature in its timing.
5.9 Real evidence

Public interest immunity has occasionally been claimed for a physical object
(“real evidence”).151 In one case, the object was a piece of radio apparatus which
was the subject of a patent infringement action. The High Court of Australia
rejected the claim on the facts, but saw no difficulty of principle in such a claim.152
There is no doubt that in an appropriate case public interest immunity would be
available with respect to real evidence. The point may be tested by reference to
the facts of Duncan v. Cammell Laird.153 If it would be injurious to the national
security in wartime to disclose the plans of a new type of submarine, it would be
equally injurious to allow the litigants to inspect the actual submarine or another
submarine of the same secret type.
5.10 Informer privilege

(a) Nature of informer privilege
One of the earliest claims of public interest immunity to achieve recognition

was the claim to withhold evidence in criminal prosecutions that might reveal the
identity of a police informer.154 The rationale is a threefold: (1) to protect the
informer from retaliation by the person informed against; (2) to protect the police’s
ability to continue to use confidential informers; and (3) to encourage the public
to come forward with information of crime. While other grounds of public interest
immunity have become increasingly difficult to sustain as the courts have ex-
panded judicial review, the informer privilege has survived, expanded and
strengthened. The privilege differs from other kinds of public interest immunity
in that a claim to withhold evidence that would reveal the identity of a police
informer is not weighed in the balance with the countervailing interest in the
administration of justice. Nor is it examined on a case-by-case basis, weighing
the risks that the informer might face. Once a court is satisfied that evidence might
151 Australian National Airlines v. Cth. (1975) 132 C.L.R. 582 (H.C., Aust.) (immunity claimed
for “black box” containing cockpit voice record of crashed aircraft; claim rejected on merits).
152 Marconi’s Wireless Telegraph Co. v. Cth. (No. 2) (1913) 16 C.L.R. 178, 195 (H.C., Aust.).
153 [1942] A.C. 624 (H.L.); discussed at note 37, above.
154 Sopinka, note 1, above, ch. 15; Hubbard, note 1, above, ch. 2.
142
INFORMER PRIVILEGE 5.10(a)
reveal the identity of a confidential informer, the court “is under a duty to protect
the informer’s identity”.155
There is a single exception to the informer-privilege rule, and the exception
applies only in a criminal prosecution. (In civil proceedings the rule is truly
absolute, admitting of no exceptions at all.) If in a criminal prosecution the
evidence of the identity of the informer is required to demonstrate the innocence
of the accused, then the evidence must be admitted.156 This is the “innocence at
stake” exception, and it is the only circumstance in which the interest of justice
is permitted to outweigh the claim to secrecy. Even this limited exception has
been narrowly interpreted. There must be an evidentiary basis for concluding that
the evidence is needed to demonstrate the accused’s innocence; mere speculation
will not suffice. And it must be shown that the disclosure of the informer’s identity
is the only way that the accused can demonstrate his innocence.157 In R. v. Leipert
(1997),158 the Supreme Court rejected the view that the exception was too narrow
to satisfy the accused’s constitutional right to make full answer and defence,
which normally requires disclosure to the defence of all relevant evidence in the
possession of the prosecution.159 The Court held that the informer-privilege rule,
qualified only by the innocence-at-stake exception, was consistent with the ac-
cused’s right to make full answer and defence: it was “an example of the policy
of the law that the innocent should not be convicted, rather than a deviation from
it”.160
The protection of informer privilege was initially available only in criminal
prosecutions,161 and they are still the forum in which the privilege is usually
claimed. It was early expanded to civil actions arising out of criminal prosecutions,
for example, actions for malicious prosecution or wrongful arrest.162 It was a short
extension from there to extradition proceedings163 and public inquiries into police
155 Named Person v. Vancouver Sun [2007] 3 S.C.R. 253, para. 21. This case contains an excellent
review of the rule by Bastarache J. for the eight-judge majority. The case is discussed at note
169, below.
156 Marks v. Beyfus (1890) 25 Q.B.D. 494, 498; Named Person, previous note, paras. 27-29. The
exception is usually expressed in terms of the accused being permitted to “demonstrate his
innocence”, but of course an accused person never has to demonstrate his innocence to be
acquitted. Since guilt must be proved beyond a reasonable doubt, the accused need only persuade
the court that there is a reasonable doubt as to his guilt.
157 Named Person, note 155, above, paras. 27-28.
158 [1997] 1 S.C.R. 281.
159 So held in R. v. Stinchcombe [1991] 3 S.C.R. 326.
160 [1997] 1 S.C.R. 281, para. 24 per McLachlin J. for the majority.
161 R. v. Hardy (1794) 24 St. Tr. 199; A.G. v. Briant (1846) 15 M. & W. 169, 153 E.R. 808 (Exch.).
162 Marks v. Beyfus (1890) 25 Q.B.D. 494; Humphrey v. Archibald (1893) 20 O.A.R. 267 (C.A.).
163 Named Person v. Vancouver Sun [2007] 3 S.C.R. 253.
143
5.10(a) EVIDENCE
practices.164 Eventually, the privilege was extended to civil proceedings unrelated

to police practices or criminal prosecutions.165
The privilege is not usually claimed by the informer himself, although that
has occasionally occurred, as is illustrated by the Named Person case, discussed
in the next paragraph. Usually, the informer is not a party to the proceedings and
is not even going to be a witness in the proceedings because the Crown will not
be presenting his or her evidence. The information provided by the informer will
have been used by the police in their investigation, leading to evidence by others
that will be presented in court. The question of informer privilege will typically
arise when a police officer (or other Crown witness) is cross-examined about the
sources of his or her knowledge or the reasons for following a particular line of
inquiry. If the answer involves information supplied by a confidential informer,
then the police officer will claim informer privilege to refuse to provide any
answers that might reveal the identity of the informer. Although the privilege is
usually claimed by a police officer, it has also been successfully claimed by a
witness for a gaming authority,166 a taxation authority,167 and even a private,
voluntary agency entrusted with the welfare of children.168 In these cases, a flow
of confidential information from secret informers was accepted as essential to the
law enforcement function of the body claiming the privilege.
Named Person v. Vancouver Sun (2007),169 was an application by the Attor-
ney General of Canada to the superior court of British Columbia for an order
extraditing a person who had been charged with offences in the United States.
During the extradition hearing, the person whose extradition was sought (de-
scribed in the report as the “named person”) disclosed that he was a confidential
police informer, and established that this was relevant to the charges against him
in the United States. The question was whether this revelation required the hearing
to continue in camera (in private). The extradition judge held that the informer
privilege had to be balanced against the “open court” principle, which is part of
the guarantee of “freedom of the press and other media of communication” in s.
2(b) of the Charter of Rights. While not opening up the hearing to the public, the
judge did permit counsel for the media to make submissions on the question
whether the proceedings should be opened up, and to help them make useful
submissions the judge provided counsel, on a confidential basis, with material
which disclosed the identity of the named person. Bastarache J. for the majority
of the Supreme Court held that the judge erred in providing this information to
164 Solicitor General Can. v. Royal Commission (Health Records) [1981] 2 S.C.R. 494; Bisaillon
v. Keable [1983] 2 S.C.R. 60.
165 D. v. National Society for Prevention of Cruelty to Children [1978] A.C. 171 (H.L.); Standen’s
v. Pinkerton’s of Can. (2001) 203 D.L.R. (4th) 744 (Alta. Q.B.).
166 Rogers v. Home Secretary [1973] A.C. 388 (H.L.).
167 Commissioner of Inland Revenue v. E.R. Squibb & Sons (1992) 6 P.R.N.Z. 601 (C.A.).
168 D., note 165, above.
169 [2007] 3 S.C.R. 253. Bastarache J. wrote the opinion of the eight-judge majority; LeBel J.
dissented in part.
144
INFORMER PRIVILEGE 5.10(a)
counsel for the media, even on a confidential basis.170 LeBel J., who alone dis-
sented from this conclusion, took the view that the majority had given insufficient
weight to the constitutional status of the open court principle. In his view, the
trial judge always retained a residual discretion to authorize the disclosure of
material that might identify a police informer, even in open court.171 But the
decision of the majority was that the trial judge had no such discretion: informer
privilege must always prevail over the open court principle if a closed courtroom
is necessary to protect the identity of a police informer.172
One of the issues in Named Person was whether the named person had
waived informer privilege by voluntarily identifying himself (in a closed court-
room) as a police informer. The Supreme Court held that (like other categories
of public interest immunity)173 the informer privilege cannot be waived by an
individual, not even by the police informer himself.174 Bastarache J. said that “the
privilege belongs to both the Crown and the informer and thus the informer alone
cannot ‘waive’ the privilege.”175 The implication is that the Crown and the in-
former together could waive the privilege, but that implication would not be
correct. The privilege does not really “belong” to the Crown and the informer: it
exists for the protection of the informer, to be sure, but also for the public interest
in encouraging the reporting of crime. Therefore, if the Crown itself, acting with
the consent of the informer, purported to waive the privilege, the court would still
be under a duty to deny disclosure in support of the public interest that transcends
the circumstances of a particular case.
Because the informer privilege, with its single exception, has hardened into
an inflexible rule, it has been suggested that it ought not to be treated as a branch
of public interest immunity (or Crown privilege).176 For most purposes nothing
turns on the classification of the rule,177 but it has traditionally been regarded as
a branch of public interest immunity. It shares with public interest immunity the
170 See also R. v. Basi [2009] 3 S.C.R. 389; discussed at note 182, below (in a criminal trial, even
counsel for the defence must be excluded from a hearing to establish informer privilege).
171 [2007] 3 S.C.R. 253, para. 121.
172 The innocence-at-stake exception was not in issue since this was an extradition hearing not a
trial of the accused. However, when the exception applies, no more disclosure would be required
than is necessary to provide the accused with the opportunity of demonstrating a reasonable
doubt as to his guilt, and a fully open trial would not be required.
173 Notes 9-10 and accompanying text, above.
174 [2007] 3 S.C.R. 253, para. 25 per Bastarache J. for the majority.
175 Id., para. 25, quoting from Sopinka, note 1, above, 883; see also R. v. Basi [2009] 3 S.C.R. 389,
para. 40, repeating the point. Query correctness for Canada of Savage v. Chief Constable [1997]
2 All E.R. 631 (C.A.), holding that, where the informer agrees to disclosure, the court has a
discretion to permit disclosure.
176 Bisaillon v. Keable [1983] 2 S.C.R. 60, 96.
177 In Bisaillon v. Keable, previous note, the Court held that the classification was important for
the purposes of Canadian federal constitutional law: because the rule was part of the criminal
law, not of the law of evidence, it could be amended or repealed only by the federal Parliament
under its power over criminal law. See also note 2, above.
145
5.10(b) EVIDENCE
fundamental characteristic that “evidence is excluded in the name of a public

interest regarded as superior to that of the administration of justice”.178 However,
it is true that in the cases to which it applies the informer rule is a more powerful
basis for the exclusion of evidence than “ordinary” public interest immunity,
because a claim of informer privilege is not reviewable by the balancing process
that has so whittled down other kinds of public interest immunity.
(b) Scope of informer privilege
Informer privilege applies to only one kind of evidence, namely, evidence

of the identity of a police informer. However, the privilege is interpreted broadly
to cover any information that might tend to identify an informer. The protection
“is not limited simply to the informer’s name, but extends to any information that
might lead to identification”.179 For example, in R. v. Omar (2007),180 the police
were told by a confidential informer (who was paid for his services) that a
particular person would be in a particular place at a particular time in a car with
a particular licence plate, with a gun behind the armrest in the back seat of the
car. That all turned out to be true and the police arrested the person and charged
him with weapons offences. Defence counsel, seeking to attack the validity of
the arrest and search, demanded details of the source of the information upon
which the police had acted. The trial judge overruled a claim of informer privilege
and ordered the Crown to produce the police’s “confidential informant file” with
the details that might identify the informant edited out by the judge herself. The
Ontario Court of Appeal held that the judge was in error in ordering production
of the file because she had no way of knowing whether her editing would be
effective to conceal the identity of the informer. The information upon which the
police had acted was so detailed that only a few persons could possibly have
possessed it. Those persons would probably all be known to the accused. Even
the most trivial and apparently innocuous detail about the informer and the
informer’s contacts with the police might be enough to indicate his identity to the
accused and place the informer in jeopardy. Since the innocence-at-stake excep-
tion was not applicable in this case, all information about the informer and his
contacts with the police was covered by informer privilege and was prohibited
from disclosure even in edited form.
Where informer privilege is claimed for a document (as opposed to oral
evidence), if the editing of the document really would eliminate any risk of
disclosing the identity of the informer, then editing is a sufficient remedy for the
claim of privilege, and the edited document can be produced. However, if it is
not clear what details might reveal the identity of the informer, then the entire
178 Id., 96.

179 Named Person, note 169, above, para. 26.
180 (2007) 84 O.R. (3d) 493 (C.A.).
146
INFORMER PRIVILEGE 5.10(b)
document must be excluded. This led to the result in Omar. The same reasoning
led to the same result in R. v. Leipert (1997).181 In that case, the Supreme Court
excluded a “tip sheet” which recorded the details of an anonymous tip received
by Crime Stoppers, a public service organization that solicited information from
the public under an undertaking of confidentiality and passed it on to the police.
Unlike the usual case where the informer is known to the police, in this case the
informer was unknown to anyone, including the Crime Stoppers agent who re-
ceived the call. This made it very difficult to be confident that any of the infor-
mation on the sheet was irrelevant to identification. In order to safeguard the
Crime Stoppers programme, the Court concluded that the course of prudence was
to exclude the entire document under the rubric of informer privilege. (The
accused tried but failed to bring himself within the innocence-at-stake exception.)
R. v. Basi (2009)182 was a criminal trial in which the Crown made disclosure
to the accused of documents that had been redacted, in some cases with entire
pages blacked out. The Crown claimed that the unredacted documents would
disclose the identity of a police informer. Counsel for the accused applied to the
court for the unredacted documents. The trial judge proposed to hold a hearing
in camera (in private) at which the Crown would be given an opportunity to
establish the claim of informer privilege. The judge proposed to permit defence
counsel to be present and participate at the hearing (where a police officer was
going to testify). Defence counsel would be there without their clients and subject
to an undertaking not to disclose to anyone including their clients anything that
was disclosed at the hearing. (The clients had consented to this undertaking.) The
Crown objected to the presence of defence counsel, and appealed the judge’s
order on up to the Supreme Court of Canada. The Court held that defence counsel
had to be excluded from any hearing to establish an informer privilege. They
were outside the “circle of privilege”. If the claim of privilege proved to be well
founded, any disclosure to defence counsel of information bearing on the identity
of the informer would be a breach of the privilege. That risk could be avoided
only by excluding defence counsel from the hearing.183 The undertakings of non-
disclosure by defence counsel did not cure the problem, and would place counsel
in an awkward position where their duties to represent their clients might come
into conflict with their undertakings not to disclose what they had learned at the
hearing.
Basi makes clear that, in a criminal trial, where a separate hearing is needed
to resolve a Crown claim of informer privilege, the hearing must be held in
camera, and both the accused and defence counsel must be excluded from the
181 [1997] 1 S.C.R. 281. See also discussion at note 158, above.
182 [2009] 3 S.C.R. 389. Fish J. wrote the opinion of the Court.
183 Fish J. softened the ruling a little by holding (para. 55) that “trial judges should adopt all
reasonable measures to permit defence counsel to make meaningful submissions regarding
what occurs in their absence”, and he made (paras. 55-58) some suggestions to that end.
147
5.10(c) EVIDENCE
hearing. The Named Person case, discussed earlier,184 illustrates that in an unusual
case informer privilege may require an entire trial to be held in camera. That was
not a criminal trial, but an extradition hearing in which it was the informer himself
who was the subject of the application for extradition. (He had been charged with
offences in the United States.) The Supreme Court was persuaded that nothing
short of a closed courtroom would protect the identity of the informer from
disclosure.
(c) Other confidential information
Where information has been supplied on a confidential basis, but there is no

direct link to law enforcement, the informer privilege will not apply. For example,
a journalist testifying in court cannot claim informer privilege as the basis for
refusing to disclose the name of a confidential source.185 Nor can a member of a
Legislative Assembly.186 Neither the journalist nor the MLA has the responsibility
for law enforcement that is a prerequisite to the informer privilege. Where the
informer privilege does not apply, it is possible that some other privilege applies.
For example, solicitor-client privilege protects from disclosure confidential com-
munications between a client and his or her lawyer, and litigation privilege
protects from disclosure information received by a lawyer for the purpose of
preparing for a trial. These privileges are available to the Crown as well as to
private parties. And public interest immunity itself will be available if there is a
public interest in maintaining confidentiality for a particular piece of information.
Of course, when the identity of an informer is not in issue, a claim of public
interest immunity has to be weighed in the balance against the importance of the
information to the litigation. However, a successful claim of public interest im-
munity has been made for information supplied in confidence to customs offi-
cials.187
5.11 Confidentiality laws
Many statutes contain provisions that expressly make information confiden-

tial.188 For example, information received in the course of a public official’s duties

185 There is a journalist-confidential-source privilege, but it is not a “class privilege” like informer
privilege (or solicitor-client privilege); it is a “case-by-case privilege” that yields to the public
interest in the investigation of crime: R. v. National Post [2010] 1 S.C.R. 477 (disclosure of
source ordered).
186 Re Legislative Privilege (1978) 18 O.R. (2d) 529 (C.A.).
187 Alfred Compton Amusement Machines v. Customs and Excise Commrs. [1974] A.C. 405 (H.L.).
188 See S.I. Bushnell, “Crown Privilege” (1973) 51 Can. Bar Rev. 551, 552-555; I. Eagles, “Public
Interest Immunity and Statutory Privilege” [1983] Camb. L.J. 118; L. Tsaknis, “Commonwealth
Secrecy Provisions: Time for Reform?” (1994) 18 Crim. L.J. 254.
148
FREEDOM OF INFORMATION LAWS 5.12
is often prohibited from disclosure. Reports or returns (including tax returns) that
are made by private individuals or firms under the compulsion of a statute are
often prohibited from disclosure. Mental health legislation, young offender leg-
islation and privacy legislation all restrict the disclosure of records. The scope of
these provisions is a matter of interpretation in each case. Those provisions that
specifically prohibit the introduction of evidence in court will obviously be ef-
fective to withhold the protected material from litigation.189 More commonly,
however, such provisions prescribe confidentiality but say nothing specific about
the introduction of evidence in court. Such provisions have been interpreted as
not barring either the production of documents in court or oral testimony in
court.190 These decisions reflect concern that the materials available in litigation
should be limited only by clear words.191 Of course, a claim of public interest
immunity could be made in respect of material covered by a confidentiality law,
but the court would still have to decide the issue on the balance of public interests,
as it does with other claims.192
5.12 Freedom of information laws
In 1982, the Parliaments of Canada, Australia and New Zealand enacted

freedom of information statutes, which provide a public right of access to gov-
ernment documents.193 All the Australian states and Canadian provinces soon
followed with their own legislation. The United Kingdom held out until 2000,
when it also enacted such a statute194. The statutes vary markedly in their details,
but in general the right of access is qualified by exceptions, which define classes
of documents to which access is either prohibited or made subject to the discre-
tionary judgment of an official. Unlike the situations in which public interest
immunity is claimed, access under freedom of information regimes is not predi-
cated on the need for the document in litigation; indeed, no reason need be given
189 But see Canadian Pacific Tobacco Co. v. Stapleton (1952) 86 C.L.R. 1 (H.C., Aust.) (taxing
statute providing that official “shall not be required” to give evidence of tax information did
not preclude official from testifying if willing: he was a competent, though not compellable,
witness).
190 R. v. Snider [1954] S.C.R. 479; Homestake Mining Co. v. Texasgulf Potash Co. (1977) 76
D.L.R. (3d) 521 (Sask. C.A.); Sanko Steamship Co. v. Sumitomo (1992) 37 F.C.R. 353 (Gen.
Div.); see also articles in note 188, above.
191 A fortiori, the mere fact that a document falls into a category exempted from public access
under a freedom of information statute (discussed in the next section of this chapter) would not
mean that the document was entitled to be excluded from litigation.
193 Access to Information Act, R.S.C. 1985, c. A-1; Freedom of Information Act, 1982 (Cth.);
Official Information Act 1982 (N.Z.). See A. Cossins, “Revisiting Open Government” (1995)
23 Fed. L.R. 226 (comparing public interest immunity and freedom of information law).
194 Freedom of Information Act, 2000 (U.K.), 2000, c. 36.
149
5.12 EVIDENCE
for demanding a document. The public interest in disclosure is simply the general
value of open government.195
The freedom of information regimes operate independently of the judicial
processes of discovery and trial, and do not purport to speak to the admissibility
of government documents in litigation. In particular, a document that is not
accessible (or to which access has been denied) under the freedom of information
statute (cabinet confidences are typically excluded or restricted, for example) may
well be relevant and admissible in litigation. If the disclosure of the document in
the litigation is resisted on the basis of public interest immunity, then the court
would have to review the claim by the normal process of balancing the competing
public interests in government secrecy and assistance to the administration of
justice.196 On the other hand, a document that is accessible as of right (or to which
access has been granted) under the freedom of information law could not be the
subject of a successful public interest immunity claim, because it cannot be argued
that there is any reason to withhold from litigants a document that is already in
the public domain.197
195 In Ont. v. Criminal Lawyers’ Assn. [2010] 1 S.C.R. 815, the Supreme Court held that access to
government documents was protected by the Charter right to freedom of expression, but only
“where it is a necessary precondition to meaningful expression on the functioning of govern-
ment” (para. 30).
197 Note 13, above. This is one reason why it is a common practice to make a freedom of information
request before embarking on litigation against government.
150
6
Tort: General Principles
6.1 History 152

(a) Crown immunity 152
(b) Early statutory reform 152
(c) United Kingdom reform of 1947 154
(d) Australia and New Zealand 156
(e) Canada 156
6.2 Vicarious liability 159
(a) Definition of vicarious liability 159
(b) Direct liability compared 159
(c) Crown servant 160
(i) Liability for tort of Crown servant: General rule 160
(ii) Definition of Crown servant 161
(iii) Identification of Crown servant 162
(iv) Independent contractors and non-delegable duties 163
(v) Crown agent 166
(d) Commission of tort by servant 167
(i) Commission of tort by servant: General rule 167
(ii) Statutory immunity clauses 167
(iii) Enforcement of criminal law 168
(iv) Judicial functions 169
(e) Course of employment 171
(i) Course of employment: General rule 171
(ii) De facto authority 172
(iii) Independent discretion 173
(f) Policy favouring vicarious liability 175
6.3 Direct liability 176
(a) Crown liability 176
(b) Employers’ duties 178
(c) Occupiers’ duties 179
(d) Statutory duties 180
(e) Other duties and reform of direct liability 182
6.4 Lack of legal authority 188
(b) Compensation under statute 188
(c) Compensation under prerogative 188
(d) Significance of legal authority 189
(e) Interpretation of statutory authority 190
6.1(a) TORT: GENERAL PRINCIPLES
6.5 Commission of a tort 194

(a) Recognized heads of liability 194
(b) Negligence 196
(c) Misfeasance in a public office 197
(d) Constitutional torts 201
6.6 Reform 206
(a) Compensation based on invalidity 206
(b) Compensation based on risk 213
(c) Compensation based on entitlement 217
(d) A public law of torts 218
6.1 History
(a) Crown immunity
The history of proceedings against the Crown was briefly traced in chapter
1.1 In the nineteenth century, the petition of right, which had become the principal
means of suing the Crown, was held not to be a remedy in tort. The reasoning in
those early tort cases – that “The King can do no wrong” – we can now see to be
misconceived, but the cases became firmly established as the law. Since no remedy
other than the petition of right was available to sue the Crown in tort, the Crown
became immune.2
(b) Early statutory reform
The reform of the petition of right procedure in the United Kingdom by the
Petition of Right Act in 1860, and the similar statutes which were enacted in
Canada in the nineteenth and early twentieth centuries, did not in express terms
impose liability in tort on the Crown. The courts in the United Kingdom and in
common law Canada decided that the statutes were procedural only and should
not be interpreted as imposing liability in tort by implication.3
In Farnell v. Bowman (1887),4 however, the Privy Council decided that a
similar statute, enacted by New South Wales, was effective to impose liability in
tort on the Crown in right of New South Wales. Their lordships said frankly that
in their view the English law was not apt to cope with the conditions in the
1 Chapter 1, Introduction, under heading 1.3, “History of Crown proceedings”, above.

2 However, public bodies (e.g., statutory public corporations) that had a legal personality inde-
pendent of the Crown did not enjoy Crown immunity: Itchin Bridge Co. v. The Southampton
Bd. of Health (1858) 8 E & B 811; Mersey Docks and Harbour Bd. v. Gibbs (1864-1866) 11
H.L.C. 686 (H.L.).
3 Tobin v. The Queen (1864) 16 C.B.N.S. 310, 143 E.R. 1148; Muskoka Mill Co. v. The Queen
(1881), 28 Gr. 563 (Ont. Ch.); The Queen v. McFarlane (1882) 7 S.C.R. 216; The Queen v.
McLeod (1883) 8 S.C.R. 1.
4 (1887) 12 App. Cas. 643 (P.C., Aust.).
152
HISTORY 6.1(b)
Australian colonies, where governments “as pioneers of improvements” had to

embark on many undertakings that in England were left to private enterprise; it
followed that if the maxim that “The King can do no wrong” were applied to the
colonial governments, “it would work much greater hardship than it does in
England”.5 This decision was applied in due course in the other Australian states
with similar statutes.6 The result was that, as early as 1902, the Crown was liable
in tort in every Australian jurisdiction, except the state of Victoria, and was also
liable in tort in New Zealand.7
The reasoning of Farnell v. Bowman was never applied to any of the Crown
proceedings statutes of common law Canada. But in The King v. Cliche (1935),8
the Supreme Court of Canada held that article 1011 of the Code of Civil Procedure
imposed liability in tort on the Crown. This article was introduced into Quebec
law by the Petition of Right Act of 1883,9 an Act which was similar to the English
statute of 1860 and the other Canadian statutes which had used the English statute
as a prototype. Since these statutes had all been held inapt to impose tortious
liability on the Crown, the Cliche decision was surprising. In a brief judgment,
Cannon J. for a unanimous bench quoted the reasoning of Farnell v. Bowman,
and added that article 1011 had been accepted for many years in Quebec as
permitting claims in delict and quasi-delict against the Crown. Cannon J. did not
refer to the English and Canadian decisions which suggested a contrary result.
Despite this failure to deal with prior authority, and the argument of F.R. Scott
that the case should be given a narrow interpretation,10 later cases confirmed that
in Quebec the Crown was indeed liable in delict and quasi-delict.11
Until the 1950s, Quebec was the only Canadian jurisdiction in which the
Crown was generally liable in tort. However, the federal Exchequer Court Act
did impose an important measure of liability on the Crown in right of Canada. In
5 Id., 649.
6 Brabant & Co. v. King [1895] A.C. 632 (P.C., Aust.); Evans v. Finn (1904) 4 S.R. (N.S.W.)
297 (F.C.); Baume v. Cth. (1906) 4 C.L.R. 97 (H.C., Aust.); Welden v. Smith [1924] A.C. 484
(P.C., Aust.).
7 The decisions in Farnell v. Bowman, note 4, above, and the cases cited in the previous note,
covered South Australia (Claimants’ Relief Act, 1853); New South Wales (Claims against the
Government Act, 1857); Queensland (Claims against Government Act, 1866); Tasmania
(Crown Redress Act 1891); and the Commonwealth (Claims against the Commonwealth Act
1902). New Zealand and Western Australia specifically authorized suits against the Crown for
a “wrong or damage independent of contract”, but only on a “public work”: Crown Suits Act,
1881 (N.Z.); Crown Suits Act, 1898 (W.A.). The “public work” limitation was removed by
amendment in New Zealand in 1910; it remained in Western Australia until 1947. In Victoria,
the Crown remained immune from liability in tort until 1955.
8 [1935] S.C.R. 561.
9 S.Q. 1883, c. 27, adding article 886a to the Code of Civil Procedure which later became article
1011, and which later became article 94 of the Code of Civil Procedure, R.S.Q. 1977, c. C-25.
10 F.R. Scott, Comment (1936) 14 Can. Bar Rev. 252, who admits, however, that the result was
“socially desirable”.
11 Martineau v. The King [1944] S.C.R. 194; Hudon v. Procureur Général de Québec [1968]
S.C.R. 103; Dussault and Borgeat, Administrative Law (2nd ed., 1990), vol. 5, 19.
153
6.1(c) TORT: GENERAL PRINCIPLES
1887, a provision was included which conferred jurisdiction on the Exchequer

Court over claims against the Crown for the negligence of Crown servants, but
only if the negligence occurred “on a public work”.12 This provision, although in
terms only conferring jurisdiction on the Exchequer Court, was interpreted as
imposing liability on the Crown for the negligence of Crown servants on a public
work. Inevitably, however, the meaning of the “public work” limitation provoked
litigation, and in 1938 the limitation was removed.13 From then until the broader
reform of 1951, the Crown in right of Canada was liable for “the negligence of
any officer or servant of the Crown while acting within the scope of his duties or
employment”. This imposed an extensive area of liability; but it excluded torts
other than negligence, and even in the case of negligence its scope was incom-
plete.14
(c) United Kingdom reform of 1947
The United Kingdom did not act to impose general tortious liability on the
Crown until 1947; nor did any of the Canadian provinces act until after the United
Kingdom had done so; nor did the federal Parliament, except for the provisions
of the Exchequer Court Act that have been discussed. However, before the reforms
that started with the United Kingdom in 1947, a person injured by a Crown servant
in the United Kingdom or Canada was not necessarily without redress. The Crown
servant who committed the tort was of course personally liable, even if the servant
was acting in the course of his or her employment. The plaintiff could therefore
bring suit against the particular Crown servant who caused the injury. As early
as 1908 in England, it was said that “in a proper case” the Crown would defend
its servant and pay any damages awarded;15 and this certainly became the invar-
iable practice later on. Indeed, the practice of the Crown “standing behind” any
servant who committed a tort in the course of employment seems to have been
general in all jurisdictions in which the Crown was immune from liability in tort,
and the practice was probably the reason why the scandalous gap in the law was
not filled much earlier.
The Crown practice of standing behind a servant who committed a tort in
the course of employment was not an adequate substitute for the comprehensive
legal liability of the Crown.16 In particular, the Crown’s practice provided no
12 S.C. 1887, c. 16, s. 16(c).

13 S.C. 1938, c. 28, s. 1. The legislative history and the case law are discussed by Thorson J. in
McArthur v. The King [1943] Ex. C.R. 77.
14 McArthur v. The King, previous note, was in effect reversed by S.C. 1943-44, c. 25, adding a
new s. 50A to the Exchequer Court Act. But the case is instructive as a demonstration of the
continued force of the tradition of strict interpretation which had plagued the provision from
the outset. The provision, even after its amendment in 1938, would also exclude “direct” as
opposed to “vicarious” liability in tort: The King v. Anthony [1946] S.C.R. 569, 571-572.
15 Robertson, Civil Proceedings by and against the Crown (1908), 351.
16 Williams, Crown Proceedings (1948), 17-19.
154
HISTORY 6.1(c)
machinery for recovering damages from the Crown in situations where a private
employer would be liable “directly” rather than “vicariously”.17 This problem was
vividly illustrated by two cases that arose in England during the second world
war. In Adams v. Naylor (1946),18 two boys had been injured by an explosion in
a mined area of sandhills which they had entered to retrieve a ball. A fence and
warning notice had been submerged by windblown sand. The action for damages
was brought against a Crown servant who had been nominated by the Crown to
defend the action. The action failed by reason of a statutory bar, but the House of
Lords pointed out, in obiter, that it would also have failed at common law. The
minefield was in the occupation of the Crown, not the nominated Crown servant,
and no one other than the occupier of the land owed any duty of care to persons
injured there. Since the Crown was not and could not be the defendant in the
action, there was no one who could be held liable to the plaintiffs. The same
difficulty defeated the plaintiff in Royster v. Cavey (1947),19 an action by a woman
who was injured in a munitions factory occupied by the Crown. She alleged
negligence and breach of statutory duty. She failed because the Crown servant
who had been nominated by the Crown to be the defendant in the action had
nothing to do with the plaintiff’s accident and was not the occupier of the factory;
he therefore owed the plaintiff no duty of care and no statutory duty.
The decisions in Adams v. Naylor and Royster v. Cavey provided the impetus
for reform in the United Kingdom. Following the decisions, the United Kingdom
Parliament enacted the Crown Proceedings Act 1947, which, among other things,
makes the Crown liable in tort. This result is accomplished, not by the kind of
simple all-embracing formula which had proved successful in Australia, but by
complex provisions which impose liability piecemeal. One provision gives leg-
islative force to the practice before the statute: it provides for the liability of the
Crown “in respect of torts committed by its servants or agents”.20 Separate pro-
visions then deal with the difficulties which arose in Adams v. Naylor and Royster
v. Cavey by providing for specific heads of direct liability: breach of employers’
duties,21 occupiers’ duties22 and statutory duties.23 As will be shown, this style of
drafting is not satisfactory, because it leaves some gaps in the Crown’s liability.
But this statute became the model for reform in New Zealand, in the Australian
state of Victoria, and in eight of the ten Canadian provinces.
17 Direct and vicarious liability are distinguished and discussed in sec. 6.2, “Vicarious liability”,
below.
18 [1946] A.C. 543 (H.L.).
19 [1947] 1 K.B. 204 (C.A.).
20 Section 2(1)(a).
21 Section 2(1)(b).
22 Section 2(1)(c).
23 Section 2(2). For analysis of the United Kingdom Act, see Williams, note 16, above; Arrows-
mith, Civil Liability and Public Authorities (1992); Wade and Forsyth, Administrative Law
(10th ed., 2009), ch. 21.
155
6.1(d) TORT: GENERAL PRINCIPLES
(d) Australia and New Zealand
The Crown Proceedings Act 1947 became the model for New Zealand,
which, in 1950, repealed its legislation and substituted it with a statute similar to
the United Kingdom.24 In Australia, the state of Victoria, which was the only
jurisdiction that had not imposed liability in tort on the Crown, in 1955 passed a
statute that imposed liability in tort on the Crown.25 The other Australian juris-
dictions, with generally satisfactory laws, were not influenced as much by the
United Kingdom statute. They retained their existing legislation, and those juris-
dictions that later enacted new statutes did not closely follow the United Kingdom
model.26
(e) Canada
The United Kingdom’s Crown Proceedings Act 1947 was relied upon by the
Commissioners on Uniformity of Legislation in Canada in preparing a model act
for adoption by Canadian jurisdictions. The Uniform Model Act of 195027 essen-
tially followed the United Kingdom Act in the drafting of the provision respecting
tortious liability. Section 5(1) of the Uniform Model Act provided as follows:
. . . the Crown is subject to all those 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 officers or agents;
(b) in respect of any breach of those duties that a person owes to his servants or
agents by reason of being their employer;
24 Crown Proceedings Act 1950 (N.Z.). For analysis, see Currie, Crown and Subject (1953).
25 Crown Proceedings Act 1955 (Vic.). For analysis, see P.W. Hogg, “Victoria’s Crown Proceed-
ings Act” (1970) 7 Melbourne U.L. Rev. 342.
26 The provisions imposing tortious liability that are now in force in Australia and New Zealand
are as follows (in this chapter, jurisdictional abbreviations are used to reference these statutes):
Australia
Commonwealth: Judiciary Act, 1903, ss. 56, 64.
New South Wales: Crown Proceedings Act 1988, s. 5.
Queensland: Crown Proceedings Act 1980, s. 9.
South Australia: Crown Proceedings Act 1992, s. 5.
Tasmania: Crown Proceedings Act 1993, s. 5.
Victoria: Crown Proceedings Act 1958, s. 23.
Western Australia: Crown Suits Act, 1947, s. 5.
Australian Capital Territory: Court Procedures Act, 2004, s. 21.
Northern Territory: Crown Proceedings Act, s. 5.
New Zealand
New Zealand: Crown Proceedings Act 1950, s. 6.
See, generally, Aronson and Whitmore, Public Torts and Contracts (1982), ch. 1.
27 “An Act respecting Proceedings against the Crown” in Conference of Commissioners on
Uniformity of Legislation in Canada, Proceedings of 1950, 76.
156
HISTORY 6.1(e)
(c) in respect of any breach of the duties attaching to the ownership, occupation,
possession or control of property; and
(d) under any statute, or under any regulation or by-law made or passed under the
authority of any statute.
The Uniform Model Act was enacted in substance by eight provinces – all
except British Columbia and Quebec. Section 5(1) was included in the statutes
of the eight provinces. Only in the federal jurisdiction, British Columbia and
Quebec does the law respecting the tortious liability of the Crown depart from
the uniform formula.28
In the federal jurisdiction, it will be recalled that the Crown had been subject
to a measure of liability in tort since 1887, and had been subject to vicarious (but
not direct) liability for negligence (but not other torts) since 1938.29 The federal
Parliament never enacted the Uniform Model Act, but it did cautiously reform its
law in the direction indicated by the Model Act. In respect of procedure, we have
already noticed that the requirement of the fiat was abolished in 1951, although
the petition of right remained the procedure of suit until it was abolished in 1971.30
In respect of tortious liability, in 1952 the federal Parliament enacted the Crown
Liability Act,31 which imposed tortious liability under two of the four heads listed
28 The provisions imposing tortious liability that are now in force in all Canadian jurisdictions
are as follows (in this chapter, jurisdictional abbreviations are used to reference these statutes):
Canada: Crown Liability and Proceedings Act, R.S.C. 1985, c. C-
50, s. 3.
British Columbia: Crown Proceeding Act, R.S.B.C. 1996, c. 89, s. 2.
Alberta: Proceedings against the Crown Act, R.S.A. 2000, c. P-25,
s. 5.
Saskatchewan: Proceedings against the Crown Act, R.S.S. 1978, c. P-27,
s. 5.
Manitoba: Proceedings against the Crown Act, C.C.S.M., c. P140, s.
4.
Ontario: Proceedings against the Crown Act, R.S.O. 1990, c. P.27,
s. 5.
Quebec: Code of Civil Procedure, R.S.Q. 1977, c. C-25, s. 94.
New Brunswick: Proceedings against the Crown Act, R.S.N.B. 1973, c. P-
18, s. 4.
Nova Scotia: Proceedings against the Crown Act, R.S.N.S. 1989, c. 360,
s. 5.
Prince Edward Island: Crown Proceedings Act, R.S.P.E.I. 1988, c. C-32, s. 4.
Newfoundland and Labrador: Proceedings against the Crown Act, R.S.N. 1990, c. P-26,
s. 5.
See, generally, Immarigeon, La responsabilité extra-contractuelle de la Couronne au Canada
(1965); Goldenberg in Law Society of Upper Canada, New Developments in the Law of Torts,
Special Lectures 1973, 341; McNairn, Governmental and Intergovernmental Immunity (1977),
ch. 3; Dussault and Borgeat, note 11, above, ch. 2; Sgayias and others, The Annotated Crown
Liability and Proceedings Act 1995 (1994).
30 Chapter 1, Introduction, under heading 1.3(e), “Statutory reform”, above.
31 S.C. 1952-53, c. 30.
157
6.1(e) TORT: GENERAL PRINCIPLES
in the Model Act, namely, (1) “in respect of a tort committed by a servant of the
Crown” and (2) “in respect of a breach of duty attaching to the ownership,
occupation, possession or control of property”.32 The Act was renamed the Crown
Liability and Proceedings Act in 1990,33 and was substantially amended, but s. 3,
the provision imposing tortious liability, remained the same.
British Columbia delayed until 1974 in the reform of its Crown proceedings
law. Its Crown Proceedings Act of 197434 departs from the Uniform Model Act
in a number of respects. In particular, s. 5(1) of the Model Act (imposing tortious
liability) is wholly omitted, and there is no provision dealing exclusively with
tortious liability. Instead, the British Columbia Act, by s. 2(c), simply provides
that “the government is subject to all the liabilities to which it would be liable if
it were a person”. The drafting of this provision is not elegant, but it leaves no
doubt that the Crown in right of British Columbia is wholly liable in tort, and in
all other areas of the law that impose liabilities on legal persons.
Quebec never enacted the Uniform Model Act. However, it will be recalled
that it did abolish the requirement of the fiat in 1965.35 It will also be recalled that
general language in its Code of Civil Procedure had been interpreted by judicial
decisions as imposing full liability in delict and quasi-delict on the Crown in right
of Quebec.36 Quebec is therefore like British Columbia in that liability stems from
a simple and all-embracing formula that is not hedged with the limitations that
are found in the other jurisdictions.37
The imposition of tortious liability on the Crown in all Canadian jurisdictions
except Quebec (which has never been immune) was not retroactive. The Crown
therefore remains immune from tortious liability in respect of acts or omissions
32 A special problem with respect to the Crown in right of Canada, in situations where it is liable
in tort, is the choice of the applicable law. Tort law is generally provincial, not federal. The
best view seems to be that the federal Crown’s liability in tort should be determined in
accordance with the law of the province in which the cause of action arose: see ch. 15, Statutes,
under heading 15.12, “Federal Crown as defendant”, below.
33 Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50, as am. by S.C. 1990, c. 8.
34 S.B.C. 1974, c. 24; now R.S.B.C. 1996, c. 89.
36 Text accompanying notes 8-11, above.
37 See also article 1376 of the Civil Code of Quebec, which provides that the “rules set forth in
this Book [“Obligations”] apply to the State and its bodies, and to all other legal persons
established in the public interest, subject to any other rules of law which may be applicable to
them”. By virtue of article 1376, Quebec’s rules of civil liability apply to “the State”, unless “a
party can show that other rules of law, such as those of public law, prevail over the civil law
rules”: Canadian Food Inspection Agency v. Professional Institute of the Public Service of
Can. [2010] 3 S.C.R. 657, para. 26 (citing Prud’homme v. Prud’homme [2002] 4 S.C.R. 663,
para. 31). This basically codifies the approach in the other Canadian jurisdictions. The Crown
is subject to the same law as private citizens, with various exceptions, which preclude or limit
Crown liability in certain situations: see, e.g., Entreprises Sibeca v. Frelighsburg [2004] 3
S.C.R. 304 (applying a common law decision, Welbridge Holdings v. Greater Winnipeg [1971]
S.C.R. 957, to preclude a claim against a Quebec municipality alleging the improper enactment
of a by-law).
158
VICARIOUS LIABILITY 6.2(b)
occurring before the in-force date of the original applicable Crown proceedings
statute. This immunity obviously recedes in importance as time goes on. However,
the immunity has occasionally been applied in modern cases where there would
otherwise have been a cause of action in tort against the Crown which arose before
the in-force date and which would not be barred by any statute of limitations.38
In those cases, Crown immunity continues.
6.2 Vicarious liability

(a) Definition of vicarious liability
A master (employer) is vicariously liable for a tort committed by a servant

(employee) in the course of employment.39 Originally, the liability of the master
was predicated on the fiction that the master had impliedly commanded the servant
to commit the tort. But the fiction of the implied command is now generally
rejected as an explanation for the master’s liability for a servant’s tort. Vicarious
liability is now seen as a species of strict liability, not depending upon any real
or presumed fault on the part of the master. Its justification is said to be found in
a variety of policy considerations, of which the most powerful is the notion that
the master should bear the risks that are generated by the conduct of the master’s
business.40
(b) Direct liability compared
A master’s liability in tort arising out of the act or omission of a servant is

not invariably vicarious. A master is directly liable for the act of a servant in
certain situations. If the master does in fact command the servant to commit a
tort, then the master is directly liable for his or her own wrongful act.41 If a master
fails in the duties to provide competent servants, a safe plant and a safe system
38 E.g., S.A.D. v. B.C. (1999) 172 D.L.R. (4th) 1 (B.C.C.A.); Murray v. Ont. (2003) 67 O.R. (3d)
97 (C.A.); Arishenkoff v. B.C. (2005) 260 D.L.R. (4th) 469 (B.C.C.A.); Dolmage v. Ont. 2010
ONSC 1726 (S.C.J.).
39 Employer-employee is typically now used in place of the older master-servant nomenclature.
We use master-servant because that is the terminology generally used in the Crown proceedings
statutes: see sec. 6.2(c)(ii), “Definition of Crown servant”, below.
40 The Supreme Court of Canada adopted this as the primary justification for vicarious liability
in Bazley v. Curry [1999] 2 S.C.R. 534, paras. 22, 30-31; see also Hollis v. Vabu Pty. (2001)
207 C.L.R. 21, para. 42 (H.C., Aust.); Dubai Aluminium v. Salaam [2003] 2 A.C. 366, 377
(H.L.). See generally Atiyah, Vicarious Liability in the Law of Torts (1967), ch. 2; Fleming,
The Law of Torts (9th ed., 1998), ch. 19; Neyers, Chamberlain and Pitel, Emerging Issues in
Tort Law (2007), ch. 15 (by Wingfield) and ch. 16 (by Gilliker); Horsman and Morley (eds.),
Government Liability (2006, annually supplemented), section 1.50 (by Morley); Klar, Tort Law
(4th ed., 2008), 645-666.
41 Atiyah, previous note, 4.
159
6.2(c)(i) TORT: GENERAL PRINCIPLES
of work – duties which rest on the master directly – the master is directly liable
for any injury caused by the breach of duty, even if the breach occurs by the act
or omission of a servant.42 The same is true of the duties that an occupier of
property owes to visitors; if the property is so unsafe as to amount to a breach of
the occupier’s duties, then the occupier is directly liable to an injured visitor even
if the property was made unsafe by the act or omission of a servant.43 Another
head of direct liability may be created by a statute that imposes a duty on the
master and a civil liability for breach of the duty; breach of such a duty, even if
caused by the act or omission of a servant, makes the master directly liable.44
Direct liability involves the breach of a duty owed to the injured plaintiff by the
master, whereas vicarious liability involves the breach of a duty owed to the
plaintiff by the servant. In the case of direct liability, it is immaterial whether a
servant owed a duty to the plaintiff, and in the case of vicarious liability it is
immaterial whether the master owed a duty to the plaintiff.
The Crown proceedings statutes of most Canadian jurisdictions, as well as
the statutes of the United Kingdom, New Zealand and Victoria, impose tortious
liability on the Crown in terms that distinguish between vicarious and direct
liability. Accordingly, this chapter deals first with the Crown’s vicarious liability
and then with the Crown’s direct liability.
(c) Crown servant
(i) Liability for tort of Crown servant: General rule
A master is vicariously liable for the torts of its servants. This general
principle of vicarious liability applies, by statute, to the Crown in Canada, Aus-
tralia, New Zealand and the United Kingdom. We have already noticed that s. 2
of the United Kingdom’s Crown Proceedings Act 1947, which started the wave
of reform, imposes liability on the Crown “in respect of torts committed by its
servants or agents”. This Act became the model for Canada’s Uniform Model
Act, which used similar language to impose vicarious liability on the Crown. This
style of drafting found its way into the Crown proceedings statutes of all but two
Canadian jurisdictions. Thus, s. 5 of Ontario’s Proceedings Against the Crown
Act imposes liability on the Crown “in respect of a tort committed by any of its
42 Fleming, note 40, above, ch. 24. Of course, if the servant himself committed a tort, the master
will be liable vicariously for the servant’s tort as well as directly for his own tort. In Canada,
in all jurisdictions, an action for negligence by an employee against an employer is barred by
the workers’ compensation legislation.
43 Fleming, note 40, above, ch. 22.
44 If the statute imposes a duty, but is silent about civil liability for breach, in Canada (following
the prevailing American theory) any civil liability will depend upon the common law of
negligence: The Queen v. Sask. Wheat Pool [1983] 1 S.C.R. 205. Outside Canada and the
United States, courts will occasionally infer a civil right of action from the statute itself, despite
its silence. See sec. 6.3(d), “Statutory duties”, below.
160
VICARIOUS LIABILITY 6.2(c)(ii)
servants or agents”. The same or similar language is to be found in the federal

statute and in the statutes of Alberta, Saskatchewan, Manitoba, New Brunswick,
Nova Scotia, Prince Edward Island and Newfoundland and Labrador. In British
Columbia and Quebec, the Crown’s liability in tort depends upon a general
legislative provision that subjects the Crown to the same legal liabilities as a
private person. This includes vicarious liability for the torts of servants.45
(ii) Definition of Crown servant
In Ontario, the vicarious liability of the Crown is described in s. 5(1)(a) as a

liability for the torts of “servants or agents”. The word “servant” is defined in s.
1 as including “a minister of the Crown”, and s. 2(2)(c) stipulates that the servant
must have been “appointed by” or “employed by” the Crown. The word “agent”
is defined in s. 1(a) as including “an independent contractor”. Similar provisions
exist in the other seven provinces that adopted s. 5 of the Uniform Model Act.46
The references to “agents” and “independent contractors” in these eight
jurisdictions47 might be thought to expand the Crown’s liability beyond that of a
private employer. At common law, vicarious liability flows from the torts of
servants, and only rarely from the torts of agents (who are not servants) and
independent contractors.48 But the various statutes also provide that nothing in
the Act subjects the Crown to any greater liability than that to which the Crown
would be subject if it were a person of full age and capacity. The same idea may
be drawn from the standard provision that imposes tortious liability: the Crown
45 The statutory provisions of all Canadian jurisdictions are set out in note 28, above. The statutory
provisions of Australia and New Zealand are set out in note 26, above; only Victoria and New
Zealand follow the detailed United Kingdom model; in the other Australian jurisdictions,
liability depends upon general language — as in Quebec and British Columbia.
46 Note 28, above, supplies the references to the statutes of Alberta, British Columbia, Saskatch-
ewan, Manitoba, New Brunswick, Nova Scotia, Prince Edward Island, and Newfoundland and
Labrador. The Uniform Model Act used “officers” instead of “servants”, and these eight
provinces also use “officers”. “Officer” is defined as including a servant of the Crown, as well
as a minister of the Crown, so that nothing turns on this variation in nomenclature. In U.K., ss.
2, 38, N.Z., ss. 2, 6, and Vic., s. 23, the Crown is vicariously liable for the torts of a “servant”,
“agent” and “independent contractor”. In addition, in U.K., s. 2(6), the Crown is vicariously
liable only for officers appointed directly or indirectly by the Crown, and paid at the relevant
time out of the Consolidated Revenue Fund or out of funds certified by the Treasury, or would
normally have been so paid. This has the effect of excluding from Crown liability action taken
by servants of some statutory corporations, and the police, who are paid out of local funds.
This provision was copied in Nfld., s. 5(7), and N.S., s. 5(7).
47 The federal Crown Liability and Proceedings Act, by s. 3, imposes liability in respect of a tort
committed by “a servant”; “servant” is defined in s. 2 as including “agent”; there is no reference
to independent contractors. Quebec and the Australian jurisdictions except for Victoria avoid
altogether detailed references of these kinds.
48 See Atiyah, note 40, above, 31-33, 99-110, 338-340. On the Crown’s liability for the torts of
independent contractors, see sec. 6.2(c)(iv), “Independent contractors and non-delegable du-
ties”, below.
161
6.2(c)(iii) TORT: GENERAL PRINCIPLES
is subjected to only “those liabilities in tort to which, if it were a person of full

age and capacity, it would be subject”. These provisions make clear that the
references to agents and independent contractors do not extend the Crown’s
liability beyond those agents and independent contractors whose employers would
be liable vicariously at common law.49
Setting aside the exceptional cases of agents and independent contractors,
when is a person a Crown “servant” for the purposes of vicarious liability? The
answer is found in the same common law test used to identify private servants.
In Canada, this test turns on the consideration of a number of factors, but one
factor that figures heavily in the cases is the level of control the alleged master
has over the alleged servant’s activities.50
(iii) Identification of Crown servant
A plaintiff who sues the Crown for the tort of a Crown servant need not
bring proceedings against the servant personally (although sometimes the plaintiff
will see advantages in adding the individual servant as a defendant).51 This is a
change from the era when the Crown was not liable in tort, but did make an
informal practice of standing behind a servant who committed a tort in the course
of employment. One of the defects of the informal practice was that the plaintiff
had to sue the individual Crown servant who caused the plaintiff’s injury. If that
person could not be identified, the plaintiff had no one to sue. Now that the Crown
is vicariously liable for the torts of its servants, the individual Crown servant need
not be sued, and the identification of the actual tortfeasor is no longer essential.
In one case, for example, the plaintiff successfully sued the Crown in right of
Canada for the loss of a parcel of diamonds in the premises of a customs postal
branch. The court found as a fact that the parcel had been stolen by a Crown
servant in the course of employment, although the identity of the thief was never
49 In British Columbia, Quebec and the Australian jurisdictions except for Victoria — the juris-
dictions that avoid the detailed United Kingdom-style drafting — these issues do not arise:
Crown liability is clearly co-extensive with private liability.
50 In Canada, the leading decision is 671122 Ontario v. Sagaz Industries Canada [2001] 2 S.C.R.
983. The test set out in that case was applied to claims involving the Crown in K.L.B. v. B.C.
[2003] 2 S.C.R. 403 (British Columbia government not vicariously liable for the harm that four
siblings suffered while in the government-administered foster care system); Blackwater v. Plint
[2005] 3 S.C.R. 3 (federal government and the United Church both vicariously liable for the
wrongful acts of a residential school dormitory supervisor); and Reference re Broome v. P.E.I.
[2010] 1 S.C.R. 360 (Prince Edward Island government not vicariously liable for the harm
suffered by children while in a government-regulated, privately-operated children’s home). See
also Atiyah, note 40, above, chs. 3-8.
51 For example, there may be some doubt as to whether the individual tortfeasor was indeed a
servant, or whether the individual was acting in the course of employment. Naming the indi-
vidual will also guarantee that he or she can be made to attend on examination for discovery.
162
VICARIOUS LIABILITY 6.2(c)(iv)
established. The Crown was held vicariously liable for the tort of the unknown
Crown servant.52
(iv) Independent contractors and non-delegable duties
Because an employer has a lesser power of control over independent con-

tractors than the employer has over servants, the general rule of the law of torts
is that the vicarious liability of an employer extends only to torts committed by
servants, not independent contractors.53 If an independent contractor commits a
tort in the course of work done for another person, the independent contractor
alone is liable. Of course, the employer of the independent contractor will also
be liable if the employer was negligent in the selection of an incompetent con-
tractor, or if the employer failed to warn the independent contractor of risks of
which the employer was aware, but that is direct liability based on the personal
fault of the employer, not vicarious liability for the tort of the independent con-
tractor.54
There is an exception to the general rule that a person is not liable for the
torts of independent contractors, namely, where the person is under a “non-
delegable duty.”55 The nature56 and scope57 of the exception is not particularly
clear. Non-delegable duties have been found in a range of different situations,
and the courts have generally refrained from providing a principled account that
justifies the imposition of liability in these situations, making it difficult to predict
52 The Queen v. Levy Bros. [1961] S.C.R. 189: see text accompanying notes 157-159. Obviously,
the plaintiff’s inability to identify the actual tortfeasor makes it more difficult to establish that
the tort was committed by a Crown servant in the course of employment: Alexander v. The
Queen (1960) 23 D.L.R. (2d) 369 (S.C.C.) (plaintiffs failed because they could not prove that
the unidentified tortfeasor was a Crown servant acting in the course of employment).
53 671122 Ontario v. Sagaz, note 50, above, para. 33.
54 The test used to distinguish servants from independent contractors is briefly discussed in sec.
6.2(c)(ii), “Definition of Crown servant”, above.
55 See generally G. Williams, “Liability for Independent Contractors” (1956) Cambridge L.J. 180;
Neyers, Chamberlain, and Pitel (eds.), Emerging Issues in Tort Law (2007), chs. 13 (by Stevens)
and 14 (by Murphy); and E. Adjin-Tettey, “Accountability of Public Authorities Through
Contextualized Determinations of Vicarious Liability and Non-Delegable Duties” (2007) 57
U.N.B.L.J. 46.
56 One topic of dispute is whether the liability arising out of a non-delegable duty is direct (based
on a breach by the employer of a duty owed to the claimant) or vicarious (based on a breach
by the independent contractor of a duty owed to the claimant): see, e.g., Leichhardt Municipal
Council v. Montgomery (2007) 230 C.L.R. 22, 70, 76 (H.C., Aust.) (liability described as
vicarious); Northern Sandblasting Pty. v. Harris (1997) 188 C.L.R. 313, 330 (H.C., Aust.)
(liability described as direct).
57 Another topic of dispute is when the exception applies: K.L.B. v. B.C. [2003] 2 S.C.R. 403,
para. 31 per McLachlin C.J. (“[i]t may be that there is no single common law concept of non-
delegable duty. Instead, the phrase seems to have been used to describe a number of situations
in which special, non-delegable duties arise”); N.S.W. v. Lepore (2003) 21 C.L.R. 511, 523
(H.C., Aust.) (“[t]he ambit of duties that are regarded as non-delegable has never been defined”).
163
6.2(c)(iv) TORT: GENERAL PRINCIPLES
when the exception will be held to apply in future cases.58 However, in cases
involving the Crown and other public bodies, the courts typically look to the
governing legislation. The question of whether a non-delegable duty arises is
treated as a simple matter of statutory construction, dictated by the terms of the
statute. The basic question underlying this exercise of statutory construction is
whether the Crown has a statutory function for which it should remain legally
responsible in the event that the statutory function is performed tortiously by an
independent contractor.
This approach is evident in Lewis v. British Columbia (1997).59 The question
in that case was whether the Crown in right of British Columbia was liable for
the death of a person who was killed when a rock fell onto the deceased’s car on
a provincial highway. The Crown had employed an independent contractor to
“scale” (remove dangerous rocks from) the rock face above the highway. The
trial found that the work was done negligently, and that a rock that should have
been removed was the one that killed the deceased. If the rock scaling had been
performed by Crown servants, the Crown would have been liable. Did the Crown
escape liability by entrusting the work to an independent contractor? The Supreme
Court of Canada unanimously answered “no” to this question. The provincial
Minister of Transportation and Highways was under a statutory duty to maintain
the province’s highways. That duty, the Court held, implied a duty to take rea-
sonable care for the safety of users of the highways. While the duty to maintain
the highways could be delegated to an independent contractor, the duty of care
would not be satisfied by such a delegation. The Crown was under a non-delegable
duty to ensure that reasonable care was taken in the maintenance of the highways.
The Court held that this conclusion was the better interpretation of the statute
imposing the duty of maintenance of the highways, and was also supported by
the policy consideration that users of provincial highways would reasonably
expect the Crown to be responsible for any failure to properly maintain the
highways. Therefore, in this case, the Crown was vicariously liable for the neg-
ligence of the independent contractor.60
The Court grounded the non-delegable duty in Lewis in a statute, but it did
not suggest that statutes were the only source of non-delegable duties in cases
involving the Crown. Indeed, Cory J., for the majority, held that the non-delegable
duty was grounded in the statute and considerations of policy. And, McLachlin
J., in a concurring judgment, expressed doubts that the statute did actually impose
a non-delegable duty on the Crown, but openly took comfort in the surrounding
58 A range of different justifications have been offered for the exception. For a succinct account,
see Northern Sandblasting, note 56, above, 395.
59 [1997] 3 S.C.R. 1145. The Court was unanimous. Cory J. wrote the majority opinion; McLachlin
J. wrote a concurring opinion. Compare Leichhardt Municipal Council, note 56, above (no
non-delegable duty on road authority).
60 See also Mochinski v. Trendline Industries [1997] 3 S.C.R. 1176 (companion case to Lewis,
reaching the same conclusion).
164
VICARIOUS LIABILITY 6.2(c)(iv)
circumstances in finding such a duty. The implication was that statutory functions
were a sufficient, but not a necessary, source of non-delegable duties. However,
in later cases, the Court has read Lewis narrowly, by demonstrating a distinct
reluctance to impose non-delegable duties on the Crown that are not grounded in
legislation, and insisting on specific statutory language that imposes a positive
duty on the Crown to act to prevent the very type of harm that ultimately ensued.
The decision of the Court in Blackwater v. Plint (2005)61 is typical.62 In that
case, the question was whether the federal government and the United Church of
Canada were liable for the sexual and physical abuse inflicted by an employee
on the (now former) students of an Aboriginal residential school. The former
students raised a number of different grounds of liability, including, in the case
of the federal government, breach of a non-delegable duty. McLachlin C.J.,
writing for the Court, said that, in determining whether a non-delegable duty was
owed, the inquiry must begin with the words of the relevant statute. Unlike Lewis,
the statute here, the Indian Act, did not “clearly place” the government under a
non-delegable duty to ensure that the students were kept safe while in school.63
The statute used the permissive term “may” rather than the directive term “shall”.
Moreover, the power granted in the statute to enter into agreements with religious
organizations for the care and education of Aboriginal children suggested that the
duty was “eminently delegable”.64 McLachlin C.J. rejected the argument of the
former students that a non-delegable duty could be grounded outside the strict
terms of the statute, in the control granted by Parliament over the lives of Abo-
riginal people. A court should not, she said, give weight to such arguments,
because “[u]nless a non-delegable statutory duty is based on the language of the
statute, the boundaries between the various grounds of liability become meaning-
less”.65 The former students thus failed to recover from the federal government
for breach of a non-delegable duty (although they did recover from the United
Church and the federal government on the basis of vicarious liability).
We are inclined to think that the Court is right to emphasize the language of
the relevant statutory scheme in determining whether the Crown owed a non-
delegable duty. It is common for the Crown to contract out the provision of public
services to private independent contractors. Reasonable people disagree about the
public services that it is appropriate for the Crown to contract out, and the
situations in which it is appropriate for the Crown to remain liable, in the event
61 [2005] 3 S.C.R. 3. McLachlin C.J. wrote the opinion of the Court.

62 See also K.L.B. v. B.C., note 57, above (no non-delegable duty); E.D.G. v. Hammer [2003] 2
S.C.R. 459 (no non-delegable duty); M.B. v. B.C. [2003] 2 S.C.R. 477 (no non-delegable duty);
Reference re Broome v. P.E.I. [2010] 1 S.C.R. 360 (no non-delegable duty). The High Court
of Australia has also adopted a cautious approach: see Lepore, note 57, above (no non-delegable
duty; decision in Cth. v. Introvigne (1982) 150 C.L.R. 258 distinguished); Leichhardt Municipal
Council, note 56, above (no non-delegable duty).
63 Blackwater, note 61, above, para. 48.
64 Id., para. 50.
65 Id., para. 51.
165
6.2(c)(v) TORT: GENERAL PRINCIPLES
that an independent contractor commits a tort in the course of providing a partic-

ular public service. It is not clear to us that it properly falls to the courts to resolve
such disagreements, by using non-delegable duties to fasten liability on the
Crown, even though it is no longer actually providing a public service. This seems
particularly true in the face of the difficulty the courts have had in defining the
scope and purpose of non-delegable duties. The benefit of an approach that focuses
on the language of the statutory scheme is that, in determining whether the Crown
should be liable for breach of a non-delegable duty, attention is focused on the
intention of the legislature, as reflected in the statute.
(v) Crown agent
What is the status of servants of “Crown agents”? By Crown agents we mean

those bodies, usually incorporated, that are outside the departmental structure of
government but are either controlled by the Crown or declared by statute to be
agents of the Crown. The general rule (which can of course be changed by statute)
is that the servants of a Crown agent are servants of the Crown itself. This means
that the Crown is vicariously liable for a tort committed by the servant of a Crown
agent in the course of employment. The Crown agent, even if it is a suable entity,
is not vicariously liable for the torts of its servants, because the Crown agent is
not the master. The Crown agent is treated as if it were an individual Crown
servant. Since an individual Crown servant is not liable for the torts of subordinate
servants, neither is a Crown agent.66
While a corporate Crown agent cannot be vicariously liable for the torts of
its servants, it can itself directly commit a tort. This would occur, for example, if
the governing body of the Crown agent directly ordered (or committed) the
tortious act. In that case, the Crown agent would be liable. Is the Crown also
liable? Apart from statute, the answer would be yes. The corporate Crown agent
is assimilated to an individual Crown servant, and therefore the Crown ought to
be vicariously liable for the Crown agent’s torts. However, in every Canadian
province, the Crown proceedings statute exempts the Crown from liability “in
respect of a cause of action that is enforceable against a corporation or other
agency of the Crown”.67 This provision immunizes the Crown from vicarious
liability for torts committed by a corporate Crown agent. This provision, which
does not exist in the federal jurisdiction, or in the United Kingdom, Australia
(except for Victoria)68 or New Zealand, is discussed in chapter 16, Crown Agents,
below.69
66 See ch. 16, Crown Agents, under heading 16.4(d), “Tort”, below.
67 Id.
68 Vic., s. 23(3), is similar to the Canadian provision. N.S.W., s. 5(1), includes the obscure phrase
“not being a claim or demand against a statutory corporation representing the Crown”, which
may have the same effect.
69 Chapter 16, Crown Agents, under heading 16.4(d), “Tort”, below.
166
VICARIOUS LIABILITY 6.2(d)(ii)
(d) Commission of tort by servant
(i) Commission of tort by servant: General rule
A master is vicariously liable for the act or omission of a servant only if the
servant has committed a tort. This means that any defence that is available to the
servant will also shield the master from liability. This general principle of vicar-
ious liability obviously applies to the Crown. Indeed, it is explicitly enacted by
the standard Crown proceedings statutes that follow the United Kingdom model.70
(ii) Statutory immunity clauses
Many statutes contain immunity clauses that relieve Crown servants from
liability in tort for acts done in good faith in the intended execution of their
duties.71 Unless such a clause expressly preserves the vicarious liability of the
Crown, the clause will also immunize the Crown from liability.72 That is a result
that is indefensible as a matter of policy, because it leaves the innocent victim
without redress. No doubt for this reason, there are some decisions that disregard
the logic of vicarious liability and hold that the immunity of the servant does not
70 U.K., ss. 2(1), 2(4). In Ont., e.g., the relevant provisions are s. 5(2) and (4). P.E.I., s. 4(4), was
applied to immunize the Crown from liability in Lewis v. P.E.I. (1998) 157 D.L.R. (4th) 277
(P.E.I. C.A.). The simpler statutes of British Columbia and Quebec do not contain such pro-
visions. The references to the other jurisdictions that have such provisions are to be found in
note 28, above (Canadian jurisdictions) and note 26, above (New Zealand and Victoria). Note
the decision in 144096 Canada v. Can. (2003) 63 O.R. (3d) 172 (C.A.) (questioning whether
the Crown was entitled to take advantage of a limitation period available to Crown employees,
on the basis that it was not a “defence,” within the meaning of s. 24 of the federal Act); compare
Scaglione v. McLean (1998) 38 O.R. (3d) 464 (Gen. Div.): Patterson Estate v. Storry (2002) 1
Alta. L.R. (4th) 100 (Q.B.); and Baron v. Can. 2001 FCA 38 (C.A.), all reaching the opposite
conclusion.
71 Such provisions may be found in the statutes establishing departments (or ministries) of gov-
ernment (e.g., the Ministry of Citizenship and Culture Act, R.S.O. 1990, c. M. 18, s. 8) or
regulating a particular policy area (e.g., Environmental Protection Act, R.S.O. 1990, c. E 19, s.
180). We have done a systematic survey of only one jurisdiction, namely, Ontario, where of
the 25 statutes establishing ministries of government, 19 contained an immunity clause pro-
tecting the Crown servants in that department. All of these 19 clauses expressly preserved the
vicarious liability of the Crown. Six of the 25 statutes contained no immunity clause. In addition,
it is worth noting that some statutes have extended the Crown’s immunity so that it applies
without regard to whether the decision or action was taken in good faith, whereas the standard
formulation of such clauses in Ontario is to immunize only decisions taken in good faith: see,
e.g., Ontario Agency for Health Protection and Promotion Act, 2007, S.O. 2007, c. 10, Schedule
K, s. 26.
72 This general principle of vicarious liability is mandated by statute in the standard Crown
proceedings statutes: see note 70, above.
167
6.2(d)(iii) TORT: GENERAL PRINCIPLES
immunize the Crown itself.73 Another form of resistance by the courts is to hold
the Crown immune along with the servant, but to give the immunity clause an
artificially narrow interpretation, which is, of course, a familiar judicial approach
to privative clauses.74
It is possible to draft an immunity clause that relieves the Crown servant
from liability, but expressly preserves the Crown’s vicarious liability for the
tortious act.75 This kind of limited immunity clause permits proceedings to be
brought against the Crown itself, although it immunizes the individual Crown
servant. Because the limited immunity clause does not deny redress to the injured
victim, there is no reason why the courts would give such a clause an artificially
strict interpretation. The limited immunity clause is therefore more likely to
accomplish the purpose of shielding the individual servant than is the absolute
clause.76
New South Wales has taken the more radical step of reversing the general
rule that a statutory immunity for the tort of a servant also immunizes the Crown
from any vicarious liability. By statute, it is now provided that the Crown is
vicariously liable for the act of any person in its service, “[n]otwithstanding any
law to the contrary.”77 The effect of this provision is that a statutory immunity
clause protecting a Crown servant from tortious liability will not affect the
Crown’s vicarious liability for the tortious act. This reflects a sound policy that
should be emulated by other jurisdictions: the employee is relieved from the risk
of personal liability (which is the point of the statutory immunity), but the victim
does not lose the right to recover compensation from the Crown for the injury or
loss caused by the wrongful act.
(iii) Enforcement of criminal law
In the eight standard Canadian provincial Crown proceedings statutes,78 there
is a provision (it is s. 2(2)(d) of the Ontario statute) that exempts the Crown from
73 Hill v. B.C. (1997) 148 D.L.R. (4th) 337 (B.C.C.A.) (Crown held vicariously liable despite
immunity clause protecting servant); Dorman Timber Co. v. B.C. (1997) 152 D.L.R. (4th) 271
(B.C.C.A.) (same decision). But see Stieber v. Can. (2004) 24 B.C.L.R. (4th) 49 (C.A.), where
the Court noted that Hill and Dorman considered B.C.’s Act, and questioned whether the same
result would follow under the differently-worded federal Act. Because the appeal could be
decided on other grounds, the Court did not decide the issue.
74 E.g., Beatty v. Kozak [1958] S.C.R. 177 (immunity clause requiring good faith strictly inter-
preted so as not to protect defendant police officers from liability in tort); Finney v. Barreau
du Québec [2004] 2 S.C.R. 17 (immunity clause requiring good faith negated, not just by malice
or intent to harm, but also by serious recklessness or carelessness).
75 Note 71, above.
76 The question whether individual Crown servants should be relieved from personal liability for
torts committed in good faith in the intended execution of their duties is taken up in ch. 8, Tort:
Liability of Servants, under heading 8.4, “Statutory immunity”, below.
77 Law Reform (Vicarious Liability) Act 1983 (N.S.W.), s. 8.
78 The references are to be found in note 28, above. (Quebec and British Columbia are the non-
168
VICARIOUS LIABILITY 6.2(d)(iv)
liability for “anything done in the due enforcement of the criminal law or of the
penal provisions of any Act of the Legislature”. If “due enforcement” includes
only acts authorized by law, then this provision is unnecessary, because it is
simply declaratory of the general rule that an act that is authorized by law is not
tortious.79 But if “due enforcement” includes unauthorized, tortious acts by pros-
ecutors, police, prison guards and other officials of the criminal justice system,80
then the Crown’s exemption is surely inappropriate. Read in this way, the ex-
emption would leave individual officials personally exposed to tortious liability,
while denying the plaintiff the option of suing the Crown. The exemption could
therefore discourage the vigorous enforcement of the criminal law, as well as
providing no assurance of payment to a plaintiff who cannot reach into the deep
pocket of the Crown.81
(iv) Judicial functions
In the eight standard Canadian provincial Crown proceedings statutes, as

well as in the United Kingdom, New Zealand and Victoria,82 there is a provision
(it is s. 5(6) of the Ontario statute) that exempts the Crown from liability for
“anything done or omitted to be done by a person while discharging or purporting
to discharge responsibilities of a judicial nature vested in the person or respon-
sibilities that the person has in connection with the execution of judicial process”.
As will be explained later,83 judges are immune from tortious liability for acts
done within jurisdiction – and jurisdiction has been interpreted generously in this
context. For an act done within jurisdiction, there could be no question of vicarious
liability. An act done without jurisdiction could however give rise to tortious
standard provinces, and they do not have the exemption; nor does Canada) The exemption does
not exist in the United Kingdom, Australia or New Zealand.
79 Long v. Province of N.B. (1959) 19 D.L.R. (2d) 437, 441 (N.B.A.D.); McGillivary v. N.B.
(1994) 116 D.L.R. (4th) 104, 108 (N.B.C.A.).
80 In Nelles v. Ont. [1989] 2 S.C.R. 170, an action against the Crown for malicious prosecution,
McIntyre J. commented (at 205) that: “It may be argued that commencing and conducting
proceedings with malice against the object of the proceedings could not be considered as the
‘due’ enforcement of the criminal law”. He did not pursue the point, because in his view the
judicial-functions immunity (next section of this chapter) did apply. All of the other judges
immunized the Crown on the basis of the judicial-functions immunity, and they did not discuss
the enforcement-of-criminal-law immunity.
81 The policy arguments in favour of the vicarious liability of the Crown are examined later in
this chapter: see sec. 6.2(f), “Policy favouring vicarious liability”, below.
82 The references to the Canadian statutes are to be found in note 28, above. (Quebec and British
Columbia are the non-standard provinces, and they do not have the judicial-functions exemp-
tion; nor does Canada) The exemption also exists in the United Kingdom, New Zealand and
Victoria, but not elsewhere in Australia. The references to the Australian and New Zealand
statutes are to be found in note 26, above.
83 Chapter 8, Tort: Liability of Servants, under heading 8.5, “Judicial immunity”, below.
169
6.2(d)(iv) TORT: GENERAL PRINCIPLES
liability on the part of the judge.84 The phrase in s. 5(6) “purporting to discharge
responsibilities of a judicial nature” might well reach such a case, which would
mean that the Crown would not be vicariously liable for the judicial tort. However,
even without s. 5(6), it is likely that the Crown would not be vicariously liable
for the torts of judges, because they would probably not be characterized as
servants of the Crown.85
Responsibilities “of a judicial nature” or “in connection with the execution
of judicial process” are not only exercised by judges, but also by other officials
who perform functions that are part of the judicial process. In Nelles v. Ontario
(1989),86 the Supreme Court of Canada held that the decision to prosecute is a
judicial function within the meaning of the judicial-immunity clause, so that the
Crown could not be sued for malicious prosecution.87 The plaintiff’s allegation
of malice on the part of the Crown prosecutor, which of course is an essential part
of the cause of action, did not destroy the immunity. In Baigent’s Case (1994),88
the Court of Appeal of New Zealand held that the execution by police officers of
a search warrant was a judicial function.89 However, it departed from Nelles in
holding that the Crown’s immunity would be lost if the police officers acted
maliciously, in bad faith or clearly outside the terms of the warrant.90
In cases like Nelles or Baigent, the judicial-immunity provision exempts the
Crown from liability if the Crown prosecutor or police officer (or other official)
has committed a tort. The individual official remains personally liable for the tort,
because only judges are personally immune from tortious liability,91 and the
judicial-immunity provision of the Crown proceedings statutes immunizes only
the Crown itself. It is surely bad policy to leave the individual Crown servants
84 As explained in the text cited, previous note, even here, judges are often protected by immunity
clauses.
85 The judge’s position would probably be characterized as an office rather than an employment,
because of the absence of control by the appointing government. See, e.g., Crowe v. Can.
(2008) 393 N.R. 50, para. 24 (F.C.A.).
86 [1989] 2 S.C.R. 170. The Court was unanimous on this point.
87 Compare Welsh v. The Chief Constable of Merseyside Police [1993] 1 All E.R. 692 (Q.B.)
(Crown immunity lost for administrative functions of the Crown Prosecution Service); ques-
tioned in Quinland v. Governor of H.M. Prison Belmarsh [2003] Q.B. 306 (C.A.). The tort of
malicious prosecution is discussed in ch. 8, Tort: Liability of Servants, under heading 8.6,
“Prosecutorial immunity”, below.
88 Simpson v. A.G. [1994] 3 N.Z.L.R. 667 (C.A.) (“Baigent’s Case”). The Court was unanimous
on this point.
89 Compare Wiche v. Ont. [2001] O.J. No. 1850 (S.C.J.), aff’d [2003] O.J. No. 221 (C.A.) (no
Crown immunity; acts of police as investigators not acts of a judicial nature).
90 Note 88, above, 674 (bad faith), 690 (outside terms of warrant), 696 (bad faith), 715 (malice),
716 (outside terms of warrant). See also Curry v. Vancouver [1996] B.C.J. No. 625 (B.C. S.C.),
distinguishing Nelles on the basis that the B.C., s. 3(2)(a), unlike Ont., s. 5(6), included the
words “acting reasonably and in good faith”. The word “reasonably” has been eliminated, with
the section now only referring to “acting in good faith”.
91 Nelles v. Ont., note 86, above, decided that Crown prosecutors were not entitled to the same
personal immunity as judges.
170
VICARIOUS LIABILITY 6.2(e)(i)
exposed to liability, while denying the plaintiff the ability to sue the Crown. In
the case of judges, there will rarely be personal liability for anything done in a
judicial capacity, but, where there is personal liability, the Crown ought to be
vicariously liable. The same is true where the tortfeasor is a Crown prosecutor,
police officer, bailiff or other court-related official.92
(e) Course of employment
(i) Course of employment: General rule
Once it is established that a servant of the Crown has committed a tort, the
Crown will be vicariously liable, according to ordinary tort principles, only if the
servant committed the tort “in the course of employment”. This does not mean
that the master must have authorized the tortious act, but it does mean that the
tortious act must be closely connected with the duties of employment.93
The Crown, like a private employer, is not liable for the act of a servant that
is unconnected with the servant’s employment. For example, the Crown has
escaped liability for an accident caused by the negligence of a member of the
armed forces at a party at an armed forces mess; the court held that the organizers
of the party were acting in their personal capacity.94 The Crown has also escaped
liability for a defamatory statement made by a military officer while testifying at
a court martial; the court characterized the officer’s testimony as a public duty
unrelated to his employment.95 On the other hand, the Crown has been held liable
92 A working group of the Uniform Law Conference of Canada proposed draft legislation that
would, among other things, make the relevant Attorney General alone open to suit and liable
for the prosecutorial misconduct of individual Crown attorneys: see Uniform Law Conference
of Canada, Report of the Joint Criminal/Civil Section Working Group on: Malicious Prose-
cution (August, 2008). Ontario recently adopted this approach: see Good Government Act,
2009, S.O. 2009, c. 33, sch. 2, s. 46, amending Ministry of the Attorney General Act, R.S.O.
1990, c. M.17, s. 8. This resolves a long-standing debate for Ontario about who — the Crown
or the Attorney General — is vicariously liable for the prosecutorial misconduct of Crown
Attorneys: see, e.g., Munro v. Can. (1992) 11 O.R. (3d) 1 (Gen. Div.) (A.G.); and Leadbeater
v. Ont. [2001] O.J. No. 3472 (S.C.J.) (Crown). More importantly, it also alleviates the injustice
arising out of Nelles, under which the Crown Attorney is liable, but the Crown is not. Various
Australian jurisdictions also have legislation that protects Crown attorneys: see, e.g., Director
of Public Prosecutions Act 1990 (A.C.T.), s. 33A; Director of Public Prosecutions Act 1986
(N.S.W.), s. 35; Public Prosecutions Act 1994 (Vic), s. 46; Director of Public Prosecutions Act
1991 (W.A.), s. 33. See further ch. 8, Tort: Liability of Servants, under heading 8.6, “Prose-
cutorial Immunity”, below.
93 See Bazley v. Curry [1999] 2 S.C.R. 534, para. 41 (issue is “whether the wrongful act is
sufficiently related to conduct authorized by the employer to justify the imposition of vicarious
liability”, which will generally be the case where “there is a significant connection between the
creation or enhancement of a risk and the wrong that accrues therefrom”) [emphasis original];
and Lister v. Hesley Hall [2002] 1 A.C. 215 (H.L.) (adopting a similar approach).
94 Hendry v. The Queen [1965] 1 Ex. C.R. 392.
95 Anctil v. The Queen [1959] Ex. C.R. 229.
171
6.2(e)(ii) TORT: GENERAL PRINCIPLES
for a theft committed by a postal worker at a customs postal branch; the court
held that the theft was committed in the course of employment, because the
employee was doing dishonestly what he was employed to do honestly.96 The
Crown has also been held liable for an assault (pushing off a bridge) committed
by a member of the armed forces against another member; the court regarded this
“boisterous activity” as sufficiently connected to the duties of service.97 Similarly,
the Attorney General has been held liable for the injuries caused during a fight
by an off-duty police officer; the court emphasized the fact that the officer was
purporting to act as a police officer at the relevant time.98 These decisions illustrate
the difficulty of defining the “course of employment”, but they do not raise issues
that are unique to public employment. Similar difficulties arise in defining the
scope of private employment.99
(ii) De facto authority
An issue unique to public employment arose in the famous Australian case

of James v. Commonwealth (1939).100 In that case, the plaintiff sued the Com-
monwealth, alleging (as one of two heads of liability) vicarious liability for the
seizure of the plaintiff’s dried fruit. The seizure had been carried out by officers
of the Dried Fruits Boards, and it was clearly tortious, because the officers’ only
legal justification was a Commonwealth statute that had been held to be uncon-
stitutional. The Commonwealth offered an ingenious argument to escape liability:
it argued that the officers’ lack of valid legal justification deprived them of
authority to act on behalf of the Commonwealth, so that their acts were outside
the scope of their employment.
If this argument had been accepted it would have destroyed the vicarious
liability of the Crown. The servant’s lack of legal justification is a necessary
condition of his or her personal liability,101 and the servant’s personal liability is
a necessary condition of the Crown’s vicarious liability. Therefore, all torts com-
mitted by Crown servants would be outside the course of employment — a
conclusive answer to every allegation of vicarious liability.102 The High Court of
Australia rejected the argument. The Court pointed out that the doctrine of ultra
vires should not be used to revive the Crown’s former immunity from liability in
tort. In order to bring a tort within the course of employment so as to fasten
96 The Queen v. Levy Bros. [1961] S.C.R. 189.

97 Cth. v. Connell (1986) 5 N.S.W.L.R. 218 (C.A.).
98 Bernard v. Attorney General of Jamaica [2004] UKPC 47 (P.C.).
99 Atiyah, note 40, above, chs. 19-26; Fleming, note 40, above, 420-429; Klar, note 40, above,
653-661.
100 (1939) 62 C.L.R. 339 (H.C., Aust.).
101 See sec. 6.4, “Lack of legal authority”, below.
102 The argument was made in reference to an unconstitutional statute, but it would apply with
equal force where the servant had acted outside the power conferred by a valid statute.
172
VICARIOUS LIABILITY 6.2(e)(iii)
vicarious liability on the Crown, it was necessary to show only that the tortfeasor
was acting within a de facto authority from the Crown. In this particular case, de
facto authority existed because the officers were acting under the general direction
of the relevant Commonwealth department. Since James v. Commonwealth was
decided, the sufficiency of de facto authority has never been questioned, and the
Crown has frequently been held or assumed to be subject to vicarious liability for
ultra vires torts.103
(iii) Independent discretion
The independent discretion rule is an exception to the vicarious liability of

the Crown.104 If a tort is committed by a Crown servant while purporting to
exercise a power or duty105 conferred by law directly on the Crown servant, the
Crown is not vicariously liable for the tort. The argument in favour of the Crown’s
exemption is that a Crown servant who is exercising an “independent discretion”
that is conferred upon him or her personally is not acting in the course of his or
her employment with the Crown. This rule also applies to public authorities other
than the Crown, for example, municipal bodies; they are also immune from
vicarious liability for a tort committed by an employee who is exercising an
independent discretion. The rule does not generally apply to a private employer,
because no statutory (or common law) power or discretion would normally be
vested in a private employee. However, in one case, the independent discretion
rule was applied to a private company that employed a ship’s pilot; the pilot was
carrying out a statutory duty to guide vessels in and out of port.106
The majority of cases involve police officers. A police officer is often acting
in the exercise of statutory or common law powers that are vested in him or her
personally, and that have to be exercised according to his or her independent
discretion. In McCleave v. City of Moncton (1902),107 the Supreme Court of
Canada held that the City of Moncton was not vicariously liable for an unlawful
seizure of liquor by a police officer employed by the City. In Enever v. The King
103 E.g., Long v. Province of N.B. (1959) 19 D.L.R. (2d) 437, 441 (N.B.A.D.); Dorset Yacht Co.
v. Home Office [1970] A.C. 1004 (H.L.); Racz v. Home Office [1994] 2 A.C. 45 (H.L.).
104 See S. Kneebone, “The Independent Discretionary Function Principle and Public Officers”
(1990) 16 Monash U.L.R. 184.
105 Nearly all of the cases involve powers rather than duties - as is implied by the description of
independent discretion. However, the reasoning is equally applicable to duties, and has been
so applied in Australia: Darling Island Stevedoring Co. v. Long (1957) 97 C.L.R. 36 (employer
held not liable for employee’s breach of statutory duty); but compare Baume v. Cth. (1906) 4
C.L.R. 97 (H.C. Aust.), above (employer held liable); see Atiyah, note 40, above, 280-284. The
statutory provisions that abolish the independent discretion rule (note 113, below) are expressed
in terms that are apt to include a duty as well as a power.
106 Oceanic Crest Shipping Co. v. Pilbara Harbour Services (1986) 160 C.L.R. 626 (H.C. Aust.).
107 (1902) 32 S.C.R. 106, cited with approval in R. v. Campbell [1999] 1 S.C.R. 565, para. 29.
173
6.2(e)(iii) TORT: GENERAL PRINCIPLES
(1906),108 the High Court of Australia held that the Crown in right of Tasmania
was not vicariously liable for a wrongful arrest by a police officer employed by
the Crown. The reasoning in both cases was that the police officer, in carrying
out the functions of law enforcement, was exercising an independent discretion.
He was not acting under the control of his employer, and therefore was not acting
in the course of his employment.109
The independent discretion rule exempts the Crown (or other employer)
from vicarious liability, but it does not exempt the servant from personal liability.
There is no doubt, for example, that a police officer is personally liable for a
wrongful arrest.110 And the rule only exempts the Crown from torts committed in
the exercise of an independent discretion conferred by law on the servant; it does
not exempt the Crown from liability for torts committed in the exercise of the
servant’s other functions. The Crown will be vicariously liable, for example, if a
police officer employed by the Crown commits a tort while performing general
police duties under the direction and control of his superiors.111
The independent discretion rule has been severely criticized,112 and with
justification. It originated in the long-discredited theory that vicarious liability
depended upon the master having expressly or impliedly authorized the servant’s
tortious act. To be sure, a servant exercising a discretion conferred on him or her
by statute is not subject to the control of the master to the same extent as other
servants. But it is surely preferable to treat the servant’s actions as within the
scope of employment, so that the cost of any tortious damage is borne by the
master. For this reason, the independent discretion rule has been abolished in all
but a few jurisdictions. However, in most jurisdictions, the abolition is contained
in the Crown proceedings statute,113 and applies only when the Crown is the
108 (1906) 3 C.L.R. 969.

109 To the same effect, Stanbury v. Exeter Corp. [1905] 2 K.B. 838 (C.A.) (sheep inspector); Baume
v. Cth., note 105, above (collector of customs); Fisher v. Oldham Corp. [1930] 2 K.B. 364
(police officer); Field v. Nott (1939) 62 C.L.R. 660 (H.C., Aust.) (legal aid officer); Oceanic
Crest Shipping Co. v. Pilbara Harbour Services, note 106, above (ship’s pilot); Esso Petroleum
Co. v. Hall Russell & Co. [1989] 1 A.C. 643 (H.L.) (ship’s pilot).
110 Christie v. Leachinsky [1947] A.C. 573 (H.L.).
111 For example, an automobile accident while on patrol could give rise to vicarious liability.
112 E.g., Atiyah, note 40, above, 75-78; Fleming, note 40, above, 418-419; Law Reform Commn.
(N.S.W.), Report on Proceedings by and against the Crown (1976), 38-64; Law Reform
Commn. (Qld.), Vicarious Liability (2001), 43-52, 56-58; Law Reform Commn. (Aust.), The
Judicial Power of the Commonwealth (2001), 25.7-25.20.
113 The rule was abolished by U.K., s. 2(3). In Canada, this provided the model for Alta., s. 5(3);
Sask., s. 5(3); Man., s. 5(3); Ont., s. 5(3); N.B., s. 4(3); N.S., s. 5(3); P.E.I., s. 4(3); Nfld., s.
5(3); and see Long v. Province of N.B., note 103, above (Crown vicariously liable for torts of
provincial game officers); Canada, British Columbia and Quebec have no such provision; but
note Baird v. The Queen [1984] 2 F.C. 160, 186 (C.A.), where LeDain J., after referring to the
criticism of the rule in the first edition of this book, said that it was “arguable” that the rule did
not survive in the federal jurisdiction despite the absence of an express abolition. N.Z., s. 6(3)
copies the Untied Kingdom provision. In Australia, the rule was abolished in South Australia
by the Crown Proceedings Act 1972, s. 10(2), and, although the provision is not carried forward
174
VICARIOUS LIABILITY 6.2(f)
employer; this leaves the rule intact when a public authority other than the Crown
is the employer. New South Wales has followed the best route in abolishing the
rule for all employers.114 As well, the Crown proceedings or policing legislation
of most jurisdictions makes specific provision for the vicarious liability of the
Crown (or other police authority) for torts committed by the police.115
(f) Policy favouring vicarious liability
The imposition on the Crown of vicarious liability for the torts of Crown
servants was a reform of fundamental importance. The action against the individ-
ual Crown servant was an inferior remedy, the flaws of which were not entirely
corrected by the Crown practice of “standing behind” a servant who was sued.
For one thing, the injured person might not know the identity of the servant who
caused the injury; in that case, the injured person had no one to sue. For another,
the Crown might dispute that the tortfeasor was a servant, or that the tortfeasor
was acting in the course of employment; in that case, the injured person could
not obtain a judicial decision on the question.116 Over and above these practical
considerations, it was wrong in principle that the Crown’s indemnity of its servant
was a matter of grace. A Crown servant would normally be unable personally to
satisfy a judgment in damages. Therefore, the plaintiff’s remedy was ultimately
a matter of grace as well. Obviously, the remedy of a person injured by the tortious
act of a Crown servant ought to be a matter of right.
The action against the individual Crown servant was also an inferior method
of regulating official behaviour. Where a Crown servant is attempting faithfully
to carry out his or her duties, and by a mistake is exposed to tortious liability, a
judgment for damages is an unpredictable and usually disproportionate penalty.
The risk of such a liability could operate as a disincentive to the vigorous admin-
istration of laws enacted in the public interest. It is surely far better that the
procedures of internal discipline be employed against incompetent Crown ser-
into the current Act, the rule is presumably not revived. The rule has also been abolished in
New South Wales (next note), but it seems to survive in the other Australian jurisdictions:
Cubillo v. Cth. (No. 2) (2000) 103 F.C.R. 1, paras. 1088-1133, aff’d in this respect (2001) 112
F.C.R. 455. (References to the Crown proceedings statutes are to be found in notes 26 and 28,
above.)
114 Law Reform (Vicarious Liability) Act 1983 (N.S.W.), s. 7.
115 E.g., Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50, s. 36; Police Act, R.S.B.C.
1996, c. 367, ss. 11, 21 (considered in B.C. v. Insurance Corp. of B.C. [2008] 1 S.C.R. 21);
Police Act 1996 (U.K.), s. 88; Australian Federal Police Act 1979 (Cth.), s. 64B. See S.C.
Churches, “Bona Fide Police Torts and Crown Immunity” (1980) 6 U. Tas. L. Rev. 294;
Kneebone, note 104, above, 207-209. The Crown proceedings statutes of all Canadian provinces
except Quebec exempt the Crown from liability “in respect of anything done in the due
enforcement of the criminal law”: see sec. 6.2(d)(iii), “Enforcement of criminal law”, above.
116 Williams, note 16, above, 17-19.
175
vants.117 The universality of the Crown practice of “standing behind” Crown

servants who incur tortious liability is no doubt powerful evidence of the force
of these arguments. But it is a gross breach of the rule of law that the Crown’s
assumption of responsibility for the torts of its servants should be a matter of
grace rather than duty.
Where the Crown itself is liable in tort, the “deep pocket” principle will
cause an injured plaintiff to sue the Crown itself. The individual Crown servant
need not be named as defendant at all. However, restrictions on the extent of
Crown liability, or on the ability to obtain discovery against the Crown, or a doubt
as to whether the servant was acting in the course of employment, will often cause
the individual Crown servant to be joined as a defendant. Assuming the truth of
the plausible (but unproved) thesis that individual liability leads to self-protective,
cautious behaviour by officials who fear litigation,118 the question arises whether
Crown servants ought to be relieved from personal liability for acts performed in
good faith in the intended execution of their duties. Statutory privative clauses
having this effect are in fact common in many jurisdictions. This question is taken
up in a later chapter.119
6.3 Direct liability
(a) Crown liability
We have already noticed120 that in Ontario and seven other provinces (British
Columbia and Quebec are the exceptions) the Crown proceedings statutes impose
liability on the Crown under four headings. The Ontario Act is typical in providing
in s. 5 that the Crown is liable in tort:
(a) in respect of a tort committed by any of its servants or agents;
(b) in respect of a breach of the duties that one owes to one’s servants or
agents by reason of being their employer;
(c) in respect of any breach of the duties attaching to the ownership, oc-
cupation, possession or control of property; and
(d) under any statute, or under any regulation or by-law made or passed
under the authority of any statute.
Head (a) refers to vicarious liability, a topic that has occupied the previous
section of this chapter. Heads (b), (c) and (d) refer to direct liability. These three
117 The deficiencies of remedies against individual government employees is the main thesis of an
American scholar, Schuck, Suing Government (1983), who concludes (at 111) “that [the]
government [should] be obliged to compensate for every harmful act or omission committed
by its agents within the scope of their employment that is tortious under applicable law”.
118 Schuck, previous note, 79.
119 Chapter 8, Tort: Liability of Servants, under heading 8.4, “Statutory immunity”, below.
120 The statutory provisions are set out in note 28, and the accompanying text relates the history.
176
DIRECT LIABILITY 6.3(a)
heads impose direct liability for (1) breach of employers’ duties, (2) breach of
occupiers’ duties and (3) breach of statutory duties.
The Ontario Act and its seven counterparts follow s. 5 of the Uniform Model
Act of 1950, which was in turn based on s. 2 of the United Kingdom’s Crown
Proceedings Act 1947. The same model clearly inspired the federal Crown Lia-
bility Act, which was enacted in 1952. (It is now called the Crown Liability and
Proceedings Act.) Section 3 of the federal Act provides that the Crown is liable
in tort:
(a) in respect of a tort committed by a servant of the Crown, or
(b) in respect of a breach of duty attaching to the ownership, occupation,
possession or control of property.
This provision differs from the standard eight-province provision in its omis-
sion of any reference to employers’ duties and statutory duties.121 In practice,
these omissions are of no significance, because, as will be explained, the two
omitted categories are probably without legal content.
Quebec and British Columbia did not copy the Uniform Model Act’s style
of drafting. In Quebec, no reforming statute was necessary to impose tortious
(delictual) liability on the Crown, because Quebec’s Code of Civil Procedure had
long ago accomplished that result.122 Tortious (delictual) liability in Quebec con-
tinues to depend upon the general language of what is now article 94 of the Code
of Civil Procedure. In British Columbia, the reform movement of the 1950s did
not take hold and the Crown remained immune from tortious liability until 1974.
British Columbia’s Crown Proceedings Act of 1974 borrowed much of the Uni-
form Model Act, but not the provision imposing tortious liability. Section 2(c)
simply provides that “the government is subject to all the liabilities to which it
would be liable if it were a person”. This general language means that in British
Columbia, as in Quebec, the Crown is subject to the full range of tortious liability,
direct123 as well as vicarious.124 In the other eight provinces and the federal
jurisdiction, the more detailed drafting of the Crown proceedings statutes leaves
121 The federal Crown Liability and Proceedings Act is also unique in its specific references to
motor vehicle accidents (ss. 4, 11), salvage and shipping (ss. 3-7), legal authority (s. 8) and
military activity (also s. 8).
122 Notes 8-11, above, and accompanying text.
123 Gerak v. R. in right of B.C. (1984) 59 B.C.L.R. 273 (C.A.) (Crown liable for breach of occupier’s
duty to warn of danger).
124 This is also the position in all of the Australian jurisdictions, except for Victoria. For the
statutory provisions, see note 26, above. For direct liability, see Zachariassen v. Cth. (1917)
24 C.L.R. 166 (H.C., Aust.); Shaw Savill & Albion Co. Ltd. v. Cth. (1940) 66 C.L.R. 344, 360
(H.C., Aust.); Carpenter’s Investment Trading Co. Ltd. v. Cth. (1952) 69 W.N. (N.S.W.) 175
(S.C.); Thorne v. W.A. [1964] W.A.R. 147 (S.C.); Parker v. Cth. (1965) 112 C.L.R. 295, 300
(H.C., Aust.) (the dictum at 301, which read by itself might suggest the contrary, is addressed
solely to the basis of vicarious liability).
177
6.3(b) TORT: GENERAL PRINCIPLES
some gaps in the Crown’s direct liability in tort.125 This will be explained in the
following sections of this chapter. These gaps, which are increasingly being filled
by judges, are probably unintended and are certainly unfortunate.
(b) Employers’ duties
The first head of direct liability in the standard Crown proceedings statutes126
is for breach of an employer’s duties to employees. What is covered here are the
common law duties owed by an employer to employees to provide competent
servants, a safe plant and a safe system of work. Breach of these duties would
provide an injured employee with a cause of action in negligence against the
employer, whether or not the injured employee could establish that a fellow
employee had committed a tort (so as to make the employer vicariously liable).127
In Canada, however, in all jurisdictions, the workers’ compensation statutes bar
a tort action by an employee against the employer in respect of injuries covered
by workers’ compensation.128 This statutory bar effectively repeals the duties of
care that an employer owed to his or her employees at common law.129 It is a
tribute to the fascination with the United Kingdom Act of 1947 that this head of
liability was carried forward into Canada’s Uniform Model Act of 1950 and from
there into the Crown proceedings statutes of eight provinces, where it has no work
to do. This head of liability is needed in the United Kingdom, where the tort
action is not barred by the workers’ compensation statute. It is not needed in
Canada. No doubt that is why it is not included in s. 3 of the federal Crown
Liability and Proceedings Act.130
125 This is also the position in the Untied Kingdom, New Zealand and the Australian state of
Victoria: see notes 20-25, above, and accompanying text. Vic., s. 23, is the most deficient,
providing for vicarious liability but for no direct liability at all.
126 United Kingdom, New Zealand, all Canadian provinces except for British Columbia and
Quebec.
127 At common law, the fellow-servant rule, or doctrine of common employment, now abolished
everywhere, relieved an employer from vicarious liability to an employee for the tort of a fellow
servant. The employer’s direct duties of care often enabled the fellow-servant rule to be avoided.
In addition, they provided a cause of action in cases where an accident had been caused by
systemic fault and no tort had been committed by a servant.
128 E.g., Workplace Safety and Insurance Act, S.O. 1997, c. 16, s. 26.
129 New Zealand also bars tort actions by employees in respect of personal injury: Injury Prevention,
Rehabilitation and Compensation Act 2001 (N.Z.), s. 317.
130 The statutory bar may also preclude claims against the Crown as regulator, and not simply as
employer, where the claim arises out of injury sustained in the course of employment: see Bell
v. Can. (2002) 208 D.L.R. (4th) 654 (N.S.C.A.) (citing Pasiechnyk v. Saskatchewan (Workers’
Compensation Board) [1997] 2 S.C.R. 890).
178
DIRECT LIABILITY 6.3(c)
(c) Occupiers’ duties
The second head of direct liability in the standard Crown proceedings stat-
utes131 is for breach of occupier’s duties. This head of liability is also in s. 3 of
the federal Crown Liability and Proceedings Act. What is covered here are the
duties of care owed by an occupier of property to persons and property132 entering
the property.133 Breach of these duties would provide a cause of action against
the occupier of the land, even if the immediate cause of the accident was the act
or omission of an employee of the occupier.134 It will be recalled that it was the
absence of any Crown liability under this head that defeated the plaintiffs in
Quebec.
132 In 144096 Canada v. Can. (2003) 63 (O.R.) (3d) 172 (C.A.), the Ontario Court of Appeal held
that the Crown was not liable under the Ontario provision (s. 3(b)(ii)) for a claim based on the
wrongful seizure of aircraft, and also questioned, with reference to this passage in the previous
edition of this book, whether the Crown was liable under the section for damage post-seizure,
while the seized aircraft were actually in the Crown’s possession. We do not read the decision
to suggest that s. 3(b)(ii) does not extend to occupiers’ liability claims involving damage to
property, but only those involving personal injury. The section clearly catches occupiers’
liability claims based on damage to property: see Domestic Converters v. Arctic Steamship
Line (1984) 1 F.C. 211 (C.A.) (Crown liable for damages to goods stored in shed owned by the
Crown which collapsed due to accumulation of snow on the roof). Damage to property was
actionable at common law (see, e.g., Workington Harbour and Dock Bd. v. Towerfield [1951]
A.C. 112 (H.L.); Grossman v. The King [1952] 1 S.C.R. 571), and the same is now generally
true under provincial occupiers’ liability legislation as well (see, e.g., Occupiers’ Liability Act,
R.S.O. 1990, c. O.2, s. 3(1)).
133 In The Queen v. Breton [1967] S.C.R. 503, the Supreme Court of Canada held that s. 3(1)(b)
of the federal Crown Liability Act (now s. 3(b)(ii) of the Crown Liability and Proceedings Act)
referred only to the general common law occupiers’ duties that applied in all jurisdictions, and
did not include a more onerous municipal statutory duty (which was enacted before the Crown
Liability Act) attaching to the ownership of property (the duty was a duty to maintain adjoining
sidewalks). This is an artificially narrow interpretation. The section is not expressly limited to
general common law duties, and should, in our opinion, be interpreted so as to place the Crown
in the same position as a private person with respect to occupiers’ liability — bound by the
entire body of law attaching to the occupation of property, whether common law or statutory,
and as amended from time to time: see, e.g., Stuart v. Can. (1989) 2 F.C. 3 (T.D.) (section of
Alberta’s occupier’s liability statute, enacted after the federal Act, applicable to the federal
Crown); but see Suche v. R. (1987) 3 F.C. 301 (T.D.), aff’d (1988) 24 F.T.R. 240 (C.A.)
(provincial legislation inapplicable). The Breton case can be explained as resting on s. 125 of
the Constitution Act, 1867, which was the Court’s second reason for the result, but that reason
also seems wrong: see Hogg, Constitutional Law of Canada (5th ed., 2007, annually supple-
mented), s. 31.13(b).
134 Note, however, that Crown proceedings statutes often include a provision immunizing the
Crown from tortious liability where property vests in the Crown by operation of law, without
its act or intention: see, e.g., Ont., s. 5(5). In our view, these provisions are unjustified, and
ought to be abolished: see Law Reform Commn. (Ont.), Report on the Liability of the Crown
(1989), 25-26. Short of this, they ought to receive a narrow construction from the courts.
179
Adams v. Naylor (1946)135 and Royster v. Cavey (1947),136 the two cases that
finally drove the United Kingdom Parliament to abolish Crown immunity in tort.
(d) Statutory duties
The third head of direct liability in the standard Crown proceedings statutes137
is for breach of statutory duty. A statute may confer a private right of action on a
person injured through a breach of a duty imposed by the statute. Such a duty
would bind the Crown only if the statute binds the Crown. In most jurisdictions,
that means that the statute must make clear by express words or necessary impli-
cation that it does bind the Crown.138 In those cases where the statute binds the
Crown and confers a private right of action for breach of a duty imposed by the
statute, it is self-evident that the Crown must be liable in damages to a plaintiff
who has been injured by a failure to perform the duty.139 The Crown’s liability
would be derived from the statute imposing the duty. No provision in the Crown
proceedings legislation would be necessary to make the Crown liable. The point
is important because, as has been explained, the federal Crown Liability and
Proceedings Act, in imposing liability in tort on the Crown, omits any reference
to breach of statutory duty. This omission would not immunize the federal Crown
from liability for breach of statutory duty, because a plaintiff would not need to
rely on the Crown Liability and Proceedings Act as the source of the Crown’s
liability.140
The foregoing paragraph refers to a statute that expressly confers a civil right
of action upon a person who is injured by breach of the statute. More commonly,
a statute imposes a penalty for its breach and is silent on the question of civil
liability.141 Courts have often been willing to grant a civil remedy to a person
injured by breach of a penal statute,142 but a debate has raged on the theoretical
basis of the civil remedy. The view that is dominant in the United Kingdom, New
Zealand and Australia is that the civil liability is imposed by the statute; this view
135 [1946] A.C. 543 (H.L.).

136 [1947] 1 K.B. 204 (C.A.).
Quebec.
138 See ch. 15, Statutes, below.
139 See, e.g., Zachariassen v. Cth. (1917) 24 C.L.R. 166 (H.C., Aust.).
140 For this reason, the provision in the U.K. Act, s. 2(2), and the N.Z. Act, s. 6(2), which confines
Crown liability for breach of statutory duty to cases where the duty “is binding also upon
persons other than the Crown and its officers”, cannot be effective, except perhaps as a canon
of interpretation. A statute imposing a duty on the Crown alone, and providing a civil action
for breach of the duty, would obviously be effective.
141 Legislatures do not seem to have heeded Lord du Parcq’s well-known admonition to consider
whether the practice of remaining silent “might not safely be abandoned”: Cutler v. Wandsworth
Stadium [1949] A.C. 398, 410 (H.L.).
142 The leading case is Cutler v. Wandsworth Stadium, previous note.
180
DIRECT LIABILITY 6.3(d)
recognizes, in effect, a separate nominate tort of breach of statutory duty.143 The

view that is dominant in the United States is that the civil liability is imposed by
the common law; this view treats a breach of statutory duty as a branch of the tort
of negligence.
In The Queen v. Saskatchewan Wheat Pool (1983),144 the Supreme Court of
Canada settled the debate for Canada by accepting the American view that the
civil consequences of breach of a penal statute ought to be subsumed in the law
of negligence.145 On this basis, proof of breach of the statute would only be relevant
as evidence of negligence.146 In addition, in some cases, the statute would be
treated as substituting a more specific rule for the common law standard of
reasonableness. The effect of the Saskatchewan Wheat Pool case is that breach
of statutory duty as a separate head of tortious liability has a narrow scope in
Canada, covering only those statutes that expressly confer a civil right of action
for their breach.147
The decision in Saskatchewan Wheat Pool clarified that Canadian law did
not recognize a nominate tort of breach of statutory duty, and that proof of breach
of a statute was to be treated in Canada only as evidence of negligence.148 But is
143 See X (Minors) v. Bedfordshire County Council [1995] 2 A.C. 633, 731 (H.L.); Deakin, Johnston
and Markesinis, Markesinis & Deakin’s Tort Law (6th ed., 2008), ch. 7; Trindade, Cane and
Lunney, The Law of Torts in Australia (4th ed., 2007), ch. 13; Todd (ed.), The Law of Torts in
New Zealand (5th ed., 2009), ch. 8; Stanton et al., Statutory Torts (2003).
144 [1983] 1 S.C.R. 205.
145 This holding probably solves a long-standing Canadian constitutional question, namely,
whether a federal criminal law could be interpreted as impliedly creating a civil remedy. If the
civil remedy flows from the common law, it does not depend upon the federal Parliament’s
criminal law power. Therefore, doubts about whether the criminal law power would extend to
the creation of a civil remedy are irrelevant. See Hogg, note 133, above, s. 18.11(b).
146 One view is that the action is a species of negligence action in which breach of a statute should
be treated only as evidence of negligence. Another view is that the action is a species of
negligence action in which breach of a statute is deemed to be negligence of itself — “negligence
per se”. (See G. Williams, “The Effect of Penal Legislation in the Law of Tort” (1960) 23
M.L.R. 233.) It was the former view that was adopted in Saskatchewan Wheat Pool.
147 Where a statutory duty is imposed not on the Crown itself but on a Crown servant, the personal
liability of the servant will follow if the statute expressly provides for a civil right of action or
if breach of the statute is held to be negligence. The Crown’s vicarious liability will follow
from the servant’s personal liability, except perhaps in jurisdictions that maintain the inde-
pendent discretion rule: see sec. 6.2(e)(iii), “Independent discretion”, above.
148 The ratio of Saskatchewan Wheat Pool has been confirmed repeatedly in later cases: see, e.g.,
Holland v. Sask. [2008] 2 S.C.R. 551, para. 9 (“The law to date has not recognized an action
for negligent breach of statutory duty”). (The reference to negligent is confusing, but must
mean simply careless, because negligent breach of statutory duty, in the sense of a breach of
statutory duty that also satisfies all of the elements of a common law negligence action, is
certainly a legally recognized cause of action.) However, a limited exception seems to be
emerging where a statute confers an exclusive right to perform some activity, but does not also
provide a mechanism to enforce that right, although the exception seems to be limited to cases
involving a claim for an injunction, not a claim for damages: see Canada Post v. G3 Worldwide
(2007) 85 O.R. (3d) 241 (C.A.) (exclusive right granted by statute to Canada Post to collect,
181
the converse also true? Is proof of compliance with a statute also to be treated as
evidence of reasonable care? This question was considered in Ryan v. Victoria
(City) (1999).149 In that case, a railway company had constructed tracks that ran
along a city street in accordance with the regulations setting out the permissible
width of “flangeway” gaps running alongside the inside edge of the tracks. A
motorcyclist sued the City of Victoria, the railway company that constructed and
owned the tracks, and the railway company that leased and operated the tracks
for the injuries that he suffered when the front wheel of his motorcycle became
caught in the flangeway gaps while attempting to cross the tracks. In their defense,
the railway companies relied on the fact that the flangeway gaps had been con-
structed in compliance with the applicable statutory standard. Major J., writing
for the Supreme Court of Canada, held that proof of compliance with a statute
could satisfy the common law standard of reasonable care, but only where the
statute authorizes certain activities and strictly defines the manner of performance
and the precautions to be taken. Where a statute is general or permits discretion
as to the manner of performance, or where “unusual circumstances exist which
are not clearly within the scope of the statute”, compliance with the statute is
unlikely to exhaust the standard of reasonable care.150 Here, compliance with the
statutory standard was insufficient, because the regulations set out a range of
permissible widths for flangeway gaps. There had been two previous accidents
involving two-wheeled vehicles on this stretch of track, and the railway companies
had been negligent in not taking additional precautions.
(e) Other duties and reform of direct liability
The three heads of direct liability that are listed in the standard Crown
proceedings statutes151 — namely, (1) employers’ duties, (2) occupiers’ duties,
and (3) statutory duties — catch most of the cases in which the Crown might be
held directly liable in tort. They are not, however, exhaustive. For example, a
school authority has been held directly liable for not exercising proper care and
supervision in allowing a small child to stray out onto a busy street where the
transmit and deliver mail within Canada enforceable by injunction, even though Canada Post
not granted the right by statute to seek an injunction for breach of this right). In addition, the
courts have struggled with the implications of the decision. One issue that has been a source of
controversy is determining what role, if any, statutes should play in establishing a common law
duty of care. See further ch. 7, Tort: Negligence, under heading 7.2(c)(ii), “Proximity”, below,
where the issue is discussed.
149 [1999] 1 S.C.R. 201. Major J. wrote the opinion of the Court.
150 Id., paras. 39-40. Major J. also noted that where a party is specifically authorized to create a
risk, compliance with such authority cannot be negligent (para. 43). See further sec. 6.4, “Lack
of legal authority”, below.
151 Again, the jurisdictions that follow this model are the United Kingdom, the Canadian federal
jurisdiction and eight of ten provinces (British Columbia and Quebec are the exceptions), New
Zealand, and the Australian state of Victoria.
182
DIRECT LIABILITY 6.3(e)
child caused an accident.152 A hospital has been held directly liable for the death
of a patient caused by lack of a proper system of drug administration.153 And a
harbour authority has been held directly liable for failure to remove a snag in the
harbour.154 In each case, no tort had been committed by an individual Crown
servant, so there was no vicarious liability. In each case, the liability was held to
be direct, but the cases do not fit within any of the three heads of direct liability
listed in the standard Crown proceedings statutes. If the claim had been brought
under one of these statutes, and the Crown had been the defendant,155 the Crown
may have been held to be free from liability. This is not the case in British
Columbia, Quebec, and most Australian jurisdictions, none of which follow the
United Kingdom in this respect. In those jurisdictions, it is not necessary to fit
the tortious (or delictual) liability of the Crown within statutorily defined cate-
gories: the Crown is fully liable, and there are no residues of the old Crown
immunity.156
The residues of Crown immunity that are preserved by the standard Crown
proceedings statutes have proven problematic in two categories of cases. The first
includes cases in which it is clear, on the facts, that some individual Crown servant
has acted tortiously, but the claimant is simply unable to identify that Crown
servant, in the circumstances of the case. Given the vast, complex and often
faceless nature of modern government, a strict requirement that the claimant
identify the responsible Crown servant would pose a significant barrier to poten-
tially meritorious claims, particularly in those jurisdictions with statutes that
152 Carmarthenshire County Council v. Lewis [1955] A.C. 549 (H.L.). In the Court of Appeal, the
authority was held vicariously liable for the negligence of a teacher; but the House of Lords,
while affirming liability, exonerated the teacher. See also J. v. North Lincolnshire County
Council [2000] E.L.R. 245 (C.A.).
153 Collins v. Hertfordshire County Council [1947] K.B. 598. It was held that vicarious liability
for the negligence of the authority’s servants was a possible but separate head of liability.
154 R. v. Williams (1884) 9 App. Cas. 418 (P.C., N.Z.). The plaintiff also sued the harbour master,
but he was absolved from blame.
155 The Crown in right of New Zealand was the defendant in R. v. Williams, note 154, above, and
it was held liable; but the case was decided under an earlier, less complex statute which was
— at least with respect to tortious liability — a better statute than the one that New Zealand
copied from the United Kingdom in 1950.
156 Consider e.g. K.L.B. v. B.C. [2003] 2 S.C.R. 403 (British Columbia directly liable for failing
to place children in adequate foster homes, and for failing to supervise their stay, once placed,
although claim defeated by a limitation period defence; no discussion of whether claim of direct
liability permissible in British Columbia); and Fullowka v. Pinkerton’s of Can. [2010] 1 S.C.R.
132 (accepting that Northwest Territories government, which, by informal understanding, has
adopted the British Columbia/Quebec model, could be directly liable to a group of miners for
failing to take reasonable steps to prevent the escalating, and ultimately fatal, violence sur-
rounding a labour strike (see, in particular, paras. 16-19), but finding that there was no breach
of the duty of care; no discussion of whether claim of direct liability permissible in the Northwest
Territories); and compare Swinamer v. N.S. [1994] 1 S.C.R. 445 (Crown attempting to distin-
guish Just v. B.C. [1989] 2 S.C.R. 1228, finding a duty of care, by pointing to differences
between the Crown liability statutes of British Columbia and Nova Scotia).
183
distinguish between the direct and vicarious liability of the Crown. Fortunately,
the courts have generally been prepared to make a finding of vicarious liability,
without also requiring the Crown servant to be identified.157 Thus, in one case,
the plaintiff successfully sued the Crown in right of Canada for the loss of a parcel
of diamonds in the premises of a customs postal branch, even though the thief
was never identified.158 The court found as a fact that the parcel had been stolen
by a Crown servant in the course of employment, and the Crown was held
vicariously liable for the tort of the unknown Crown servant. Similarly, in another
case, the plaintiff successfully sued the Crown in right of Canada for negligently
allowing sewage to contaminate the water supply, even though the Crown servant
responsible for the contamination was never identified.159 The court found as a
fact that some Crown servant was responsible for the contamination of the water
supply, and again, the Crown was held vicariously liable for the tort of the
unknown Crown servant.
These cases seem relatively uncontroversial: the Crown’s liability is clearly
vicarious, and thus permissible in all jurisdictions; the problem is merely one of
identifying the Crown servant that acted tortiously. The residues of Crown im-
munity that inhere in the standard Crown proceedings statutes have proven par-
ticularly problematic in another category of cases, involving either a wrongful
failure to act (nonfeasance) or systemic (organizational rather than individual)
wrongdoing. These cases have proven particularly problematic, because it is
difficult to ground the liability of the Crown in the tort of an individual Crown
servant. Perhaps for this reason, the Supreme Court of Canada has recently tended
to frame the liability at issue in these cases as direct, rather than vicarious160 (as
157 See further sec. 6.2(c)(iii), “Identification of Crown servant”, above. The failure or inability to
identify an individual Crown servant poses particular challenges with intentional torts that
require proof of a state of mind. Some courts have required the pleading to identify the Crown
servant that had the requisite state of mind: see, e.g., Holland v. Sask. (2006) 277 Sask. R. 131
(Q.B.) (striking claim for misfeasance in a public office, due to failure to identify “which
officeholder has the necessary intention”). Other courts have been prepared to accept claims
where an individual Crown servant is not identified: see, e.g., Granite Power Corp. v. Ont.
(2004) 72 O.R. (3d) 194 (C.A.) (refusing to strike claim for misfeasance in a public office
against Ontario; claim would be made out if was established that minister and his staff acted in
bad faith or with malice); Sask. Power Corp. v. Swift Current (2007) 293 Sask. R. 6 (C.A.)
(refusing to strike claim for misfeasance in a public office against defendant Crown corporation;
“possible for the ‘public officer’ to be an individual office holder, a municipality, or a govern-
ment ministry or body”); Merchant Law Group v. C.R.A. (2010) 321 D.L.R. (4th) 301, paras.
36-38 (F.C.A.).
158 The Queen v. Levy Bros. [1961] S.C.R. 189.
159 Duncan v. The Queen [1966] Ex. C.R. 1080.
160 K.L.B., note 156, above, paras. 12, 17 (claim in negligence against the British Columbia
government for failure to place children in adequate foster homes, and for failure to supervise
their stay, once placed, framed as a direct negligence claim); Fullowka, note 156, above, paras.
16-17 (claim in negligence against the Northwest Territories government — which, by informal
understanding, has adopted the British Columbia/Quebec model — for failure to take reasonable
steps to prevent the escalating violence that resulted in the deaths of a group of miners framed
184
indeed the courts did in the cases cited in the first paragraph of this section). There
is much to be said for this approach. But the decisions come from jurisdictions
(British Columbia and the Northwest Territories) in which the Crown is fully
liable in tort, raising the question: what is the situation in those jurisdictions that
follow the United Kingdom model and limit the Crown’s direct liability in tort?
Are claims against the Crown based on either a wrongful failure to act or systemic
wrongdoing foreclosed in those jurisdictions if the claimant is unable to fit the
claim within one of the heads of direct liability?
There are cases that seem to indicate that the answer is “yes”. Two such
cases were discussed in some detail in previous editions of this book.161 However,
it seems increasingly unlikely that these cases would be decided in the same way
today. This is not because the standard Crown proceedings statutes have been
amended; they have not. It is because the courts are reluctant to permit the Crown
to avoid liability in tort by appealing to a residue of Crown immunity. The trend,
in Canada, is now to apply tort law to the Crown with little regard to the jurisdiction
in which the claim is brought, as if the Crown were fully liable across the country.
This approach received high-level support in the decision of the Supreme
Court of Canada in Swinamer v. Nova Scotia (Attorney General) (1994).162 At
issue in that case was whether the province was liable in negligence for failing to
exercise reasonable care in maintaining a provincial highway. As in Just v. British
Columbia (1989),163 the plaintiff alleged that the province had acted negligently
in failing to remove a particular danger to highway users (in this case, a rotting
tree that fell across the highway, crushing his truck). The province attempted to
distinguish Just, where the province was found to owe a duty of care to the
plaintiff highway user, by pointing to differences between the Crown proceedings
statutes of British Columbia and Nova Scotia.164 The argument was typical: unlike
as a direct negligence claim); Rumley v. B.C. [2001] 3 S.C.R. 184 (claim against the British
Columbia government for “systemic negligence” stemming from the operation of a residential
school; requirements for certification of a class action held to be satisfied).
161 The cases that were discussed are Warwick Shipping v. Can. [1984] 1 F.C. 998 (C.A.) (Crown
not liable to the owner of an oil tanker that had run aground due to the alleged failure of the
Crown to properly dredge a channel into a harbour) and Keatings v. Secretary of State for Scot.
[1961] S.L.R. 63 (Crown not liable to a prisoner who was accidentally shaken off a platform
by another prisoner while preparing a ceiling for painting): see Liability of the Crown (3rd ed.,
2000), 134-135. See also Irish Shipping v. The Queen [1984] 2 F.C. 777 (C.A.); Aristocrat
Restaurants v. Ont. [2003] O.J. No. 5331 (S.C.J.); and Dumoulin v. Ont. (2004) 71 O.R. (3d)
556 (S.C.J.).
162 [1994] 1 S.C.R. 445. Cory J. wrote for the majority, with the support of Gonthier, Iacobucci
and Major JJ.; McLachlin J. wrote a concurring judgment, with the support of La Forest J.;
Sopinka J. dissented.
163 [1989] 2 S.C.R. 1228.
164 The N.S. Act is modeled after the U.K. Act; it restricts the direct liability of the Crown to the
three heads of liability described in this chapter, and provides that the province is only liable
for a tort committed by its officers or agents if the tortious act of that servant or agent would,
in itself, have given rise to a cause of action (s. 5).
185
in British Columbia, the liability of the Crown in Nova Scotia was primarily
vicarious; because the plaintiff did not make an express allegation of negligence
on the part of any individual Crown servant, the claim could not succeed. Cory
J., writing for the majority, rejected this argument, characterizing it as “regres-
sive”, and noting its potential to “severely restrict the ability of injured persons
to claim against the Crown”.165 How did he deal with the differences in wording
between the two statutes? The relevant passage is less than clear, but in essence,
the argument seems to be that there is no significant difference, in practice,
between proving that the Crown is “directly” and “vicariously” liable. Because
the Crown only acts through others, proof that the Crown is somehow “directly”
liable is also necessarily proof of wrongdoing for which it is “vicariously” liable.166
This argument was in obiter, because the Court found that the province did
not owe the plaintiff a duty of care. In addition, Cory J. wrote for only four of
seven members of the panel. However, the decision does seem to provide weighty
support for the view that there is little real difference, in claims against the Crown,
between direct and vicarious liability, the implication being that claims of direct
liability are equally open to claimants in jurisdictions with a standard Crown
proceedings statute. Although this passage of the decision seems to have been
ignored for a number of years, this is the manner in which it has come to be
interpreted in recent cases. The statutory limitations on the direct liability of the
Crown often now seem to be ignored in Crown proceedings across Canada. And
in those cases where the Crown attempts to appeal to a residue of Crown immunity
in order to defeat a claim, the argument typically fails; claims of direct liability
are accepted outright, or recast as claims of vicarious liability.167 As a result,
claims are typically left to be decided on their merits, not defeated by unfortunate
statutory drafting.
This development is welcome as a matter of policy, even if it is difficult to
reconcile with the strict wording of the Crown proceedings statutes that follow
the United Kingdom model. However, it does not appear to enjoy universal
165 Swinamer, note 162, above, at 460-461.

166 On a narrower reading, the passage might be read as restricted to the facts of the case, and not
as setting out a general statement about the distinction between the standard Crown proceedings
statutes and the B.C. Act. However, the broader reading described in the body of the text seems
to have prevailed: see note 167, below.
167 For an insightful discussion of the cases and the issue, see the decision of Cullity J. in Williams
v. Can. (2005) 76 O.R. (3d) 763 (S.C.J.) (concluding that the distinction between direct and
vicarious liability is no longer of any practical significance for the purposes of the Crown
proceedings statutes of Canada and Ontario), rev’d in part (2009) 95 O.R. (3d) 401 (C.A.)
(striking the claim, on the basis that no duty of care was owed, without discussing the direct/
vicarious liability issue); see also White v. Can. (2002) 4 B.C.L.R. (4th) 161 (S.C.), aff’d 2003
BCCA 53 (C.A.); White v. Can. (2004) 24 B.C.L.R. (4th) 347 (S.C.); Grant v. Can. (2005) 77
O.R. (3d) 481 (S.C.J.); J.C.R. v. B.C. (2007) 73 B.C.L.R. (4th) 324 (C.A., In Chambers); and
Dolmage v. Ont. 2010 ONSC 1726, paras. 102-104 (S.C.J.) (distinction between direct and
vicarious liability of the Crown “emphatically rejected” in Swinamer).
186
support, either here168 or abroad,169 and the Supreme Court of Canada will probably
need to consider the issue again.170 In our view, legislatures should remove any
lingering doubts about the desirability of this development, by eliminating the
residual Crown immunities from tort that inhere in these statutes. This was rec-
ommended by the Law Reform Commission of British Columbia in 1972,171 and
it has been implemented in British Columbia’s Crown proceedings statute.172 A
similar recommendation has been made by a law reform committee in New
Zealand,173 and the Ontario Law Reform Commission,174 although this recom-
mendation has not been implemented in either jurisdiction.175
168 See, e.g., Crowe v. Can. (2008) 393 N.R. 50, para. 23 (F.C.A.) (“the liability of the Federal
Government is established by showing that persons for whom the Crown is liable committed
tortious acts”).
169 The House of Lords has (cautiously) left open holding public authorities (apart from the Crown)
directly liable in tort: see Phelps v. Hillingdon London B.C. [2001] 2 A.C. 619, 658, 668, 676
(H.L.). For comment, see Booth and Squires, The Negligence Liability of Public Authorities
(2006), 517-522; and D. Fairgrieve, “Pushing Back the Boundaries of Public Authority Liabil-
ity” (2002) P.L. 288, 291-293. But courts in the United Kingdom remain cool to the idea that
the Crown can be directly liable in tort: see Chagos Islanders v. A.-G. [2004] EWCA Civ. 997
(C.A.) (pointing out that the 1947 Act works by making the Crown vicariously liable for the
torts of its servants); see also Todd (ed.), The Law of Torts in New Zealand (5th ed., 2009),
1074 (expressing a similar view about the N.Z. Act).
170 The issue of direct liability in tort may also force reconsideration of current thinking about the
nature of “the Crown”. In K.L.B., note 156, above, the Supreme Court of Canada said that “the
government” (that is the term used in the B.C. Act) of British Columbia was directly liable in
negligence for the failure to place children in adequate foster homes, and for failure to supervise
their stay, once placed, although the claim was ultimately defeated by a statute of limitations.
The Court appeared to embrace an identification/directing mind theory of “government” lia-
bility, under which the wrongful conduct of “principal organs” (which, although not defined,
presumably means at least ministers) is treated as the wrongful conduct of “the government”
itself (see para. 12). (See also e.g. T.W.N.A. v. Can. (2003) 235 D.L.R. (4th) 13, paras. 112-126
(B.C.C.A.) (award of punitive damages against Canada based on an identification/directing
mind theory)). This is difficult to square with the dominant natural person theory of the Crown,
under which the powers of the state inhere in the Crown, and the Crown is the Queen, in her
public capacity, and seems to reflect a shift to a corporation aggregate theory of the Crown.
For further discussion of theories of the Crown, see Sunkin and Payne (eds.), The Nature of the
Crown (1999), chs. 2 (by Wade) and 3 (by Loughlin); Horsman and Morley, note 40, above,
ch. 1 (by Morley); and ch. 1, Introduction, under heading 1.4, “Meaning of the Crown”, above.
171 Law Reform Commn. (B.C.), Report on Legal Position of the Crown (1972), 53, 61.
172 Crown Proceedings Act, R.S.B.C. 1996, c. 89, s. 2(c), providing that “the government is subject
to all the liabilities to which it would be liable if it were a person”. This provision is wisely not
even limited to tort.
173 Public and Administrative Law Reform Committee (N.Z.), Damages in Administrative Law
(1980), 40-41
174 Note 134, above, 25-26.
175 Although not strictly necessary, because the Commonwealth’s immunities from common law
claims in tort have already been removed, the Australian Law Reform Commission has also
recently recommended, out of an abundance of caution, that the Judiciary Act 1903 “be amended
to state expressly that the Commonwealth is subject to the same substantive obligations at
187
6.4 Lack of legal authority
(a) General rule
No act (or omission) by the Crown or its servants (or by anyone else for that
matter) gives rise to liability in tort unless (1) it is committed without legal
authority, and (2) it is a tort. The first of these ingredients is discussed in this
section, the second in the next section.
A governmental act may be authorized either by statute or by the prerogative;
if so, then it is not tortious.176 This does not always mean that a person who is
injured by the act will go uncompensated, for the particular statute or prerogative
may provide for the payment of compensation; but in such a case the claim for
compensation is founded on the statute or the prerogative, as the case may be,
and not on the law of torts.
(b) Compensation under statute
If a statute authorizes an act that causes injury to a private person, and is

silent respecting compensation for the injury, the general rule is that no compen-
sation is payable in respect of the injury.177 Since the act cannot be a tort because
of the existence of statutory authority, common law damages are not payable
either. The injured person is left without redress. Only an express statutory right
to compensation would afford redress.
An exception to the general rule of no compensation is the case where a
statute takes private property. In that case, if the statute is silent respecting
compensation, the statute will be interpreted as implicitly requiring compensation
to be paid.178 The leading cases are discussed later in this book.179
(c) Compensation under prerogative
It is now rare that the exercise of a prerogative power180 could affect private
rights, and therefore the question of compensation rarely arises. The Burmah Oil
common law and in equity as apply to persons of full age and capacity, except as specifically
provided otherwise”: Law Reform Commn. (Aust.), note 112, above, 25.30-25.40.
176 The defence of legal authority is explicit in the Canadian federal Crown Liability and Proceed-
ings Act, s. 8, but not in the other Crown proceedings statutes.
177 See, e.g., Allen v. Gulf Oil Refining [1981] A.C. 1001 (H.L.) (establishment of oil refinery
under statutory authority).
178 In the United States and the Australian federal jurisdiction, there are constitutional requirements
of compensation for the taking of property. These do not exist in Canada, the United Kingdom
or New Zealand.
179 Chapter 11, Taking, below.
180 Those common law powers that are unique to the Crown are prerogative powers. Most of these
188
LACK OF LEGAL AUTHORITY 6.4(d)
case181 is the rare one in which the question did arise. In that case, the courts had
to decide whether compensation was payable by the Crown for the destruction of
oil installations in Burma during the second world war. The demolitions were
carried out in 1942 on the instructions of the government of the United Kingdom
in order to deny the resources to the advancing Japanese army. The oil companies
whose property was destroyed were unable to bring their claim in tort because
the Crown in right of the United Kingdom had not accepted liability in tort in
1942.182 But even if the Crown had accepted liability by then, an action in tort
would have failed because the House of Lords held that the demolitions, although
not authorized by any statute, were authorized by a prerogative power. The House
of Lords also held, however, that the power was accompanied by an obligation
to pay compensation for the property destroyed, and so the oil companies were
held to be entitled to compensation. (This hard-won verdict was later denied them
by retrospective legislation.)183
(d) Significance of legal authority
Legal authority for a governmental act must be derived either from a statute184
or from the prerogative.185 This principle, which is basic to constitutional and
administrative law, is usually traced back to Entick v. Carrington (1765),186 in
which it was held that neither a search warrant signed by the Secretary of State
nor a plea of “state necessity” could justify Crown servants in entering the prem-
ises of the plaintiff and seizing his papers. The plaintiff’s action in trespass against
the Crown servants was successful, for they were unable to establish the only
powers have now been displaced by statute, under the doctrine of A.-G. v. De Keyser’s Royal
Hotel [1920] A.C. 508 (H.L.). See ch. 1, under heading 1.5, “Powers of Crown”, above.
181 Burmah Oil Co. v. Lord Advocate [1965] A.C. 75 (H.L.).
182 As explained early in this chapter, the Crown in right of the U.K. became liable in tort in 1947.
183 War Damage Act 1965 (U.K.).
184 Occasionally, lack of statutory authority is alleged on the ground that a particular legal instru-
ment is insufficient to confer statutory authority. However, it is generally accepted that subor-
dinate legislation, including regulations and Orders-in-Council, is sufficient to confer statutory
authority: Ryan v. Victoria (City) [1999] 1 S.C.R. 201, para. 56 (regulations); Sutherland v.
Can. (2002) 215 D.L.R. (4th) 1, paras. 70-76 (B.C.C.A.), leave to appeal refused [2003] 1
S.C.R. xi (Orders-in-Council). It has also been held that a lease between Canada and the
Vancouver Airport Authority and an “airport certificate” issued by the federal Transport Min-
ister under statutory authority are sufficient: see Sutherland, this note, paras. 77-100. The issue,
in every case where subordinate legislation is at issue, must be whether there is sufficiently
clear statutory authority for the subordinate instrument that authorized the commission of a
tort.
185 Legal authority could also be derived from a common law power that is not unique to the
Crown, for example, the power to spend money, to contract or to dispose of Crown property.
Such a power is sometimes not classified as a prerogative, although governments often use
proprietary powers to accomplish public-policy objectives. See Cornford, Towards a Public
Law of Tort (2008), 57-58 (arguing that “public authorities” can only act for public purposes).
186 (1765) 19 St. Tr. 1029 (K.B.).
189
defence which would suffice, namely, that “some positive law” had “empowered
or excused” them.
Whenever a question of legal authority arises in an action, whether in tort or
not, it is the duty of the courts to determine the existence and extent of the power
relied upon. It is obvious that only Parliament can confer a statutory power, and
it is equally well settled that “the King hath no prerogative but that which the law
of the land allows him”.187 The very existence of a prerogative power is sometimes
a matter of doubt,188 and sometimes there is doubt as to whether a power that once
existed has been displaced by statute.189 Questions concerning the prerogative
still arise for judicial determination from time to time, but the overwhelming bulk
of governmental functions are now performed in pursuance, or purported pursu-
ance, of statutory powers. The question whether official action is legally author-
ized or not is therefore nearly always a question of statutory interpretation: does
the power conferred by the statute authorize what has been done?190
(e) Interpretation of statutory authority
In determining the scope of a statutory power, the governing principle of

statutory interpretation is the presumption that a statutory power does not au-
thorize acts that would be tortious at common law.
The leading case is Metropolitan Asylum District v. Hill (1881),191 an action
for nuisance brought against a hospital board. The board had established a small-
pox hospital at Hampstead which constituted a common law nuisance to adjoining
occupiers. The board defended the action on the basis that it was simply carrying
out the orders of the Local Government Board, which had statutory power to
establish hospitals in metropolitan areas. The House of Lords rejected this defence
and granted the injunction sought. The Local Government Board’s generally-
worded discretion could be exercised without committing a nuisance. Therefore,
their lordships held, “the fair inference is that the Legislature intended that dis-
cretion be exercised in strict conformity with private rights, and did not intend to
confer licence to commit nuisance in any place which might be selected for the
187 Case of Proclamations (1610) 12 Co. Rep. 74, 77 E.R. 1352 (K.B.).
188 E.g., Burmah Oil Co. v. Lord Advocate, note 181, above.
189 E.g., A.-G. v. De Keyser’s Royal Hotel, note 180, above.
190 Occasionally, lack of legal authority is alleged on the ground that, while the acts performed
were within the terms of the statutory power, the statute is invalid as unconstitutional: see C.L.
Pannam, “Tortious Liability for Acts Performed under an Unconstitutional Statute” (1966) 5
Melb. U. L. Rev. 113; Hogg, note 133, above, ch. 58. See also Can. v. TeleZone [2010] 3 S.C.R.
585, considering, and rejecting, an argument that administrative law judicial review is a pre-
condition to a tort claim involving federal public authorities, and with it, the implication that
administrative law judicial review is the proper way to determine whether federal official action
is legally authorized, for the purposes of avoiding liability in tort. See further ch. 7, Tort:
Negligence, under heading 7.4, “Invalidity”, below, considering this argument in more detail.
191 (1881) 6 App. Cas. 193 (H.L.).
190
LACK OF LEGAL AUTHORITY 6.4(e)
purpose”.192 In the absence of express authority to commit the tortious act, au-
thority would be implied only if the tortious act was “the inevitable result” of the
exercise of the statutory power.193 The hospital board could not show that the
creation of a nuisance was the inevitable result of carrying out its statutory
mandate.
Where the commission of a tort is “the inevitable result” of the exercise of
a statutory power, then the statute must be interpreted as impliedly authorizing
the commission of the tort. This was the outcome of Allen v. Gulf Oil Refining
(1981),194 where an action for nuisance was brought against an oil company. The
company had built an oil refinery which, by smell, noise and vibration, caused a
nuisance to the residents of a nearby village. The oil company had obtained the
enactment of a private Act to acquire the land, and the Act expressly contemplated
that an oil refinery would be constructed on that site. The House of Lords held
that the Act immunized the oil company from liability for the smell, noise and
vibration that would be “the inevitable result of erecting a refinery upon the
site”.195
In the Allen case, the statutory power stipulated the site upon which the
refinery was to be built. This meant that the injury to the nearby residents could
not be avoided. This is the critical distinction between the Allen case and Met-
192 Id., 213.

193 Ibid.
194 [1981] A.C. 1001 (H.L.).
195 Id., 1014. Lord Wilberforce suggested a “qualification, or condition”, that the statutory authority
be “exercised without ‘negligence’ — that word here being used in a special sense so as to
require the undertaker, as a condition of obtaining immunity from action, to carry out the work
and conduct the operation with all reasonable regard and care for the interests of others”: Id.,
1011 (citing Geddis v. Proprietors of Bann Reservoir (1878) 3 App. Cas. 430 (H.L.)). A similar
idea has been repeated in later cases: see, e.g., Wildtree Hotels v. Harrow London B.C. [2001]
2 A.C. 1, 13 (H.L.); and Transco v. Stockport Metropolitan B.C. [2004] 2 A.C. 1, 32 (H.L.).
We do not read these cases to suggest that a claim of statutory authorization is necessarily
unavailable in respect of a negligence claim; the law of tort is not some supra-legislative
principle of constitutional law, and must yield to statute. Nor do we read these cases to suggest
that an absence of negligence in the exercise of statutory functions is all that is required to
establish statutory authorization; that is contrary to precedent: see Tock v. St. John’s Metro-
politan Area Bd. [1989] 2 S.C.R. 1181, 1226 (“[i]t is insufficient for the defendant to negative
negligence”), cited in Ryan v. Victoria (City) [1999] 1 S.C.R. 201, 238-39; compare Todd, The
Law of Torts in New Zealand (5th ed., 2009), 497. Rather, as Lord Wilberforce suggests, the
word negligence is being used in a special sense in this context: in order to avoid liability in
tort by relying on statutory authorization, the defendant must take every reasonable precaution
to avoid causing damage, absent clear statutory language that provides otherwise; the failure
to do so constitutes “negligence”, which defeats a claim of statutory authorization. Thus, as we
read these cases, negligence, in its ordinary common law sense, does not necessarily defeat a
claim of statutory authorization. However, it will typically do so in practice, because negligence
will rarely be held to be either explicitly authorized (legislatures do not usually explicitly
authorize negligent conduct, and the courts interpret legislation abrogating private rights
strictly) or implicitly authorized (negligent conduct is, by definition, usually avoidable, and
thus not inevitable). See further ch. 7, Tort: Negligence, under heading 7.4, “Invalidity”, below.
191
ropolitan Asylum District v. Hill, where the statutory power left the site of the
hospital to the discretion of the hospital board, which could have chosen a site
more distant from residential housing. Since it was possible to avoid the com-
mission of a tort, the statutory power was not to be interpreted as authorizing the
commission of a tort.196
The inevitable-result rule provides the test to determine whether or not a
statute should be interpreted as authorizing the commission of a tort. It draws the
boundaries of statutory authority as narrowly as possible while still respecting
the authority of the legislative body. If there is a way of exercising the statutory
power without interfering with private rights, then the defence of statutory au-
thority is unavailable to the Crown (or other public body) when it commits a tort.
Obviously, the inevitable-result rule is exceedingly respectful of private rights.
And yet, in Tock v. St. John’s Metropolitan Area Board (1989),197 a case involving
the liability of a sewage body for damage caused by the backing-up of sewage
into the plaintiffs’ house, five judges of the Supreme Court of Canada rejected
the inevitable-result rule on the ground that it was too favourable to the public
body. Only one judge of the six-judge bench (Sopinka J.) decided the case on the
basis of the inevitable-result rule. Fortunately for the plaintiffs, all six judges
agreed that the sewage body was liable in damages. Unfortunately for the law,
the five judges who rejected the inevitable-result rule split three to two on what
the new rule should be, and each camp sharply criticized the other camp.198 The
result was that previously well-settled law was thrown into confusion.
196 Local authorities have frequently argued statutory authorization in cases in which sewage
systems have polluted rivers or flooded basements, causing a nuisance to property owners. This
argument has failed in the vast majority of the reported cases. The decisive factor is usually
that the statutes in question left the local authority responsible for the sewage system discretion
as to the location of the sewer pipes: see Groat v. Edmonton [1928] S.C.R. 522; Pride of Derby
v. British Celanese [1953] 1 Ch. 149 (C.A.); Stephens v. Richmond Hill [1956] O.R. 88 (C.A.);
Portage La Prairie v. B.C. Pea Growers [1966] S.C.R. 150; Lawrysyn v. Kipling (Town) (1965)
55 W.W.R. 108 (Sask. C.A.); Tock v. St. John’s Metropolitan Area Bd., previous note (and see
text accompanying notes 197-198, below); Oosthoek v. Thunder Bay (1996) 30 O.R. (3d) 323
(C.A.); and Moncton v. Landry (2008) 229 N.B.R. (2d) 212 (C.A.). Statutory authorization was
successfully argued on related (but not identical) facts in: Torino Motors (1975) v. B.C. (1988)
63 D.L.R. (4th) 168 (B.C.C.A.) (culvert plugged by debris resulting in flooding of plaintiff’s
property; flooding the “patently inevitable consequence of the construction [of the culvert]”);
and St. John’s v. Lake (2000) (191) D.L.R. (4th) 616 (Nfld. C.A.) (gutters blocked by ice,
resulting in melting snow flooding plaintiff’s property; snow removal possible, but practically
infeasible; municipality entitled to rely on statutory authorization). These two decisions are
difficult to square with the weight of authority; but see Horsman and Morley, note 40, above,
6-70.10 (by Gay) (defending Torino).
198 La Forest J. (with Dickson C.J.) proposed that the plaintiff should succeed whenever it was
“reasonable” that compensation be paid; he acknowledged that this made the outcome a matter
of judicial discretion, not governed by any “hard and fast rule”. Wilson J. (with Lamer and
L’Heureux-Dubé JJ.) proposed a regime of absolute liability for tortious acts committed in the
exercise of powers that afforded discretion as to the manner and location of their exercise. In a
192
LACK OF LEGAL AUTHORITY 6.4(e)
Fortunately, the Supreme Court of Canada subsequently reaffirmed its sup-

port for the inevitable-result rule. As noted above, in Ryan v. Victoria (City)
(1999),199 a motorcyclist who had been injured when his front wheel became
caught in railway tracks had sued two railway companies for negligence and
nuisance. One of the defences relied on by the railway companies was that there
was legal authorization to build the tracks along the city street in the manner that
had led to the plaintiff’s injuries. A unanimous Supreme Court of Canada, in an
opinion written by Major J., noted that there had been an “unsuccessful attempt”
to depart from the traditional inevitable-result rule in Tock. In Major J.’s view,
however, the inevitable-result rule is the most predictable approach to the issue
and the simplest to apply, and should therefore be restated as the correct rule.200
In this case, the regulations relied upon provided for a measure of discretion. The
existence of this discretion meant that the nuisance was not the “inevitable result”
or “inseparable consequence” of complying with the regulations, and the defence
did not apply.201
The inevitable-result rule is an application of the presumption against con-
struing a statute so as to authorize the commission of a tort. That presumption is
in turn an application of the doctrine that “statutes which encroach on the rights
of the subject, whether as regards person or property, are subject to a ‘strict’
construction”.202 It is true of course that this principle developed when such
encroachments were few and far between, which can hardly be said today. But it
case comment on Tock ((1990) 69 Can. Bar Rev. 589), one of us (Peter Hogg) has criticized
both these proposals as being contrary to sound principle and defended the inevitable-result
rule.
199 [1999] 1 S.C.R. 201. See text accompanying note 149, above.
200 See also Can. v. TeleZone, note 190, above, paras. 69-73, affirming the inevitable-result rule.
However, the decision in St. Lawrence Cement v. Barrette [2008] 3 S.C.R. 392, raises questions
about the status of the inevitable-result rule in Quebec. In that case, a special statute passed by
the Quebec Legislature authorized St. Lawrence Cement to establish its plant in the “munici-
pality of the village of Villeneuve”. Residents of the village commenced a class action against
the company, claiming damages for excessive dust, odours and noise. The company argued
that the statute granted it immunity from actions in damages relating to its industrial activities,
relying on the inevitable-result rule. The Supreme Court of Canada rejected this argument,
because the Legislature had not expressly excluded “the application of the ordinary law” (para.
98). It is possible that this was intended as a response to a general argument that the statute
granted the company immunity from all actions in damages (see paras. 98-99). However, the
Court did not seem to turn its mind, as in the Allen case, note 194, above, to whether the
particular claim before the Court was foreclosed by the statute, on an argument that the dust,
odours and noise were the inevitable result of the construction and operation of the plant.
201 Two of the rare appellate level Canadian cases post-Ryan in which the defence was invoked
successfully are: Sutherland v. Can., note 184, above (defence properly invoked in a case
involving the construction of the Vancouver Airport’s north runway); and Susan Heyes v. South
Coast B.C. Transportation Authority 2011 BCCA 77 (B.C.C.A.) (defence properly invoked in
a case involving the construction of the Canada Line, a public transportation project).
202 A.-G. (Can.) v. Hallet & Carey Ltd. [1952] A.C. 427, 450 (P.C., Can.).
193
seems to us a misapprehension to conclude that the doctrine is an anachronism.203

Parliament, controlled by the executive, can be relied upon to supply the powers
which are needed by the executive. It is not too much to ask that invasions of
personal and proprietary rights be clearly authorized, however frequently they are
needed; and the courts’ leanings in favour of private rights, so long as they are
not used to stultify the objects of the legislation, supply a salutary check on powers
that are conferred in language that is vague or ambiguous.204
Once it is established that a servant of the Crown has committed a tort, and
that the act was not authorized by statute or the prerogative, it is plain that the
servant is personally liable.205 The Crown will be vicariously liable, according to
ordinary tort principles, only if the servant committed the tort in the course of
employment. We have already noticed that the Crown cannot avoid its liability
by pleading that an ultra vires act must be outside the course of employment.206
The lack of legal justification for the tortious act is irrelevant to the question
whether the tortious act was committed in the course of employment. De facto
authority for the act is sufficient.
6.5 Commission of a tort
(a) Recognized heads of liability
The standard Canadian Crown proceedings statute subjects the Crown to

those “liabilities in tort to which, if it were a person of full age and capacity, it
would be subject”.207 And the statute goes on to provide that, “in proceedings
against the Crown, the rights of the parties are as nearly as possible the same as
in a suit between persons”.208 These provisions emphasize what is the law in all
jurisdictions in Canada, the United Kingdom, New Zealand and Australia,209
namely, that so far as possible the same rules of tortious liability are to be applied
203 See Jennings, The Law and the Constitution (5th ed., 1959), 253.
204 The basic rule that an act or omission does not give rise to liability in tort if it is legally
authorized applies equally to negligence cases. The application of the rule in that context raises
unique considerations, and is addressed in more detail in the next chapter, which is devoted to
the topic of negligence. See ch. 7, Tort: Negligence, under heading 7.4, “Invalidity”, below.
205 Chapter 8, Tort: Liability of Servants, below.
206 Section 6.2(e)(ii), “De facto authority”, above.
207 E.g., Ont., s. 5. For references to all the Canadian statutes, see note 28, above.
208 E.g., Ont., s. 13.
209 Note, however, the recent flood of legislative reforms in Australia relating to tort liability,
including of public authorities. The reforms followed, but also expanded upon, the recommen-
dations of an expert panel: Panel of Eminent Persons, Final Report: Review of the Law of
Negligence (2002) (“Ipp Report”). In some respects, the reforms simply codified the common
law rules, but in other respects, the reforms also dramatically limit the tort liability of public
authorities. See further M. Aronson, “Governmental Liability in Negligence” (2008) 32 Mel-
bourne U. L. Rev. 44; and D. Ipp, “Themes in the Law of Torts” (2007) 81 Aust. L.J. 609.
194
COMMISSION OF A TORT 6.5(a)
to the Crown as are applied to private individuals and corporations.210 In other

words, the Crown is liable in tort only under recognized heads of private tortious
liability.211 There is no special “public” law of torts.
The rule that the Crown and its servants are liable in tort only under recog-
nized heads of tortious liability has this consequence: an invalid act by a Crown
servant which causes damage to a private individual gives rise to no liability on
the part of the servant or the Crown unless the act is a tort.212 The lack of legal
justification removes a shield, but does not provide a sword.
The point is illustrated by a review of two cases. The first is James v.
Commonwealth (1939),213 an Australian case which has already been discussed
in another context.214 It will be recalled that James, a packer of dried fruits, sued
the Commonwealth for damages for the seizure of his dried fruit. The Dried Fruits
Act, under which the seizure was made, had been held to be unconstitutional.
James succeeded in this claim because he was able to show (1) that the seizure
was invalid and (2) that the seizure constituted the tort of conversion. But in the
same action, James also claimed damages for “the general loss to his trade or
business caused by the continual effect of the administration of the Dried Fruits
Act and the regulations”. He failed in this claim because the hindrance to his
business, although unauthorized, did not fall within a recognized head of tortious
liability.
The second case is Northern Territory v. Mengel (1995).215 In that case, two
cattle inspectors employed by the Crown ordered the owners of two cattle stations
in northern Australia to keep their stock in quarantine in order to avoid the spread
of a suspected disease. The owners complied with the order, which prevented
them from selling some of the stock during a drought and which led to their
suffering losses. It turned out that the inspectors lacked the legal authority to
210 An early example (not involving the Crown) is Cooper v. Wandsworth Bd. of Works (1863) 14
C.B. (N.S.) 180, 143 E.R. 414 (C.P.) (damages for trespass awarded against Board for demol-
ishing plaintiff’s house pursuant to an invalid decision).
211 Needless to say, the competent legislative body can create new heads of tortious liability and
make them applicable only to the Crown, e.g., Can., s. 17(1) (Crown liable for unlawful
interception of private communications). Such provisions are unusual.
212 European Community law, which applies in the United Kingdom, and prevails over domestic
law (H.W.R. Wade, “Sovereignty—Revolution or Evolution (1996) 112 L.Q.R. 568), does
confer a right of action against the Crown in right of the United Kingdom for breach of
Community law: see C. Harlow, “Francovich and the Problem of the Disobedient State” (1996)
2 European L.J. 199; P. Craig, “Once More Unto the Breach: The Community, the State and
Damages Liability” (1997) 113 L.Q.R. 67; Craig and de Burca, EU Law (4th ed., 2008), 328-
340; Fairgrieve, Andenas and Bell (eds.), Tort Liability of Public Authorities in Comparative
Perspective (2002), ch. 5 (by Amos) and ch. 7 (by Tridimas). Neither negligence nor any other
tort need be established; the primary control factor on the right of action is that the breach be
“sufficiently serious”: Francovich and Bonifacti v. Italy [1981] E.C.R. 1-5357 (E.C.J.).
213 (1939) 62 C.L.R. 339 (H.C., Aust.).
214 Section 6.2(e)(ii), “De facto authority”, above.
215 (1995) 185 C.L.R. 307 (H.C., Aust.).
195
quarantine the cattle, although they believed that they had the authority and acted
solely in what they perceived to be the public interest. The owners sued the
inspectors and the Crown for damages. The High Court of Australia held that the
action of the inspectors, although unauthorized by law and causing damage, did
not fall within any recognized head of tort liability. Therefore, no tort had been
committed, the owners had no cause of action and they could not recover damages
for their losses.
These two cases show that invalidity alone does not give rise to liability on
the part of the Crown or a Crown servant.216 It would, however, be wrong to
conclude that a person damaged by an invalid governmental decision never has
a cause of action in tort until that decision has been forcibly executed by the
commission of a trespass to person or property. An invalid decision that directly
causes injury217 will give rise to a cause of action if the invalid decision is a tort.
This will be the case if the invalid decision was made negligently (negligence is
the tort) or if the invalid decision was made deliberately (misfeasance in a public
office is the tort).
(b) Negligence
The cause of action that is most clearly established is negligence: if an invalid

decision causing damage is made negligently (that is, in breach of a common law
duty of care owed to the injured plaintiff), the decision-maker will be liable in
damages for the tort of negligence. Negligence is the most important head of
tortious liability of the Crown and other public bodies (as it is of private firms
216 See also, e.g., Que. v. Lapierre [1985] 1 S.C.R. 241 (injury caused by measles vaccination was
not a tort); Welbridge Holdings v. Greater Winnipeg [1971] S.C.R. 957, 967 (invalid zoning
by-law not actionable in absence of negligence or intentional wrongdoing); Dunlop v. Wool-
lahra Municipal Council [1982] A.C. 158, 171 (P.C., Aust.) (invalid building regulations not
actionable in absence of negligence, malice or knowledge of invalidity); Northern Territory v.
Mengel, note 215, above (invalid quarantine order not actionable in absence of negligence,
intention to inflict harm or knowledge of invalidity, and overruling Beaudesert Shire Council
v. Smith (1966) 120 C.L.R. 145 (H.C., Aust.)); Three Rivers District Council v. Bank of England
[2003] 2 A.C. 1, 229 per Lord Hobhouse (H.L.) (“Illegality without more does not give a cause
of action”); Que. v. Communauté urbaine de Montréal [2004] 1 S.C.R. 789, para. 23 (“in the
law of Crown liability, if upon judicial review an administrative decision is found to be unlawful,
it does not necessarily follow that there is a fault giving rise to recourse in civil liability”); Can.
v. TeleZone [2010] 3 S.C.R. 585, paras. 28-31 (“breach of statutory power [is not] necessarily
sufficient”).
217 Causation can be a problem in this kind of case. In some cases, obedience to an ostensibly
official order, which later turns out to be invalid, is treated as voluntary, with the result that the
plaintiff is treated as the author of his or her own injury. This kind of reasoning is totally
unrealistic, but it has occasionally been used to defeat a tort action, e.g., McClintock v. Cth.
(1947) 75 C.L.R. 1 (H.C., Aust.) (damages for conversion denied because plaintiff “voluntarily”
delivered up pineapples in obedience to invalid order). For discussion of this causation issue,
see Rubinstein, Jurisdiction and Illegality (1965), 322-323; Aronson and Whitmore, note 26,
above,118-120; Harlow, Compensation and Government Torts (1982), 92-97.
196
COMMISSION OF A TORT 6.5(c)
and individuals), and some distinctive doctrines have developed to accommodate

governmental activity that lacks a private analogy. Negligence is such a large
subject that it warrants a chapter to itself. Accordingly, the next chapter is devoted
entirely to the tort of negligence, and the topic is not pursued further at this point.
(c) Misfeasance in a public office
Since a harmful, invalid decision is actionable if made negligently, it seems

obvious that a harmful, invalid decision should also be actionable if made delib-
erately. This is the function of the tort of “misfeasance in a public office”,218
which is concerned with the deliberate abuse of power by public officers.219 Since
the tort applies only to public officers,220 it is an exception to the general rule that
the common law does not recognize a special “public” law of torts.
The tort has five basic elements.221 First, the defendant must be a public
officer.222 Second, the defendant must have engaged in unlawful conduct in the
218 For academic commentary see, e.g., Aronson and Whitmore, previous note, ch. 3; Harlow,
previous note, 58-68; B.C. Gould, “Damages as a Remedy in Administrative Law” (1972) 5
N.Z.U.L. Rev. 105; J. McBride, “Damages as a Remedy for Unlawful Administrative Action”
[1979] Camb. L.J. 323; P. Craig, Compensation in Public Law” (1980) 96 L.Q.R. 413; C.S.
Phegan, “Damages for Improper Exercise of Statutory Powers” (1980) 9 Syd. L. Rev. 93; R.C.
Evans, “Damages for Unlawful Administrative Action” (1982) 31 Int. & Comp. L.Q. 640; R.
Sadler, “Liability for Misfeasance in a Public Office” (1992) 14 Syd. L.R. 137; S. Kneebone,
“Misfeasance in a Public Office after Mengel’s Case” (1996) Tort Law Rev. 111; M. Andenas
and D. Fairgrieve, “Misfeasance in Public Office, Governmental Liability and European Influ-
ences” (2002) 51 Inter. & Comp. L.Q. 757; M. Bodner, “The Odhavji Decision” (2005) 42
Alta. L.R. 1061; D. Fairgrieve, “Damages Claims Against Public Bodies” (2007) J.R. 169; E.
Chamberlain, “The Need for a ‘Standing’ Rule in Misfeasance in Public Office” (2007) 7
O.U.C.L.J. 215; H. Wruck, “The Continuing Evolution of the Tort of Misfeasance in Public
Office” (2008) 41 U.B.C. L. Rev 69; and Horsman and Morley, note 40, above, ch. 7 (by
Horsman).
219 The tort is related to the crime of misconduct in public office (see Attorney General’s Reference
(No. 3 of 2003) [2005] Q.B. (C.A.)) or breach of trust by a public officer (see R. v. Boulanger
[2006] 2 S.C.R. 49).
220 Bradford v. Pickles [1895] A.C. 587 (H.L.) (appropriation of water by landowner in order to
deny water to water authority); Chapman v. Honig [1963] 2 Q.B. 502 (C.A.) (landlord evicting
tenant for vindictive reason); Harlow, note 217, above, 60-61. In Beaudesert Shire Council v.
Smith (1966) 120 C.L.R. 145, the High Court of Australia held (at 156) that “a person who
suffers harm or loss as the inevitable consequence of the unlawful, intentional and positive acts
of another is entitled to recover damage from that other”. However, this case was generally
criticized, was rejected by the House of Lords in Lonrho v. Shell Petroleum Co. (No. 2) [1982]
A.C. 173, 187, was never followed even in Australia, and was finally overruled by the High
Court of Australia in Northern Territory v. Mengel, note 215, above.
221 Odhavji Estate v. Woodhouse [2003] 3 S.C.R. 263, para. 32; and Foschia v. Conseil des Écoles
Catholique de Langue Française du Centre-Est 2009 ONCA 499, para. 22 (C.A.).
222 “Public officer” includes those Crown servants and agents that perform public functions: Henley
v. Mayor of Lyme (1828) 5 Bing 91, 107. It probably also includes those entities and individuals
that are not under the direct control of government, but that exercise statutory functions that
197
exercise or purported exercise of a public function.223 Third, the defendant must

have done so with malice or knowledge. Fourth, the defendant’s unlawful conduct
must have been the legal cause of the plaintiff’s injuries. And finally, the type of
injury sustained by the plaintiff must be compensable in law.224 Each of these
elements is the subject of a growing body of jurisprudence. However, it is the
third element — the defendant’s mental state — that plays the most important
role in limiting the scope of liability.
The third element is important, because misfeasance in a public office is an
intentional tort. The tort is not committed if a public officer engages in unlawful
conduct inadvertently and in good faith. Invalidity without more is not a tort.225
Nor is the tort committed if a public officer engages in unlawful conduct negli-
gently (in breach of a common law duty of care). Invalidity coupled with negli-
gence is a tort, but the tort is negligence. Misfeasance in a public office is
committed only if a public officer acts226 with a particular state of mind, namely,
with the actual intent to inflict injury (malice), or with knowledge of or reckless
indifference to the fact that the conduct is unlawful, and that injury will likely
result (knowledge).
The first mental state, malice, is exceedingly difficult to prove, and reported
cases are rare. One of the few reported examples remains the well known decision
are amenable to judicial review: Freeman-Maloy v. Marsden (2006) 79 O.R. (3d) 401 (C.A.),
leave to appeal refused [2006] 2 S.C.R. ix; or that “interfere with the way in which...citizens
wish to conduct their affairs”: Stockwell v. Society of Lloyd’s [2007] EWCA Civ. 930, para. 25
(C.A.). See further, Horsman and Morley, note 40, above, 7.20.10 (providing ample references).
223 “Public function” extends broadly to the actual or purported exercise of any power or duty
associated with public office (Odhavji, note 221, above, paras. 18-32), including, perhaps, even
private law powers (e.g., of contract) exercised by public officials: see, e.g., Jones v. Swansea
City Council [1989] 3 All E.R. 162 (C.A.), rev’d on other grounds [1990] 1 W.L.R. 1453 (H.L.)
(local government sued in capacity as landlord under commercial lease amenable to a claim
for misfeasance in public office). “Unlawful conduct” includes a breach of any relevant statutory
provisions, acting in excess of the powers granted, failing to act in circumstances in which the
public officer is under a legal duty to act, or acting for an improper purpose: Odhavji, note 221,
above, para. 23.
224 Proof of damages is required: Odhavji, note 221, above, paras. 32, 41; for the position in the
United Kingdom, see Watkins v. Home Office [2006] 2 A.C. 395 (H.L.) (proof of “material
damages” required); and Karagozlu v. Commr. of Police of the Metropolis [2007] 1 W.L.R.
1881 (C.A.) (loss of liberty is “material damage”). Although damages for grief or emotional
distress are not recoverable, psychiatric damages are recoverable: Odhavji, note 221, above,
para. 41. So, too, it seems are damages for loss of reputation and punitive (or exemplary)
damages: Uni-Jet Industrial Pipe v. Can. (2001) 198 D.L.R. (4th) 577 (Man. C.A.) (damages
for loss of reputation — calculated on an “at large” basis — and punitive damages awarded);
for the position in the United Kingdom, see Kuddus v. Chief Constable of Leicestershire
Constabulary [2002] 2 A.C. 122 (H.L.) (exemplary damages available in principle).
225 See note 216, above.
226 The tort applies to unlawful acts and omissions: see Odhavji, note 221, above, paras. 20, 21,
24.
198
COMMISSION OF A TORT 6.5(c)
of the Supreme Court of Canada in Roncarelli v. Duplessis (1959).227 In that case,

the tort was committed when the Premier of Quebec ordered the cancellation of
a restaurant’s liquor licence. Exceptionally, the Premier actually testified that the
purpose of this order was to punish the proprietor of the restaurant, because he
was a Jehovah’s Witness who regularly posted bail for other Jehovah’s Witnesses
who were arrested for distributing their literature in breach of local by-laws.
The second mental state, knowledge, figures prominently in recent decisions,
largely no doubt because it is easier to prove than malice.228 But how much easier?
That question was given careful consideration by the House of Lords in Three
Rivers District Council v. Bank of England (No. 3) (2000).229 In that case, the
plaintiffs lost money when a foreign bank, BCCI, failed. BCCI had been licensed
to carry on business in the United Kingdom by the Bank of England. The plaintiffs
brought an action for misfeasance in a public office against the Bank of England,
alleging that it had acted improperly in granting BCCI a license and failing to
revoke it prior to BCCI’s failure. Before the case was permitted to go trial, the
courts were asked to consider the sufficiency of the pleadings, on a motion to
strike, which involved giving better definition to the mental element of the tort.
On appeal, the House of Lords confirmed that the mental element of the tort can
be satisfied in two ways.230 The first, malice, is satisfied if the public officer
actually intended to injure the plaintiff. The second, knowledge, involves knowl-
edge of both unlawfulness and consequences. Knowledge of unlawfulness is
established if the public officer knew that his or her conduct was unlawful, or
was recklessly indifferent as to its legality. Knowledge of consequences is estab-
lished if the public officer knew that his or her conduct would likely injure the
plaintiff, or was recklessly indifferent as to the likelihood of injury. What was not
sufficient was that it was reasonably foreseeable that the public officer’s conduct
was unlawful, or that injury to the plaintiff would result. Because misfeasance in
a public office is an intentional tort, at least some level of advertence was required
— what was required, at a minimum, was “subjective recklessness.”231 This was
227 [1959] S.C.R. 121. Technically, liability depended upon art. 1053 of Quebec’s Civil Code, but
Rand J. (139-142) clearly thought that liability would be the same under the common law: see
Odhavji, note 221, above, para. 19.
228 See, e.g., Bourgoin SA v. Ministry of Agriculture [1986] Q.B. 716 (knowledge but not malice
established).
229 [2003] 2 A.C. 1 (H.L.).
230 There is some disagreement as to whether the tort has two entirely separate limbs, malice and
knowledge, or whether malice and knowledge are merely two ways in which the mental element
of the tort can be established. In Three Rivers, Lords Steyn and Hope appeared to take the
former view (191, 247); but Lords Hobhouse and Millett clearly took the latter view (230, 235).
In Canada, the latter view prevailed: see Odhavji, note 221, above, para. 22.
231 Three Rivers, note 229, above, 191, 196 (Lord Steyn), 231 (Lord Hobhouse), 247, 255 (Lord
Hope).
199
supported by decisions in Australia232 and New Zealand.233 The claim was held
to satisfy this requirement,234 and allowed to proceed to trial, but was ultimately
settled.235
The Three Rivers approach to knowledge was adopted by the Supreme Court
of Canada in Odhavji Estate v. Woodhouse (2003),236 now the leading decision
in Canada on the tort of misfeasance in a public office. In that case, a robbery
suspect was fatally shot by the police. An internal investigation was launched into
the shooting, but the officers involved failed to comply with it, as required by
statute. The plaintiffs (the estate and three family members of the deceased) sued
for misfeasance in a public office,237 alleging that the officers and the Chief of
Police deliberately breached their statutory duties in relation to the internal in-
vestigation, and “knew or ought to have known” that their alleged misconduct
would cause physical, psychological and emotional harm. The defendants moved
to strike the claim on the basis that it disclosed no reasonable cause of action. The
lower courts held that some (trial court) or all (Ontario Court of Appeal) of the
claim in misfeasance ought to be struck out, but the Supreme Court disagreed.238
Reviewing the leading decisions from Australia, New Zealand and the United
Kingdom, Iacobucci J., writing the opinion of the Court, clarified the basic ele-
ments of the tort, including the mental element. He accepted that the tort can arise
in one of two ways. The first (which he called “Category A”) “involves conduct
that is specifically intended to injure a person or class of persons”.239 The second
(which he called “Category B”) “involves a public officer who acts with knowl-
edge both that she or he has no power to do the act complained of and that the act
is likely to injure the plaintiff”.240 However, he emphasized that the basic elements
of the tort remain the same in both categories. What differs is the way that these
elements are established. If the claim falls into Category A, it is not necessary to
232 Northern Territory v. Mengel (1995) 185 C.L.R. 307 (H.C., Aust.); see also Sanders v. Snell
(1998) 196 C.L.R 329 (H.C., Aust.).
233 Garrett v. A.-G. [1997] 2 N.Z.L.R. 332 (C.A.); see also Rawlinson v. Rice [1997] 2 N.Z.L.R.
651 (C.A.); Rawlinson v. Rice [1998] 1 N.Z.L.R. 454 (C.A.); Hobson v. A.-G. [2007] 1 N.Z.L.R.
374 (C.A.).
234 The decision is in two parts. In the first, the House of Lords clarified the elements of the tort.
In the second, the House of Lords considered the defendant’s application for a motion to strike.
The motion to strike was refused by a majority (with Lords Steyn, Hope and Hutton in the
majority, and Lords Hobhouse and Millett dissenting).
235 See Three Rivers District Council v. Bank of England [2006] EWHC 816 (H.C.).
236 Odhavji, note 221, above. Iacobucci J. wrote the opinion of the Court.
237 The plaintiffs also sued for negligence.
238 The basis of the majority opinion in the Court of Appeal was that the unlawful act alleged –
breach of statutory duties relating to an internal police investigation — did not satisfy the
element of the tort requiring an unlawful act in the exercise of public functions. Iacobucci J.
disagreed, holding that unlawful act was not limited to coercive statutory powers, but extended
broadly to the actual or purported exercise of any power or duty merely associated, as here,
with public office.
239 Odhavji, note 221, above, para. 22.
240 Ibid.
200
COMMISSION OF A TORT 6.5(d)
establish the second element of the tort (unlawful conduct), because acting with
the intent to harm is itself unlawful. If, however, the claim falls into Category B,
the plaintiff must prove both the second element (unlawful conduct) and the third
element (mental state). In proving the third element, the plaintiff must establish
either that the public officer knew that the act was unlawful and that injury was
likely to result, or that the public officer was “subjectively reckless or wilfully
blind” as to the lawfulness of the conduct and the likelihood of injury.241 This
would not be the case where the public officer engaged in unlawful conduct
inadvertently or negligently, or due to factors beyond his or her control (e.g.,
budgetary constraints). Applying this approach, the allegation that the defendants
“ought to have known” that harm was likely to result was insufficient, and was
therefore struck out of the statement of claim. However, the plaintiffs also alleged
that the officers and the Chief of Police knew both that they were acting unlaw-
fully, and that harm was likely to result. This was sufficient, if proven, to satisfy
the mental element. Because the plaintiffs adequately pleaded the other essential
elements of the tort, the misfeasance claim was allowed to proceed to trial.242
(d) Constitutional torts
There is now a second exception to the general rule that the common law
does not recognize a special “public” law of torts: this is an exception for “con-
stitutional torts”, which is another category of tort that can be committed only by
governments and public officials. This category of tort is well developed in the
United States. The leading case is Bivens v. Six Unknown Federal Narcotics
Agents (1971).243 In that case, the plaintiff was awarded damages for an unrea-
sonable search of his home and his person that had been carried out by federal
narcotics agents in violation of the Bill of Rights. Since Bivens, damages have
also been awarded for the dismissal of a congressional employee based on un-
241 Id., paras. 22-23, 38. Doubts have been raised that the Court accepted in Odhavji that knowledge
can be established by proof of “subjective recklessness”. This seems to us to be an unduly
cautious reading of the decision. The Court referred to subjective recklessness in para. 38, in
applying the law to the facts of the case; and the decision largely seems to incorporate Three
Rivers, note 229, above, which clearly accepted subjective recklessness. In any event, later
cases have accepted that subjective recklessness is sufficient: see, e.g., Ont. Racing Commn. v.
O’Dwyer (2008) 293 D.L.R. (4th) 559 (Ont. C.A.) (Commission acted with reckless indifference
as to legality and likely consequences, by frustrating all efforts by the respondent to have the
decision to refuse his approval as a race starter for the 2003 year reviewed; elements of the tort
held to be satisfied). See also Finney v. Barreau du Québec [2004] 2 S.C.R. 17, paras. 39-40
(adopting a broad interpretation of ‘bad faith’ that includes recklessness).
242 The Law Commission for England and Wales recommended that the tort of misfeasance in
public office be abolished, in the context of a larger set of proposed reforms for government
liability: see Administrative Redress (Consultation Paper, 2008), 4.91, 4.105; (Final Report,
2010), 3.72.
243 (1971) 403 U.S. 388.
201
constitutional sexual discrimination,244 and for a denial of medical treatment to a

prisoner amounting to unconstitutional cruel and unusual punishment.245 In each
case, a breach of the plaintiff’s rights had occurred, and monetary compensation
was the only effective redress. Under this line of cases, the act that provides the
cause of action in damages is a breach of the Constitution. The act may or may
not be a tort under the law of the state where the act was committed. Nevertheless,
damages are available in the federal courts.246 This cause of action has been aptly
characterized as a “constitutional tort”.247
In the United States, there is no provision in the Constitution explicitly
authorizing a judicial remedy for a breach of the Constitution. The authority to
award redress is regarded as implicit.248 This is also the position in New Zealand,
which has enacted a statutory bill of rights, the New Zealand Bill of Rights Act
1990.249 The New Zealand Court of Appeal has held that a breach of the New
Zealand Act may give rise to a remedy in damages, even though there is no
explicit remedial provision.250 In Australia, the Constitution is also silent on the
issue of damages. However, the High Court of Australia has refused to follow the
American and New Zealand precedents, by recognizing a cause of action for
breach of the Constitution.251 The United Kingdom avoided this debate altogether,
by explicitly granting the courts the authority to award damages for breach of the
244 Davis v. Passman (1979) 442 U.S. 228.

245 Carlson v. Green (1980) 446 U.S. 14.
246 The cause of action is limited by a number of significant hurdles, including a doctrine of
qualified immunity, which cloaks a state actor with immunity from suit if, at the time of the
illegal conduct, it was not “clearly established” that such conduct violated a constitutional right:
see, e.g., Pearson v. Callahan (2009) 129 U.S. 808. See further Wells and Eaton, Constitutional
Remedies (2002); and Jeffries et al., Civil Rights Actions (2007).
247 Many state courts also recognize a “constitutional tort” for violation of the state Constitution:
see H. Gugel, “Remaking the Mold” (2010) 110 Colum. L. Rev. 1294, 1318-1324 (providing
a recent accounting).
248 Tribe, American Constitutional Law (3rd ed., vol. 1, 2000), 483-484.
249 A damages remedy for breach of individual rights exists in many countries: see the survey by
G. Huscroft and P. Rishworth, Damages for Breach of Individual Rights (Report to N.Z. Law
Commission, 1996).
250 Simpson v. A.-G. [1994] 3 N.Z.L.R. 667 (C.A.) (“Baigent’s Case”). This case was controversial,
because there is no remedial clause in the N.Z. Act, and it is not constitutionally entrenched:
for criticism, see J.A. Smillie, “The Allure of ‘Rights Talk’” (1994) 8 Otago L. Rev. 188. After
the decision, the New Zealand Law Commission commissioned a survey of the law in other
jurisdictions (previous note), and then issued a report approving the decision and recommending
that it not be reversed by legislation: Law Commn. (N.Z.), Crown Liability and Judicial
Immunity (Report 37, 1997), para. 84. For a review of the principles that are to guide an award
of damages under the N.Z. Act, see Taunoa v. A.-G. [2008] 1 N.Z.L.R. 429 (S.C.).
251 Kruger v. Cth. (1997) 190 C.L.R. 1, 46-47 per Brennan C.J., 93 per Toohey J., 125-126 per
Gaudron J., 146-148 per Gummow J. (H.C., Aust.); British American Tobacco Aust. v. W.A.
(2003) 217 C.L.R. 30, para. 40 per McHugh, Gummow and Hayne JJ. (H.C., Aust.); and
Mulholland v. Australian Electoral Commn. (2004) 220 C.L.R. 181, para. 182 per Gummow
and Hayne JJ. (H.C., Aust.). But see British American Tobacco, this note, paras. 118-137 per
Kirby J., suggesting that the approach in the United States and New Zealand is the correct one.
202
rights protected by the (also statutory) Human Rights Act 1998 (s. 8).252 Canada,
too, largely avoided this debate. Section 24 of the Charter provides that anyone
whose Charter rights have been infringed “may apply to a court of competent
jurisdiction to obtain such remedy as the court considers appropriate and just in
the circumstances”. The Supreme Court of Canada has affirmed that s. 24 au-
thorizes an award of damages for breach of the Charter.253
The leading case is Vancouver v. Ward (2010).254 In that case, the plaintiff,
a Vancouver lawyer, was mistakenly identified by the police as a person who was
planning to throw a pie at the Prime Minister, who was attending a public cere-
mony in Vancouver. The city police confronted the plaintiff and handcuffed him,
and when he protested and created a scene they arrested him for a breach of the
peace and took him to a police lock-up, where provincial corrections officers took
charge of him. The provincial corrections officers strip-searched the plaintiff and
held him in a cell for more than four hours before releasing him without laying
any charges. During this time the police also seized his car, but realized that they
did not have enough evidence to obtain a warrant to search it, and returned it to
him when he was released. The plaintiff sued, and at trial was awarded damages
under s. 24(1) of $5,000 from the province for the strip search (which breached
s. 8, unreasonable search or seizure), and of $100 from the city for the seizure of
the car (another breach of s. 8). (He was also awarded damages of $5,000 from
the city for the tort of wrongful imprisonment.) The awards of Charter damages
(but not the tort damages) were appealed to the Supreme Court of Canada. The
Court agreed that the plaintiff’s rights under s. 8 had been infringed, and upheld
the award of damages for the strip search, but held that a declaration was a
sufficient remedy for the seizure of the car.
McLachlin C.J., who wrote for the Court, said that the award of damages
would be an appropriate and just remedy for breach of the Charter where the
252 See R. Cooke, “The British Embracement of Human Rights” (2000) 3 E.H.R.L.R. 243 (sug-
gesting that s. 8 made explicit the position reached in N.Z.). For a review of the principles that
are to guide an award of damages under the U.K. Act, see Anufrijeva v. Southwark L.B.C.
(2003), [2004] Q.B. 1124 (C.A.); and R. (Greenfield) v. Secretary of State [2005] 1 W.L.R.
673 (H.L.). See also Maharaj v. A.-G. Trinidad and Tobago (No. 2) [1979] A.C. 385 (P.C.,
Trinidad and Tobago) (remedy clause in the Constitution of Trinidad and Tobago authorizing
an award of damages); Merson v. Cartwright [2005] UKPC 38 (P.C., Bahamas) (damages
available under the Bahamian Constitution); Ramanoop v. A.-G. Trinidad and Tobago [2006]
1 A.C. 328 (P.C., Trinidad and Tobago) (affirming and expanding on Maharaj); and Inniss v.
A.-G. Saint Christopher and Nevis [2008] UKPC 42 (P.C., Saint Christopher and Nevis)
(damages available under the Constitution of Saint Christopher and Nevis).
253 See generally M. Pilkington, “Damages as a Remedy for Infringement of the Canadian Charter
of Rights and Freedoms” (1984) 62 Can. Bar. Rev. 517; K. Cooper-Stephenson, “Tort Theory
for the Charter Damages Remedy” (1988) 52 Sask. L. Rev. 1; Cooper-Stephenson, Charter
Damages (1990); D. Mullan, “Damages for Violation of Constitutional Rights” (1995) 16
N.J.C.L. 105; G.S. Gildin, “Allocating Damages Caused by Violation of the Charter” (2009)
24 N.J.C.L. 121; and Roach, Constitutional Remedies in Canada (loose-leaf ed.), ch. 11.
203
award is “functionally required” (1) to compensate the plaintiff for his loss; (2)
to vindicate Charter rights; or (3) to deter future Charter breaches.255 Because
vindication and deterrence pursued societal goals, Charter damages under s. 24(1)
would not necessarily be the same as common-law damages. Even where no
personal loss was suffered, a damages award might be appropriate and just under
s. 24(1). For example, in an earlier case, an arrest of a soldier by military police
in violation of s. 9 (arbitrary detention or imprisonment) attracted a damages
award of $10,000, even though the claimant had not suffered any harm that would
be compensable at common law.256 In another case, the action of police officers
in removing a sick man from his car to attend court in breach of s. 7 (security of
the person) attracted a damages award of $5,000, despite the absence of any harm
to the claimant.257 In the Ward case itself, the Court upheld the trial judge’s award
of $5,000 damages for the strip search on the ground that his humiliating expe-
rience should receive some compensation, and that the functions of vindication
and deterrence also justified some damages. However, the Court showed no
sympathy for merely symbolic awards of damages, and reversed the trial judge’s
award of $100 for the seizure of the plaintiff’s car: this caused the plaintiff no
harm, the car was not searched, and, although the seizure breached s. 8, it was
not a serious breach. For that breach, a declaration was sufficient to fulfil the
functions of vindication and deterrence.258
McLachlin C.J explained that, even when damages are “functionally re-
quired” to fulfil one or more of the objects of compensation, vindication or
deterrence, there may be countervailing considerations that would render an award
of damages inappropriate and unjust. She offered two examples, while warning
that this was not a complete catalogue. One countervailing consideration was the
availability of alternative remedies. If private actions in tort would adequately
address the Charter breach, then Charter damages would be duplicative and should
not be awarded. The implication is that Charter damages are the remedy of last
resort. In this case, the plaintiff’s tort action for wrongful imprisonment was
successful and yielded damages of $5,000 for his detention in the police lock-up;
on appeal, he did not pursue any additional Charter damages for the detention.
No tort damages were awarded for the strip search or the seizure of the car, and
so no issue of duplicative remedies arose for those causes of action.
A second consideration that could render an award of Charter damages
inappropriate and unjust is a “concern for effective governance”.259 Of course,
Charter damages would usually promote good governance, since they should
deter Charter breaches by government. However, what the Chief Justice had in
mind was the line of cases that hold that no damages are available “for the harm
255 Id., para. 25.

256 Du-Lude v. Can. (2000) 192 D.L.R. (4th) 714 (F.C.A.).
257 Hawley v. Bapoo (2005) 76 O.R. (3d) 649 (S.C.J.).
258 Note 254, above, paras. 74-78.
259 Id., paras. 38-43.
204
suffered as the result of the mere enactment or application of a law that is

subsequently held to be unconstitutional”;260 or for the harm caused by govern-
ment officials who act in good faith and without negligence under the “claim of
right” of a statute subsequently held to be unconstitutional for breach of the
Charter.261 According to McLachlin C.J. in Ward, these two doctrines are exem-
plary of the principle of good governance, because damages awards would “chill
the exercise of policy-making discretion” and deter public officials from carrying
out their duties under apparently valid statutes.262 She did not mention the inde-
terminate extent of Crown liability that would be opened up if damages claims
were available to everyone who had suffered harm as the result of the enactment
and implementation of a statute that was subsequently held to be unconstitutional.
Perhaps that is an issue of good governance as well. In Ward itself, however, the
good governance immunity was not relevant: the public officials had not been
acting on the faith of statutes subsequently held to be unconstitutional.
The action for Charter damages under s. 24(1) is commonly described (fol-
lowing the United States) as a “constitutional tort”.263 However, it is not literally
a species of tort. In Ward, McLachlin C.J. described damages under s. 24(1) as
“a unique public law remedy”; it was not “a private law action in the nature of a
tort claim”.264 One difference between the public-law remedy under the Charter
and the private-law tort remedy is that the Charter action “lies against the state
and not against individual actors”. The liability of the Crown for breaches of the
Charter is direct. Any personal liability of individual actors such as police or
corrections officers would have to be found in the private law of tort, and if so
found the Crown would be vicariously liable for the tort, provided it was com-
mitted by an official in the course of employment. Another distinction between
the public-law remedy under the Charter and the private-law tort remedy is that
the quantum of damages may differ. As noted, in assessing Charter damages,
vindication and deterrence must be taken into account, and these could justify a
260 Mackin v. N.B. [2002] 1 S.C.R. 405, para. 78 (refusing damages for enactment of legislation in
breach of Charter right to judicial independence), following pre-Charter cases of Wellbridge
Holdings v. Greater Winnipeg [1971] S.C.R. 957 and Central Canada Potash v. Govt. of Sask.
[1979] 1 S.C.R. 42.
261 Guimond v. Que. [1996] 3 S.C.R. 347, paras. 13-19.
262 Note 254, above, paras. 40-41.
263 E.g. R. v. McGillivary (1990) 107 N.B.R. (3d) 361, paras. 14-15 (C.A.); Mammoliti v. Niagara
Regional Police Service (2007) 279 D.L.R. (4th) 643, paras. 108, 167 (Ont. C.A.), leave to
appeal refused [2007] 3 S.C.R. xiv; and C.H.S. v. Alta. (2010) 469 A.R. 359, paras. 34-39 (Alta.
C.A.).
264 Note 254, above, paras. 22, 30, 31. Compare the restitutionary remedy against the Crown for
unconstitutional taxes, which is not based on s. 24(1), because it is not based on a breach of the
Charter. The Court has insisted that this is a special public-law remedy, although it is very
similar to the private-law remedy for restitution based on unjust enrichment: Kingstreet In-
vestments v. N.B. [2007] 1 S.C.R. 3, para. 40. For further discussion of Kingstreet, and this
special public-law remedy, see ch. 10, Restitution, under heading 10.6, “Recovery of unau-
thorized taxes”, below.
205
damages award where no loss cognizable by the common law had been suffered.
However, these two differences are not so marked as to require the abandonment
of the common phrase “constitutional tort” – and the adjective “constitutional”
signals the existence of some distinctions from the private law of tort.
6.6 Reform
(a) Compensation based on invalidity
The tort of negligence265 is established only if an invalid decision was made

negligently. The tort of misfeasance in a public office266 is established only if an
invalid decision is tainted by malice or knowledge. A possible reform in the law
would be to require the payment of damages (or compensation) for any invalid
decision: anyone who had suffered loss by relying on an invalid governmental
decision would be entitled to be compensated.267 Liability would no longer be
based on fault (negligence, malice or knowledge) but would be a species of strict
liability.268 The argument in favour of strict liability would be the ability of the
government (or other public body) to spread the loss over the tax-paying com-
munity. The unfortunate individual who happens to be directly injured by an
invalid governmental decision should not have to bear the cost. The entire tax-
paying community should share the cost of its government’s occasional errors.
The argument in favour of compensation for invalidity is a powerful one.
There are, however, arguments the other way. Strict liability is still the exception
rather than the rule in the law of torts, so that a movement to strict liability for
government action makes governmental liability markedly different from private
liability. Moreover, the Supreme Court of Canada has decided that breach of
statutory duty should not be an actionable tort, but should be subsumed in the law
of negligence.269 Compensation based on invalidity would be a move in the
opposite direction, and obviously that decision would have to be reconsidered if
265 See sec. 6.5(b), “Negligence”, above; and ch. 7, Tort: Negligence, below.
266 See sec. 6.5(c), “Misfeasance in a public office”, above.
267 So argued by Evans, note 218, above, 660; Cornford, note 185, above. See also Law Commn.
(Eng. and Wales), Remedies in Administrative Law (Working Paper No. 40, 1971), paras. 147-
148; Committee of Ministers of the Council of Europe to Member States Relating to Public
Liability (1984), Recommendation No. R(84)15; Justice-All Souls Committee, Administrative
Justice – Some Necessary Reforms (Report, 1988), 360-364; and P. Cane, “Damages in Public
Law” (1999) 9 Otago L. Rev. 489.
268 In France, which has adopted this approach, it is common to speak of liability as being founded
upon “fault”, with “mere illegality in itself a fault capable of giving rise to liability”: Neville
and Bell, French Administrative Law (5th ed., 1998), 190. However, in Canada (as in the United
Kingdom, Australia, and New Zealand), illegality is not a form of “fault”, and liability founded
upon illegality is thought of as a species of strict liability.
269 The Queen v. Sask. Wheat Pool [1983] 1 S.C.R. 205.
206
REFORM 6.6(a)
an invalid exercise of a statutory duty or power was to become actionable without

proof of fault.
Moving from the impact on the fabric of the law of torts to the precise
ingredients of the new tort, a number of difficulties emerge. One concerns the
definition of invalidity.270 A decision may be invalid because procedural norms
(such as the rules of natural justice) have been violated, or because irrelevant
considerations have been taken into account, or because an improper purpose has
been pursued. In such a case, judicial review is available to nullify the decision
and (directly or indirectly) to compel the decision-maker to make a new decision.
The problem with an award of damages in such a case is that the invalid decision
is not necessarily wrong in substance: the decision-maker might, quite properly,
come to the same conclusion again after reconsideration in full compliance with
the law. If a court is to award damages on the basis of the invalidity of the first
decision, it may be conferring a windfall on a plaintiff who has really been denied
nothing. If the court first decides what the “correct” decision should have been,
it is usurping the function of the decision-maker, while lacking the mandate,
qualifications, experience and expertise of the decision-maker. This problem
could be solved by providing that only certain kinds of invalidity would qualify
for the new compensation remedy. This would introduce subtle new distinctions
into the law. One would be entitled to ask whether the new distinctions were a
significant advance over the existing requirements.
A second problem concerns the kinds of decisions that would give rise to
liability for damages. Would any invalid decision form the basis of the new tort?271
What about an invalid decision at the “policy” level of government? The law of
negligence has confronted this problem by limiting liability to “operational”
decisions, on the basis that policy decisions are not appropriate for judicial eval-
uation by reference to the negligence standard of reasonable care.272 But if a
decision were actionable solely on proof of invalidity, no judicial evaluation of
reasonableness would be called for.273 And yet, as one rises in the hierarchy of
government, the potential impact of an invalid decision is likely to be far-reaching.
At the limit is the case of an unconstitutional statute. To impose liability for all
the consequences of an invalid legislative programme, or for invalid policy de-
cisions, would surely be too open-ended, too burdensome and too difficult to
administer. This difficulty has not arisen with the existing tort of misfeasance in
a public office, because the requirement of malice or knowledge has usually had
the practical effect of limiting liability to cases where a single individual (or small
270 See Harlow, note 217, above, 93; Craig, note 218, above, 439-440; Craig, Administrative Law
(6th ed., 2008), 1015-1016.
271 See Craig, note 218, above, 438.
272 See ch. 7, Tort: Negligence, under headings 7.2(b)(ii), “The policy/operational distinction”,
and 7.2(c)(iii), “Residual policy considerations”, below.
273 Craig, note 218, above, 437-441; Harlow, State Liability (2004), 88-123.
207
class) has been affected by the invalid decision.274 Once again, one may well ask
whether any new distinction would prove to be equally manageable.275
If invalidity by itself were to become a tort, it seems plain that there would
have to be limits placed on the new tort. There are several proposals that have
been advanced.
One proposal that has been advanced is to confer upon the courts a discre-
tionary power to order the payment of compensation in judicial review proceed-
ings.276 This proposal simply puts off the difficult decisions outlined above,
leaving it to the courts to develop the principles that ought to apply in determining
whether to award compensation for invalid decisions beyond the situations in
which damages in tort are already available. Absent standards to govern the
exercise of this discretion to award damages, this proposal would probably result
in a good deal of uncertainty and inconsistency, potentially slowing down the
process of judicial review, and imposing significant costs on both claimants and
public authorities. Thus, we think there are good reasons to be sceptical of this
proposal.277
Another proposal that has been advanced is set out in a book by Tom
Cornford entitled Towards a Public Law of Tort.278 Cornford argues that the
liability of public authorities for damages in tort should be extended, to allow for
recovery in accordance with a principle (called Principle I) recommended by the
Council of Europe in 1984.279 Under Principle I, “reparation” would be paid “for
274 This may well be changing, given the far-reaching impact of many government decisions. In
Three Rivers District Council v. Bank of England, note 229, above, the plaintiffs were some
6,000 depositors in a Luxembourg bank who had lost money when the bank had failed. Concern
over the extent of possible liability led the House of Lords to propose that the Crown would be
liable only for damage that a public officer knew was likely to occur. The claim was eventually
abandoned (see Three Rivers District Council v. Bank of England [2006] EWHC 816 (H.C.)),
but if the claimants had been successful, the Bank of England might have been faced with
liability approaching £550 million.
275 In New Zealand, a law reform committee rejected the reform: see Public and Administrative
Law Reform Committee (N.Z.), note 173, above, 33-36. See also Law Reform Commn. (Ont.),
note 134, above, 24-25, expressing doubts about the reform.
276 See, in particular, M. Fordham, “Reparation for Maladministration: Public Law’s Final Fron-
tier” (2003) 8 Judicial Review 104; and M. Fordham, “Monetary awards in judicial review”
(2009) Public Law 1. See also M. Amos, “Extending the liability of the state in damages”
(2001) 21 Legal Studies 1.
277 See Cornford, note 185, above, 221-223, who also rejects the proposal.
278 Id.
279 Council of Europe, note 267, above, rec. No. R(84)15. The Council of Europe recommended
two principles of state liability, and Cornford argues that the liability of public authorities
should be extended to accommodate both. The second principle is that compensation should
be paid “if it would be manifestly unjust to allow the injured person alone to bear the damage,
having regard to the following circumstances: the act is in the general interest, only one person
or a limited number of persons have suffered damage and the act was exceptional or the damage
was an exceptional result of the act”. This principle is based on a risk theory, which is discussed
in the next section: see sec. 6.6(b), “Compensation based on risk”, below.
208
REFORM 6.6(a)
damage caused by an act due to a failure of a public authority to conduct itself in

a way which can reasonably be expected from it in law in relation to the injured
person”.280 Cornford’s argument is quite involved, but the basic goal of his pro-
posal is clearly to reform the law of tort in order to increase significantly the
situations in which public authorities would be held liable for invalid decisions.
The presumption would be that damages should be available where an invalid
decision causes a form of compensable loss, and the primary control factor would
be a power to withhold damages where the award of damages would stultify the
performance of a public authority’s public functions.281 Cornford makes a strong
case for his proposed reforms, but we think there are good reasons to approach
his proposals with caution.
The first difficulty with Cornford’s proposal arises from the case that he
makes for Principle I. Cornford argues that the principle of corrective justice
requires invalid decisions that result in loss to be made good by an award of
compensatory damages, and that the failure to remedy invalid decisions that result
in compensable loss constitutes a form of unequal treatment, contrary to the rule
of law. The basic assumption underlying both arguments is that public authorities
owe individuals a duty to comply with the principles of administrative law judicial
review when exercising their duties and powers in relation to them, and that
individuals have an entitlement that public authorities so comply. However, this
is not a view of administrative law judicial review that is widely shared, not least
because it comes close to turning administrative law judicial review principles
(of procedural fairness and so on) into legally-enforceable individual rights.282
Thus, it is not clear, to use the language of Principle I, that a public authority that
makes an invalid decision that causes loss to a particular person has failed “to
conduct itself in a way which can reasonably be expected from it in law in relation
280 Ibid.
281 Cornford is clear that three conditions must be met before damages will be appropriate: a) the
public authority must owe the plaintiff a duty, which would be the case where a reasonable
authority would have the plaintiff (or group to which he or she belongs) in mind as likely to be
affected by the exercise of its public duties or powers; b) the public authority must breach one
of the principles – of procedural fairness and so on – applied in administrative law judicial
review proceedings; and c) the breach must cause a type of harm in relation to which a monetary
remedy is appropriate (note 185, above, 129-130). These conditions do impose limits on the
scope of recovery, but Cornford’s basic assumption is that invalid decisions that cause a type
of compensable loss should result in an award of damages (see, e.g., 15, 200).
282 See, e.g., Stevens, Torts and Rights (2007), 218 (Principle I cannot be “justified as based upon
the violation of specific [individual] rights”); S.H. Bailey, Book Review (2009) Public Law
869-870; G. Weeks, Book Review (2009) 17 Torts L.J. 1, 5, 14; Fordham, note 276, above, 2
(“public law does not have at its heart the rationale of compensating individuals who have been
wronged”); Can. v. TeleZone [2010] 3 S.C.R. 585, para. 56 (judicial review “not...directed
exclusively to vindicating the rights of individual[s]”).
209
to the injured person”. It might be possible to make a different case for Principle
I, but Cornford does not do so.283
The second difficulty with Cornford’s proposal is that it raises a concern
about the appropriate role of the courts. Cornford dismisses this concern on the
basis that the extent to which it is proper for the courts to interfere with the
decisions of public authorities is already taken into account in determining
whether to find a decision invalid as a matter of public law. However, this response
is less than convincing, because Cornford seems to interpret the principles of
administrative law judicial review in such a way as to accord the courts significant
latitude to review public authority decision-making.284 In addition, the power that
he would grant to the courts to withhold damages, where a damages award would
stultify the public authority’s performance of its public functions, would itself
almost certainly expose the budgetary and resource-allocation decisions of public
authorities to judicial scrutiny.285 These are the sorts of considerations that, in our
constitutional system, are properly left to the political process, not the courts.
The third difficulty with Cornford’s proposal concerns his response to the
argument (discussed in more detail above) that damages for procedural wrongs
may be inappropriate, because a public authority may be able to re-take the same
decision. Cornford largely dismisses this concern as well, on the basis that there
are circumstances in which a court is prepared to hold that it is not open to a
public authority to re-take the same decision, and procedural wrongs themselves
may cause a type of harm that ought to be compensated. However, this response
is also less than convincing, because the circumstances in which a court will hold
that it was not open to a public authority to re-take the same decision are rare, at
283 A curious feature of the entitlement that Cornford argues for is that it is conditional; damages
can be denied if an award of damages would unduly harm the public authority. Cornford
concedes that this aspect of his argument “may inspire scepticism” (26), and his response is
less than convincing (26-29).
284 See, e.g., 94, where Cornford contemplates courts assessing the “reasonableness of the order
of priority given by the authority to the various demands on its resources”; 153, where he
contemplates a court holding a policy of subjecting some borstal trainees to a relaxed detention
regime to be unreasonable, because it involved excessive risk to members of the public; and
201, where he contemplates damages for the frustration of a “substantive legitimate expecta-
tion”, whether or not the court reached the conclusion that the claimant’s legitimate expectation
entitled him or her, in the final analysis, to receive the benefit he or she expected, and notwith-
standing concerns that a doctrine of “substantive legitimate expectations” creates for the sep-
aration of powers (see Mount Sinai Hospital Center v. Que. [2001] 2 S.C.R. 281, paras. 22-
38). This would seem to accord the courts very wide latitude to interfere with public-authority
decision-making; but see 103, where Cornford argues that public authorities ought to be given
latitude to come to a “reasonable or tenable” interpretation of their statutory powers. See also
Weeks, note 282, above, 14, who refers to the “paradigm shift” that would result from the
adoption of Cornford’s proposal.
285 The power to refuse damages would no doubt play a key role, as a public authority would have
an incentive to argue that the award of damages would stultify its public functions. The success
of such an argument would probably turn on evidence as to the possible impact on a public
authority’s resources.
210
REFORM 6.6(a)
least in Canada,286 and the courts are reluctant to award damages for the types of
harms — anxiety, distress, and pure economic loss — that Cornford contem-
plates.287 It is of course possible that the law could be developed to permit greater
recovery of these types of harm, but this may dramatically upset existing legal
principles, and expose public authorities to sizeable damages awards.288
Finally, even if these concerns could be addressed, which we doubt, we are
sceptical of Cornford’s assertion that it would properly fall to the courts to develop
the law of negligence to permit recovery in accordance with Principle I. The
reforms that would be necessary to give effect to Cornford’s version of Principle
I are simply too far-reaching to be implemented by the courts. Legislative inter-
vention would be required.289
Another proposal that has been advanced is set out in a consultation paper
by the Law Commission of England and Wales entitled Administrative Redress:
Public Bodies and the Citizen.290 The Law Commission’s proposal draws a dis-
tinction between public law and private law. At public law, damages would be
available for invalid decisions in judicial review proceedings if three elements
were satisfied: a) the underlying statutory or common law regime conferred a
benefit on the claimant;291 b) there was “serious fault” on the part of the public
286 Jones and de Villars, Principles of Administrative Law (5th ed., 2009), 644.
287 See, e.g., Mustapha v. Culligan of Canada [2008] 2 S.C.R. 114, para. 9 (noting that “upset,
disgust, anxiety, agitation or other mental states” must “be serious and prolonged and rise above
the ordinary annoyances, anxieties and fears that people living in society routinely, if sometimes
reluctantly, accept” before they will rise to the level of compensable injury); and Klar, note 40,
above, ch. 7 (outlining the limitations imposed on the scope of recovery for pure economic loss
in the law of torts).
288 Ironically, the scope of liability for invalid decisions in France, which is the model usually
cited by those who advocate greater liability for invalid decisions, may be less extensive than
the scope of liability for invalid decisions contemplated by Cornford. In France, the courts have
mitigated the effect of equating illegality with fault in several ways, including by adopting
strict rules in relation to causation and damages, and a recent comparison of governmental
liability in England and France concluded that, despite obvious differences, “the two systems
are not as divergent as one might have thought”: Fairgrieve, State Liability in Tort (2003), 261;
see also ch. 6 (law relating to causation) and ch. 7 (law relating to damages).
289 Cornford is swimming against the tide in proposing such a dramatic increase in the scope of
public authority tort liability. Indeed, in Australia, there has been a wave of reforms to the law
of tort, including to the scope of public authority liability in tort, and the thrust of the reforms
have been in the direction of less (not more) tort liability: see Ipp Report, note 209, above, 151-
163; Aronson, note 209, above; J. Dietrich, “Duty of care under the ‘Civil Liability Acts’”
(2005) 13 Torts L.J. 1, 42-43; and Ipp, note 209, above.
290 Law Commn. (Eng. and Wales), Administrative Redress (Consultation Paper, 2008). See also
Monetary Remedies in Public Law (Discussion Paper, 2004); and Remedies Against Public
Bodies (Scoping Report, 2006), which were part of the same project.
291 This requirement would be satisfied if “the legal regime was intended to advance, or protect,
the interests of a class of persons in the position of the claimant, and the action, or inaction, of
the public body adversely affected those interests”: Administrative Redress (Consultation Pa-
per), previous note, 83.
211
body;292 and c) the claimant suffered loss as a result. However, damages would
continue to play an ancillary role, and an award of damages would be discretion-
ary, as with the other public law remedies. At private law, activities that were not
“truly public” would continue to be governed by the ordinary law of tort.293
However, activities that were “truly public” would be placed in a specialised
scheme.294 Within this scheme, the claimant would have to establish the same
requirements as the public law scheme (conferral of benefit, serious fault, and
causation) in order to be awarded damages for an invalid decision, but unlike the
public law scheme, damages would be available as of right.295 The Law Com-
mission’s proposals were met with widespread criticism, and as a result the Law
Commission largely abandoned the project in its final report.296
Like the critics, we are inclined to think that there are good reasons to
approach the Law Commission’s proposals with caution.297 The proposals turn
on three concepts: truly public, conferral of a benefit, and serious fault. The
assumptions underlying the use of these concepts are that public authorities ought
to be liable where a private defendant would be liable, and that truly public
activity ought to be subject to different, stricter requirements (conferral of benefit
and, in particular, serious fault). The problem is that all three concepts – truly
public, conferral of a benefit, and serious fault – would introduce subtle new
distinctions into the law. It would fall to the courts to work out the contours of
these subtle new distinctions, and the result would probably be considerable
litigation, at significant cost (in time and money) to both claimants and public
292 Serious fault would be established, following the consideration of several factors, only if the
failure of the public authority fell far below the standard expected of public bodies: Id., 85.
293 An act or omission of a public body would be regarded as “truly public” if: (a) the body
exercised, or failed to exercise, a special statutory power; or (b) the body breached a special
statutory duty; or (c) the body exercised, or failed to exercise, a prerogative power. A “special
statutory power” is defined as a power that allows the public body to act in a way not open to
private individuals. A “special statutory duty” is defined as a statutory duty placed on the public
body that is specific to it, and is not placed on private individuals: Id., 79-82.
294 The requirement to establish that the activity was “truly public” would not apply to the award
of damages in judicial review proceedings, but this is because it is assumed that only “truly
public” activity would be amenable to judicial review in the first place. The satisfaction of the
requirement is assumed.
295 The Law Commission also made further subsidiary proposals, including a proposal to give the
courts the discretion to abandon joint and several liability and to apportion liability; and a
proposal to abandon the tort of misfeasance in a public office and the tort of breach of statutory
duty.
296 Law Commn. (Eng. and Wales), Administrative Redress (Final Report, 2010). In the Law
Commission’s own words, there was general, and in some cases “vigorous” disagreement with
the proposals in relation to the availability of monetary remedies in judicial review, and the
response to the proposals in relation to private law was “overwhelmingly negative”: see Law
Commn. (Eng. and Wales), Administrative Redress (Summary, 2010), 3, 4.
297 The comments of the critics are summarized in Law Commn. (Eng. and Wales), Administrative
Redress (Analysis of Consultation Responses, 2010). See also T. Cornford, “Administrative
redress: the Law Commission’s consultation paper” (2009) Public Law 70.
212
REFORM 6.6(b)
authorities.298 It is less than clear that the result would be a significant advance in
the law. Another problem is that the Law Commission was unable to provide
convincing information as to the effect that its proposals would be likely to have
on public authorities.299 In the absence of such information, we are inclined to
think that the current approach is preferable. Unlike the Law Commission’s
proposal, the current approach draws upon concepts that are familiar to judges
and lawyers,300 and the law does catch the cases that are most deserving of
compensation. The common law has been reasonably successful in developing
and adapting tort principles in ways that are appropriate to public sector activity
by public authorities. If there are still inappropriate gaps in liability, the existing
torts (misfeasance in a public office, negligence, and so on) are flexible enough
to develop in such a way to fill these gaps.
(b) Compensation based on risk
It has been suggested, following the model of France,301 that the government
ought to be liable for unusual losses caused by governmental activity, regardless
of negligence or fault. Thus, Street argues that the government should be liable
“where the functioning of the administrative machine inflicts on an individual an
exceptional loss”.302 The rationale for this form of strict liability is a risk theory:
298 The distinction between private and public is notoriously difficult to draw; conferral of benefit
is an unfamiliar concept; and some indication of the difficulty that courts may face in deter-
mining whether a public authority was at “serious fault” can be gleaned from the difficulties
that the courts have encountered in attempting to distinguish between negligence and gross
negligence: see Klar, note 40, above, 361-363.
299 The Law Commission was unable to assess the likely impact of the proposals due to lack of
data. In response, it recommended changes to the collection and publishing of compensation
data.
300 One of the underlying motivations of the proposals was to harmonize United Kingdom domestic
law with European Community law, which confers a right of action against the Crown in right
of the United Kingdom for “sufficiently serious” breaches of European Community law: note
212, above. This is obviously not a motivation that needs to concern Canada (or Australia or
New Zealand).
301 The French law is quite complex, with only some situations governed by a “risk” principle; in
most situations, “fault” is part of the cause of action: see Harlow, note 217, above, 102-106;
Bell and Bradley (eds.), Governmental Liability: A Comparative Study (1991), ch. 9 (The Law
of France); P.A. Côté, “The ‘French Model’ and the Reform of Government Tort Liability in
Canada” (1995) 6 N.J.C.L.55; C. Harlow, “State Liability: Problem without Solution” (1995)
6 N.J.C.L. 67; J. Bell, “Governmental Liability in Tort” (1995) 6 N.J.C.L. 85; Fairgrieve,
Andenas, and Bell (eds.), Tort Liability of Public Authorities in Comparative Perspective
(2002), ch. 10 (by Caranta) and ch. 13 (by Flogaitis); Fairgrieve, note 288, above, ch. 5; Harlow,
note 273, above, Annex.
302 Street, Governmental Liability (1953), 78; see also Law Reform Commission of Canada, The
Legal Status of the Federal Administration (1985), 72-74; Côté, previous note, 65; Council of
Europe, note 267, above, rec. No. R(84)15 (cited in full in note 279); Cornford, note 185, above,
chs. 5, 9 (adopting Council of Europe Principle II).
213
the risks of governmental activity should be borne by government, which will

spread the costs over the whole community, rather than by the unfortunate indi-
vidual who has been fortuitously harmed by the activity.303 This idea is a radical
one in that it not only rejects fault as the basis for tortious liability, but it makes
liability flow from valid (that is, authorized) as well as invalid governmental
decisions.304
The most powerful argument for a risk-based regime of governmental lia-
bility may be provided by the tragic facts of Quebec v. Lapierre (1985).305 In that
case, the plaintiff’s daughter was permanently disabled by a severe allergic re-
action to a measles vaccination. The vaccination had been administered by the
province of Quebec as part of a public health programme under which some
85,000 children per year were vaccinated at public clinics. The plaintiff sued the
government of Quebec, which in turn impleaded the drug companies that manu-
factured the vaccine. At trial, the Superior Court found that, in a measles vacci-
nation programme, there was an unavoidable risk that a very small number of
people (about one in a million) would suffer an allergic reaction resulting in death
or serious injury. The finding that the risk was unavoidable absolved the drug
companies of fault and relieved them of liability. The finding also absolved the
government of fault, but the trial judge still held the government liable on the
basis of a risk theory of liability: the state was liable, without proof of fault, for
the risks caused by governmental activity. The case went on up to the Supreme
Court of Canada, where the trial judge’s decision was reversed. In an opinion that
is singularly devoid of any policy discussion, Chouinard J. for the Court reviewed
the authorities and concluded that “the theory of risk is . . . not accepted in Quebec
303 In France, two rationales are regularly offered for its scheme of no-fault administrative liability:
a) égalité devant les charges publiques (or equal apportionment of public burdens); and b) risk.
The first rationale is said to require compensation to be provided to those who have shouldered
a disproportionately large burden or loss caused by activities pursued in furtherance of the
common good. The second rationale is said to require compensation to be provided to those
who are adversely affected by public services that are dangerous or run the risk of causing loss.
The relationship between these two rationales is disputed, and this has led to some inconsistency
in the terminology that is used: see Fairgrieve, note 288, above, 137-138, 154-155; Cornford,
note 185, above, 49-50. In some sources, the two rationales are distinguished, but in others,
they are not clearly distinguished, and the first rationale is referred to as an equality-based
rationale, a risk-based rationale, or both. We do not attempt to resolve these disputes here, and
we follow Craig (Craig, note 218, above, 441-443; Craig, note 270, above, 1013-1014) and the
Supreme Court of Canada (see text accompanying notes 305-306) in referring to the rationale
described in the text as a risk theory. We note, however, that our concerns about the regime
hold, regardless of the terminology that is used to describe and explain it.
304 See Harlow, note 217, above, 70-78; Craig, note 218, above, 441-443. Both authors emphasize
the great difficulty of constructing a regime of liability based on risk.
305 [1985] 1 S.C.R. 241; see also St. Lawrence Cement v. Barrette [2008] 3 S.C.R. 392, paras. 49-
52 (Lapierre does not rule out recognizing a scheme of no-fault civil liability under art. 976
for excessive neighbourhood disturbances).
214
REFORM 6.6(b)
law”.306 The plaintiff’s failure to establish fault on the part of the government was
fatal to his claim.
The Lapierre case makes it seem obvious that it is unfair not to compensate
a few individuals with catastrophic injuries when these are the inevitable result
of a public health programme that benefits the community as a whole. After the
case, Quebec amended its public health legislation to provide no-fault compen-
sation for any person who suffered personal injury resulting from a public im-
munization programme.307 The effect of the amendment (which applied retroac-
tively to benefit Lapierre himself) was to recognize belatedly that the
compensation of innocent victims ought to be treated as one of the costs of any
public immunization programme. In our view, that was the appropriate outcome.
The Lapierre case illustrates the feasibility and the desirability of building
into the planning of any government programme provision for payment of private
costs that are a predictable but unwanted result of the programme. In that case,
the definition of the losses that were compensable was not difficult, and the
administration of the claims (which would not be numerous) was also unlikely to
be difficult. But it is a long step from a programme-specific scheme to a general
scheme of no-fault liability for losses caused by government. The trouble is that
the task of government inevitably imposes costs of infinite variety on those who
are governed. Any universal scheme of compensation would obviously be unac-
ceptable, because the cost would effectively destroy the capacity of government
to regulate in support of public purposes, such as health, safety or the environment.
The objection to a universal scheme of compensation goes beyond cost. Much
regulation has a redistributive purpose: it is designed to reduce the rights of one
group (manufacturers, employers, for example) and increase the rights of another
(consumers, employees, for example). A compensation regime should not work
at cross-purposes to the redistributive choices that are made by democratic leg-
islative bodies.308 Indeed, any regime that did so would be met with legislative
reversal. It follows that limits would have to be placed on the kinds of government
activity that give rise to compensable risks, or the kinds of losses (unusual,
exceptional) that are compensable, or both. But it is not easy to see what principle
306 Id., 265.

307 S.Q. 1985, c. 23, adding ss. 16.1 to 16.11 to the Public Health Protection Act, R.S.Q., c. P-35.
308 J. Quinn and M.J. Trebilcock, “Compensation, Transition Costs, and Regulatory Change”
(1982) 32 U. Toronto L.J. 117, 173 say that:
“extending a compensation obligation . . . to all forms of government intervention would
deny a major redistributive role to government. Given that this seems now to be recognized,
even by economists, as perhaps the most pervasive role played by modern government,
such an extension would radically transform the very nature of democratic government.”
215
is available to frame appropriate limits, or what agency (the courts?) would be

competent to undertake the task.309
In addition to the difficulty of constructing a new regime of liability to be
applied solely in the public sector, the idea that the courts should award damages
for valid (authorized) action is one that challenges the roles of court and legislature
that have become traditional in the common law world. The reason why statutory
authority has always hitherto been a defence to an action in tort is the assumption
that the provision of compensation to persons affected by a governmental pro-
gramme was a political matter to be decided by elected representatives rather than
a justiciable matter to be decided by judges.
Many statutes do of course provide for compensation to private persons who
have been harmed by a government programme. The response to the Lapierre
case provides an example.310 It ought to be a routine part of the planning for a
new government programme to undertake an analysis of the private losses that
might be caused by the programme. The planners obviously ought to design the
programme so as to minimize those losses, but they ought also to give consider-
ation to the provision of compensation for the losses that cannot be avoided. Of
course, where the programme has a redistributive purpose, it would make no sense
to negate the purpose by restoring the position of those whose rights have been
limited. But the predictable side effects of a programme could and should be
analyzed with a view to considering making legislative provision for private
compensation, which would then become part of the cost of the programme.
Where no provision for compensation has been made, the government may still
choose to make ex gratia payments to persons who have been harmed.311 Indeed,
309 Cornford, who argues for a regime of no-fault liability along the lines considered in the text,
suggests that compensation would not be necessary if the purpose of the government activity
giving rise to the loss was “to impose a burden on particular individuals”, the activity was
“justifiable”, or the unequal distribution of the burden was not “egregious”: note 185, above,
48-49; see also Cane, note 267, above, 497-498. Drawing such distinctions is likely to prove
both difficult and controversial, and Cornford concedes that there are “formidable obstacles”
to implementing such a regime (8).
310 Note 307, above. See also under heading 6.4(b), “Compensation under statute”, above. For a
brief account of the position in the federal jurisdiction, see M.S. Kalson, “Federal Compensation
Schemes” (1988) 4 Admin. Law J. 18. See also Fairgrieve, note 288, above, ch. 8; Administrative
Redress (Consultation Paper), note 290, above, Part 3; Cornford, note 185, above, 223-225;
Craig, note 270, above, 1017; C. Harlow, “Rationalising administrative compensation” (2010)
Public Law 321.
311 Ex gratia payments may be made on the initiative of the government; after a complaint made
using a designated complaints procedure; or after investigation by an ombudsman. The Law
Commission of England and Wales has recommended placing greater emphasis on public-
sector ombudsmen as a way of providing compensation for harm caused by government: see
Administrative Redress (Final Report), note 296, above, Part 5. See also Fairgrieve, note 288,
above, 245-249; and Booth and Squires, The Negligence Liability of Public Authorities (2006),
308-312, reviewing the merits of complaints to ombudsmen.
216
REFORM 6.6(c)
in cases of serious harm, the government may come under political pressure from
the opposition and the press to provide relief on an ex gratia basis.312
We conclude that a single regime of compensation for harm caused by
government, based on a risk theory, is not only impossible to design, but would
inappropriately convert a major field of political discretion into a set of legal
rights, which means in practice that the discretion of judges would reign supreme.
In our view, compensation for authorized government activity ought to remain
the preserve of elected politicians.
(c) Compensation based on entitlement
Professors David Cohen and J.C. Smith, in an article published in the Ca-
nadian Bar Review,313 have urged that governmental liability in tort should be
based on a principle of “entitlement”. Under this principle, a person who had
suffered loss from governmental action or inaction would have to establish that
he or she had been denied some public benefit to which he or she was entitled. If
the person succeeded in establishing the entitlement, he or she would be entitled
to receive the withheld benefit or to receive damages for the loss. Once an
entitlement was established, governmental liability would be strict: the plaintiff
would succeed without proof of negligence or other fault. According to this theory,
many of the relationships between government and citizen are best analyzed in
terms of entitlement, rather than in traditional tort terms. For example, a failure
by a municipality to inspect a building, causing a defect to go undiscovered,
should not be analyzed in terms of negligence by the municipal inspectors (and,
vicariously, the municipality), but rather should be viewed as the denial of a
benefit (inspection) to which the building owner is entitled.
The theory of entitlement rejects the analogy between governmental activity
and private activity, and calls for a special regime of law to govern losses caused
by government. The argument is especially directed to the law of negligence. It
312 There are two types of ex gratia payments. One is an ad hoc response to a need that is unlikely
to recur, and is intended to be a singular event, not creating any moral or political obligations
for other cases. The other type of payments are those that are administered under a written,
published policy. The latter type of payments are discretionary in theory only, as governments
cannot easily resile from their announced policy. See generally Administrative Redress (Con-
sultation Paper), note 290, above, 16-18.
313 D.S. Cohen and J.C. Smith, “Entitlement and the Body Politic: Rethinking Negligence in Public
Law” (1986) 64 Can. Bar Rev. 1. This is just one in a series of thoughtful articles written or
co-written by Professor Cohen analyzing issues of governmental liability from the perspective
that a distinctive problem requires a distinctive body of law: see D.S. Cohen, “Regulating
Regulators: The Legal Environment of the State” (1990) 40 U. Toronto L.J. 213; D.S. Cohen,
“Adjustment to the Consequences of State Action: Suing the State” (1990) 40 U. Toronto L.J.
630; D.S. Cohen, “Government Liability for Economic Losses: The Case of Regulatory Failure”
(1992) 20 Can. Bus. L.J. 215; D.S. Cohen and P. Finkle, “Crown Liability in Canada: Devel-
oping Compensation Policies for Regulatory Failure” (1995) 37 Can. Pub. Admin. 79; D.S.
Cohen, “Responding to Government Failure” (1995) 6 N.J.C.L. 23.
217
is argued that the distinction between policy and operational decisions is mean-
ingless, and the courts lack the competence to establish and define appropriate
duties of care for public bodies.314 But, even if this diagnosis is accepted, the
concept of “entitlement” which the authors would substitute for the duty of care
is new and untried, and very difficult to understand. Indeed, the authors themselves
acknowledge that the definition of entitlement is “an extraordinarily complex
task”,315 and only one of the two authors holds the view that judges and courts
are capable of performing the task.316 The difficulty of definition also makes it
difficult to determine how the outcomes of an entitlement regime would differ
from those of a tort regime.317 In view of all the doubt, it seems only prudent to
persevere with the existing state of the law, which depends upon concepts that
are familiar to judges and lawyers.318
(d) A public law of torts
All proposals for a special public law of torts, applicable only to government
activity, proceed from the premise that government activity is sufficiently differ-
ent from private activity that it ought to be governed by different rules. That
premise is obviously a plausible one (although it invites the question of what to
do about government activity that is the same as private activity). There is,
however, a competing principle, which is the premise of the existing law. The
competing principle is what Dicey called the “idea of equality”.319 The idea of
equality is that government officials ought to be held to the same rules as private
individuals. According to the idea of equality, government officials ought to be
accountable to injured citizens for unauthorized action, and ought to be account-
able according to the ordinary law. Now that the Crown itself is vicariously liable
for the torts of Crown servants, this idea makes the Crown itself subject to the
same law as a private person.320 (It should be noticed, however, that considerable
314 Negligence is the topic of the next chapter, ch. 7, Tort: Negligence, where these doctrines are
explained.
315 Cohen and Smith, note 313, above, 47.
316 Id., 55 (“Only one of us takes the view that the training, hierarchy and community of judges
and judicial institutions is appropriate for this task”).
317 There are indications in the article that the outcomes might be very similar: Id., 20 (courts are
now “doing good things . . . for bad reasons”), 57 (courts may now be “intuitively reacting” to
a theory of entitlements).
318 The theory of entitlement is strongly criticized in Cornford, note 185, above, ch. 4. Cornford
proposes a scheme of compensation, discussed above (see sec. 6.6(a), “Compensation based
on invalidity”, above), based on invalidity, although, as he concedes (31), he also employs
similar concepts of entitlement and equal treatment.
320 As many critics have noted, Dicey’s account was defective in its failure to consider the
immunities of the Crown and the growth of a body of administrative law. But his basic insight
was right, in our respectful opinion.
218
REFORM 6.6(d)
adaptation is required to make the Crown subject to the “same” law as a private
person, and there is inevitably a distinctive “public” element to the law of torts.)321
The idea of equality provides a solution to the problem of allocating the
losses engendered by governmental activity. If the loss was caused by an unau-
thorized act that would be tortious at common law, then the loss is compensable;
if not, then the loss is not compensable. But the principal appeal of the idea of
equality has to do not with the allocation of losses, but with the control of
government. It is a political idea, reflected in the proposition that government is
“under the law”. The law that government is under is not just any law: it is the
same law that applies to private citizens. Moreover, that law is applied to govern-
ment by the ordinary courts, which are independent of government. It is those
courts to which the citizen looks for redress for injury caused by government.
The experience of European legal systems shows that government can be well
controlled by a special regime of public law administered by special administra-
tive courts.322 But one is entitled to doubt whether the European model can be
successfully transplanted to the common law countries323 in the face of British-
derived conceptions of the “rule of law” and “constitutionalism” that are so deeply
rooted in the legal and popular culture.324
321 See Bell and Bradley (eds.), note 301, above, ch. 4 (by Mullan). Mullan points to the tort of
misfeasance in a public office, constitutional torts, the defence of statutory authority, the policy
exemption from negligence liability, and the residue of statutory immunities as the leading
“public” elements of the law of torts.
322 Bell and Bradley, previous note, and Fairgrieve, Andenas, and Bell, note 301, are valuable
collections of essays covering England and Wales, Scotland, Canada, New Zealand, Australia,
the United States, Ireland, Israel, Belgium, France, Italy and Germany. Each of the last four
(European) countries has a system of administrative courts, which determine the legality of
administrative action and award remedies of an administrative law character. But only in France
do the administrative courts adjudicate claims for damages by private persons against the
government; in Belgium, Italy and Germany, it is the ordinary civil courts that do this: but see,
however, Caranta, in Fairgrieve, Andernas, and Bell, this note, 280-286, who notes various
exceptions. Generally speaking, in Belgium and Italy, the liability of government is governed
by the private law of obligations; in France and Germany, liability is governed by a body of
public law.
323 We include Canada in this description in that British-derived law was imposed on Quebec in
its public aspect after the conquest of 1759. European conceptions of public liability were never
able to take hold in Quebec, despite its civil law system of private law. See article 1376 of the
Civil Code of Quebec, which provides that the “rules set forth in this Book apply to the State
and its bodies, and to all other legal persons established in the public interest, subject to any
other rules of law which may be applicable to them”; discussed further in note 37, above.
324 See also Harlow, note 273, 6-7, 30-41; Ipp Report, note 209, above, 151-162; Cane, note 267,
above, 490-491; and Bell (1995), note 301, above, 96 – all of which affirm the equality principle,
in some form, in discussing public authority liability for damages.
219
7
Tort: Negligence
7.1 Definition of negligence 221

7.2 Duty of care 223
(a) Definition of duty of care 223
(b) The Anns/Kamloops test 224
(i) Description of the Anns/Kamloops test 224
(ii) The policy/operational distinction 225
(iii) Criticism of the Anns/Kamloops test 228
(c) The Anns/Cooper test 231
(i) Description of the Anns/Cooper test 231
(ii) Proximity 232
(iii) Residual policy considerations 244
7.3 Special categories of negligence 248
(a) Introduction to special categories of negligence 248
(b) Pure economic loss 249
(i) Evolution of liability for pure economic loss 249
(ii) Independent liability of statutory public authorities 251
(iii) Negligent misrepresentation 254
(c) Nonfeasance 256
(d) Peculiarly governmental activity 261
(i) Evolution of liability for peculiarly governmental activity 261
(ii) Military activity 264
7.4 Invalidity 267
7.5 Reform 273
7.1 Definition of negligence

Negligence is the most important ground of liability in the law of torts. The
principal elements of the tort of negligence are: (1) the existence of a duty of care
owed by the defendant to the plaintiff; (2) a breach by the defendant of the duty
of care; and (3) damage caused to the plaintiff by the breach. Each of these
elements is the source of an elaborate body of case law, but it is the first element
(existence of a duty of care) that plays the primary role in limiting the scope of
7.1 TORT: NEGLIGENCE
negligence liability, including in cases involving the Crown and other public
authorities.1
The negligence liability of public authorities has generated considerable
controversy, resulting in a vast body of academic writing2 and case law.3 There
is now general agreement that public authorities should be liable in negligence
where a private defendant would be liable. The injustice of allowing a public
authority to escape liability where, for example, an employee caused injury in the
course of employment by carelessly driving a car was one of the primary forces
behind the statutory abolition of public authority immunity in tort. However, there
continues to be fairly widespread disagreement, not only as to when there can
properly be said to be a private analogue, but also as to the extent to which public
authorities should be open to liability when engaged in what is generally agreed
to be peculiarly governmental activity.
These disagreements reflect an underlying tension between two competing
impulses: one is to ensure that those injured by the carelessness of public author-
ities are fairly compensated; the other is to ensure that the negligence liability of
public authorities is appropriately circumscribed. To some extent, this tension is
not unique to public authorities. The scope of recovery for negligence is also
contentious in cases involving private parties, particularly where — as is often
true of negligence cases involving public authorities — pure economic loss
1 For ease of reference, we use the term “public authorities” from this point in this chapter to
refer to the Crown and any other public defendant, where the use of a generic catchall term
seems appropriate.
2 For a sample of the literature, see P. Craig, “Negligence in the Exercise of Statutory Authority”
(1978) 94 L.Q.R. 428; Aronson and Whitmore, Public Torts and Contracts (1982), esp. Part
2; M. Bowman and S. Bailey, “Negligence in the Realms of Public Law” (1984) Public Law
277; M. K. Woodall, “Private Law Liability of Public Authorities for Negligent Inspection and
Regulation” (1992) 37 McGill L.J. 83; L. Reynolds and D. Hicks, “New Directions for the
Civil Liability of Public Authorities” (1992) 71 Can. Bar Rev. 1; J. Sopinka, “The Liability of
Public Authorities” (1993) 1 Tort L. Rev. 123; P. Cane, “Suing Public Authorities in Tort”
(1996) 112 L.Q.R. 13; B. Feldthusen, “Failure to Confer Discretionary Benefits” (1997) 5 Tort
L. Rev. 17; Mullany and Linden (eds.), Torts Tomorrow (1998), ch. 3 (by Todd); Markesinis
et al., Tortious Liability of Statutory Bodies (1999); S. Bailey and M. Bowman, “Public Au-
thority Negligence Revisited” (2000) 59 Cambridge L.J. 85; D. Fairgrieve, “Pushing Back the
Boundaries of Public Authority Liability” (2002) Public Law 288; Fairgrieve, Andenas & Bell
(eds.), Tort Liability of Public Authorities in Comparative Perspective (2002); Fairgrieve, State
Liability in Tort (2003); Stanton et al., Statutory Torts (2003); Harlow, State Liability (2004);
R. Bagshaw, “Monetary Remedies in Public Law” (2006) Legal Studies 4; Booth and Squires,
The Negligence Liability of Public Authorities (2006); Linden and Feldthusen, Canadian Tort
Law (8th ed., 2006), chs. 9, 17; Horsman and Morley, Government Liability (2006, annually
supplemented), ch. 5 (by Horsman); Stevens, Torts and Rights (2007), ch. 10; Cornford,
Towards a Public Law of Tort (2008); M. Aronson, “Government Liability in Negligence”
(2008) 32 Melbourne U.L. Rev. 44; Feldthusen, Economic Negligence (5th ed., 2008), ch. 6;
and Klar, Tort Law (4th ed., 2008), chs. 5, 8.
3 E.g., by a rough count, of the 18 Supreme Court of Canada decisions released between 2000
and 2010 that involved a negligence claim, 14 involved a public defendant. A similar pattern
is evident in Australia and the United Kingdom.
222
DUTY OF CARE 7.2(a)
(financial loss that does not flow from damage to person or property) or nonfea-
sance (the failure to prevent harm) are involved. However, the negligence liability
of public authorities is also thought to raise several concerns not engaged, either
at all or to the same degree, in cases involving purely private defendants. The
first is a concern that the courts avoid interfering with decisions that, in a demo-
cratic society, should properly be left to the political process, not the courts. The
second is a concern that the courts avoid interfering with decisions that they are
ill-equipped to consider, due to a lack of technical expertise. The third is a concern
to avoid opening the floodgates to a torrent of litigation, which would make
governmental programs intolerably costly. The fourth — which is related to the
third point — is a concern to avoid inhibiting public authorities from acting in
the best interests of society as a whole, out of a fear of potential liability in
negligence.4
This chapter describes the law that has developed in relation to the first
element (duty of care), as well as the way in which the courts have dealt with
claims against public authorities involving pure economic loss, nonfeasance, and
peculiarly governmental activity. The chapter will show that the courts have
applied the same basic framework in negligence cases involving both private
defendants and public authorities, but that within this basic framework, the courts
have developed ways to address the underlying concerns about the negligence
liability of public authorities described in the previous paragraph. The chapter
describes the law in Canada, but with footnote references to other jurisdictions,
where comparisons seem interesting.
7.2 Duty of care

(a) Definition of duty of care
A duty of care is an obligation, recognized by law, to take reasonable care

while engaging in conduct that poses a risk of harm to others.5 The existence of
a duty of care is essential to liability in negligence. The tort is not committed
whenever a person harms another by failing to take reasonable care; the tort is
committed only where the person that failed to take reasonable care (the defen-
dant) owed the person harmed (the plaintiff) a duty of care.6
4 See, for an excellent discussion of these concerns, Law Reform Commn. (Eng. and Wales),
Administrative Redress (Consultation Paper, 2008), esp. 39-43, Part 6 and App. B.
5 Odhavji Estate v. Woodhouse [2003] 3 S.C.R. 263, para. 45; Fleming, The Law of Torts (9th
ed., 1998), 149.
6 Le Lievre v. Gould [1893] 1 Q.B. 491, 497 per Lord Esher M.R.
223
7.2(b) TORT: NEGLIGENCE
The classic test for establishing a duty of care was articulated by Lord Atkin
in Donoghue v. Stevenson (1932),7 the famous case of the snail in the ginger beer
bottle:
You must take reasonable care to avoid acts or omissions which you can reasonably
foresee would be likely to injure your neighbour. Who, then, in law is my neighbour?
The answer seems to be — persons who are so closely and directly affected by my
act that I ought reasonably to have them in contemplation as being so affected when
I am directing my mind to the acts or omissions which are called in question.
This test — the “neighbour principle”, as it is commonly called — was
reformulated by Lord Wilberforce in Anns v. Merton London Borough Council
(1978),8 as follows:
First one has to ask whether, as between the alleged wrongdoer and the person who
has suffered damage there is a sufficient relationship of proximity or neighbourhood
such that, in the reasonable contemplation of the former, carelessness on his part may
be likely to cause damage to the latter — in which case a prima facie duty of care
arises. Secondly, if the first question is answered affirmatively, it is necessary to
consider whether there are any considerations which ought to negative, or to reduce
or limit the scope of the duty or the class of person to whom it is owed or the damages
to which a breach of it may give rise.
This reformulation — the “Anns test” — is important for our purposes,
because it was adopted in Canada, and it continues to provide the basic two-part
framework that is applied in determining whether a duty of care was owed,
including by public authorities. This section describes the application of the Anns
test in Canada, with an emphasis on the ways in which the test has been applied
to accommodate public authorities. The section begins with the Anns/Kamloops
version of the Anns test, and it then describes the Anns/Cooper version of the
Anns test, which has replaced the Anns/Kamloops test. The Anns/Kamloops test
is discussed, because, as we will show, the Anns/Kamloops precedents were
explicitly preserved under the Anns/Cooper test, and the policy-operational dis-
tinction, although considerably reduced in importance, continues to play a role in
negligence cases involving public authorities.
(b) The Anns/Kamloops test
(i) Description of the Anns/Kamloops test
The Anns test, as it was formulated by Lord Wilberforce, was open to two
different interpretations. On one interpretation, “proximity” and “neighbourhood”
7 [1932] A.C. 562, 580 (H.L.).

8 [1978] A.C. 728, 751-752 (H.L.) (local authority could be liable for the cost of repairing
building foundations, due to failure to give proper consideration to whether to inspect the
foundations in order to ensure compliance with local building by-laws, or to exercise reasonable
care in conducting such an inspection).
224
DUTY OF CARE 7.2(b)(ii)
were synonymous with foreseeability. A prima facie duty of care would arise,
under the first stage of the test, if there was a reasonable foreseeability that the
plaintiff might be harmed by the defendant’s carelessness. On another interpre-
tation, “proximity” and “neighbourhood” were not synonymous with foreseea-
bility. A prima facie duty of care may not arise only by virtue of a reasonable
foreseeability of harm; something more — “proximity” or “neighbourhood” —
may be required.
The Supreme Court of Canada adopted the Anns test in Kamloops (City) v.
Nielsen (1984).9 In doing so, it openly embraced the first interpretation. At the
first stage, the question was whether there was a sufficiently close relationship
between the defendant and the plaintiff, such that it was reasonably foreseeable
that carelessness on the defendant’s part might result in harm to the plaintiff. If
the answer was yes, a prima facie duty of care would arise, and the analysis would
proceed to the second stage. At the second stage, the question was whether there
were any considerations of policy that ought to negate or limit that duty of care.
Under this formulation of the Anns test (the “Anns/Kamloops test”), the first
stage of the analysis — foreseeability — rarely posed a problem to litigants,
including in cases involving public authorities.10 The bulk of the analysis was left
to the second stage, where courts were required to consider whether there were
good policy reasons to negate or otherwise limit the existence of a prima facie
duty of care. In cases involving public authorities, the analysis at this stage
generally turned on a distinction drawn by the courts between policy11 and oper-
ational decisions.12
(ii) The policy-operational distinction
Under the first stage of the Anns/Kamloops test, a prima facie duty of care
was owed if there was a reasonable foreseeability of harm to the plaintiff. But if
9 [1984] 2 S.C.R. 2, 10-11 (city partially liable for damages due to failure to enforce building
inspection by-law). The decision is discussed in sec. 7.3(b)(ii), “Independent liability of stat-
utory public authorities”, below.
10 See e.g. Ryan v. Victoria (City) [1999] 1 S.C.R. 201, para. 23 (“relatively low threshold”);
Ingles v. Tutkaluk Construction [2000] 1 S.C.R. 298, para. 17 (ditto). However, cases involving
pure economic loss were an exception; “proximity” was also required: see e.g. Hercules
Managements v. Ernst and Young [1997] 2 S.C.R. 165.
11 In previous editions of this book we expressed our support for the term “planning” over the
terms “discretionary” and “policy” (3rd ed., 2000, 164). However, we have won few converts
— “policy” is generally the term used by judges and academics. We remain convinced that
“planning” is the better term, but we have decided to bow to the weight of opinion. Thus, in
this edition, we use the term “policy” rather than the term “planning”.
12 For a time, it was unclear whether the policy-operational distinction was a preliminary hurdle
that needed to be overcome prior to engaging in a duty of care analysis, or an aspect of the duty
of care analysis itself. However, the cases ultimately settled on the latter view: see e.g. Just v.
B.C. [1989] 2 S.C.R. 1228; Brown v. B.C. [1994] 1 S.C.R. 420. In the United Kingdom, the
former view seems to have prevailed: see Booth and Squires, note 2, above, ch. 2.
225
7.2(b)(ii) TORT: NEGLIGENCE
reasonable foreseeability of harm to the plaintiff was all that was required for a
duty of care to be owed, public authorities might be exposed to intolerable
financial burdens and a multiplicity of lawsuits. This is because public authorities
are regularly granted legal authority (usually by statute) aimed at preventing, or
reducing the risk of, various types of harm; and it will often be reasonably
foreseeable that the exercise or failure to exercise this legal authority will result
in harm. Moreover, the courts might be called upon to address decisions that they
are ill-equipped to consider. This is because public authorities are often required
to make difficult decisions of a technical nature; and no court is as well equipped
as the appropriate public authority to make these decisions. Finally, the courts
might be called upon to consider decisions that ought to be left to politics, not the
courts. This is because public authorities often make decisions that cause loss to
some in order to benefit others, and that involve striking a different balance
between a host of competing considerations; and these are the sorts of decisions
that, under our constitutional arrangements, ought to be made by officials who
are ultimately answerable to the electorate, not unelected, unaccountable judges.13
Under the Anns/Kamloops test, the courts addressed these concerns by draw-
ing upon, and applying, a distinction that originated in the United States:14 the
policy-operational distinction.15 Put most simply, under this distinction, there
could be no liability in negligence for harm resulting from policy decisions, even
if harm to the plaintiff was a reasonably foreseeable result,16 but there could be
13 If the decision were taken in cabinet, or by the appropriate minister, then the very officials who
made the decision would be answerable to Parliament and the electorate. But even if the decision
is made by a regular public servant, the cabinet and the appropriate minister have to defend the
decision in Parliament and before the electorate.
14 The distinction appears to have first been applied by the United States Supreme Court in
Dalehite v. U.S. (1953) 346 U.S. 15, 42 (planning decision to export dangerous fertilizer gives
rise to no liability for port expulsion); see also Indian Towing Co. v. U.S. (1955) 350 U.S. 61;
and U.S. v. Gaubert (1991) 499 U.S. 315.
15 The decision that is typically credited with introducing the policy-operational distinction in the
Commonwealth is Anns (note 8, above, 754-755), although there are traces of the distinction
in earlier cases: see e.g. Dorset Yacht Co. v. Home Office [1970] A.C. 1004, esp. 1066-1068
(H.L.). The decision that is usually credited with introducing the distinction in Canada is
Kamloops (note 9, above, 9, 12-13), although, again, there are signs of the distinction in prior
Canadian decisions: see e.g. Welbridge Holdings v. Greater Winnipeg [1971] S.C.R. 957, 968.
16 We say put most simply, because there could be liability in negligence if a policy decision “was
not bona fide or was so irrational that it could not constitute a proper exercise of discretion”:
Brown, note 12, above, para. 23; see also Kamloops, note 9, above, 35; Swinamer v. N.S. [1994]
1 S.C.R. 445, para. 34; Ingles, note 10, above, para. 19; and Enterprises Sibeca v. Frelighsburg
[2004] 3 S.C.R. 304, para. 23. The problem with this exception is that policy decisions are, by
definition, decisions that ought not to be subjected to the sort of analysis required by a negligence
claim. The better view is that liability would arise under the tort of misfeasance in a public
office: unlike the tort of negligence, liability for misfeasance in a public office does not turn
on judicial assessments of the “reasonableness” of the decision, but rather the state of mind of
the defendant. See further Feldthusen (2008), note 2, above, 322-331; and ch. 6, Tort: General
Principles, under heading 6.5(c), “Misfeasance in a public office”, above.
226
DUTY OF CARE 7.2(b)(ii)
liability for harm resulting from operational decisions.17 The line between policy
and operational decisions was flexible; it was also the subject of a number of
competing judicial articulations. However, as a general matter, decisions that
involved broad discretion, the allocation of scarce governmental resources, and
the weighing of competing social, economic and political considerations were
more likely to be characterized as policy decisions. In contrast, decisions that
involved narrow discretion, fixed resources and the execution of settled govern-
ment policy were more likely to be characterized as operational decisions.
The policy-operational distinction was applied in numerous decisions, but a
basic picture of the operation of the distinction can be gleaned from a brief account
of two of the leading decisions. In the first, Just v. British Columbia (1989),18 the
Supreme Court of Canada ordered a new trial on the basis that the provincial
Crown could be liable for the injury and death caused when a boulder fell on the
plaintiff’s car from the rock slopes above a provincial highway. The province had
established a system to inspect and scale rock slopes above provincial highways.
The provincial Crown was open to liability because, once a decision was made
to establish the inspection system, the manner in which the system was operated
was an operational matter that was open to a civil claim. In contrast, in Brown v.
British Columbia (1994),19 the Supreme Court of Canada held that the provincial
Crown was not liable to a highway user for the injury that he sustained when his
truck ran into a patch of black ice and slid off the highway. The province had a
system in place for the regular inspection and sanding of icy portions of the
province’s highways, but the sanding crew arrived too late to prevent the plain-
tiff’s accident. The accident occurred during the last week of the summer schedule,
in early November, and it might have been avoided if the province had shifted to
its winter schedule, under which more resources were made available for road
maintenance. However, the decision to maintain the summer schedule into early
November was a policy decision driven by the need to ration resources. There
had been no negligence at the operational level. Therefore, there was no liability.
The common thread underlying these two decisions, notwithstanding the
different results,20 is that the duty of care analysis turned on the policy-operational
17 Again, we say put most simply, because there could be no liability if an operational decision
involved a policy element: see e.g. Anns, note 8, above, 754; and Kamloops, note 9, above, 35.
18 Note 12, above. Cory J. wrote for a majority of six judges; Sopinka J. wrote a dissenting opinion.
19 Note 12, above. Cory J. wrote for four judges; McLachlin J. wrote a short concurring opinion,
with the support of LaForest J.; and Sopinka J. also wrote a concurring opinion, reiterating his
position in Just.
20 The reason for the different result is not immediately obvious. On one reading, Brown simply
reflects a retreat from Just, which seemed to limit immunity to high-level threshold decisions
about whether to establish a government program. On a more benign reading, it might be argued
that the different result turns on the facts; in Just, there was a possibility of liability, because
the province had settled on the general details of the inspection system; but in Brown, although
the inspection system was in place, its details (e.g., when the winter schedule was to take effect)
hinged on budgetary and staffing considerations that had not yet been settled, and this is the
type of decision that courts prefer to avoid scrutinizing.
227
7.2(b)(iii) TORT: NEGLIGENCE
distinction. In Just, there could be liability, because an operational decision was

involved.21 In Brown, there could be no liability, because a policy decision was
involved.22 This was the general approach followed time and again in negligence
cases involving public authorities under the Anns/Kamloops test.23
(iii) Criticism of the Anns/Kamloops test
The Anns/Kamloops test was intensely criticized, including — indeed par-

ticularly — in its application to cases involving public authorities. Two major
objections were pervasive. The first was that it was wrong to accept that a prima
facie duty of care would arise upon proof of only a reasonable foreseeability of
harm to the plaintiff.24 Lord Atkin and Lord Wilberforce had also used the terms
“neighbour” and “proximity”, and these terms, it was argued, imposed additional,
stricter requirements that must be satisfied before a duty of care would arise,
particularly in cases involving pure economic loss, nonfeasance, and peculiarly
governmental activity. The second major objection was concerned with the pol-
icy-operational distinction.25 The policy-operational distinction was, it was ar-
gued, vague and difficult to apply, making it an unsatisfactory way to determine
whether a public authority ought to be open to liability in negligence.
21 See also Kamloops, note 9, above (plaintiff’s house foundation defective; municipality liable
for its failure to enforce a breach of a building standards by-law that had been discovered by
the municipality’s building inspector); Laurentide Motels v. Beauport [1989] 1 S.C.R. 705
(motel destroyed by fire; municipality liable because failure to keep fire hydrants in working
order was an operational matter that could give rise to civil liability); Rothfield v. Manolakos
[1989] 2 S.C.R. 1259 (plaintiff’s retaining wall collapsed; municipality liable for approving
plans and allowing work to proceed); Lewis v. B.C. [1997] 3 S.C.R. 1145 (deceased killed by
rock falling onto highway; Crown liable for failure to remove dangerous rock from rock face);
Ingles, note 10, above (foundation underpinnings installed improperly; municipality liable for
failure of building inspector to inspect properly).
22 See also Welbridge Holdings, note 15, above (municipality not liable to developer for loss
incurred when building permit revoked; municipality not liable for decisions made “at the
legislative or quasi-judicial level”); Barratt v. Corporation of North Vancouver [1980] 2 S.C.R.
418 (plaintiff injured by driving bike into a concealed pothole; decision to inspect roads only
once every two weeks a “policy or planning” decision for which the municipality was not
liable); Swinamer, note 16, above (plaintiff injured when tree fell across a highway; decision
to remove only obviously dangerous trees a “policy” decision for which the province was not
liable).
23 The policy-operational distinction case law is described more comprehensively in the previous
edition of this book at 165-171; see also Linden and Feldthusen, note 2, above, 684-696; and
Klar, note 2, above, 300-311.
24 See e.g. Sutherland Shire Council v. Heyman (1985) 157 C.L.R. 424, 507 (H.C., Aust.); Yuen
Kun Yeu v. Attorney-General of Hong Kong [1988] A.C. 175, 190-194 (P.C., H.K.).
25 See Just, note 12, 1254, above, per Sopinka J. (dissenting); Sopinka, note 2, above (writing
extra-judicially); D. Cohen and J.C. Smith, “Entitlement and the Body Politic” (1986) 64 Can.
Bar Rev. 1; Woodall, note 2, above; J.A. Smillie, “Liability of Public Authorities for Negli-
gence” (1985) 23 U.W.O. L. Rev. 213; Bailey and Bowman (1986), note 2, above; Linden and
Feldthusen, note 2, above, 684-697; and Klar, note 2, above, 305-311.
228
DUTY OF CARE 7.2(b)(iii)
There criticisms were not entirely without merit. By equating a prima facie
duty of care with foreseeability, the policy-operational distinction did end up
doing much (perhaps too much) of the work of the duty of care analysis in public
authority negligence cases, and the line between policy and operational matters
was not entirely clear. However, lack of clarity is a criticism that also applies to
the negligence doctrines utilized in cases involving private defendants. In addi-
tion, the policy-operational distinction did have its virtues. Properly understood,
the term “policy” expressed a conclusion, namely, that “the decision under attack
is of such a kind that a question whether it has been made negligently is unsuitable
for judicial resolution”.26 Governmental decisions involving broad discretion,
choices as to the allocation of resources, and the weighing of competing policy
considerations were not suitable for judicial review in a negligence action, which
requires a court to determine whether the decision was “reasonable”. That is why
government did not owe a duty of care to private individuals in the exercise of
policy functions. However, governmental decisions involving narrow discretion,
perhaps governed by standards, fixed resources, and the settled execution of
policy, were suitable for judicial review in a negligence action. That is why
government could owe a duty of care in the exercise of operational functions.
Understood in this way, the policy-operational distinction drew attention to, and
allowed for the open discussion of, the sorts of underlying considerations that
inevitably seem to play a key role in deciding whether a public authority owed a
duty of care.27
There is little denying, however, that the weight of opinion, both academic
and judicial, has turned against the Anns/Kamloops test and the policy-operational
distinction. In Australia, the Anns test was rejected from the outset.28 The High
Court of Australia has resisted the application of formulaic duty of care “tests”,
preferring instead to consider a host of factors (including the level of control
exercised by the public authority over the source of harm and the vulnerability of
the plaintiff to that harm) in determining whether a public authority owed a duty
26 Rowling v. Takaro Properties [1988] A.C. 473, 501 (P.C., N.Z.).

27 It is noteworthy that the considerations underlying the policy-operational distinction often
reappear in some form in the decisions of judges that reject the distinction: see e.g. Stovin v.
Wise [1996] A.C. 923 (H.L.), in which Lord Hoffman criticized the policy-operational distinc-
tion, but then refused to recognize a duty of care because to impose “a duty of care upon a
highway authority . . . would inevitably expose the authority’s budgetary decisions to judicial
inquiry” (952). It is arguable that this is what has happened in Canada. The considerations that
were once addressed under the policy-operational distinction have simply been shifted to an
earlier stage of the analysis — proximity — where they are often addressed less transparently:
see further sec. 7.2(c)(ii), “Proximity”, below.
28 Sutherland Shire Council, note 24, above.
229
of care.29 In the United Kingdom, the courts quickly distanced themselves from
the two-stage (foreseeability-policy) interpretation of Anns,30 and Anns itself was
eventually overruled.31 In its place, the House of Lords has embraced a three-
stage duty of care test that emphasizes the incremental development of new duties
of care with reference to prior cases, and that requires a consideration of three
factors — foreseeability, proximity, and whether it is just and reasonable to impose
a duty of care.32 The Supreme Court of Canada initially showed little inclination
to follow Australia and United Kingdom, and charted an independent path, by
affirming the Anns/Kamloops test and the policy-operational distinction.33 How-
ever, it did eventually follow suit, and reformulated the Anns/Kamloops test. As
in the United Kingdom, Canadian courts now consider proximity, along with
foreseeability and policy, as part of the duty of care analysis; but as in Australia,
the proximity analysis turns on the consideration of a host of factors.34
29 See e.g. Pyrenees Shire Council v. Day (1998) 192 C.L.R. 330 (H.C., Aust.); Crimmins v.
Stevedoring Industry Finance Committee (1999) 200 C.L.R. 1 (H.C., Aust.); Brodie v. Singleton
Shire Council (2001) 206 C.L.R. 512 (H.C., Aust.); Sullivan v. Moody (2001) 207 C.L.R. 562
(H.C., Aust.); Graham Barclay Oysters Pty. v. Ryan (2002) 211 C.L.R. 540 (H.C., Aust.); and
Stuart v. Kirkland-Veenstra (2009) 237 C.L.R. 215 (H.C., Aust.).
30 See e.g. Peabody Fund v. Parkinson & Co. [1985] A.C. 210, 239-241 (H.L.); Yuen Kun, note
24, above, 190-194; Rowling, note 26, above, 501; and Hill v. Chief Constable of West Yorkshire
[1989] AC. 53, 60 (H.L.).
31 Murphy v. Brentwood D.C. [1991] 1 A.C. 398 (H.L.).
32 Caparo Industries plc v. Dickman [1990] 2 A.C. 605 (H.L.). More recently, see Stovin, note
27, above; Phelps v. Hillingdon London B.C. [2001] 2 A.C. 619 (H.L.); Barrett v. Enfield
London B.C. [2001] 2 A.C. 550 (H.L.); Gorringe v. Calderdale Metropolitan B.C. [2004] 1
W.L.R. 1057 (H.L.); D. v. East Berkshire Community Health N.H.S. Trust [2005] 2 A.C. 373
(H.L.); Brooks v. Commr. of Police of the Metropolis [2005] 1 W.L.R. 1495 (H.L.); Van Colle
v. Chief Constable of the Herfordshire Police [2009] 1 A.C. 225 (H.L.); Trent Strategic Health
Authority v. Jain [2009] 1 A.C. 853 (H.L.); and Mitchell v. Glasgow C.C. [2009] 1 A.C. 874
(H.L.).
33 See e.g. CNR v. Norsk Pacific Steamship Co. [1992] 1 S.C.R. 1021; Ingles, note 10, above,
para. 18.
34 In New Zealand, there also seems to be movement away from the foreseeability-policy inter-
pretation of Anns. In Rolls Royce N.Z. v. Carter Holt Harvey [2005] 1 N.Z.L.R. 324 (C.A.), the
New Zealand Court of Appeal said that the ultimate question is whether it is just and reasonable
that a duty of care should be imposed. This question turned on whether there was sufficient
proximity between the parties, and whether or not there were other policy considerations that
tended to negate or limit the existence of a duty of care in the particular class of case. However,
in Couch v. A.-G. [2008] 3 N.Z.L.R. 725 (S.C.), Elias C.J., concurring, with the support of
Anderson J., suggested that little ultimately turns on the two different interpretations of the
Anns test (para. 52).
230
DUTY OF CARE 7.2(c)(i)
(c) The Anns/Cooper test
(i) Description of the Anns/Cooper test
The Anns/Kamloops test was reformulated by the Supreme Court of Canada

in Cooper v. Hobart (2001).35 In Cooper, the Court said that the duty of care
analysis should begin with a determination of whether the duty of care asserted
by the plaintiff has already been recognized in a previous case, or is sufficiently
analogous to a duty of care that has already been recognized.36 If the answer is
yes, it is unnecessary to engage in a full duty of care analysis. But if the answer
is no, it is necessary to engage in a full duty of care analysis, applying the Anns
test.37 The Court then set out its reformulated Anns test, drawing on the position
in the United Kingdom. Under this reformulated “Anns/Cooper” test, the first
stage involves determining whether the relationship between the parties discloses
sufficient foreseeability and proximity to establish a prima facie duty of care. If
the answer is yes, the analysis moves to the second stage. As under the old Anns/
Kamloops test, the second stage involves a determination of whether there are
residual policy considerations that negate or otherwise limit the existence of such
a duty.
There was little acknowledgement in Cooper that the Court was departing
from its previous approach to the Anns test. Indeed, the Court insisted that it was
merely “highlighting” and “honing” the “role of policy concerns in determining
the scope of liability for negligence”.38 However, departing from its prior ap-
proach, the Court said that foreseeability was now insufficient to ground a prima
facie duty of care at the first stage of the test; the Court distinguished foreseeability
from proximity, and said that both would generally be required to ground a prima
35 [2001] 3 S.C.R. 537. The decision of the Court was written by McLachlin C.J. and Major J.
36 There is some question whether precedent is to be considered at the proximity stage, after
foreseeability, or as a preliminary stage of the duty of care analysis. There is language in Cooper
(see para. 36; but see para. 41) supporting the former view, but later cases seem to support the
latter view (see e.g. Design Services v. Can. [2008] 1 S.C.R. 737, para. 27; and Reference re
Broome v. P.E.I. [2010] 1 S.C.R. 360, para. 12). We follow the later cases.
37 The Court listed six established duties of care in Cooper: see para. 36. Since Cooper, the Court
has added several more to the list: a) a police chief may owe a duty of care to those injured by
the failure of police officers to cooperate with an internal investigation (Odhavji Estate v.
Woodhouse [2003] 3 S.C.R. 263); b) a provincial law society has been said to owe a duty of
care to a “clearly identified complainant” (Finney v. Barreau du Québec [2004] 2 S.C.R. 17,
para. 46; compare Edwards v. Law Society of Upper Can. [2001] 3 S.C.R. 562); c) police
officers have been held to owe a duty of care to “particularized” suspects (Hill v. Hamilton-
Wentworth Regional Police Services Bd. [2007] 3 S.C.R. 129); d) the government may owe a
duty of care to plaintiffs in implementing a judicial decree (Holland v. Sask. [2008] 2 S.C.R.
551); and e) a territorial government has been held to owe a duty of care to an identified group
of miners who face a known safety risk (Fullowka v. Pinkerton’s of Can. [2010] 1 S.C.R. 132).
See also Horsman and Morley, note 2, above, 5.90, for ample additional references from the
lower courts.
38 Note 35, above, paras. 1, 27-28.
231
7.2(c)(ii) TORT: NEGLIGENCE
facie duty of care. The introduction of proximity as a separate requirement at the

first stage of the test has dramatically shifted the focus of negligence claims,
particularly those involving public authorities.39 The Court said that it was un-
necessary to engage in a complete duty of care analysis if the duty of care asserted
had already been recognized by the courts, but the courts have often treated pre-
Cooper precedents cautiously, particularly in cases involving public authorities,
where precedent has rarely been decisive.40 And, as under the Anns/Kamloops
test, foreseeability continues to pose few difficulties to most litigants. However,
proximity has replaced the policy-operational distinction as the primary analytical
tool used to control the negligence liability of public authorities. And the policy/
operational distinction, if it is considered at all, usually plays a secondary role,
simply reinforcing a court’s proximity analysis.
(ii) Proximity
What is proximity? The concept has not been especially well defined. In
Cooper, it was said that “proximity is a word used to characterize the type of
relationship in which a duty of care arises”; that a proximate relationship is a
relationship that is sufficiently “close and direct”; and that “‘proximity’ . . . [is]
intended to connote that the circumstances of the relationship inhering between
the plaintiff and the defendant are of such a nature that the defendant may be said
to be under an obligation to be mindful of the plaintiff’s legitimate interests in
conducting his or her affairs.”41 Later cases have not been much more specific.
However, what seems to be entailed, on a basic level, is a nexus or closeness of
connection between the claimant and defendant at the moment of the alleged
negligence. This nexus or closeness of connection may arise from physical or
causal proximity at the moment of the alleged negligence, or from some sort of
previous relationship or interaction. However it arises, it is this nexus or closeness
39 The reason that this shift has been so dramatic in cases involving public authorities is that these
cases often do not involve an overt act that directly caused physical injury or property damage.
Later cases have affirmed that foreseeability may be sufficient to establish a prima facie duty
of care in such cases: Childs v. Desormeaux [2006] 1 S.C.R. 643, para. 31. Negligence cases
involving public authorities often involve nonfeasance (rather than an overt act) or pure eco-
nomic loss (rather than physical harm). It is here where proximity has proven to be most
important.
40 The weight to be given to precedent, particularly in cases involving public authorities, is not
entirely clear. Precedent has been emphasized by some courts (see e.g. Adams v. Borrell (2008)
297 D.L.R. (4th) 400, paras. 41-49 (N.B.C.A.), leave to appeal refused [2009] 1 S.C.R. vi), but
other courts have taken the position that it is inappropriate to rely on pre-Cooper cases, because
proximity was not yet an established element of the duty of care analysis (see e.g. Attis v. Can.
(2008) 93 O.R. (3d) 35, paras. 43-44 (C.A.), leave to appeal refused [2009] 1 S.C.R. v). The
Supreme Court of Canada relied on three pre-Cooper cases in finding a duty of care in Fullowka,
note 37, above, paras. 46-51, suggesting that the reluctance of other courts to do so may be
unwarranted.
41 Cooper, note 35, above, paras. 31-35.
232
DUTY OF CARE 7.2(c)(ii)
of connection that differentiates the plaintiff from the public as a whole, and gives
rise to an “obligation to be mindful of the plaintiff’s legitimate interests” while
engaging in conduct that poses a risk of harm. Breach of that obligation gives
rise, in turn, to a claim for negligence.
How is proximity established? When is a relationship sufficiently “close and
direct”? In the general run of cases, the answer to this question has turned on a
consideration of precedent, and a number of the factors that somehow link the
plaintiff and defendant. Relevant factors include physical closeness, a close causal
connection between the alleged negligence and the harm suffered, assumed or
imposed obligations, “expectations, representations, reliance, and the property or
other interests involved”.42 However, in cases involving public authorities, the
answer to this question is complicated by the fact that public authorities usually
operate under statutes that confer powers and duties to act in the public interest.
What role, if any, do these statutes play in establishing proximity between the
plaintiff and defendant public authority?43 The answer to this question has become
important, because, under the Anns/Cooper test, various plaintiffs have advanced
claims that rely heavily on the statutory scheme for proximity. The theory under-
lying these claims is that public authorities have special obligations, flowing from
or codified by statute, to act with due care and to protect citizens from foreseeable
risks of harm.
There seem to be at least three views as to the role that the statutory scheme
should play in establishing proximity (or a duty of care more generally). One is
that, in cases involving public authorities acting under statute, proximity must
arise from the statutory scheme. On this view, a finding of proximity turns on the
interpretation of the statutory scheme.44 Another view is that the statutory scheme
has no positive role to play in establishing proximity, but is limited to playing a
negative role.45 On this view, proximity arises from the relationship between the
plaintiff and the defendant public authority, as it does with private defendants.
The statute is not completely irrelevant, but its role is limited to excluding the
recognition of a duty of care, where such a duty would conflict with the public
authority’s obligations under the statutory scheme. Another view, which strikes
42 Id., para. 34; and Hill, note 37, above, paras. 23-24, 29. See further Horsman and Morley, note
2, above, 5.30.60, for a detailed list of the factors that have been considered relevant.
43 This question has been considered in a number of articles by Lewis Klar: see “The Tort Liability
of the Crown: Back to Canada v. Saskatchewan Wheat Pool” (2007) 32 Adv. Q. 293; “Syl Apps
Secure Treatment Centre v. B.C.: Looking for Proximity within Statutory Provisions” (2007)
86 Can. Bar Rev. 337; and “Breach of Statute and Tort Law,” in Neyers, Chamberlain, and
Pitel (eds.), Emerging Issues in Tort Law (2007), ch. 2.
44 See e.g. Sutherland Shire Council, note 24, above, 482 per Brennan J. (arguing that a court
may not impose a common law duty of care in relation to a statutory power unless the statute
can be read as imposing a duty).
45 See e.g. Gorringe, note 32, above, para. 3 per Lord Steyn (arguing that, in a case alleging breach
of statutory duty the central question is whether an intention can be gathered to create a private
law remedy, but that in a case alleging negligence the central question is whether the statute
excludes a private law remedy).
233
a middle ground between these two competing views, is that the statutory scheme
is a relevant (but generally insufficient) factor in establishing proximity. On this
view, the statute is not a necessary source of proximity, and it is unlikely to be a
sufficient source of proximity, but it may play a positive role in establishing
proximity, provided the resulting duty would not conflict with the statutory
scheme.46 The statute is likely to play this role where it imposes a duty that
overlaps with the duty of care alleged, or it helps to establish the proximity factors
that typically lead to the imposition of a duty of care at common law.
There are decisions of the Supreme Court of Canada that seem to support
each of these views. And to complicate matters further, individual decisions often
seem to send mixed signals. However, the view that gradually seems to have
emerged most clearly from the decisions is the third — that the statutory scheme
is a relevant (but generally insufficient) source of proximity.
Consider first the decisions of the Supreme Court of Canada in Cooper and
Edwards v. Law Society of Upper Canada (2001),47 released concurrently with
Cooper. Both decisions involved class actions launched by individuals who al-
leged that they had suffered economic loss as a result of the failure of a public
authority to exercise statutory regulatory powers. In Cooper, the plaintiff sought
to certify a class action on behalf of investors who suffered loss at the hands of a
mortgage broker. The plaintiff alleged that the provincial Registrar of Mortgage
Brokers, who was aware of the broker’s alleged misconduct, owed a duty of care
to investors to prevent losses caused by a regulated broker — a duty that he had
breached by failing to suspend the broker’s license in a timely manner, and by
failing to notify investors that the broker was under investigation. In Edwards,
the plaintiff sought to certify a class action on behalf of investors who suffered
loss at the hands of a lawyer who used his trust account improperly. The plaintiff
alleged that the Law Society of Upper Canada, which was aware of irregularities
with the lawyer’s use of the trust account, owed a duty of care to members of the
public who deposit money into a lawyer’s trust account to prevent its misuse —
a duty that it had breached by failing to ensure that the lawyer’s trust account was
operated according to Law Society regulations, and by failing to warn investors
that it had chosen not to exercise its regulatory jurisdiction. In both Cooper and
Edwards, the claims were struck on the basis that there was no proximity, and
thus no duty of care. In both cases, the public authority was not aware of the
particular plaintiffs; they had not filed a formal complaint, a fact that would have
established at least some nexus beyond a reasonable foreseeability of harm.48
46 See e.g. Stovin, note 27, above, 928-941 (esp. 939-941) per Lord Nicholls, dissenting (relying
in part on statutory powers in finding a duty of care on a highway authority to remove a known
obstacle to visibility); and Couch, note 34, above, paras. 62-65 per Elias C.J., concurring
(arguing that statutory obligations are “highly relevant” to proximity, and that in some cases
“sufficient proximity may well follow from the statutory obligations”).
47 [2001] 3 S.C.R. 562. The opinion of the Court was written by McLachlin C.J. and Major J.
48 See Finney v. Barreau du Québec [2004] 2 S.C.R. 17, para. 46 (duty to a “clearly identified
complainant”).
234
However, the Court did not emphasize this in finding insufficient proximity
between the parties.49 Instead, in both cases, the emphasis was placed on the
statutory scheme. The Court conducted a careful review of the governing statutes,
concluding that any duty arising from the statute was owed to the public as a
whole, rather than to individual investors. Because the statutes could not be
construed to give these particular plaintiffs any higher claim to a duty of care than
the public as a whole, no duty of care was held to be owed.
Cooper and Edwards are open to two readings. On one reading, the Court
adopted the view that proximity must arise from the relevant statutory scheme.50
This reading sees the Court endorsing the first view — that, in cases involving
public authorities, a finding of proximity turns on the interpretation of the statutory
scheme. On another reading, the language of the decisions is better read against
the backdrop of the claim advanced by the parties.51 In both cases, the plaintiffs
sought to ground a finding of proximity in the statutory scheme alone, on a theory
that a public authority that is granted statutory authority to regulate an activity
owes a duty of care to those that are foreseeably harmed by a third party involved
in that activity. Thus, in looking to the statutes for proximity, the Court was
merely taking the cases as they were argued. This reading sees the Court endorsing
(or at least refusing to foreclose) the third view — that, in cases involving public
authorities, statutes are a relevant, but not a necessary, source of proximity.52
49 In Edwards, the Court did note that the plaintiffs were not clients of the lawyer: see para. 13.
50 There is language in both decisions to support this reading. In Cooper, the Court said that “[i]n
this case, the factors giving rise to proximity, if they exist, must arise from the statute under
which the Registrar is appointed. That statute is the only source of his duties, private or public.
Apart from that statute, he is in no different position than the ordinary man or woman on the
street. If a duty to investors with regulated mortgage brokers is to be found, it must be in the
statute”: para. 43. In Edwards, the Court said that “[f]actors giving rise to proximity must be
grounded in the governing statute when there is one, as in the present case”: para. 9. See also
Kamloops (City) v. Nielson [1984] 2 S.C.R. 2, 25, 35 per Wilson J.; and Swinamer v. N.S.
[1994] 1 S.C.R. 445, 449 per McLachlin J.
51 There is also language in Cooper to support this reading. The Court used the words “in this
case” before suggesting that proximity must arise from the statute, suggesting that it did not
intend to lay down a hard and fast rule that applied in all cases: para. 43. However, the language
of Edwards was not qualified in this manner.
52 After Cooper and Edwards, the role that statutes were to play in establishing proximity was
less than clear. This ambiguity was reflected in the lower court decisions. In negligence cases
involving public authorities, some decisions seemed to treat the statute as a necessary source
of proximity, while others seemed to treat it as a relevant (not necessary) source of proximity,
and looked also to the relationship between the parties. See e.g. James v. B.C. [2005] 8 W.W.R.
417 (B.C.C.A.) (duty arguably owed to mill workers who lost employment when restrictions
on closure were dropped from a replacement licence); Holtslag v. Alta. (2006) 265 D.L.R. (4th)
518 (Alta. C.A.), leave to appeal refused [2006] 2 S.C.R. viii (no duty to homeowners in
permitting use of untreated pine shakes); Eliopoulos Estate v. Ont. (2006) 82 O.R (3d) 321
(C.A.), leave to appeal refused [2007] 1 S.C.R. ix (no duty owed to individuals infected with
West Nile virus); L. (A.) v. Ont. (2006) 83 O.R. (3d) 512 (C.A.), leave to appeal refused (2007)
372 N.R. 390 (note) (S.C.C.) (no duty to persons affected by decision to eliminate special needs
agreements for disabled children); and Sauer v. Can. (2007) 225 O.A.C. 143 (Ont. C.A.), leave
235
In our view, the preferable reading of both decisions is the second one. One
problem with the first reading — that proximity must arise from the statute — is
that it is in tension with The Queen v. Saskatchewan Wheat Pool (1983).53 In that
case, the Supreme Court of Canada held that there is no tort of breach of statutory
duty in Canada; breach of statutory duty does not give rise to direct civil liability,
absent explicit statutory language to the contrary, and is merely to be treated as
evidence of negligence. Looking to the intention of the legislature for proximity
sits uncomfortably with Saskatchewan Wheat Pool’s admonition that, absent
explicit statutory language, questions of civil liability should be resolved by the
common law, not a search for a “‘will o’ the wisp,’ a non-existent intention . . .
to create a civil cause of action”.54 As there was no clear indication in Cooper or
Edwards that the Court intended to depart from Saskatchewan Wheat Pool, this
is one reason to prefer the second reading — that both cases turned on the claims
advanced, and not on the view that proximity must arise from the statutory scheme.
There is also a more fundamental problem with the view that proximity must
arise from the statutory scheme. Public authorities often operate under enabling
statutes, but the language in these statutes is usually permissive, granting a stat-
utory power, and leaving it to the public authority to determine how it is to be
exercised. Even if the language is mandatory, imposing a statutory duty, the
statutory duties imposed are often framed in broad terms, suggesting that they are
owed to all or a segment of the public, rather than to individual citizens.55 The
result is that the search for proximity (a “close and direct” relationship) in the
language of a statutory scheme will usually be futile — a conclusion that is
confirmed by Cooper and Edwards. Thus, if the statutory scheme was the exclu-
sive source of proximity, the circumstances in which an action might lie against
a public authority for negligence would be seriously curtailed. And in those cases
to appeal refused [2008] 2 S.C.R. v (Canada arguably owed a duty of care to cattle farmers to
enact better regulations to prevent the spread of mad cow disease).
53 [1983] 1 S.C.R. 205. See ch. 6, Tort: General Principles, under heading 6.3(d), “Statutory
duties”, above.
54 Id., 216. There is an argument that looking at all to the statute for proximity is inconsistent
with Saskatchewan Wheat Pool. However, the decision does not seem to require the statute to
be ignored altogether in determining whether proximity is established; in fact it did not address
its relevance to the establishment of a duty of care. Rather, it merely discouraged resort to
legislative intent in resolving questions of civil liability, absent explicit statutory language, and
worked from the (probably more realistic) position that questions of civil liability should turn
on the common law, not the presumed intentions of legislators. This would seem to leave open
referring to statutes in finding proximity, provided the exercise is treated as a matter to be
settled by the common law. The question would be whether the statute “erects or facilitates a
relationship between [the plaintiff and the public authority] that . . . displays sufficient char-
acteristics answering the criteria for intervention by the tort of negligence”: Graham Barclay
Oysters Pty. v. Ryan (2002) 211 C.L.R. 540, para. 146 (H.C., Aust.). Compare Klar, note 43,
above.
55 A statute may, of course, expressly impose a duty on a public authority, and create a private
right of action for its breach. However, more commonly, statutes are silent as to whether breach
of a statutory duty is civilly actionable.
236
where proximity was found in the statutory scheme, this would probably reflect
little more than a judicial inclination to find a public authority liable in negligence.
This is another reason, in our view, to prefer the second reading of Cooper and
Edwards — that both cases turned on the claims advanced, and not on the view
that proximity must arise from the statutory scheme.56
The Supreme Court of Canada appeared to agree in Hill v. Hamilton-Went-
worth Regional Police Services Board (2007).57 At issue in Hill was whether the
police owe a duty of care to suspects, and if so, whether that duty had been
breached on the facts of the case. The plaintiff, Hill, spent more than twenty
months in jail for a crime that he did not commit, and argued that shoddy police
investigative practices were to blame. McLachlin C.J., writing for the majority of
the Court, held that the police do owe a duty of care to “particularized” suspects
during the course of a criminal investigation, but that this duty had not been
breached on the facts of the case.58 In finding proximity sufficient to ground a
prima facie duty of care, McLachlin C.J. emphasized the close and direct rela-
tionship between the police and a suspect, and the personal interest that a suspect
has in the conduct and outcome of a criminal investigation.59 Unlike the dissent,
McLachlin C.J. rejected the claim that a duty of care owed by the police to
suspects would conflict with the duty that a police officer owes to the public to
prevent and investigate crime. In order for such a conflict to negate a common
law duty of care, the conflict must be “between the novel duty proposed and an
‘overarching public duty,’ and it must pose a real potential for negative policy
consequences”.60 Here, neither condition was satisfied. The argument that a duty
to take reasonable care in investigating suspects would conflict with an overarch-
ing public duty was “tenuous”, because it assumed, wrongly, that the officer’s
duty to the public was to “investigate in an unconstrained manner”.61 In addition,
56 A related problem is that questions would inevitably be raised about when it was appropriate
to consult the statute for a legislative intention to create a duty of care. Would a court really
look to statute in a negligent driving case to determine whether the statute intended to open the
public authority to liability in tort? Surely not. But why?
57 [2007] 3 S.C.R. 129. The Court split 6-3; McLachlin C.J. wrote for the majority, Charron J. for
the dissent.
58 Compare Tame v. N.S.W. (2002) 211 C.L.R. 317, paras. 126 (McHugh J.), 231 (Gummow and
Kirby JJ.) (H.C., Aust.) (“unlikely” that police owe a duty of care to suspects); see also Hill v.
C.C. of West Yorkshire, note 30, above, 63-64; and Brooks v. Commr. of Police of the Metropolis
[2005] 1 W.L.R. 1495, paras. 19-23, 33 (H.L.). On whether a duty of care is owed to victims
of crime, see Wellington v. Ont. (2011) 105 O.R. (3d) 81 (C.A.) (no duty). Contrast Doe v.
Metropolitan Toronto (Municipality) Commrs. of Police (1998) 39 O.R. (3d) 487 (Gen. Div.)
(duty owed to narrow group of victims under specific threat).
59 McLachlin C.J. also referred to the lack of an alternative remedy and the fact that the recognition
of a duty of care was consistent with the public’s interest in responding to failures in the criminal
justice system.
60 Hill, note 57, above, para. 40.
61 Id., para. 41.
237
there was insufficient evidence of a real potential for negative policy conse-
quences, despite numerous studies.
Hill implicitly rejects the first reading of Cooper, that proximity must arise
solely from the statutory scheme. The police have various common law duties,
and, as noted by the dissent, the relevant common law duties had been codified
by statute.62 If the Court was of the view that proximity must arise from the
statutory scheme in cases involving public defendants, an analysis of these stat-
utory duties would have played a prominent role in the decision. But McLachlin
C.J. largely ignored the statutory scheme, apart from addressing the argument
that the duty of care would result in conflicting duties, and emphasized instead,
repeatedly, that proximity arises from the actual relationship between the parties.63
This suggests a move towards the second view, that statutes have no role to play
in a proximity analysis, beyond precluding a duty of care where there is a conflict
with the statute.64 However, the decision does not explicitly disagree with Cooper
and Edwards, where the Court looked to the statute for proximity, nor does it
explicitly foreclose the third view, that statutes may (not must) play a role in
establishing proximity.65
The Supreme Court of Canada implicitly affirmed this third view in Fullowka
v. Pinkerton’s of Canada Ltd. (2010).66 In that case, nine mine workers were
killed in the course of a volatile labour strike at a mine in the Northwest Territories.
The workers were killed by a striking miner, Warren, who entered the mine and
62 Id., para. 115.

63 See e.g. para. 29 (“[t]he most basic factor upon which the proximity analysis fixes is whether
there is a relationship between the alleged wrongdoer and the victim, usually described by the
words ‘close and direct’”).
64 See also Syl Apps Secure Treatment Centre v. B.C. [2007] 3 S.C.R. 83 (no duty owed by a
treatment centre and its employee to parents of a child removed from the home; such a duty
would give rise to a “genuine potential” for “serious and significant” conflict with their duty
to promote the best interests of the child); compare K.L.B. v. B.C. [2003] 2 S.C.R. 403 (rec-
ognizing potential of liability to children that have been placed in foster care).
65 Since Hill, the lower courts have tended to look to both the relevant statutory scheme and the
actual relationship between the parties for proximity: see e.g. Attis v. Can. (2008) 93 O.R. (3d)
35, paras. 43-44 (C.A.), leave to appeal refused [2009] 1 S.C.R. v (no duty on Canada to the
public to ensure the safety of medical devices); Williams. v. Can. (2009) 95 O.R. (3d) 401
(C.A.), leave to appeal refused [2009] 3 S.C.R. x (no duty to protect members of the general
public from SARS); Heaslip v. Ont. (2009) 96 O.R. (3d) 401 (C.A.) (duty arguably owed by
Ontario in responding to a request for an air ambulance); Knight v. Imperial Tobacco Can.
(2009) 313 D.L.R. (4th) 695 (B.C.C.A.), leave to appeal granted [2010] 1 S.C.R. xiv (S.C.C.)
(duty arguably owed by Canada to consumers and Imperial Tobacco in connection with light
and mild cigarettes); B.C. v. Imperial Tobacco Can. (2009) 313 D.L.R. (4th) 651 (B.C.C.A.),
leave to appeal granted [2010] 1 S.C.R. vi (same decision as Knight). But see Bagnell v.
Vancouver Police Bd. [2008] 6 W.W.R. 585, para. 29 (B.C.C.A.) (finding statutory proximity
sufficient to ground a prima facie duty); and River Valley Poultry Farm v. Can. (2009) 95 O.R.
(3d) 1 (C.A.), leave to appeal refused [2009] 3 S.C.R. ix (no duty to conduct a timely and
competent investigation, but largely focusing the proximity analysis on the relevant statutory
scheme).
66 [2010] 1 S.C.R. 132. The decision of the Court was written by Cromwell J.
238
set up an explosive device that was detonated by a trip wire.67 Following the
explosion, the territorial government ordered the closure of the mine, a step that
its mine inspectors had decided not to take earlier, despite their knowledge of the
dangerous and unpredictable situation at the mine, including two prior explosions
set off by striking workers. The survivors of the dead miners, as well as a mine
worker who saw the carnage caused by the fatal explosion, sued the mine’s owner,
its security firm, and the territorial government, claiming damages for negligently
failing to prevent the murders. They also sued the strikers’ national and local
union and various union officials for failing to control, and for inciting, Warren.
The most important aspect of the case for our purposes is the claim against the
territorial government. That claim made its way to the Supreme Court of Canada.68
Cromwell J., writing for the majority of the Court, held that the territorial
government did owe the plaintiffs a duty of care. In finding sufficient proximity
between the territorial government and the plaintiffs to ground a prima facie duty
of care, Cromwell J. emphasized three factors. The first was the size of the group
to whom the mine inspectors were said to owe a duty of care. Unlike in Cooper
and Edwards, where the alleged duties extended “to the public at large”, the duty
in this case was owed only to those working in the mine, a much smaller and
more clearly defined group.69 The second factor emphasized was the extent of the
direct contact between the deceased miners and the mine inspectors. Unlike in
Cooper and Edwards, where there was no direct contact between the plaintiffs
and the defendants, “the inspectors had been physically present in the mine on
many occasions”.70 As a result of these inspections, the mine inspectors “had
identified specific and serious risks to an identified group of workers and knew
that the steps being taken by [the mine owners and their security firm] to maintain
safe working conditions were wholly ineffectual”.71 The third factor emphasized
was the statutory scheme. Unlike in Cooper and Edwards, where the defendant
public authorities had no direct regulatory authority over the plaintiffs, the mine
inspectors had a statutory duty to inspect the mine and to order the cessation of
work if they considered the mine unsafe, and these “statutory duties related
directly to the conduct of the miners themselves”.72 These factors, taken together,
were held to be sufficient to establish proximity between the miners and the
67 Warren confessed; he was found guilty of nine counts of second degree murder and sentenced
to life in prison.
68 The claims against the mine owner were settled. The claim against the security firm failed in
the Supreme Court of Canada. The union claims also failed in the Supreme Court of Canada.
69 Fullowka, note 66, above, para. 43.
70 Id., para. 55.
71 Ibid.
72 Id., para. 45.
239
territorial government. However, the claim ultimately failed, on the basis that
there had been no breach of the duty of care.73
The decision in Fullowka lends fairly strong support to the third view —
that the statutory scheme may play a role in establishing proximity.74 But in
Fullowka, the statute was only one factor that was considered in finding sufficient
proximity. The Court also emphasized the size of the group, and the extent of the
contact between the mine inspectors and mine workers. Fullowka did not explic-
itly address whether a statute could ever be a sufficient source of proximity, absent
some sort of actual relationship between the parties. In Cooper and Edwards, an
argument that proximity could arise from the relevant statutory schemes failed,
suggesting that the answer was no. However, the possibility was not explicitly
foreclosed in Cooper, Edwards or Fullowka.
The Supreme Court of Canada was given the opportunity to address this
question in Reference re Broome v. Prince Edward Island (2010).75 Broome
involved an appeal from a reference to the Prince Edward Island Court of Appeal
that arose out of a private action brought against the Prince Edward Island Prot-
estant Children’s Trust and the provincial government. The reference asked the
Court of Appeal, among other things,76 whether the provincial government owed
a duty of care to various children who had allegedly been physically and sexually
abused while residing in a privately operated children’s home in the province.
Cromwell J., writing for the Court, affirmed the Court of Appeal’s opinion that,
subject to certain qualifications,77 the provincial government did not owe any
such duty of care. The appellants relied heavily on the statutory scheme to estab-
73 The mine inspectors had been provided with legal advice that they did not have statutory
authority to close the mine due to labour relations issues and criminal activity. This advice was
held to be wrong, but good faith reliance on that advice was held not to be a breach of the
territorial government’s duty of care.
74 See also Odhavji Estate v. Woodhouse [2003] 3 S.C.R. 263, para. 58 (suggesting that “[t]he
fact that the [Chief of Police] is under a [statutory] duty to ensure compliance with an . . .
investigation adds substantial weight to the argument” that the Chief may owe a “duty of care
to ensure that the defendant officers did, in fact, cooperate with . . . the investigation”); and
Holland v. Sask. [2008] 2 S.C.R. 551, para. 10 (“[a]ssuming, without deciding, that the legis-
lative and regulatory matrix established proximity” between the plaintiff and the Saskatchewan
government).
75 [2010] 1 S.C.R. 360. The opinion of the Court was written by Cromwell J.
76 The reference also addressed breach of non-delegable duty, vicarious liability, and breach of
fiduciary duty. The Court of Appeal rejected all three potential grounds of liability, an opinion
that was affirmed on appeal.
77 The qualifications concerned: a) children who had been placed in the guardianship of the
province, who were held to be owed a duty of care by the province; and b) children who had
been proposed for placement in the home by a provincial employee, in respect of whom the
Court of Appeal refused to give an opinion.
240
lish proximity with the provincial government, as in Cooper and Edwards.78

Cromwell J. noted that statutory duties “do not generally, in and of themselves,
give rise to private law duties of care”.79 However, he proceeded nonetheless to
analyse the relevant statutes to determine whether they did so in this case. During
the relevant period, the provincial child welfare legislation effectively created a
two-stream system of child welfare, one private and one public. The home in
which the alleged abuse had occurred fell into the private stream, and the province
had no statutory duties or obligations with respect to the operation, management
or supervision of the home that would support a private law duty of care. Thus,
as in Cooper and Edwards, proximity was held not to arise from the statutory
scheme.
The decision in Broome is consistent with the view that it is not necessary
to look to the relevant statutory scheme for proximity, but it did suggest that the
Court was reluctant to close the door on the idea that, in certain situations, a
statutory scheme may be a sufficient source of proximity. However, it also sug-
gested that this would be rare, and that it would generally be necessary to point
to other factors, arising from the actual relationship between a claimant and a
public authority, to establish proximity. The Court affirmed this position one year
later in Alberta v. Elder Advocates of Alberta Society (2011).80 In that case, the
plaintiffs, who were elderly residents of Alberta’s long-term care facilities, alleged
that the accommodation charges that they paid for housing and meals (which they
were required to pay) had been artificially inflated to subsidize the cost of medical
expenses (which they were not required to pay). They launched a class action
against the provincial Crown and nine Regional Health Authorities, claiming that
this constituted a breach of fiduciary duty, negligence, bad faith and/or unjust
enrichment, and also violated s. 15(1) of the Canadian Charter of Rights and
Freedoms. The provincial Crown challenged the fiduciary duty, negligence, and
bad faith claims at the certification hearing, and an appeal of the certification
judge’s decision made its way to the Supreme Court of Canada. McLachlin C.J.,
writing for the Court, held that the claims for breach of fiduciary duty, negligence
and bad faith should be struck from the statement of claim, but that the unjust
enrichment and Charter claims could proceed to trial. The aspect of the decision
that is relevant here is that relating to the claim in negligence. As in Broome, the
plaintiffs argued that the statutory scheme was sufficient to ground a private law
duty of care, on the theory that the Crown’s statutory duties and powers relating
to the administration and operation of long-term care facilities brought it into a
relationship of proximity with the members of the class. As in Broome, McLachlin
78 The appellants also argued that proximity could arise from the financial relationship between
the home and province, and the power of the courts to make orders in the best interests of a
child under the parens patriae doctrine. Both arguments were rejected, and the bulk of the
analysis was devoted to the statutory proximity argument.
80 2011 SCC 24. The opinion of the Court was written by McLachlin C.J.
241
C.J. did not definitively rule out the possibility that a statutory scheme could be
a sufficient source of proximity – although, citing Broome, she did say that this
would be rare, and, later in the decision, that “inferring a private duty of care
from statutory duties may be difficult, and must respect the particular constitu-
tional role of [public bodies]”.81 However, as in Broome, McLachlin C.J. held
that the statutory scheme, which imposed on the Crown a general duty to provide
insured health care services and granted various powers in relation to the accom-
modation charges, could not be read to impose a positive duty on the Crown to
act in relation to the class members with respect to the accommodation charges.
Thus, although the possibility was left open, proximity was once again held not
to arise from the statutory scheme.82
Reading all six decisions together, the picture that has gradually emerged as
to proximity in the public authority negligence context is as follows:
1) A public authority will not be open to liability for negligence unless the
public authority was in a “close and direct” or proximate relationship
with the plaintiff.
2) The relevant statutory scheme is not the exclusive, or even a necessary,
source of proximity in cases involving public authorities: Hill and Ful-
lowka, as well as Cooper and Edwards, on one reading, provide the
support for this conclusion.83
3) However, the statutory scheme will preclude a duty of care, where such
a duty would conflict with the statute: Hill provides the support for this
conclusion.84
4) In addition, the statutory scheme may also play a positive role in estab-
lishing proximity: Fullowka provides the support for this conclusion.85
81 Id., paras. 68, 74.

82 The plaintiffs also argued that the fact that Alberta had actually administered the accommodation
charges was sufficient to establish proximity, but this argument was also rejected, on the basis
that the mere supplying of a service by the government is insufficient, without more, to establish
proximity.
83 Compare Graham Barclay Oysters Pty. v. Ryan (2002) 211 C.L.R. 540, paras. 148, 247 (H.C.,
Aust.) (proof of a legislative intent to impose a common law duty of care not a necessary pre-
condition to such a duty).
84 Compare X. v. Bedfordshire C.C. [1995] 2 A.C. 633, 739 (H.L.); Phelps v. Hillingdon London
B.C. [2001] 2 A.C. 619, 653, 673 (H.L.); Sullivan v. Moody (2001) 206 C.L.R. 512, para. 62
(H.C., Aust.); D. v. East Berkshire Community Health N.H.S. Trust [2005] 2 A.C. 373, 407
(H.L.) — all emphasizing the same point about conflict.
85 It is not surprising to see the statutory scheme emphasized in Fullowka, given that the case
involved an alleged wrongful failure to act. The courts are unlikely to recognise a duty to act
unless there is statutory authority to act in that manner; to do so would involve the recognition
of a common law duty that required the public authority to act without legal (statutory) authority:
see e.g. Crimmins v. Stevedoring Industry Finance Committee (1999) 200 C.L.R. 1, para. 26
(H.C., Aust.); Stuart v. Kirkland-Veenstra (2009) 237 C.L.R. 215, para. 112 (H.C., Aust.). It is
242
The cases do not explicitly foreclose the possibility of an exceptional

case where the statutory scheme alone will establish proximity: that
possibility was implicitly left open in Cooper and Edwards; explicitly
left open in Broome, which says that statutory duties “do not generally,
in and of themselves, give rise to private law duties of care”; and affirmed
in Elder Advocates. However, the cases are clear that the statutory scheme
will, by and large, not be sufficient to establish proximity, and that it will
be necessary to point to other factors, arising from the actual relationship
between the parties, to establish the required nexus or “closeness of
connection”: all six decisions provide the support for this conclusion,
either explicitly or by implication.
5) Factors suggesting proximity include physical and causal closeness, as-
sumed or imposed obligations, and “expectations, representations, reli-
ance, and the property or other interests involved”.86 The courts are re-
luctant to find proximity between a public authority and members of the
public with whom the public authority has had no contact, even if the
public authority has knowledge of a general risk of harm and legal au-
thority to prevent or minimize that risk: Cooper; Edwards. The courts are
less reluctant to find proximity where a public authority has contact with
a member of the public, making it aware of a specific risk of harm:
Fullowka.87
In our view, the summary of the law cited in the previous paragraph repre-
sents a generally successful adaptation of the notion of proximity to the activities
of public authorities. However, the idea that there are cases where statutes alone
will establish proximity warrants a brief comment. The cases are clear that statutes
alone are generally insufficient. But if the courts continue to leave open the
possibility of cases where statutes alone will establish proximity, they will be
required to come up with ways to distinguish between cases where statutes will
and will not be sufficient. We have serious doubts that this will be possible,
without entering into the futile search for legislative intent discouraged in Sas-
katchewan Wheat Pool, or engaging the sorts of concerns about public authority
possible to treat statutory authority of the sort emphasized in Fullowka as a pre-condition to

liability that is not relevant to the proximity analysis itself; or as consideration relevant to
conflict – with an absence of statutory authority precluding a duty of care – but having no
positive role to play in establishing proximity. However, the Court did not treat it either way;
rather, statutory authority was a positive “factor” supporting proximity (para. 42).
86 Hill v. Hamilton-Wentworth Regional Police Services Bd. [2007] 3 S.C.R. 129, paras. 23-24,
29.
87 There is, as Linden and Feldthusen have noted, “a striking similarity between this approach to
proximity and the well-established school of thought that once a public authority began to
implement its policy decisions, the implementation could be challenged as ‘operational’ neg-
ligence”: note 2, above, 702.
243
7.2(c)(iii) TORT: NEGLIGENCE
liability outlined at the beginning of this chapter.88 Thus, we are inclined to think
that the door on statutory proximity should be closed.89 This would help to clarify
the law, and signal clearly to litigants that it will be necessary to point to factors,
apart from statutory powers and duties, in attempting to establish proximity with
a public authority.
(iii) Residual policy considerations
If a plaintiff succeeds in establishing a prima facie duty of care at the first

stage of the Anns/Cooper test, by establishing both foreseeability of harm and
proximity, the onus shifts to the defendant at the second stage to establish residual
policy considerations that might limit or negate the existence of such a duty of
care.90 We have seen that, under the old Anns/Kamloops test, the bulk of the duty
of care analysis was left to the second stage of the test. We have also seen that,
under this stage, the analysis was dominated by the application of the policy-
88 See sec. 7.1, “Definition of negligence”, above. McLachlin C.J. alluded to this concern in Elder
Advocates (note 80, above, para. 74), but stopped short of closing the door altogether on statutory
proximity.
89 The Canadian cases provide little hint as to the type of case in which a statute alone may be
held to be sufficient in establishing proximity. In Couch v. A.-G. [2008] 3 N.Z.L.R. 725 (S.C.),
Elias C.J., concurring, suggested that “sufficient proximity may well follow from . . . statutory
obligations”, listing as an example those cases where “individuals cannot reasonably protect
themselves from risk which a statutory body has a duty to abate or manage” (para. 65). This
seems to be what is typically referred to as general reliance. The idea was first raised in the
Commonwealth in Australia (see Sutherland Shire Council v. Heyman (1985) 157 C.L.R. 424,
646 per Mason J. (H.C., Aust.)), where it now seems to have been rejected (see Pyrenees Shire
Council v. Day (1998) 192 C.L.R. 330, paras. 19, 157-163, and 225-232 (H.C., Aust.); but see
paras. 58-72, 77, and 103-110). The idea has not received any sustained attention in Canada,
although there is some evidence of it in pre-Cooper cases: see, e.g., Rothfield v. Manolakos
[1989] 2 S.C.R. 1259, 1276, reconsideration refused (1990) 46 M.P.L.R. 217 (note) (S.C.C.)
(emphasizing reasonable reliance on building inspectors); and Swanson Estates v. Can. [1992]
1 F.C. 408, 433 per Linden J.A. (C.A.) (emphasizing reasonable reliance on airplane inspectors).
Post-Cooper, reliance has been a factor that is considered in establishing proximity, but the
courts have generally required “specific reliance”, meaning some pre-tort interaction or rela-
tionship that actually induced the plaintiff to rely on the public authority: see e.g. Attis v. Can.
(2008) 93 O.R. (3d) 35, para. 69 (C.A.), leave to appeal refused [2009] 1 S.C.R. v (refusing to
recognize a duty of care because Health Canada “provided no direct service to the appellants
and had no contact with them”); compare D.H. v. B.C. [2008] 9 W.W.R. 82 (B.C.C.A.)
(probation officer owed a duty of care to a sexual assault victim, because “the probation officer
was clothed with the responsibility to approve the residence [of the perpetrator], and was the
only reliable channel of information to residents living near [the perpetrator] as to the danger
he posed, and to whom”). However, if Canadian courts move the law in the direction suggested
by Elias C.J. (see D.H., this note), the inability of individuals to protect themselves (a precon-
dition of liability on this example) is arguably a factor, independent of the statutory scheme,
that supports the recognition of a duty of care.
90 See Childs v. Desormeaux [2006] 1 S.C.R. 643, para. 13; Hill, note 86, above, para. 31.
244
DUTY OF CARE 7.2(c)(iii)
operational distinction. The Anns/Cooper test cases have departed from this pat-
tern in two ways.
The first relates to the treatment of the policy-operational distinction. In
Cooper, it was affirmed that the policy-operational distinction should still be
considered at the second stage of the test.91 In some post-Cooper cases, the policy-
operational distinction has continued to play an important role. For example, in
Holland v. Saskatchewan (2008),92 the Supreme Court of Canada refused to strike
out a claim alleging that the province breached a duty of care owed to a group of
farmers to implement a judicial decree remedying the wrongful reduction of the
farmers’ herd status;93 the Court assumed that proximity was established, and
held that it was possible that the province owed the farmers a duty of care because
the “implementation of a judicial decision is an ‘operational’ act”.94 However, in
the majority of post-Cooper cases, the policy-operational distinction has played
a secondary role, simply reinforcing a court’s conclusion about proximity at the
first stage of the test.95 For example, as we noted above, in Cooper, the Supreme
Court of Canada held that the British Columbia Registrar of Mortgage Brokers
did not owe a duty of care to investors to prevent financial losses caused by the
misconduct of a regulated mortgage broker, due to a lack of proximity; but the
Court also held, in the alternative, that the existence of such a duty would have
been negated at the second stage of the test, because “the decision of whether to
suspend a broker involves both policy and quasi-judicial elements”.96
The second departure from the pattern evident under the old Anns/Kamloops
test is the addition of residual policy considerations apart from the policy-oper-
91 Cooper v. Hobart [2001] 3 S.C.R. 537, para. 38.

92 [2008] 2 S.C.R. 551. The opinion of the Court was written by McLachlin C.J.
93 The Court did strike the portion of the claim alleging breach of a duty to act in accordance with
the law.
94 Holland, note 92, above, para. 14 (citing Welbridge Holdings v. Greater Winnipeg [1971]
S.C.R. 957, 970). See also Entreprises Sibeca Inc. v. Frelighsburg [2004] 3 S.C.R. 304, holding
that the adoption, amendment or repeal of a zoning by-law by a municipality does not in itself
trigger civil liability, even if the effect is to cause economic loss to property owners; the case
concerned the civil law of Quebec, but the Court drew upon, and affirmed, its earlier common
law decision in Welbridge, this note, which recognized that a municipality could be liable at
the “operational level”, but not “at the legislative or quasi-judicial level” (968-969).
95 The policy-operational distinction might be expected to play a larger role in cases where
proximity is held to be established because, unlike in cases where proximity is held not to be
established, the distinction may still have work to do, negating the existence of a prima facie
duty of care. However, that has not been the case; the distinction is usually given short shrift
in both types of cases. This would suggest “that there is a very close de facto relationship
between the two enquiries”: Linden and Feldthusen, note 2, above, 702; and note 87, above.
96 Note 91, above, paras. 52-53. See also Finney v. Barreau du Québec [2004] 2 S.C.R. 17, holding
the Barreau liable in civil law for “serious negligence” in failing to take action in response to
a complaint, and noting that the result would have been the same under the common law; “the
decisions made by the Barreau were operational decisions and were made in a relationship of
proximity with a clearly identified complainant, where the harm was foreseeable” (para. 46).
Compare Edwards v. Law Society of Upper Can. [2001] 3 S.C.R. 562.
245
7.2(c)(iii) TORT: NEGLIGENCE
ational distinction. In Cooper, McLachlin C.J. and Major J. suggested that, under
the Anns/Cooper test, the analysis at this stage is to involve a consideration of
factors outside the relationship between the parties, including “the effect that
recognizing the duty of care alleged in the case would have on other legal obli-
gations, the legal system and society more generally”.97 The courts have supple-
mented the focus on the policy-operational distinction under the Anns/Kamloops
test with a range of other residual policy considerations — although, as with the
policy-operational distinction, these policy considerations usually play a second-
ary role. The range of residual policy considerations is not closed, but a number
of such considerations have resurfaced repeatedly in the decisions.98
One is the spectre of indeterminate liability. Thus, in Cooper,99 the Supreme
Court of Canada buttressed its conclusion that there was no proximity between
the Registrar of Mortgage Brokers and investors harmed by the misconduct of a
registered broker, by noting that the spectre of indeterminate liability would “loom
large” if the Registrar was held to owe a duty of care to the investors. In contrast,
in Fullowka,100 there was said to be no concern about indeterminate liability,
because the duty of care was limited to a finite group — miners working in the
mine.
Another policy consideration that resurfaces in the decisions is the presence
of alternative remedies, such as a right of appeal. Thus, in Syl Apps Secure
Treatment Centre v. B.C. (2007),101 the Supreme Court of Canada supported its
conclusion that there was no proximity (and thus no duty of care) between the
parents of a child removed from the home and a court-ordered treatment centre
and its employee by noting that the child protection legislation provided a remedy
for families seeking to challenge the removal and treatment of their child. In
contrast, in Odhavji Estate v. Woodhouse (2003),102 a public complaints process
97 Id., para. 37.

98 Policy considerations like those listed in the following paragraph have figured prominently in
the United Kingdom decisions. For discussion, see Booth and Squires, note 2, above, ch. 4, and
the sources cited therein.
99 Note 91, above, para. 54. The Court also relied on the distinction between formulating and
executing government policy, the quasi-judicial nature of many of the Registrar’s functions,
and the undesirability of allocating private investment losses to the tax-paying public as residual
policy considerations that negated a duty.
100 [2010] 1 S.C.R. 132, para. 71. The Court also dismissed concerns about unfairness, lack of
control, interference with autonomy, the potential for over- or under-regulation, and conflicting
duties.
101 [2007] 3 S.C.R. 83, para. 59. The Court also relied on the fact that the legislation immunized
those working in the child protection field from liability for the good faith exercise of their
duties in finding no proximity.
102 [2003] 3 S.C.R. 263, para. 60. The Court also dismissed a concern about compromising
independence. The distinction between the two cases is not entirely clear, but it is possible that
the significance of an alternative remedy to the duty of care analysis turns on the Court’s
assessment of the primary purpose of the claim: in Syl Apps, it was the return of a child; in
Odhavji, it was damages for psycholgical harm. This is the distinction the Court drew in Can.
246
DUTY OF CARE 7.2(c)(iii)
was said to be insufficient to negate the duty of care that the Chief of Police may
owe to ensure that police officers comply with an internal investigation, because
the plaintiffs were not seeking an opportunity to file a complaint that might result
in the imposition of disciplinary sanctions, but compensation for the psychological
harm that they suffered due to the alleged breach.103
Yet another policy consideration that resurfaces in the decisions is the chill-
ing effect that negligence liability may have on the activities of the public au-
thority, by causing it to engage in defensive practices.104 Thus, in Holland,105 the
Supreme Court of Canada refused to recognize a duty of care owed by a govern-
ment regulator to act in accordance with the authorizing acts and regulations,
because of concerns about a possible “chilling effect”.106 In contrast, in Hill,107
the Court rejected a claim that recognizing a duty owed by the police to suspects
would have a chilling effect on the investigation and prevention of criminal
activity, because there was insufficient evidence to support such a chilling effect,
despite numerous studies.
In some cases, the residual policy considerations raise matters that turn more
on opinion than the weighing of evidence; this is arguably the case, for example,
with the concern about indeterminate liability or alternative remedies, both of
which require a court to make what are, in essence, judgment calls about the
proper scope of liability or the sufficiency of any alternative remedies. However,
in other cases, the residual policy considerations raise matters that are more
susceptible of proof; this is arguably the case, for example, with the concern to
avoid a chilling effect or conflicting duties. Should evidence be required to
substantiate these types of concerns? In some cases, the courts have not required
v. TeleZone [2010] 3 S.C.R. 585, para. 78, in deciding whether judicial review is a prerequisite
to a claim for damages against the federal Crown.
103 In Syl Apps, the possibility of an alternative remedy was held to support the finding of no
proximity, but in Odhavji, it was taken into account at the second stage of the analysis. This
underscores the overlap between the two stages of the Anns/Cooper test: see e.g. Syl Apps, note
101, above, para. 33 (citing Cooper, note 91, above, para. 27).
104 This is closely related to the concern about conflicting duties; one of the primary concerns with
conflicting duties is that the duty of care may undermine the public authority’s (usually statu-
tory) public duties, by causing it to over- or under-regulate in order to avoid negligence liability.
In some cases, the concern for conflicting duties is considered at the second stage (e.g.,
Fullowka, note 100, above, para. 72), but in other cases, the concern for conflicting duties is
considered as part of the proximity analysis (e.g., Hill, note 86, above, paras. 40-43, 140-148).
105 Note 92, above, para. 10. The Court also relied on a concern about indeterminate liability in
finding no duty. However, as noted, the Court did hold that it was arguable that there was a
duty to implement a judicial decree.
106 Compare Rowling v. Takaro Properties [1988] A.C. 473 (P.C., N.Z.) (similar decision).
107 Note 86, above, paras. 56-59. The Court split 6-3. The majority also dismissed concerns about
interfering with the quasi-judicial nature of police work; interfering with the discretion required
to do police work; undermining the standard of reasonable and probable grounds applicable to
police conduct; the possibility of a flood of litigation; and the potential for conflict between the
proposed duty and the duty of the police to investigate and prevent crime. The dissent empha-
sized many of the opposite concerns, particularly the concern about a chilling effect.
247
a defendant public authority to provide supporting evidence. In Syl Apps, for

example, the Supreme Court of Canada held that a court-ordered treatment centre
and its employee did not owe a duty of care to the parents of a child removed
from the home, because imposing a duty of care raised a “genuine potential” for
“serious and significant” conflict with the duty of those involved in child protec-
tion matters to promote the best interests of the child.108 Evidence was not sub-
mitted to verify the Court’s concern that recognizing such a duty would actually
impede the operation of the child protection system. However, in other cases, the
Court has dismissed concerns as to a chilling effect or conflicting duties as
speculative, suggesting that evidence was required. In Hill, for example, the Court
dismissed arguments that the recognition of a duty owed by the police to “partic-
ularized” suspects would conflict with the duty of the police to investigate crime,
or cause the police to investigate with undue caution, contrary to the public
interest. The Court emphasized that “policy concerns raised against imposing a
duty of care must be more than speculative; a real potential for negative conse-
quences must be apparent”.109 It is difficult to account for the different approaches
in Syl Apps and Hill, which were released just months apart.110 Admittedly, it will
often not be easy for a public authority to give evidence of likely “negative
consequences”. What seems clear to us, however, is that public authorities ought
not to be permitted to escape negligence liability on speculative grounds; the risk
of negative consequences ought to be “apparent”.111
7.3 Special categories of negligence

(a) Introduction to special categories of negligence
In many cases there is little dispute that the defendant, private or public,
owed the plaintiff a duty of care. This is because the allegation is often that an
overt act on the part of the defendant directly caused physical injury or property
damage to the plaintiff. In such cases, foreseeability of harm is ordinarily enough
to establish that the defendant owed the plaintiff a duty of care.112 However, the
situation is different where the case involves pure economic loss (rather than

109 Note 86, above, para. 48. See also Fullowka, note 100, above, paras. 72-73.
110 The cases seem to turn on to whom the Court prefers to give the benefit of the doubt; in Syl
Apps, the Court preferred to err on the side of at-risk children; in Hill, it was those under
investigation by the police.
111 The academic literature on the alleged link between negligence liability and “defensive admin-
istration” (a different term for the chilling effect) was helpfully summarized by the Law
Commission of England and Wales, from a United Kingdom perspective, in Administrative
Redress, note 4, above, esp. 39-43, Part 6 and App. B. The Commission abandoned its proposals
for the reform of state liability for administrative failure, in part because it was unable to assess
the possible impact: see Administrative Redress (Final Report, 2010).
112 Childs v. Desormeaux [2006] 1 S.C.R. 643, para. 31.
248
SPECIAL CATEGORIES OF NEGLIGENCE 7.3(b)(i)
physical injury or property damage), nonfeasance (rather than an overt act), or

peculiarly governmental activity. The public authority negligence cases that pose
the greatest challenges to the courts often involve at least one of these special
categories of negligence. At one time, the courts were reluctant to allow for any
sort of recovery in all three categories (in the case of pure economic loss and
nonfeasance, this reluctance was not limited to cases involving public authorities).
The courts have grown less reluctant to allow for recovery over time, but they
have also imposed additional requirements, beyond foresseeability of harm, in
order to control the scope of negligence liability. These additional requirements
are the subject of this section. As we will see, it is still the basic two-part duty of
care test that is applied in determining whether a duty of care was owed, but
proximity and various residual policy considerations (all described above, in the
previous section) play a particularly important role in the duty of care analysis.
(b) Pure economic loss
(i) Evolution of liability for pure economic loss
Pure economic loss is financial loss that is not consequential upon or con-
nected to physical injury or property damage. Cases involving pure economic
loss are distinct from cases where there has been physical injury or property
damage, and the financial loss flows, in some manner, from that injury or damage.
Pure economic loss is loss that is solely financial.
The courts have long treated pure economic loss differently from physical
injury and property damage in negligence cases, with pure economic loss being
considered less worthy of protection. A number of rationales are offered in support
of this approach,113 but the dominant rationale, in cases involving private and
public defendants, is that liability for pure economic loss raises the spectre of
indeterminate liability.114 The assumption is that liability for physical injury and
property damage are more likely to be limited to a finite group, whereas liability
for economic loss raises the risk of “liability in an indeterminate amount for an
indeterminate time to an indeterminate class”,115 due to the interconnectedness of
the modern market economy. This risk (of indeterminate liability) is thought to
be especially inappropriate in cases involving pure economic loss, because such
losses often arise in the commercial context, where individuals can protect them-
selves, by building risk protection into a contract or taking out insurance.
113 For a succinct summary, see Martel Building v. Can. [2000] 2 S.C.R. 860, para. 37.
114 See e.g. Design Services v. Can. [2008] 1 S.C.R. 737, paras. 59-62.
115 Ultramares Corp. v. Touche, 174 N.E. 441, 444 per Cardozo C.J. (N.Y., 1931).
249
7.3(b)(i) TORT: NEGLIGENCE
At one time, recovery for pure economic loss in negligence cases was vir-
tually unknown. That is no longer the case, at least in Canada.116 The Supreme
Court of Canada has recognized five categories of case in which pure economic
loss may be recovered in a negligence action: 1) the independent liability of
statutory public authorities; 2) negligent misrepresentation; 3) negligent perfor-
mance of a service; 4) negligent supply of shoddy goods or structures; and 5)
relational economic loss.117 The Court has applied the basic two-part duty of care
framework described above in each of these five categories in determining
whether a duty of care was owed.118 However, within this framework, the Court
has also gradually been developing special principles, unique to each category,
aimed at controlling the scope of recovery for pure economic loss.119 A duty of
care will not arise in a particular case, even if the case seems to fit within one of
these categories on its face, unless these special principles are satisfied on the
facts of the case.
Two of the five categories of recognized pure economic loss are of particular
importance to public authorities. The first, the independent liability of statutory
public authorities, is important for the obvious reason that it relates specifically
to public authorities. The second, negligent misrepresentation, is important, be-
116 In the United Kingdom, in Anns v. Merton London B.C. [1978] A.C. 728 (H.L.), the House of
Lords accepted that the plaintiff could recover the cost of repairing defective foundations from
a local council, although the damage was called “physical damage”. Anns was later overruled
in Murphy v. Brentwood D.C. [1991] 1 A.C. 398 (H.L.), in part because it was thought that it
had gone too far in opening up liability for pure economic loss. In Murphy, the House of Lords
appeared to adopt a general rule of non-recovery for pure economic loss, subject only to narrow
exceptions. However, in later cases, it has appeared to ignore this rule, and to accept that pure
economic loss may be recovered, if the duty of care principles developed to control recovery
are satisfied: see e.g. Customs and Excise v. Barclays Bank plc [2007] 1 A.C. 181 (H.L.). The
latter approach was adopted in Australia (see e.g. Perre v. Apand Pty. (1999) 198 C.L.R. 180
(H.C., Aust.); Woolcock Street Investments Pty. v. C.D.G. Pty. (2004) 216 C.L.R. 515 (H.C.,
Aust.)) and in New Zealand (see e.g. Rolls Royce N.Z. v. Carter Holt Harvey [2005] 1 N.Z.L.R.
324 (C.A.)).
117 The Supreme Court drew these five categories from the work of Bruce Feldthusen: see Winnipeg
Condominium Corporation No. 36 v. Bird Construction Co. [1995] 1 S.C.R. 85, para. 12;
Design Services, note 114, above, para. 31. For detailed discussion of the five categories, see
Feldthusen (2008), note 2, above.
118 See e.g. Cooper v. Hobart [2001] 3 S.C.R. 537 (statutory public authorities); Hercules Man-
agements v. Ernst and Young [1997] 2 S.C.R. 165 (negligent misrepresentation); B.D.C. v.
Hofstrand Farms [1986] 1 S.C.R. 228 (negligent performance of a service); Winnipeg Con-
dominium, note 117, above (negligent supply of shoddy goods or structures); and Bow Valley
Husky v. Saint John Shipbuilding [1997] 3 S.C.R. 1210 (relational economic loss).
119 The Supreme Court of Canada made it clear that foreseeability of harm would not be sufficient
to establish a duty of care in cases involving pure economic loss well before Cooper. It
anticipated Cooper, by holding that, in addition to foreseeability, there must also be proximity
for a prima facie duty of care to arise: see e.g. CNR v. Norsk Pacific Steamship Co. [1992] 1
S.C.R. 1021. However, it also introduced category-specific principles that must be taken into
account in establishing proximity, and in determining whether a prima facie duty of care was
negated by residual policy considerations: see e.g. Hercules Managements, note 118, above.
250
SPECIAL CATEGORIES OF NEGLIGENCE 7.3(b)(ii)
cause it has been raised frequently in cases involving public authorities. These
two categories are discussed in further detail below. However, it is worth empha-
sizing that public authorities are open to liability for pure economic loss in all
five categories, provided the facts fit within that category, and the special prin-
ciples aimed at controlling the scope of recovery for pure economic loss specific
to that category are satisfied.120 It is also worth emphasizing that the existing
categories of recoverable pure economic loss are not closed. The courts have been
cautious in recognizing new categories, but have also emphasized that new cat-
egories may be recognized if the elements of the Anns/Cooper test are satisfied.121
(ii) Independent liability of statutory public authorities
One category of recognized pure economic loss that is obviously relevant to

public authorities is “the independent liability of statutory public authorities”.122
The name might be taken to suggest that all claims of pure economic loss involving
public authorities are to be addressed under this category. However, that is not
the case. The Supreme Court of Canada has said that this category is limited to
the exercise of peculiarly governmental functions, where the government is “in-
specting, granting, issuing or enforcing something mandated by law”.123 The
paradigmatic cases are the failure of local building inspectors to detect faulty
construction,124 and the over-zealous or careless discharge of licensing functions,
resulting in financial loss.125
The courts have been slow to articulate a clear set of principles to guide the
recovery of pure economic loss in this category. Some cases that fit directly within
120 Note, however, that some courts have expressed reservations about attempts to extend the last
four recognized categories of economic loss from cases with a clear private analogue to cases
with some sort of a public, regulatory aspect: see, e.g., Kimpton v. Can. (2002) 9 B.C.L.R. (4th)
139, para. 48 (B.C.S.C.), aff’d (2004) D.L.R. (4th) 324 (B.C.C.A.); compare James v. B.C.
[2005] 8 W.W.R. 417 (B.C.C.A.); Knight v. Imperial Tobacco Can. (2009) 313 D.L.R. (4th)
695 (B.C.C.A.), leave to appeal granted [2010] 1 S.C.R. xiv.
121 E.g. Martel Building, note 113, above; and Design Services, note 114, above.
122 As we note above (note 117), this is the description of this category used by the Supreme Court.
123 Design Services, note 114, above, para. 32.
124 E.g., from Canada, Kamloops (City) v. Nielsen [1984] 2 S.C.R. 2 (plaintiff’s foundation defec-
tive; city partially liable for cost of repair, due to failure to enforce building by-law); Rothfield
v. Manolakos [1989] 2 S.C.R. 1259 (similar decision); Ingles v. Tutkaluk Construction [2000]
1 S.C.R. 298 (similar decision); and from New Zealand, Invercargill C.C. v. Hamlin [1996]
A.C. 624 (P.C., N.Z.) (plaintiff’s foundation defective; city partially council liable for cost of
repair, due to negligent inspection of building inspector; affirming the N.Z.C.A., despite its
divergence from the House of Lords in Murphy). Compare Sutherland Shire Council v. Heyman
(1985) 157 C.L.R. 424 (H.C., Aust.) (building inspectors owe no duty of care to prevent
economic losses in carrying out building inspections); and Murphy, note 116, above (overruling
Anns, reaching the same result as Sutherland).
125 E.g. Comeau’s Sea Foods v. Can. [1997] 1 S.C.R. 12 (lobster licenses refused; not liable for
financial loss).
251
7.3(b)(ii) TORT: NEGLIGENCE
this category largely ignore it; other cases refer to it as a catch-all category that
is not governed by a single set of guiding principles, like the other categories of
pure economic loss.126 However, an exploration of the cases that clearly do fall
within this category does reveal some general trends.
These general trends are illustrated by Kamloops and Cooper, two of the
leading Supreme Court of Canada decisions in this category. In Kamloops (City)
v. Nielsen (1984),127 a municipality was held partially liable for the cost of re-
pairing the defective foundation of a house, due to its negligence in enforcing its
building by-law. Wilson J., writing for the majority of the Court, held that the
municipality owed the plaintiff (the subsequent purchaser of the house) a duty of
care, because it was reasonably foreseeable that harm would result from the failure
to enforce the by-law, and the decision whether or not to enforce the by-law was
made at the operational level; that the municipality breached this duty by failing
to enforce a stop-work order that had been issued by a building inspector; and
that there was no concern about permitting the plaintiff to recover the cost of
repairs (which was a claim for pure economic loss), because pure economic loss
fell “within the purview of the statute” from which the municipality drew its
powers.128 In contrast, in Cooper v. Hobart (2001),129 a provincial Registrar of
Mortgage Brokers was not held liable for the financial loss suffered by a group
of investors with a registered mortgage broker; the broker had used the funds for
unauthorized purposes, in violation of the applicable statutory scheme, and lost
them. McLachlin C.J. and Major J., writing for the Court, held that the Registrar
did not owe the investors a duty of care. There was no proximity, because the
Registrar and his employees had not interacted with the plaintiffs (they had not
lodged a formal complaint against the broker), and there was no evidence in the
statute of an intention to benefit this particular class of investors. However, even
if proximity had been established, any prima facie duty of care would have been
126 Exploits Valley v. College of the North Atlantic (2005) 258 D.L.R. (4th) 66, para. 25 (Nfld.
C.A.).
127 Note 124, above. The majority opinion was written by Wilson J., with Dickson C.J. and Ritchie
J. concurring; McIntyre J. dissented, with Estey J. concurring. Kamloops followed Anns, note
113, above, in accepting that a plaintiff could recover the cost of repair from a municipality.
Kamloops remains good law in Canada, but, as noted above (see note 116), Anns was overruled
by the House of Lords in Murphy, note 116, above.
128 Id., 33. The same point was made in Anns, note 116, above, 759-760. Compare Peabody Fund
v. Parkinson & Co. [1985] A.C. 210 (H.L.) (statutory power to supervise construction a public
health measure; negligence in its exercise did not permit recovery by the non-resident owner,
whose health was not at risk, of the cost of repair); and Trent Strategic Health Authority v. Jain
[2009] 1 A.C. 853 (H.L.) (no duty of care owed by local authority to owners of care homes;
the statutory powers had been enacted for the protection of care home residents, not owners).
Peabody was not followed on this point in New Zealand: see e.g. Invercargill, note 124, above
(statutory powers regulating land development not concerned only with health and safety; thus,
the cost of repair could be recovered).
129 [2001] 3 S.C.R. 537. Cooper was discussed in further detail earlier in this chapter: see sec.
7.2(c)(ii), “Proximity”, above, and sec. 7.2(c)(iii), “Residual policy considerations”, above.
252
SPECIAL CATEGORIES OF NEGLIGENCE 7.3(b)(ii)
negated by residual policy considerations, because “the decision of whether to

suspend a broker involves both policy and quasi-judicial elements”, and the
spectre of indeterminate liability would “loom large” if the Registrar was held to
owe a duty to investors.130
Both decisions illustrate the general trends evident in decisions against public
authorities involving both peculiarly governmental activity and pure economic
loss.131 The basic two-part test is applied in determining whether a duty of care
was owed — in Kamloops, the policy-operational distinction dominated the duty
of care analysis, but in Cooper, the focus of the analysis shifted to proximity,
where it remains. The decisions reveal a concern to avoid indeterminate liability
— a concern that was emphasized in Cooper, where a duty of care would have
resulted in potential liability to everyone with a regulated investment, but down-
played in Kamloops, where a city building inspector had actually inspected the
house in question and issued a stop work order.132 And finally, the courts are less
inclined to preclude recovery for pure economic loss where the statute can be
read to contemplate the type of loss claimed — a consideration that was empha-
sized in Kamloops in permitting recovery for the cost of repairs.
The application of the tort of negligence to cases involving “the independent
liability of statutory authorities” for pure economic loss will require difficult
judgments on the part of the courts. We are doubtful that there is much to be
gained by looking for evidence of a legislative intent to allow for a particular type
of economic loss. The inclination to seek refuge in the statutory scheme is un-
derstandable, but we are inclined to think that this exercise will usually involve
the search for a “will o’ the wisp”.133 However, as the courts develop the principles
to apply in cases involving pure economic loss and peculiarly governmental
activity, they are right, we think, to proceed with caution. This is preferable to
130 Compare Yuen Kun Yeu v. Attorney-General of Hong Kong [1988] 1 A.C. 175 (P.C., H.K.)
(dismissing an action for damages for negligence against a commissioner of deposit-taking
companies by investors who had suffered losses when a registered company failed); and Davis
v. Radcliffe [1990] 2 All E.R. 536 (P.C.) (no duty owed by the Isle of Man Finance Board to a
depositor with a failed bank to revoke the bank’s licence before its collapse).
131 See also Edwards v. Law Society of Upper Can. [2001] 3 S.C.R. 562 (Law Society not liable
for failure to prevent financial losses resulting from a lawyer’s misuse of a trust account, for
the same reasons given in Cooper); and Holland v. Sask. [2008] 2 S.C.R. 551 (Saskatchewan
government not liable for financial loss flowing from a failure to carry out a regulatory activity
in accordance with the authorizing acts and regulations, due to concerns about a chilling effect
and indeterminate liability, but potentially liable for the failure to implement a judicial decree).
132 In Cooper, the Registrar had no power to control the day-to-day activities of a registered
mortgage broker, and the statute imposed no limitations on the number of persons who could
invest or lend money with a registered mortgage broker; therefore, if the province was liable
for losses where the broker had acted improperly, the circumstances giving rise to liability
would be beyond the government’s control and liability would be indeterminate. In contrast,
in Kamloops, the city’s inspector had actually inspected the home and issued a stop worker
order; therefore, the group of potential claimants — those that had homes inspected by a
building inspector — was smaller.
133 The Queen v. Sask. Wheat Pool [1983] 1 S.C.R. 205, 216.
253
the alternative, in which taxpayers might effectively be enlisted as insurers of

private investments in financial institutions, while being denied the possibility of
sharing in any of the returns if the transactions prove to be profitable.134
(iii) Negligent misrepresentation
Since Hedley Byrne v. Heller (1964),135 it has been clear that a negligent
misrepresentation can give rise to tortious liability. The rules of liability for
negligence by words are somewhat more restrictive than the rules for negligence
by acts, reflecting the greater difficulty of predicting beforehand or measuring
afterwards the harmful consequences of words.136 In particular, where a negligent
misstatement gives rise to only economic loss (as opposed to physical injury to
person or property), the injured plaintiff must establish that the defendant ought
reasonably to have foreseen that the plaintiff would act in reliance on the truth of
the defendant’s statement, and that such reliance was reasonable in the particular
circumstances of the case. Foreseeable reasonable reliance is thus an additional
ingredient of the tort of negligence by misrepresentation.137
Foreseeable reasonable reliance is often present when advice is given or
information is provided by government officials, and there are now many cases
in which public authorities have been held liable for negligent misrepresenta-
tion.138 The most common cases concern inquiries made of municipalities regard-
ing the existence of zoning or other municipal restrictions on land: when the
appropriate official provides an incorrect, unqualified answer to a serious inquiry
of this kind, the municipality will be liable to the person who suffers loss by
134 This point was made in Cooper, note 129, above, para. 55.
135 [1964] A.C. 465 (H.L.).
136 The Supreme Court of Canada outlined the five general elements of a negligent misrepresen-
tation claim in Queen v. Cognos [1993] 1 S.C.R. 87, para. 33: a) there must be a duty of care
based upon a special relationship between the parties; b) the statement or advice given must
have been untrue, inaccurate, or misleading; c) the representor must have acted negligently in
making the representation; d) the representee must have reasonably relied on the misrepresen-
tation; and e) the reliance must have resulted in damages (e.g., physical injury or financial loss).
The content of the first requirement was clarified in Hercules Managements v. Ernst and Young
[1997] 2 S.C.R. 165, but these five general elements were maintained. M.L.C. v. Evatt [1971]
A.C. 793 (P.C., Aust.) imposed the requirement that the defendant be in a business or profession
holding out special competence in providing the relevant information. This requirement seems
inapt to public defendants, and has been generally disregarded, e.g., in Shaddock v. Parramatta
City Council (1981) 150 C.L.R. 225 (H.C., Aust.); Meates v. A.-G. [1983] N.Z.L.R. 308 (C.A.);
Cognos, this note, 117-118; see Aronson and Whitmore, note 2, above, 109; Fleming, note 5,
above, 707.
137 The Pas v. Porky Packers [1977] 1 S.C.R. 51, 63, 68; Shaddock v. Parramatta City Council,
previous note, 231, 250, 255; Hercules Managements, note 136, above, para. 24. Five indicia
of reasonable reliance were set out in Hercules Managements, this note, para. 43.
138 Aronson and Whitmore, note 2, above, 108-114; P. Perell, “Negligence Actions against Gov-
ernment (Part II)” (1986) 2 Admin. L.J. 2; Horsman and Morley, note 2, above, 5.30.40(2);
Klar, note 2, above, 295-296.
254
SPECIAL CATEGORIES OF NEGLIGENCE 7.3(b)(iii)
reasonably relying on the accuracy of the information.139 Public authorities have

also been held liable for wrongly certifying that land was unencumbered by a
charge;140 wrongly certifying the fitness of a truck;141 policy statements designed
to encourage regional development;142 as well as misrepresentations regarding an
employee’s pension benefits;143 the financial consequences of transferring to a
new job;144 the intended use of savings on the cost of a municipal project to supply
water;145 and the intent to rebuild an access road necessary for a development.146
Where the circumstances are such that reliance was not foreseeable147 or not
reasonable,148 there is no liability, and in a few cases excessive reliance has
resulted only in a reduction of damages on the basis that the plaintiff was con-
tributorily negligent.149
139 Windsor Motors v. District of Powell River (1969) 4 D.L.R. (3d) 155 (B.C.C.A.); Gadutsis v.
Milne [1973] 2 O.R. 503 (H.C.); H.L. & M. Shoppers v. Town of Berwick (1977) 82 D.L.R.
(3d) 23 (N.S.S.C.); Jung v. District of Burnaby (1978) 91 D.L.R. (3d) 592 (B.C.S.C.); Shaddock
v. Parramatta City Council, note 136, above; Grand Restaurants v. City of Toronto (1981) 32
O.R. (2d) 757 (H.C.), aff’d (1982) 39 O.R. (2d) 752 (C.A.); 392980 Ontario v. City of Welland
(1984) 45 O.R. (2d) 165 (H.C.); Pisano v. Fairfield City Council [1991] Aust. Torts R. 81-126
(N.S.W.C.A.); Manufacturers Life Insurance Co. v. Pitbaldo & Hoskin [2009] 2 W.W.R. 638
(Man. C.A.).
140 Minry. of Housing and Local Govt. v. Sharp [1970] 2 Q.B. 223 (C.A.).
141 Rutherford v. A.-G. [1976] 1 N.Z.L.R. 403 (S.C.).
142 Meates v. A.-G., note 136, above.
143 Spinks v. Can. [1996] 2 F.C. 563 (C.A.); Gauthier v. Can. (2000) 185 D.L.R. (4th) 660
(N.B.C.A.).
144 Commr. of Police of the Metropolis v. Lennon [2004] 1 W.L.R. 2594 (Eng. C.A.).
145 Halifax v. David (2004) 245 D.L.R. (4th) 700 (N.S.C.A.).
146 Moin v. Blue Mountains (Town) (2000) 135 O.A.C. 278 (Ont. C.A.).
147 The Pas v. Porky Packers, note 137, above (representee had more knowledge than representor).
148 Sharadan Builders v. Mahler (1978) 22 O.R. (2d) 122 (C.A.) (municipality could not speak for
conservation authority); San Sebastian v. The Minister (1986) 162 C.L.R. 340 (H.C., Aust.)
(not reasonable to rely on general policy statement issued by local authority in making devel-
opments); Serendipity Ventures v. White Rock (1990) 43 B.C.L.R. (2d) 90 (B.C.C.A.) (not
reasonable to rely on statements of city staff regarding rezoning, which were aimed at helping
the plaintiff’s rezoning application); Apex Mountain Resort v. B.C. (2001) 204 D.L.R. (4th)
176 (B.C.C.A.) (not reasonable to rely on statements of various politicians regarding intention
to keep a highway free of blockades); Tepko Pty. v. Water Bd. (2001) 206 C.L.R. 1 (H.C.,
Aust.) (not reasonable to rely on estimates of the Water Board about the cost of connecting
water to a proposed subdivision); and Premakumaran v. Can. [2007] 2 F.C.R. 219 (C.A.) (not
reasonable to rely on representations about Canada made in printed brochures given by immi-
gration officials before immigrating).
149 H.B. Nickerson & Sons v. Wooldridge (1980) 115 D.L.R. (3d) 97 (N.S.A.D.); Grand Restaurants
v. City of Toronto, note 139, above; Sirois v. L’Association des Enseignants (1984) 8 D.L.R.
(4th) 279 (N.B.Q.B.).
255
7.3(c) TORT: NEGLIGENCE
(c) Nonfeasance
The law of negligence distinguishes between misfeasance (a positive act that

causes harm) and nonfeasance (a failure to act to prevent harm caused by natural
forces or a third party). As a general rule, the courts are reluctant to impose
negligence liability for nonfeasance, absent some “special link” or relationship
between the plaintiff and the defendant that gives rise to an obligation to take
positive action for the plaintiff’s benefit.150 A “special link” or relationship of this
sort may exist where: a) the defendant intentionally attracts and invites the plaintiff
to an inherent risk that the defendant has created or controlled; b) the defendant
is in a paternalistic relationship of supervision and control with the plaintiff, such
as parent-child or teacher-student; or c) the defendant exercises a public function
or engages in a commercial enterprise that includes implied responsibilities to the
public at large. The common threads linking these three situations are that the
defendant is somehow materially implicated in the creation or control of a risk of
harm, and the plaintiff reasonably relies on the defendant to avert that risk. This
combination — of material implication and reasonable reliance — gives rise to a
“special link” or relationship that requires the defendant to take positive action
for the plaintiff’s benefit.
Public authority negligence cases regularly involve nonfeasance. The alle-
gation in such cases is typically that a particular public authority unreasonably
failed to confer a statutory benefit, resulting in damage to the plaintiff;151 or that
a public authority had the obligation (in the form of a statutory duty) or authority
(in the form of a statutory power) to avert or minimize a foreseeable harm, but
unreasonably failed to do so, with the result that the harm materialized.152
It is possible to identify two general views as to whether, and if so, when, it
is appropriate for claims of this sort to succeed. The first is that the distinction
between misfeasance and nonfeasance does not apply with equal force in cases
involving public authorities and private defendants. On this view, there is less of
a problem holding public authorities liable in negligence for nonfeasance. The
primary argument made in support of this view is that the justifications for the
general rule of non-recovery — respecting individual autonomy, economic effi-
150 This paragraph draws from Childs v. Desormeaux [2006] 1 S.C.R. 643, paras. 31-40.
151 E.g. Comeau’s Sea Foods v. Can. [1997] 1 S.C.R. 12 (failure to issue lobster licenses; no
liability for financial loss). The boundary between nonfeasance and misfeasance is often not
clear cut. For example, in Comeau’s Sea Foods, the plaintiff’s lobster licenses were actually
authorized, and the plaintiff acted in reliance on that authorization, but the authorization was
later withdrawn, before the licenses were actually issued. It might be argued that, due to the
revocation of this initial authorization, this is not a simple case of nonfeasance.
152 E.g. Kamloops (City) v. Nielsen [1984] 2 S.C.R. 2 (city liable for failure to enforce a stop-work
order issued by a city building inspector); Cooper v. Hobart [2001] 3 S.C.R. 537 (Registrar of
Mortgage Brokers not liable for failure to avert financial loss caused by mortgage broker); and
Odhavji Estate v. Woodhouse [2003] 3 S.C.R. 263 (Chief of Police potentially liable for failure
to ensure that police officers cooperate with an internal investigation).
256
SPECIAL CATEGORIES OF NEGLIGENCE 7.3(c)
ciency, and the problem of attribution, or “why me?”153 — do not apply with the
same force in cases involving public authorities as they do in cases involving
private defendants.154 Public authorities, unlike private defendants, have a statu-
tory mandate to confer certain benefits and to prevent or reduce certain harms.
Thus, there is less of a concern about protecting individual autonomy, because a
public authority’s freedom of choice is already restricted by its statutory mandate.
There is less of a concern about economic inefficiency, because public authorities
are already charged with providing certain benefits and averting certain harms,
and it may be more efficient for them to act than for society to bear the cost of
the plaintiff’s injury. And there is less of a concern with “why me?”, because
public authorities are distinguished from the public at large by their statutory
mandate, and in some cases, they alone will have the legal authority to act.
This view was reflected in the cases applying the old Anns/Kamloops test.155
Applying that test, public authorities were held liable for, among other things, the
failure to enforce a stop-work order (Kamloops),156 the failure to stop a fire
(Laurentide Motels),157 and the failure to inspect a building foundation (Ingles).158
In all three cases, the public authority was not directly responsible for the damage
that resulted. The fault of the public authority was in failing to use statutory
powers to prevent or reduce damage caused by a third party. However, the
distinction between misfeasance and nonfeasance did not figure prominently in
the decisions, if at all. What the cases decided, building on the decision of Lord
Wilberforce in Anns v. Merton London Borough Council (1978),159 was that a
public authority, possessing a statutory power, was not able to avoid liability by
remaining idle, like a private person. There was of course no affirmative duty to
exercise a statutory power: that would erase any difference between a statutory
power and a statutory duty. But a statutory power was conferred for a public
purpose, and it did entail an element of duty. The element of duty was to consider
whether or not to exercise the power. A decision not to exercise the power, if it
was the result of a policy decision, would be immune from attack, even if the
failure to act caused private damage. However, a failure to act that was not the
product of a policy decision (because it was inadvertent, or it was made at the
operational level) could give rise to liability, if the other elements of the tort were
held to be established.160
153 For a succinct account, see Stovin v. Wise [1996] A.C. 923, 943-944 per Lord Hoffman (H.L.).
154 See e.g. Craig, Administrative Law (6th ed., 2008), 973.
155 See further sec. 7.2(b), “The Anns/Kamloops Test”, above.
157 Laurentide Motels v. Beauport [1989] 1 S.C.R. 705.
158 Ingles v. Tutkaluk Construction [2000] 1 S.C.R. 298
159 [1978] A.C. 728 (H.L.).
160 The attitude towards the distinction was clearly captured by Wilson J. in Kamloops, who said
that the municipality was not entitled to “take any comfort from the distinction between non-
feasance and misfeasance where there is a duty to act or, at the very least, to make a conscious
decision not to act on policy grounds” (24).
257
The second view as to the extent that public authorities ought to be held
liable for nonfeasance is that the general rule of non-recovery for nonfeasance
applies with equal force in cases involving public authorities and private defen-
dants.161 On this view, a public authority should only be held liable in negligence
for nonfeasance where a private citizen would be liable, and the general rule of
non-recovery has an important role to play in cases involving public authorities.
Support for this view is typically not sought in the traditional justifications offered
for the general rule of non-recovery. Support is, rather, typically found in the
sorts of concerns outlined at the beginning of this chapter.162 Prominent among
these concerns are that, absent a general rule limiting recovery for nonfeasance,
the courts may inappropriately interfere with decisions that ought to be left to the
political process, and public authorities may be exposed to indeterminate liability
flowing from the failure to exercise statutory powers and duties.
This view was reflected in the decision of the House of Lords in East Suffolk
Rivers Catchment Board v. Kent (1940).163 In that case, the plaintiff was a farmer
whose land was flooded as a result of a breach in a sea wall. The Board, which
had a statutory power to repair such breaches, took on the job of repairing the
breach. However, because of the inefficient way in which the work was carried
out, the repair took much longer than was necessary (164 days rather than 14
days). The plaintiff sued the Board for damages for negligence in failing to repair
the breach with reasonable diligence. The House of Lords dismissed the action.
The House of Lords pointed out that, even if the Board had decided to do nothing
to repair the breach, the plaintiffs would have been unable to sue, for the Board’s
decision would have been properly within its statutory discretion. The same reason
precluded suit when the Board decided to repair the breach inadequately. Lord
Romer clearly captured the prevailing view: “[w]here a statutory authority is
entrusted with a mere power, it cannot be made liable for any damage sustained
by a member of the public by reason of a failure to exercise that power. If, in the
exercise of their discretion, they embark upon an execution of that power, the
only duty they owe to any member of the public is not thereby to add to the
damage which he would have suffered had they done nothing”.164 The question
as to whether the Board had acted reasonably in the circumstances was, suggested
Lord Romer, “a question involving the consideration of matters of policy and
sometimes the striking of a just balance between the rival claims of economy and
thrift”.165
161 See e.g. Feldthusen (2008), note 2, above, ch. 6.

162 See sec. 7.1, “Definition of negligence”, above.
163 [1941] A.C. 74 (H.L.).
164 Id., 102.
165 Id., 103. East Suffolk reflected the orthodox position until Anns (Anns is discussed in the text
accompanying notes 152-157). However, Anns was later overruled in Murphy v. Brentwood
D.C. [1991] 1 A.C. 414 (H.L.), in part because it was thought that it had gone too far in opening
up public authorities to liability for nonfeasance. Subsequent decisions in the United Kingdom
seem to reflect a return to East Suffolk: see e.g. Stovin, note 153, above (local authority not
258
SPECIAL CATEGORIES OF NEGLIGENCE 7.3(c)
Under the Anns/Cooper approach to establishing a duty of care, the Supreme

Court of Canada has struck a middle ground of sorts between these two opposing
views. This middle-ground approach is evident in Fullowka v. Pinkerton’s of
Canada (2010).166 Recall that in that case, which was discussed in some detail
above, one issue was whether the Northwest Territories was liable in negligence
for the failure of its mine inspectors to prevent the murders of nine mine workers
by a striking miner (Warren).167 Cromwell J., writing for the Court, held that mine
inspectors did owe the miners a duty of care. The mine inspectors did not actually
murder the mine workers; the claim turned on the failure of the mine inspectors
to avert their deaths. Cromwell J. emphasized that, in such a case, both foresee-
ability of harm and proximity were required to establish a duty of care. In this
case, the mine inspectors had a statutory duty to inspect the mine, and to order it
closed if they considered it unsafe. The inspectors had been physically present in
the mine on many occasions. And the inspectors had identified specific and serious
risks to an identified group of miners, and knew that the steps being taken to
protect them were proving ineffective. These factors, taken together, were suffi-
cient to establish proximity. The Court of Appeal had emphasized that it was
inappropriate to recognize a positive duty, because the government had no control
over Warren, and recognizing a duty to act would interfere with its autonomy.
Cromwell J. disagreed. It was misleading, he said, to speak of an absence of
control, because, although the government had no direct physical control of
Warren, it did have statutory obligations that gave it a significant measure of
control. There was also no concern about protecting autonomy. The government
was not a ‘mere bystander’; it had statutory responsibilities relating to mine safety,
and “its autonomy (if that is a useful concept in the case of the government) gave
way to its statutory duties”.168 The mine inspectors were held to owe a duty of
care, but this duty of care was held not to be breached on the facts of the case.
The reasoning in Fullowka shows that the Court is not inclined to treat the
distinction between misfeasance and nonfeasance with the same weight in cases
involving public authorities as it does in cases involving private defendants. The
Court emphasized the statutory responsibilities that mine inspectors have in re-
lation to mine safety. This negated any concerns about lack of control and indi-
vidual autonomy, concerns that figure prominently in nonfeasance cases involving
private defendants.169 However, the decision also shows that the Court regards
the distinction between misfeasance and nonfeasance to be a relevant considera-
tion, and is concerned to place limits on the scope of public authority liability for
liable for failure to order removal of obstruction to visibility at intersection); and Gorringe v.
Calderdale Metropolitan B.C. [2004] 1 W.L.R. 1057 (H.L.) (local authority not liable for failure
to paint a SLOW sign on the road).
166 [2010] 1 S.C.R. 132.
167 See sec. 7.2(c)(ii), “Proximity”, above.
168 Fullowka, note 166, above, para. 66.
169 See e.g. Childs, note 150, above (social host not liable for accident caused by guest who left
party drunk).
259
nonfeasance. The Court required the plaintiffs to prove both foreseeability and
proximity before recognizing a positive duty. In finding proximity, the Court
emphasized that the mine inspectors had actually inspected the mine repeatedly,
and that the duty alleged was limited to a finite group of miners working in the
mine. This established a link between the miners and the mine inspectors, distin-
guishing the miners from the public as a whole, and addressing any concerns
about indeterminate liability.
When will public authorities be open to liability for nonfeasance under this
approach? The courts have not provided a definitive answer to this question,
preferring to let the principles unfold case-by-case. However, a number of things
seem fairly clear from the decided cases:
1) A public authority will not be open to liability for nonfeasance unless a duty
of care was owed. It is still the basic two-part Anns/Cooper test that will be
applied in determining whether a duty of care was owed, but particular em-
phasis will be placed on the proximity stage of the duty of care analysis. As
noted in more detail above,170 statutory responsibilities in relation to the par-
ticular risk of harm will be a relevant factor in determining whether there was
sufficient proximity. However, it is unlikely that such responsibilities will
alone be sufficient; it will generally be necessary to point to others factors,
arising from the actual relationship between the parties, to establish the req-
uisite “close and direct” relationship.171 In addition, the duty claimed must be
consistent with, and complementary to, the performance by the public author-
ity of its statutory functions: a court will almost certainly refuse to recognize
a duty of care that would conflict with the statutory scheme, or that would
require the public authority to act without legal (statutory) authority.
2) Proximity is more likely to be held to be established in a nonfeasance context
where a public authority knows that a specific person (or group) is at a risk of
harm, beyond that faced by the public as a whole; this person is a member of
a vulnerable group, in the sense that he or she could not reasonably be expected
to adequately safeguard his or her own interests; and the public authority is in
a position to control (and thus avert or minimize) the particular risk of harm
by the exercise of its statutory functions.172 This arguably captures the situation
in Fullowka.173
170 See sec. 7.2(c)(ii), “Proximity”, above.

171 Cooper, note 152, above (Registrar of Mortgage Brokers not liable for failure to avert financial
loss caused by broker); Edwards v. Law Society of Upper Can. [2001] 3 S.C.R. 562 (Law
Society of Upper Canada not liable for failure to avert financial loss caused by lawyer who
misused his trust account); Reference re Broome v. P.E.I. [2010] 1 S.C.R. 360 (province not
liable for failure to avert abuse suffered by children while in a privately-operated children’s
home, and noting that statutes “do not generally . . . give rise to private law duties of care”).
172 Compare Pyrenees Shire Council v. Day (1998) 192 C.L.R. 330 (H.C., Aust.) (local authority
liable for failure to avert fire started by defective chimney); and Crimmins v. Stevedoring
Industry Finance Committee (1999) 200 C.L.R. 1 (H.C., Aust.) (Committee liable for failure
260
SPECIAL CATEGORIES OF NEGLIGENCE 7.6(d)(i)
3) Proximity is also more likely to be held to be established in a nonfeasance

context where the plaintiff and the public authority are in a paternalistic
relationship “of supervision and control, such as parent-child or teacher-stu-
dent”.174 In such cases, the duty of care arises by virtue of the relationship of
supervision and control, and it is probably not necessary that there be actual
knowledge of a risk of harm for a duty to arise. This arguably captures those
cases in which positive duties to act have been held to be owed, for example,
to foster children and prison inmates.175
(d) Peculiarly governmental activity

(i) Evolution of liability for peculiarly governmental activity
Negligence claims against public authorities often involve activity that has
no clear private analogue. The formulation and enforcement of construction
standards or food and drug safety standards; the licensing and regulation of
to protect plaintiff from harmful effects of asbestos). There are a number of different approaches
set out in the various opinions. However, Todd, in “Liability in Tort of Public Bodies”, in
Mullany and Linden (eds.), Torts Tomorrow (1998), 55, identified the factors in the text as the
common factors in Pyrenees, and his synthesis was largely endorsed by McHugh J. in Crimmins,
this note, paras. 91-94. See also Couch v. A.-G. [2008] 3 N.Z.L.R. 324 (S.C.) (positive duty
owed to assault victim by probation service, emphasizing similar considerations). In later cases,
the majority of the High Court of Australia has indicated that Pyrenees and Crimmins should
be understood as turning on control: see, e.g., Brodie v. Singleton Shire Council (2001) 206
C.L.R. 512, 559 (H.C., Aust.); see also Graham Barclay Oysters Pty. v. Ryan (2002) 211 C.L.R.
540 (H.C., Aust.) (no duty on state and local governments to reduce the risk of oyster contam-
ination, emphasizing a lack of control); and Stuart v. Kirkland-Veenstra (2009) 237 C.L.R. 215
(H.C., Aust.) (no duty owed by police officers to apprehend a person who was a known risk
for suicide, emphasizing a lack of statutory power to apprehend).
173 Is not entirely clear from Fullowka whether control must be simply de jure, or de jure and de
facto. In other words, is the legal (de jure) authority to avert the risk of harm enough to confer
control? Or is the public authority also required to enter the field, giving it some measure of de
facto control? And if de facto control is required, is it enough that the public authority has
decided to devote its resources to the relevant class of risk of harm, or is the public authority
required to assume some measure of control in relation to the plaintiff’s particular risk of harm?
These types of questions are raised (but not firmly resolved) in the Australian cases: see, e.g.,
Graham, note 172, above.
174 This is one of three positive duties referred to by the Supreme Court of Canada in Childs: note
150, above, para. 36. The other two — which were described in the first paragraph of this
section — would clearly apply to public authorities as well. Indeed, the Court cited a case
involving the police in providing support for the last category: see Doe v. Metropolitan Toronto
(Municipality) Commrs. of Police (1998) 39 O.R. (3d) 487 (Gen. Div.).
175 See, e.g., K.L.B. v. B.C. [2003] 2 S.C.R. 403 (foster children); Wiebe v. Can. [2007] 2 W.W.R.
598 (Man. C.A.), leave to appeal refused [2007] 1 S.C.R. xvi (prison inmates); Barrett v. Enfield
London B.C. [2001] 2 A.C. 550 (H.L.) (children taken into care); Reeves v. Commr. of Police
of the Metropolis Area [2000] 1 A.C. 360 (H.L.) (prison inmates). However, lack of knowledge
of a specific risk of harm is likely to be an important consideration in determining whether the
duty was breached. In addition, causation often raises special problems in nonfeasance cases:
see e.g. Wiebe, this note (not established that assault by other inmate would not have occurred).
261
7.6(d)(i) TORT: NEGLIGENCE
commercial activities and professions; the investigation and prevention of crime

— these are but a few of the examples of the sorts of peculiarly governmental
activities that might form the basis of a negligence action.
The initial reaction of courts to allegations of negligence in the exercise of
peculiarly governmental functions was to deny the existence of any common law
duty of care to persons at risk. In Gibson v. Young (1899),176 the Supreme Court
of New South Wales vehemently denied that a prisoner, who had been directed
to work with a defective steam engine, could sue the prison authorities for damages
for the loss of an eye. In The King v. Anthony (1946),177 the Supreme Court of
Canada held that a farmer whose barn had been destroyed by fire could not sue
the Crown for the acts of a soldier in casually firing off live ammunition while
driving along a public highway.178 In Revesz v. Commonwealth (1951),179 the
Supreme Court of New South Wales held that an importer could not sue the
Crown for the careless loss of the plaintiff’s application to import goods, which
delayed the importation and caused the plaintiff to pay a higher rate of customs
duty. In Cleveland-Cliffs Steamship Co. v. The Queen (1957),180 the Supreme
Court of Canada held that the Crown was not liable to a shipowner whose ship
was grounded because a buoy had been misplaced by officials of the Department
of Transport. In the last case, Rand J. said that “the primary duty of Crown
servants is to the Crown; and the circumstances in which the servant can, at the
same time, come under a duty to a third person are extremely rare”.181
The courts’ reluctance to impose common law duties of care on officials
exercising peculiarly governmental functions is now a thing of the past. It is no
longer true that such cases are “extremely rare”, as Rand J. asserted in 1957.182
We have already noticed the Kamloops183 case, which imposed liability for neg-
ligence in the enforcement of construction standards.184 It is now common for the
Crown to be held liable for accidents to prison inmates, on the basis that the police
and corrections officials are under a duty to take reasonable care for the safety of
176 (1899) 21 L.R. (N.S.W.) (L.) 7 (F.C.).

177 [1946] S.C.R. 569.
178 The soldier may well have been on a frolic of his own and outside the course of employment, but
the same could not be said for the supervising officer who failed to stop the dangerous activity.
179 (1951) 51 S.R. (N.S.W.) 63 (F.C.).
180 [1957] S.C.R. 810.
181 Id., 814.
182 However, commentators have noted that it has become more difficult to succeed in negligence
claims against the government since the release of the decision in Cooper, with its emphasis
on proximity: see, e.g., Klar, “The Tort Liability of the Crown”, note 43, above, 293.
184 See also Rothfield v. Manolakos [1989] 2 S.C.R. 1259; Ingles v. Tutkaluk Construction [2000]
1 S.C.R. 298. Compare Sutherland Shire Council Heyman (1985) 157 C.L.R. 424 (H.C., Aust.);
and Murphy v. Brentwood D.C. [1991] 1 A.C. 398 (H.L.).
262
SPECIAL CATEGORIES OF NEGLIGENCE 7.6(d)(i)
those in their custody.185 Prison authorities have even been held potentially liable
for the damage done by escaped prisoners to a private person’s yacht, on the basis
that the police and the authorities owed a duty of care to the owner of the yacht
to prevent their charges from escaping and causing damage.186 The Crown has
been held liable for various errors in the provision of navigation facilities: failure
to warn of a dam;187 failure to maintain range lights in position;188 and careless
dredging.189 The operation of an airport190 and the maintenance of the highways
have attracted liability when appropriate warning signs have not been posted to
alert users to danger,191 and when dangerous rocks have not been removed from
the rock face above the roadway.192 And municipalities have been held liable for
the damage caused by a fire, due to the failure to maintain fire hydrants in working
order,193 and to ensure compliance with a letter stating that a fireplace should not
be used unless it was repaired.194 The case reports are replete with other examples
where public authorities have been held liable for peculiarly governmental
activity.195
185 E.g., Ellis v. Home Office [1953] 2 All E.R. 149 (C.A.); Morgan v. A.-G. [1965] N.Z.L.R. 134
(S.C.); Danard v. The Queen [1971] F.C. 417 (T.D.); MacLean v. The Queen [1973] S.C.R. 2;
Dixon v. State of W.A. [1974] W.A.R. 65 (S.C.); L. v. Cth. (1976) 10 A.L.R. 269 (N.T.S.C.);
Nada v. Knight (1990) Aust. Torts Reports ¶81-023.
186 Dorset Yacht Co. v. Home Office [1970] A.C. 1004. Compare Toews v. MacKenzie [1980] 4
W.W.R. 108 (B.C.C.A.) (no duty of care owed to person injured in automobile accident caused
by prisoner on temporary pass); Fortey v. Can. [1999] 10 W.W.R. 600 (B.C.C.A.); Reeves,
note 175, above; Bujdoso v. N.S.W. [2004] NSWCA 307 (C.A.). See further Booth and Squires,
note 2, above, ch. 11.
187 Hendricks v. The Queen [1970] S.C.R. 237.
188 The Queen v. Nord-Deutsche [1971] S.C.R. 849.
189 Caltex Oil v. Willemstad (1976) 136 C.L.R. 529 (H.C., Aust.).
190 Grossman v. The King [1952] 1 S.C.R. 571. See also Swanson v. Can. [1992] 1 F.C. 408 (C.A.)
(liable for failure to ensure that airline operator complied with safety regulations).
191 Fisher v. Ruislip-Northwood Urban District Council [1945] K.B. 584 (C.A.); Schacht v. The
Queen [1973] 1 O.R. 221 (C.A.). Compare Sheppard v. Glossop Corp. [1921] 3 K.B. 132
(C.A.); Haydon v. Kent County Council [1978] 1 Q.B. 343 (C.A.); Vairy v. Wyong Shire Council
(2005) 223 C.L.R. 422 (H.C., Aust.).
192 Just v. B.C. [1989] 2 S.C.R. 1228 (liability was imposed at a new trial: (1991) 60 B.C.L.R. (2d)
209 (S.C.)); Lewis v. B.C. [1997] 3 S.C.R. 1145; Mochinski v. Trendline Industries [1997] 3
S.C.R. 1176; and Brodie, note 172, above. Compare Brown v. B.C. [1994] 1 S.C.R. 420; and
Swinamer v. N.S. [1994] 1 S.C.R. 445. See further Booth and Squires, note 2, above, ch. 15.
193 Laurentide Motels v. Beauport [1989] 1 S.C.R. 705. Compare Capital & Counties Plc. v.
Hampshire County Council [1997] Q.B. 1004 (C.A.) (fire fighters; no duty); OLL v. Secretary
of State for Transport [1997] 3 All E.R. 897 (C.A.) (coast guard; no duty); Kent v. Griffiths
[2001] Q.B. 36 (C.A.) (ambulance; duty owed).
194 Pyrenees Shire Council v. Day (1998) 192 C.L.R. 330 (H.C., Aust.).
195 See further Linden and Feldthusen, note 2, above, ch. 17, discussing the Canadian cases; and
Booth and Squires, note 2, above, for a comprehensive review of the cases, from a United
Kingdom perspective.
263
7.3(d)(ii) TORT: NEGLIGENCE
(ii) Military activity

Military activity is uniquely governmental196 – and often dangerous. No
doubt, this is why the federal Crown Liability and Proceedings Act, by section 8,
exempts the Crown from tortious liability:
. . . in respect of anything done or omitted in the exercise of any power or authority
exercisable by the Crown, whether in time of peace or of war, for the purpose of the
defence of Canada or of training, or maintaining the efficiency of, the Canadian
Forces.
This provision is a sweeping immunity for military activty, drawing no distinction
between war and peace; between combat, training and discipline; or between
injured civilians and injured members of the forces.
The United Kingdom, Australia, New Zealand and the United States have
not enacted any such blanket immunity, leaving the courts to adapt the common
law to the unique characteristics of military activity. We have already noticed the
decision of the Supreme Court of Canada in The King v. Anthony,197 which was
decided before the enactment of the armed forces immunity in the Crown Liability
and Proceedings Act. In that case, the careless firing of a tracer bullet into the
plaintiff’s barn caused the barn to burn to the ground. Even if the soldier who
fired the shot was on a frolic of his own, the neglect of the superior officers with
whom he was travelling ought to have given rise to liability in negligence. This
would obviously have been the outcome if the malefactors were civilians who
had been firing weapons into the countryside. Compare the Australian case of
Parker v. Commonwealth (1965).198 In that case, the High Court of Australia held
that the Commonwealth was liable in tort for the death of a civilian who happened
to be on board one of two Australian naval vessels that collided with each other.
The cause of the collision was negligence on the part of the officers and crews of
the two ships, and the Commonwealth was vicariously liable for their negligence.
This case establishes that, in the absence of statutory immunity, members of the
armed services do owe a duty of care to civilians in appropriate circumstances.
The collision in Parker occurred in peacetime. In Shaw Savill & Albion Co.
v. Commonwealth (1940),199 the High Court of Australia held that, during “active
operations against the enemy”, the members of the armed forces owe no duty of
care to civilians. That case arose out of another collision caused by the Australian
navy. During the second world war, a ship of the Australian navy, the Adelaide,
while pursuing a directed course without lights, collided with and sank a merchant
196 McArthur v. The King [1943] Ex. C.R. 77 decided that a member of the armed forces was not
an officer or servant of the Crown, so that the Crown was not liable for the negligence of a
member of the armed forces. This decision was reversed by statute. A new s. 50A of the
Exchequer Court Act, now s. 36 of the Crown Liability and Proceedings Act, provides that a
member of the armed forces (or of the Royal Canadian Mounted Police) is deemed to be a
servant of the Crown.
197 [1946] S.C.R. 569.
198 (1965) 112 C.L.R. 295 (H.C., Aust.).
199 (1940) 66 C.L.R. 344 (H.C., Aust.).
264
SPECIAL CATEGORIES OF NEGLIGENCE 7.3(d)(ii)
vessel. The owner of the merchant vessel sued the Commonwealth of Australia
for damages, alleging negligence on the part of the naval officers and crew who
set the course and controlled the Adelaide. The Commonwealth pleaded in de-
fence that the Adelaide was engaged in active operations against the enemy in
the then state of war. On an application made before the trial, the High Court of
Australia held that this plea, if established at the trial, would be a good defence.200
Neither the members of the armed forces nor the Commonwealth was liable in
negligence for acts performed during active operations of war.201
The Shaw Savill decision was followed in the United Kingdom in Mulcahy
v. Ministry of Defence (1996).202 In that case, an injured soldier sued the Crown,
alleging negligence on the part of another soldier, who (according to the pleadings)
had carelessly fired an artillery piece while the plaintiff was in an unsafe position
in front of the gun. The Court of Appeal held that, because the injury occurred
during active operations of war (it was the Gulf War of 1991), the soldier who
fired the gun owed no duties of care to anyone. The plaintiff’s action was therefore
dismissed.
Shaw Savill accords to the members of the armed forces and the Crown a
blanket immunity from liability for negligence during active operations of war.203
It would perhaps have been preferable to regard operations of war as a vital
circumstance affecting the reasonableness of actions taken by the armed forces.
In nearly all cases, the exigencies of war would justify acts that caused damage
to civilians, and there would be no liability.204 But a case could arise in which
injury to a civilian, although caused during operations of war, was completely
unjustified by the exigencies of war. In that case, the civilian ought to be com-
pensated by a cause of action in damages. To be sure, it would be a difficult task
for the courts to decide whether or not a particular action was reasonably justified
200 The Commonwealth was apparently unable to establish its plea at the trial, because Dixon J.
mentioned in A.-G. (N.S.W.) v. Perpetual Trustee Co. (1952) 85 C.L.R. 237, 251-252 (H.C.,
Aust.), that he had awarded damages to the plaintiff at the trial.
201 Starke J.’s reasoning differed from that of the other members of the court (Rich A.C.J., Dixon,
McTiernan and Williams JJ.). Starke J. alone held that the Commonwealth’s immunity from
suit was because “matters done or omitted in the conduct of an operation or act of war . . . are
not justiciable”, and that the immunity might be durante bello only, so that on the restoration
of peace the courts would have jurisdiction to determine whether the acts complained of were
justified (356-357).
202 [1997] Q.B. 732 (C.A.).
203 See also Perre v. Apand (1999) 198 C.L.R. 180, para. 47 (H.C., Aust.); Cattanach v. Melchior
(2003) 215 C.L.R. 1, para. 58 (H.C., Aust.); D’Orta-Ekenaike v. Vic. Legal Aid (2005) 223
C.L.R. 1, paras. 101-102 (H.C., Aust.)
204 Such acts would probably also be justified under the prerogative powers that were considered
in Burmah Oil Co. v. Lord Advocate [1965] A.C. 75, 110 (H.L.), in which it was held, in obiter,
that there was no obligation to pay compensation for “battle damage”, i.e., “accidental and
deliberate damage done in the course of fighting operations”. Injury caused to enemy civilians
outside the jurisdiction would also be immunized by the “act of state” doctrine: see ch. 8, Tort:
Liability of Servants, under heading 8.2(b), “Act of state”, below.
265
7.3(d)(ii) TORT: NEGLIGENCE
by the exigencies of war, but the Shaw Savill rule requires the courts to make the
equally difficult judgment as to whether or not the allegedly negligent action
occurred during active operations of war.205
The Mulcahy case shows that the Shaw Savill immunity from negligence
during active operations of war precludes not only actions by civilians, but also
actions by members of the armed forces who are injured by the negligence of
other members of the armed forces.206 In Canada, the statutory immunity from
legal proceedings arising out of military activity in time of peace and war that is
enacted by section 8 of the federal Crown Liability and Proceedings Act would
also preclude actions by both civilians and members of the armed forces. In
addition, in Canada, section 9 of the same Act provides that proceedings by an
injured person are barred if a pension or compensation is payable by the Crown
in respect of the injury.207 In New Zealand, there is a similar statutory bar.208
These provisions often have the effect of precluding actions for negligence by
injured members of the armed forces. In the United Kingdom, there was a similar
statutory bar until 1987, when it was lifted,209 leaving the common law action
205 This criticism of the Shaw Savill decision was expounded (admittedly at excessive length) in
the first edition of this book (1971) at 94-96. It does not seem to have won any converts. For
explicit rejection of the first edition’s criticism, see Groves v. Cth. (1982) 150 C.L.R. 113, 117
(H.C., Aust.); Mulcahy v. Minry. of Defence, note 202, above, 748; Aronson and Whitmore,
note 2, above, 153.
206 See also D’Orta, note 203, above, para. 360 per Callinan J.
207 The purpose of this section is to prevent double recovery, and thus it bars a claim only where
the facts giving rise to the entitlement to a pension or compensation were the same or substan-
tially the same as the facts giving rise to the claim: Sarvanis v. Can. [2002] 1 S.C.R. 921
(section does not bar tort claim where an individual has received disability benefits under the
Canada Pension Plan); see also Begg v. Can. (2004) 261 D.L.R. (4th) 36 (F.C.A.) (section bars
tort claim where plaintiff was awarded compensation under a statutory compensation scheme);
Lebrasseur v. Can. 2007 FCA 330 (C.A.) (section bars tort claims where plaintiff was awarded
a disability pension under the Royal Canadian Mounted Police Superannuation Act). The section
will bar claims that are not framed in tort (e.g., claims for breach of fiduciary duty), where the
claim is “essentially” a tort claim: Dumont v. Can. [2004] 3 F.C.R. 338 (C.A.); Prentice v. Can.
(2005) 264 D.L.R. (4th) 742 (F.C.A.), leave to appeal refused [2006] 1 S.C.R. xiii. The section
will also bar claims where a plaintiff has not yet received, but is simply entitled to, a pension
or compensation: Dumont, this note, para. 73. However, the section does not bar claims against
Crown servants that were not acting within the scope of their employment: Young v. McCreary
(2002) 53 O.R. (3d) 257 (C.A.); it is not “plain and obvious” that the section bars Charter
claims: Dumont, this note, para. 78; and it remains unclear whether the section bars tort claims
involving intentional misconduct, rather than negligence: Young, this note, para. 11; and Brown-
hall v. Can. (2007) 87 O.R. (3d) 130, paras. 40, 100-101 (Div. Ct.).
208 Crown Proceedings Act 1950 (N.Z.), s. 9. See also Visiting Forces Act 2004 (N.Z.), s. 21,
which provides that claims for damage, loss or injury caused by a member of a visiting force
or the use of its equipment may be pursued against the Crown rather than against the visiting
force or any of its members.
209 Crown Proceedings Act 1947 (U.K.), s. 10, was repealed by the Crown Proceedings (Armed
Forces) Act 1987 (U.K.). However, that Act makes provision for the revival of the bar in time
of emergency, and the bar was only abolished prospectively. The statutory immunity in the
1947 Act relating to military activity was held not to violate the right to a fair trial protected
266
INVALIDITY 7.4
available in addition to any pension or compensation. In the United States, where

there is no statutory bar, the Supreme Court has held that the United States is
immune from tortious liability to members of the armed services “where the
injuries arise out of or are in the course of activity incident to service”.210 This
curious doctrine is said to be justified by the special relationship between the
government and members of the armed forces.
In Australia, where there is also no statutory bar, the High Court of Australia
has now decided that a member of the armed forces may sue the Commonwealth
for the negligence of a fellow member of the forces. In Groves v. Commonwealth
(1982),211 the plaintiff was a member of the Australian Air Force who was injured
when he was climbing out of an aircraft onto the ground; he was using a folding
ladder, which collapsed because locking pins had not been set in place. (The
accident occurred during routine peacetime duties, so that the Shaw Savill im-
munity during active operations of war was not relevant.) The Court held that the
Commonwealth possessed no immunity from an action for negligence in the
circumstances of this case.212 The plaintiff’s fellow crew members, who set up
the ladder, owed a duty of care to the plaintiff; and they and, vicariously, the
Commonwealth would be liable for injury caused by breach of that duty.213
The Groves decision settles the law for Australia, and no doubt for the United
Kingdom as well, now that the statutory bar has been removed in that jurisdic-
tion:214 the Crown is liable to members of the armed forces for the negligence of
other members of the forces, provided the immunity in Shaw Savill is not engaged.
7.4 Invalidity
The basic rule of liability, in cases involving public authorities,215 is that an
act (or omission) gives rise to liability in tort only if (1) it is invalid (meaning that
by Art. 6 of the European Convention on Human Rights in Matthews v. Minry. of Defence

[2003] 1 A.C. 1163 (H.L.).
210 Feres v. U.S. (1950) 340 U.S. 135, 146, 161; U.S. v. Shearer (1985) 473 U.S. 52; U.S. v.
Johnson (1987) 481 U.S. 661; U.S. v. Stanley (1987) 483 U.S. 669.
212 Accord, Verwayen v. Cth. (No. 2) [1989] V.R. 712 (F.C.) (Commonwealth liable to member of
Royal Australian Navy injured by collision of naval ships caused by negligence of officers and
crew).
213 The Court disapproved an obiter dictum to the contrary in Parker v. Cth., note 198, above, 302,
and described the American doctrine of immunity as “unique to that jurisdiction”.
214 The United Kingdom case law on actions between members of the forces prior to the enactment
of the statutory bar is reviewed by McCardie J. in Heddon v. Evans (1919) 35 T.L.R. 642
(K.B.). The Mulcahy case, note 202, above, was decided after the lifting of the statutory bar,
and the plaintiff soldier’s proceedings were dismissed only because the injury occurred during
active operations of war. There are now various lower courts decisions in the United Kingdom
holding the Crown liable for military activities: the case law is considered in some detail in
Booth and Squires, note 2, above.
215 Legal authority will also provide a defence in cases involving private defendants; the common
267
it was committed without legal authority), and (2) it is a tort (meaning that it
satisfies the ingredients of a recognized head of tortious liability). These two
requirements were discussed in the previous chapter, in the context of a discussion
about tort law in general.216 They apply to negligence cases, just as they apply to
other tort cases in which a public authority is the defendant.
How do the courts determine whether an otherwise negligent act or omission
is legally authorized?217 It is possible to identify two answers to this question in
the cases. One answer is that legal authorization is to be treated as a simple matter
of statutory interpretation.218 In theory, this approach tracks the approach to legal
authorization applied to the other torts. Legal authorization is a defence to an
otherwise valid claim. A negligent act or omission is committed with legal au-
thority if it is authorized either expressly or by necessary implication. And a
negligent act or omission will be authorized by necessary implication only where
the damage that results is the inevitable or necessary result of the exercise of a
statutory duty or power. However, in practice, the issue of legal authorization will
rarely, if ever, arise in a negligence case under this approach, and the issue of
legal authority will typically be disposed of by a finding of liability. This is
because it is a basic presumption of statutory interpretation that statutory duties
and powers will be exercised without negligence.219 This presumption is hard to
overcome, because legislatures do not typically explicitly authorize the sorts of
acts or omissions that a court would be likely to find negligent,220 and negligence
is, by definition, usually avoidable, and thus not inevitable.221 Thus, if a public
authority is found to have committed the tort of negligence, it will usually be the
case under this approach that the public authority has also acted without legal
authority.222 Invalidity will flow from a finding of negligence liability.
law always gives way to sufficiently clear statutory language. However, the issue is not fre-
quently raised in that context.
216 See ch. 6, Tort: General Principles, under heading 6.4, “Lack of legal authority”, above.
217 See generally A.M. Linden, “Strict Liability, Nuisance and Legislative Authorization” (1966)
4 Osgoode Hall L.J. 196; and T.R. Hickman, “The Reasonableness Principle” (2004) 63
Cambridge L.J. 166.
218 Legal authority can also be conferred by the prerogative power, but as we note in the previous
chapter, that is now rare: see ch. 6, Tort: General Principles, under heading 6.4(c), “Compen-
sation under prerogative”, above.
219 This is simply an application of the more basic presumption that statutes do not authorize acts
or omissions that would be tortious at common law: see Metropolitan Asylum District v. Hill
(1881) 6 App. Cas. 193, 213 (H.L.).
220 Legislatures that want to ensure that legal liability does not attach to certain acts or omissions
usually enact immunity clauses that directly confer immunity, rather than taking the much
riskier step of authorizing particular acts or omissions, and hoping that this authorization is
found by a court to be sufficiently clear to negate liability.
221 Probably the only situation where negligence might be held to be implicitly — as opposed to
explicitly — authorized is where there was no way of pursuing a particular statutory goal
carefully, without causing injury.
222 This may explain why the issue of legal authority is often largely ignored in negligence cases.
268
INVALIDITY 7.4
This approach is evident in Geddis v. Proprietors of Bann Reservoir

(1878).223 In that case, the House of Lords decided that the defendants, in exer-
cising statutory powers to supply water to local industry, were liable in damages
to a landowner whose property was flooded by the overflow of a blocked channel.
The defendants were careless in allowing silt to collect in and block the channel.
The defence of statutory authority did not succeed, because the House of Lords
held that it was an implicit requirement of the statute that the powers be exercised
with reasonable care to avoid damage to others. The House of Lords did not deny
that the result would have been different if the statute included explicit language
allowing the defendants to act carelessly; but not surprisingly, the statute did not
include any such language. Nor did the House of Lords deny that the result would
also have been different if it was impossible to supply water without allowing silt
to block the channel; but not surprisingly, this had not been established. The
finding of liability was thus a finding of invalidity, on the theory that the legislature
could not be taken to have authorized avoidable damage caused by the defendants’
negligence.224
The competing answer to the question of how a court is to determine whether
a negligent act or omission is legally authorized is to treat legal authorization as
a matter of public law, to be decided by applying administrative law principles
of judicial review. On this approach, legal authority is not a defence to an other-
wise valid claim; rather, lack of legal authority is a pre-condition to negligence
liability. An act or omission will lack legal authority on this approach if it is ultra
223 (1878) 3 App. Cas. 430 (H.L.).

224 In his opinion, Lord Blackburn wrote that: “no action will lie for doing that which the legislature
has authorized, if it be done without negligence, although it does occasion damage to anyone;
but an action does lie for doing that which the legislature has authorised, if it be done negligently”
(Id., 455-456). This passage might be read to suggest that negligence in the exercise of statutory
functions in itself gives rise to a cause of action for damages. But this view has been rejected.
Negligence in the exercise of statutory functions does not give rise to liability, absent proof of
a common law duty of care: see e.g. Holland v. Sask. [2008] 2 S.C.R. 551, para. 9. The passage
might also be taken to suggest that negligence cannot ever be legally authorized. But this cannot
be right: the law of tort is not some supra-legislative principle of constitutional law, and must
yield to clear statutory language. The passage must be read in context. In the very next sentence,
Lord Blackburn was careful to note that the word negligence was being given a special meaning:
“if by a reasonable exercise of the powers, either given by statute to the promoters, or which
they have at common law, the damage could be prevented it is, within this rule, ‘negligence’
not to make such reasonable exercise of their powers”. Thus, the passage, properly understood,
means only that statutory authority (in the form of a a broadly-framed statutory duty or a
statutory power) provides no defence to a negligence action, unless the defendant public
authority took every reasonable precaution, in the exercise of its discretion, to avoid causing
damage, and damage was still the result: compare X. v. Bedfordshire C.C. [1995] 2 A.C. 633,
732-35 (H.L.); and Ryan v. Victoria (City) [1999] 1 S.C.R. 201, para. 39. This simply restates
the idea that avoidable damage will not be held to be legally authorized by a grant of statutory
discretion.
269
vires as a matter of public law, applying the principles underlying one or more of
the grounds of judicial review.225
This approach appeared to be at work in various decisions of the Federal
Court of Appeal dealing with the issue of collateral attack.226 In these decisions,
the Court of Appeal held that civil (including tort) claims challenging the decisions
of federal boards, commissions or other tribunals must, as a general rule, be
preceded by an application for judicial review in the Federal Court.227 The deci-
sions were open to two readings. On one reading, the decisions turned on the
interpretation of various statutory provisions conferring jurisdiction on the Federal
Court; they did not endorse the view that, as a matter of principle, judicial review
was the only appropriate way to determine whether the decision of a public
authority was invalid.228 But on another reading, the decisions did in fact link
questions of invalidity with judicial review, as a matter of principle. Either way,
the issue made its way to the Supreme Court of Canada. In a series of six appeals,
released concurrently,229 the Court resoundingly rejected the Court of Appeal’s
holding that successfully challenging the decision of a federal public authority
on judicial review was, as a general rule, a necessary precondition to bringing an
action for damages with respect to that decision. The Court noted that there was
225 The various grounds are discussed in Jones and de Villars, Principles of Administrative Law
(5th ed., 2009).
226 See, in particular, Grenier v. Can. [2006] 2 F.C.R. 287 (C.A.); Manuge v. Can. [2009] 4 F.C.R.
478 (C.A.) (appeal allowed [2010] 3 S.C.R. 672). The Court of Appeal did not limit its holding
to negligence claims. But the holding was raised frequently in respect of negligence claims,
probably for the simple reason that negligence is the most important ground of liability in the
law of torts; and in courts outside Canada, negligence claims have provided the backdrop for
disputes as to these conflicting approaches to legal authority (see notes 215, 224). That is why
we have chosen to discuss the issue in this chapter, rather than in chapter 6, Tort: General
Principles, under heading 6.4, “Lack of legal authority”, above.
227 This view was also prominent for a time in the United Kingdom. Some decisions seemed to
suggest that a necessary precondition of liability in negligence was that the public authority
had acted ultra vires as a matter of public law: see Dorset Yacht Co. v. Home Office [1970]
A.C. 1004, esp.1067-1068 per Lord Diplock (H.L.). Other decisions rejected the resort to public
law principles, but then indirectly incorporated some version of those same principles into
negligence actions against public authorities: see X v. Bedfordshire, note 224, above, 736 per
Lord Browne-Wilkinson. This aspect of this case law was intensely criticized, and the House
of Lords has now distanced itself from it, gesturing in the direction of its earlier approach in
Geddis: see Barrett v. Enfield London B.C. [2001] 2 A.C. 550 (H.L.); and Phelps v. Hillingdon
London B.C. [2001] 2 A.C. 619 (H.L.). For further discussion and criticism of the case law, see
Fairgrieve (2003), note 2, above, 41-51; and Booth and Squires, note 2, above, 42-62.
228 The statutory interpretation argument has already been considered in a prior chapter and will
not be discussed again here: see ch. 2, Remedies, under heading 2.10(a), “Availability”, above.
229 The lead decision is Can. v. TeleZone [2010] 3 S.C.R. 585. The other five decisions, which
adopt and apply the reasoning in TeleZone, are: Can. v. McArthur [2010] 3 S.C.R. 626; Parrish
& Heimbecker v. Can. [2010] 3 S.C.R. 639; Nu-Pharm v. Can. [2010] 3 S.C.R. 648; Canadian
Food Inspection Agency v. Professional Institute of the Public Service of Can. [2010] 3 S.C.R.
657 (discussing the situation under the civil law in Quebec); and Manuge v. Can. [2010] S.C.R.
672.
270
INVALIDITY 7.4
“no principled reason”230 for such an approach, and it affirmed the first view, that
legal authorization is a “defence to a damages action” that turns “on whether the
statute either explicitly or implicitly authorized the act that caused the harm”.231
In our view, the Court was right to adopt this approach. The competing
approach — that an act or omission will lack legal authority only if it is held to
be ultra vires as a matter of public law, applying the principles underlying one or
more of the grounds of judicial review — has a number of problems, including,
most notably, problems of delimitation.232 If an employee of a public authority
carelessly drives a car, causing injury, it would be ridiculous to require the injured
person to establish that the employee had acted ultra vires as a matter of public
law, before proceeding to consider whether there ought to be liability for negli-
gence. But how would we distinguish cases where a public law hurdle of this sort
was required from cases where it was not? Answering this question would no
doubt prove difficult, leading to continuing litigation, and imposing significant
barriers and costs on litigants who have legitimate legal claims.233
The argument for a public law approach to invalidity draws upon concerns
for institutional competence and the separation of powers. The argument is that
the first approach would be inappropriate, because invalidity would usually turn
on a finding of negligence, and the law of negligence does not accord the same
deference234 to statutory grants of decision-making authority as administrative
law. Thus, the courts would end up scrutinizing matters that they are ill-equipped
to consider, due to a lack of technical expertise, and that ought to be left to the
political process, not unaccountable judges. There are two possible responses to
this argument.
One response is to accept that the law of negligence may not accord the
same level of deference to government decision-making as administrative law,
but to argue that this is not a problem, because tort law and administrative law
serve different functions. Administrative law is “the means by which the courts
230 TeleZone, previous note, para. 19.

231 Id., paras. 69, 71; see also McArthur, note 229, above, para. 15; and Parrish, note 229, above,
para. 20.
232 Fairgrieve (2003), note 2, above, 45-46.
233 The Federal Court of Appeal carved out a major exception for negligence claims: judicial
review was a prerequisite only where the decision of a public authority was challenged; it was
unnecessary where the execution of that decision was challenged: see e.g. Manuge, note 226,
above, para. 58. But the line between decision and execution is less than clear, and the Court
did not deny that judicial review would be a necessary prerequisite where a claim for damages
involved allegations that a decision was taken negligently: see e.g. Parrish & Heimbecker v.
Can. [2009] 3 F.C.R. 568 (C.A.), (appeal allowed [2010] 3 S.C.R. 639), which involved claims
for negligent misrepresentation and negligence that were caught by the decision in Grenier,
note 226, above.
234 On judicial review, a court will be called upon to determine whether a decision is “reasonable”
or “correct”. The decision as to which standard of review applies is important, as it determines
the deference that a reviewing court will accord to an inferior tribunal’s decision. See Dunsmuir
v. N.B. [2008] 1 S.C.R. 190, paras. 52-64.
271
supervise those who exercise statutory powers, to ensure that they do not overstep
their legal authority”.235 Tort law, in contrast, is the means by which compensation
is provided for the wrongful exercise of those statutory powers. The Supreme
Court of Canada appeared to adopt this view in supporting its decision in the
collateral attack cases,236 discussed in more detail above.237 The problem with this
response, however, is that it accepts that acts or omissions that are valid as a
matter of public law can be negligent or otherwise tortious as a matter of private
law.238 As Hickman has noted, it is “hardly satisfactory” for the judicial system
to send public authorities mixed signals in respect of the same conduct, depending
simply on the way the claim is framed.239 After all, the reasons for judicial restraint
in respect of certain matters are similar in both areas of the law, regardless of
their functions.
The better response, in our view, is that both approaches to legal authority
are likely to produce the same result, and thus, there is no need to resort to
administrative law principles of judicial review. This is because the courts have
already addressed the concern to avoid the improper interference with government
decision-making in formulating the principles to be applied in public authority
negligence cases.240 Accordingly, although a finding of invalidity will not auto-
matically give rise to tort liability,241 it will generally be the case that conduct that
235 Id., para. 28.

236 See TeleZone, note 229, above, paras. 24-31.
237 See text accompanying notes 223-228.
238 See, in particular, TeleZone, note 229, above, para. 28 (“a government decision that is perfectly
valid may nevertheless give rise to liability . . . in tort”); see also Comeau’s Sea Foods Ltd. v.
Can. [1997] 1 S.C.R. 12, paras. 51-52; Finney v. Barreau du Québec [2004] 2 S.C.R. 17, para.
31; Crimmins v. Stevedoring Industry Finance Committee (1999) 200 C.L.R. 1, paras. 81-83,
216-218 (H.C., Aust.); Barrett, note 227, above, 572, 585; Phelps, note 227, above, 653; and
A.-G. v. Body Corporate No. 200200 [2007] 1 N.Z.L.R. 95, paras. 48-49 (C.A.).
239 Hickman, note 217, above, 176; see also Woolf et al, De Smith’s Judicial Review (6th ed.,
2007), 934.
240 These concerns have, as noted in this chapter, been addressed at the duty of care stage of the
analysis, in determining whether there was sufficient proximity, and in determining whether a
policy or operational decision was implicated. However, the courts have also indicated that the
standard of care that is required of a public authority in order to avoid breaching a duty of care
may also be modulated in line with the nature of the task involved, and the resources and
responsibilities of the public authority: see e.g. Just v. B.C. [1989] 2 S.C.R. 1228, 1243-1244;
Stovin v. Wise [1996] A.C. 923, 956-957 (H.L.); Pyrenees Shire Council v. Day (1998) 192
C.L.R. 330, 371, 394 (H.C., Aust.); and Couch v. A.-G. [2008] 3 N.Z.L.R. 725, paras. 34-36
(S.C.). It has been argued in the United Kingdom (where there is more academic discussion of
the issue) that these types of statements show that the standard of “reasonableness” in admin-
istrative law and tort law are not that different, or are converging: see, in particular, Hickman,
note 217, above; but also Bailey and Bowman (2000), note 2, above, 114; Fairgrieve (2003),
note 2, above, 49-51; and Cornford, note 2, above, 72-74, 143.
241 See ch. 6, Tort: General Principles, under heading 6.5(a), “Recognized heads of liability”,
above. On the approach we argue for here, the issue of invalidity and liability is elided, but
only in the sense that negligence generally equals invalidity, not in the sense that invalidity
automatically gives rise to liability in tort.
272
REFORM 7.5
is negligent (meaning in breach of a common law duty of care) will also be invalid
(meaning not legally authorized). There is thus no need to complicate public
authority negligence cases by looking to administrative law in determining
whether a public authority has acted without legal authority. Such an approach is
simply likely to prove unnecessarily costly and time-consuming.
7.5 Reform
The foregoing review of the law indicates a generally successful adaptation

of the law of negligence to the activities of public authorities. The two-stage
Anns-Cooper test, in which the courts determine whether there is a prima facie
duty of care and then assess whether there are any policy considerations that
ought to limit or negative liability, has proven itself to be highly flexible. To be
sure, the requirements that must be satisfied in order to establish that a public
authority owed a common law duty of care have shifted over time, and remain
imprecise. But similar comments could be made about the negligence doctrines
that are applicable to private activity. So long as negligence remains the most
important tort, there seems to be no good reason why it should not apply to
governmental activity as well as to private activity.
It has been suggested that governmental liability in tort should be governed
by law that differs from private liability. One idea would premise liability on a
“risk” theory, under which the government would compensate for all unusual
losses caused by governmental activity, regardless of negligence. Another idea
would premise liability on an “entitlement” theory, under which government
would compensate for all entitlements that had been denied to citizens. These
ideas were discussed in the previous chapter, chapter 6, Tort: General Principles.242
Their common infirmity lies in the vagueness and unfamiliarity of the controlling
ideas of risk, unusual loss and entitlement. It is surely much better to allow the
courts to continue to refine the familiar doctrines of negligence than to engage in
a radical legislative intervention which would provide no assurance of an im-
provement in the law, and might indeed err, either in the direction of providing
insufficient redress for government-caused injuries, or in the direction of exposing
the Crown and other public bodies to intolerably high liabilities.
242 Under heading 6.6, “Reform”, above.
273
8
Tort: Liability of Servants
8.1 Personal liability in general 275

8.2 State necessity 276
(b) Act of state 277
8.3 Legal authority 278
8.4 Statutory immunity 279
8.5 Judicial immunity 283
(a) Common law protection 283
(b) Superior court judges 284
(c) Inferior court judges 286
(d) Statutory protection 289
8.6 Prosecutorial immunity 292
8.7 Immunity from defamation proceedings 298
(a) Judicial proceedings 298
(b) High executive communications 299
(c) Critique of immunity 301
8.1 Personal liability in general

The personal liability of Crown servants for torts committed by them has
always been a feature of the common law and indeed Dicey regarded it as one of
the tenets of his “rule of law”.1 Dicey overlooked the fact that, when he wrote in
1885, the Crown itself in England was not vicariously liable for the torts of its
servants; but now that that immunity has been destroyed,2 it is broadly true to say
that the ordinary rules governing liability for torts committed by servants apply
to the Crown and its servants. When a Crown servant commits a tort, the servant
is personally liable;3 this is so even if the tort is committed in the course of
employment, but in that case the Crown is liable as well. Only the servant who
actually commits a tort is personally liable, and only the Crown – the master – is

2 See ch. 6, Tort: General Principles, under heading 6.1, “History”, above.
3 Morton v. Bartlett (1874) 15 N.B.R. 215 (N.B.A.D.) (train conductor employed by Crown
liable in tort for putting passenger off the train).
8.2(a) TORT: LIABILITY OF SERVANTS
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.4 It would be otherwise if the superior servant had actually ordered the
commission of the tort, but in that case the superior would be liable directly for
his or her own act;5 the superior servant cannot be liable vicariously.
A public corporation that is an agent (or servant) of the Crown is generally
in the same situation as an individual Crown servant. The corporation will be
liable in its own right if it commits a tort directly, which would occur, for example,
if its governing body passed a resolution ordering the commission of the tort. The
corporation will not be liable vicariously for the torts of its servants, because the
Crown itself is their true employer, the corporation being just a superior servant.
The liability in tort of a corporation that is an agent of the Crown is more fully
examined in chapter 16, Crown Agents.6
Some of the topics considered in the previous two chapters, dealing with the
tortious liability of the Crown, are also relevant to the liability of a Crown servant.
For example, the servant is not liable for acts done with legal authority,7 for acts
that are not tortious,8 or for acts at the policy level of government.9
8.2 State necessity

(a) General rule
Milton followed the common law when he described necessity as “the ty-
rant’s plea”. The general rule is that “state necessity” is no defence to a tort action
against a Crown servant. The fact that the defendant is a high officer of state,10 or
was acting under the authority of a high officer of state,11 or was acting in pursuit
4 Bainbridge v. Postmaster-General [1906] 1 K.B. 178 (C.A.) (Postmaster-General not liable for
torts committed by subordinates); Conseil des Ports Nationaux v. Langelier [1969] S.C.R. 60,
72 (“a servant of the Crown cannot be made liable vicariously for a tort committed by a
subordinate. The subordinate is not his servant but is, like himself, a servant of the Crown”).
5 Roncarelli v. Duplessis [1959] S.C.R. 121 (Premier of Quebec liable for wrongly ordering a
subordinate to cancel the plaintiff’s liquor licence). For other examples, see Lunt v. Lloyd (1881)
21 N.B.R. 202 (N.B.A.D.) (master of dredge liable for ordering crew to put out anchor in a
dangerous place); Bigras v. Tasse (1917) 40 O.L.R. 415 (Ont. A.D.) (foreman liable for ordering
workman to light a fire which spread).
6 Under the headings, 16.4, “Liability of Crown agent”, 16.4(d), “Tort”.
7 Chapter 6, Tort: General Principles, under heading 6.4, “Lack of legal authority”, above.
8 Id., under heading 6.5, “Commission of a tort”, above.
9 Chapter 7, Tort: Negligence, under heading 7.2(b)(ii), “The policy/operational distinction”,
above.
10 Musgrave v. Pulido (1879) 5 App. Cas. 102 (P.C., Jamaica) (Governor of Jamaica); Roncarelli
v. Duplessis, note 5, above (Premier of Quebec).
11 Entick v. Carrington (1765) 19 St. Tr. 1030 (K.B.); Feather v. The Queen (1865) 6 B. & S.
257, 296-297, 122 E.R. 1191, 1205 (K.B.); Raleigh v. Goschen [1898] 1 Ch. 73, 77.
276
STATE NECESSITY 8.2(b)
of essential governmental ends,12 or was acting in compliance with a treaty,13 is

irrelevant. Such a defence would be equally unavailing if the defendant were the
Crown itself, for the Crown is vicariously liable whenever the servant who com-
mitted the tort would have been, assuming of course that the tort was committed
in the course of the servant’s employment. Lord Pearce stated the position in these
terms: “it has long been one of the liberties of the subject that when a wrong is
done to him by the executive he cannot be shut out from justice by the faceless
plea of an act of state”.14 In general,15 only a legal power, conferred either by
statute or the prerogative, will justify an executive act that would otherwise be
tortious.16
(b) Act of state
“Act of state”17 is a defence, however, to an action brought by an alien where

(1) the act complained of was committed outside the jurisdiction, and (2) the act
complained of was either committed on the order of the Crown or was subse-
quently ratified by the Crown.18 It is unclear whether the defence is available to
an action by a citizen where the act was committed outside the jurisdiction.19
However, the defence is probably not available to an action by an alien where the
act was committed within the jurisdiction, unless the alien was an enemy alien.20
An act will not qualify as an “act of state” unless it was committed on the
orders of the Crown or was subsequently ratified by the Crown. Plainly this
12 Entick v. Carrington, previous note.

13 Walker v. Baird [1892] A.C. 491 (P.C., Nfld.).
14 A.-G. v. Nissan [1970] A.C. 179, 224 (H.L.).
15 An exception is the immunity of members of the armed forces engaged in active operations of
war: see ch. 7, Tort: Negligence, under heading 7.3(d)(ii), “Military activity”, above.
16 The term “necessity” is sometimes used to describe some legal doctrines that are not directly
related to liability in tort, e.g., the prerogative power of wartime destruction recognized in
Burmah Oil Co. v. Lord Advocate [1965] A.C. 75 (H.L.); the doctrine of “executive necessity”
recognized in The Amphitrite [1921] 3 K.B. 500 as a defence to a breach of contract; and
necessity in a time of constitutional break-down: Re Manitoba Language Rights [1985] 1 S.C.R.
721.
17 Note that this is distinct from sovereign state immunity, which, with certain exceptions, im-
munizes “foreign states” from the jurisdiction of another state’s courts: see State Immunity
Act, R.S.C. 1985, c. S-18; and ch. 17, Federal Questions, under heading 17.2, “State immunity
in international law”, below.
18 See Buron v. Denman (1848) 2 Ex. 167, 154 E.R. 450; A.G. v. Nissan, note 14, above; and
generally A. Perreau-Saussine, “British Acts of State in English Courts” (2007) 78 Brit. Y. Int’l
L. 176.
19 See A.-G. v. Nissan, note 14, above, 207-213 per Lord Reid (defence not applicable to British
subjects), 231-235 per Lord Wilberforce (defence applicable to British subjects); and Al Jedda
v. Secretary of State for Defence [2009] EWHC 397, paras. 74-86 (Q.B.) (adopting Lord
Wilberforce’s view in Nissan); see also Wade and Forsyth, Administrative Law (10th ed., 2009),
714-716 (arguing for a geographical, not nationality-based approach).
20 Johnstone v. Pedlar [1921] 2 A.C. 262 (H.L.); and Street, Governmental Liability (1953), 51.
277
8.3 TORT: LIABILITY OF SERVANTS
excludes an act by a subordinate official on his or her own responsibility (unless

it is subsequently ratified), but the cases do not make clear at what level in the
hierarchy of government the decision must have been taken.21 The answer may
tentatively be ventured that the decision to command or ratify must have been
taken by cabinet or at least by an individual minister.22 If the decision could be
taken at a lower level, then it is difficult to see why it could not be taken by the
servant who committed the act, provided of course that he or she was acting
within the general scope of his or her duties; but in fact the requirement of a prior
order or a subsequent ratification is well settled.
It is worth noting that the leading cases about the defence of “act of state”
are older cases from the United Kingdom. There are no recent cases affirming the
defence in Canada,23 and a Canadian court may be reluctant to accede to a claim
of “act of state”, in keeping with the greater willingness of the courts to scrutinise
the Crown’s exercise of prerogative powers in relation to foreign affairs.24 How-
ever, if a Canadian court did decide to affirm the defence, it would be open to a
claimant to argue that it should not apply where the Canadian government or its
officials engage in clear violations of international law or fundamental human
rights.25
8.3 Legal authority
Government would be impossible if Crown servants were in all respects on

an equal footing with private persons. Many acts of Crown servants are authorized
by statute (or the prerogative), in which case the acts cannot be tortious. Legal
authority is a defence to a tort action against the Crown or a Crown servant.26
However, the defence is available only where the statute itself is constitutional,27
21 The question is briefly adverted to by Lord Reid in A.-G. v. Nissan, note 14, above, at 212.
22 Another possibility is that the decision to command or ratify must have been taken by the
“directing mind” of the appropriate government department: see The Truculent [1952] P. 1.
23 Doubts have been raised about the defence in Australia: see Ali v. Cth. [2004] VSC 6, paras.
18-20 (Vic. S.C.).
24 E.g., Can. v. Khadr [2010] 1 S.C.R. 44, paras. 33- 37; see also Christian v. The Queen [2006]
UKPC 47, para. 33 per Lord Woolf (P.C., Pitcairn Islands) (suggesting that it may be necessary
“to explore the limits of the act of state doctrine”, because there is now “a greater willingness
on the part of the courts to scrutinise the use by the Crown of prerogative powers”), and Ch. 1,
Introduction, under heading 1.5(b), “Crown prerogative”, above.
25 An argument along these lines was adopted in considering the extra-territorial application of
the Charter: R. v. Hape [2007] 2 S.C.R. 292, paras. 50-52; Can. v. Khadr [2008] 2 S.C.R. 127;
and Khadr (2010), note 24, above.
26 See ch. 6, Tort: General Principles, under heading 6.4, “Lack of legal authority”, above; ch. 7,
Tort: Negligence, under heading 7.4, “Invalidity”, above.
27 See generally C.L. Pannam, “Tortious Liability for Acts Performed under an Unconstitutional
Statute” (1966) 5 Melbourne U.L. Rev. 113; and Hogg, Constitutional Law of Canada (5th ed.,
2007, annually supplemented), ch. 58.4, “Acts done under unconstitutional law”.
278
STATUTORY IMMUNITY 8.4
and the decision made under the authority of the statute is valid,28 in the sense
that the statute authorizes, explicitly or implicitly, an act or omission that would
otherwise be tortious. If a court decides that the statute is unconstitutional, or that
the statute does not provide the requisite legal authority for the decision, the
decision will be invalid, and the defence of legal authority will be unavailable.
This result may seem particularly harsh. The Crown servants charged with
enforcing the unconstitutional statute may honestly have believed on reasonable
grounds that the statute was constitutional. Similarly, the Crown servants charged
with making the invalid decision, or with enforcing it, may honestly have believed
on reasonable grounds that the decision was valid. Nevertheless, they are person-
ally liable, if they act tortiously,29 because neither an invalid decision nor an
unconstitutional statute can clothe their acts with the required legal authority.30
8.4 Statutory immunity

The personal liability of Crown servants who act bona fide pursuant to
apparent (though not actual) legal authority is justifiable when the Crown itself
is immune from suit. There are then two innocent parties, the Crown servant and
the subject whose rights have been invaded, and one must bear the loss. Of the
two, the Crown servant is the person who should be made to bear the loss. He or
she comes to the job with knowledge of possible liability; he or she can insure
against that liability, and he or she can seek an indemnity from the Crown.
28 Rubinstein, Jurisdiction and Illegality (1965), ch. 6.

29 The requirement that the act or omission be tortious limits the situations in which a public
official will be held liable notwithstanding an honest and reasonable belief in validity or
constitutionality: see, e.g., Fullowka v. Pinkerton’s of Can. [2010] 1 S.C.R. 132, paras. 83-90
(good faith reliance by government officials on legal advice as to the lack of legal authority to
act satisfying the standard of care in a negligence claim).
30 Note, however, that the Supreme Court of Canada has been quite reluctant to find either the
Crown or individual Crown servants liable in tort where Crown servants act, in good faith, in
reliance on apparent (although not actual) legal authority, or fail to act, in good faith, in reliance
on apparently (although not actually) absent legal authority: see Guimond v. Que. [1996] 3
S.C.R. 346 (damages not available under s. 24 of the Charter for loss caused by government
officials acting under the “claim of right” of a law subsequently held to be unconstitutional,
with language suggesting that this applies to civil claims generally (paras. 14-15)); and Ful-
lowka, previous note, paras. 83-90 (good faith reliance on legal advice as to the lack of legal
authority to act satisfying standard of care in a negligence claim). The basic point remains
valid: the invalid decision or unconstitutional statute cannot itself operate to block a claim;
however, good faith reliance on apparent (or apparently absent) legal authority may preclude
a finding of liability (Fullowka) or provide a defence (Guimond) for other reasons (in Guimond,
e.g., the fear of deterring Crown servants from acting with “decisiveness and judgment” (para.
15)). See also Vancouver (City) v. Ward [2010] 2 S.C.R. 28, paras. 39-43, affirming the “claim
of right” defence in the context of Charter damages.
279
Now that the Crown itself is liable vicariously for the torts of its servants,
the risk of personal liability of Crown servants is much diminished. In practice,
a plaintiff will want to sue the Crown with its deep pockets, rather than an
individual who may be unable to satisfy a judgment. The plaintiff will normally
be interested in establishing the liability of the servant only in order to fasten
vicarious liability on the Crown. The servant need not be named as defendant at
all. In many cases, however, it is prudent for the plaintiff to join the responsible
servant as a co-defendant. There may be some doubt as to whether the servant
was acting in the course of employment when the tort was committed, or there
may be doubt as to whether the Crown, if it were the only defendant, would tender
the appropriate person to be examined on discovery. These are among the reasons
why individual Crown servants are still apt to be sued in tort.
Many commentators take the view that some degree of immunity from
tortious liability should be conferred by statute upon individual Crown servants.31
It is argued that a damages award against a Crown servant is an unpredictable
and usually disproportionately severe penalty to impose on a person who has
acted in good faith in the intended execution of his or her duties.32 It is also argued
that the risk of personal liability could lead to overly cautious (risk-averse) be-
haviour on the part of Crown servants whose jobs call for vigorous action but
who are fearful of being sued.33
As explained in an earlier chapter,34 many jurisdictions do in fact grant
immunity from personal liability to many or all of their Crown servants. The
common practice is to include a privative clause in a statute establishing a de-
partment or agency of government; the clause immunizes the employees within
that department or agency from liability for damages for acts done in good faith
in the intended execution of their duties.35 This immunity extends to errors in
31 Rubinstein, note 28, above, 145-147; Pannam, note 27, above; Aronson and Whitmore, Public
Torts and Contracts (1982), 20-21, 150-157; S.K. McCallum, “Personal Liability of Public
Servants: An Anachronism” (1984) 27 Can. Pub. Admin. 611, 614-615; D.S. Cohen, “Regu-
lating the Regulators: The Legal Environment of the State” (1990) 40 U. Toronto L.J. 213,
219-231.
32 It is assumed that the government’s internal disciplinary procedures would be effectively
employed against incompetent or over-zealous public servants.
33 This has been identified as a problem in the United States: Schuck, Suing Government (1983),
79-81. The concern was also raised in Rowling v. Takaro Properties [1987] 1 A.C. 473 (P.C.,
N.Z.) and Guimond v. Que. [1996] 3 S.C.R. 347, para. 15. See also Note, “Government Tort
Liability” (1998) 111 Harv. L.R. 2009, which argues that because government officials are
likely to pursue strategies to minimize personal risk, individual goverment employees should
not be liable in tort; instead, the government should assume all such liability in order to provide
effective compensation for victims of tortious conduct.
34 See ch. 6, Tort: General Principles, under heading 6.2(d)(ii), “Statutory immunity clauses”,
above.
35 The protection is extended even to actions without specific statutory authority, as long as there
was a good faith intent to perform a duty or exercise a power genuinely believed to be prescribed
by statute. See Stenner v. B.C. (1996) 141 D.L.R. (4th) 122, 135, 136 (B.C. C.A.).
280
STATUTORY IMMUNITY 8.4
judgment as long as the official acted honestly and had no reason to have been
aware of the mistake.36 However, it does not provide any shield from liability for
knowingly unlawful conduct, or deliberate excess of jurisdiction,37 or, it would
seem, serious carelessness or recklessness.38 Furthermore, the court will construe
such statutory provisions limiting the individual’s right to legal proceedings
narrowly, and resolve any ambiguity in favour of the party whose right of action
would be truncated.39
A notable example of the narrow construction of statutory immunity clauses
is a decision of the Ontario Court of Appeal suggesting that statutory exemption
clauses may not shield government officials from claims for contribution or
indemnity as joint tortfeasors. In Ukrainian (Fort William) Credit Union v. Nesbitt
Burns (1997),40 a credit union had sued a financial advisor for negligence. The
financial advisor had joined the Deposit Insurance Corporation of Ontario
(“DICO”), a statutory body that was responsible for regulating the plaintiff credit
union, as a third party. DICO argued that the third party claim against it was
barred by a statutory exemption clause, which provided that “[n]o action or other
proceeding for damages shall be instituted against [DICO],. . . for any act done
in good faith in the execution or intended execution of a duty. . .”.41 Osborne J.A.,
writing for the Court of Appeal, held that the exemption clause did not bar the
third party claim, reasoning that a claim for contribution and indemnity as a joint
36 See M. (M.I.) v. H. (T.) (1991) 82 D.L.R. (4th) 609, 620, 621 (B.C.C.A.). Note, however, that
in this case the Court seems to suggest that if the officials “ought to have known” that their
decision was mistaken, the statutory “good faith” defence would not have applied. In our view,
this is an overly narrow interpretation of the statutory exemption, which ought to cover all
cases of genuine belief, not just those where the belief is reasonable. This view was adopted in
Dorman Timber v. B.C. (1997) 152 D.L.R. (4th) 271, paras. 56-72 (B.C.C.A.) (citing Chaput
v. Romain [1955] S.C.R. 834).
37 See Boucher v. Milner (1997) 155 D.L.R. (4th) 106, 111 (N.B.C.A.).
38 Finney v. Barreau du Québec [2004] 2 S.C.R. 17, paras. 39-40.
39 See Berardinelli v. Ont. Housing Corp. [1979] 1 S.C.R. 275, 280. See also, e.g., Roncarelli v.
Duplessis [1959] S.C.R. 121 (Quebec Premier not protected by an immunity clause applying
to “a public officer or other person fulfilling any public function or duty. . .[for] any act done
by him in the exercise of his functions”, because by acting outside his authority, the Premier
was not acting “in the exercise of his functions”); Simpson v. A.-G. [1994] 3 N.Z.L.R. 667
(C.A.) (“Baigent’s Case”) (police not protected by various statutory immunity provisions, which
did not extend, as here, to activities taken “unreasonably”, “with knowledge”, or in “bad faith”);
Puntoriero v. Water Administration Ministerial Corp. (1999) 199 C.L.R. 575 (H.C., Aust.)
(provision precluding “an action [for] loss or damage suffered as a consequence of the exercise
of a function of the [Corporation], including the exercise of a power” held not to apply to
ordinary non-coercive or consensual functions, but only to coercive or non-consensual func-
tions); compare Bankstown City Council v. Alamdo Holdings Pty. (2005) 223 C.L.R. 660 (H.C.,
Aust.) (provision precluding local council liability in respect of anything done or omitted to be
done in good faith relating to the likelihood of land being flooded held to extend to claims of
all types to which the local council could be exposed at law).
40 (1997) 36 O.R. (3d) 311 (Ont. C.A.), leave to appeal allowed [1998] 1 S.C.R. vii, appeal
dismissed as moot (1999) 289 N.R. 201 (S.C.C.) (hereinafter “DICO”).
41 See s. 253(1) of the Credit Unions and Caisses Populaires Act, 1994, S.O. 1994, c. 11.
281
tortfeasor was not an “action for damages”. According to Osborne J.A., claims
for contribution and indemnity fall generally under the law of restitution and are
designed to remedy unjust enrichment; otherwise, one joint tortfeasor would be
required to pay for a loss wholly or partly caused by another.
The wording of the statutory immunity clause in DICO is a standard for-
mulation that is widely employed in regulatory statutes in Commonwealth juris-
dictions. Thus, if followed in subsequent cases, the DICO ruling would have
significant implications for the personal liability of individual Crown servants.42
In our view, however, the distinction that the Court in DICO seeks to draw between
claims for “damages” and those for “contribution and indemnity”43 as a joint
tortfeasor is unconvincing. The purpose of statutory immunity clauses such as
was considered in DICO is to permit Crown servants to carry out their duties
without fear of incurring personal tort liability. That policy is undermined if such
officials are exposed to claims for contribution and indemnity, in precisely the
same way as if they had been sued directly. Moreover, the Court of Appeal’s
reasoning produces the anomaly that if Crown servants are entirely responsible
for a loss, they are immune from tort liability under an immunity clause shielding
them from actions for “damages”, whereas if they are not solely responsible or
are only partly responsible they may be exposed to claims for indemnity or
contribution. Although leave to appeal the decision in DICO was granted by the
Supreme Court of Canada, in early 1999 the appeal was declared moot.44 Thus,
at present, in Ontario at least, DICO remains binding on lower courts. However,
in our view, DICO ought not to be followed in other jurisdictions and the reasoning
in the case should be overruled by the Supreme Court in the event that it has
occasion to consider the issue in the future.45
If a statutory exemption clause that applies to a Crown servant does not
expressly preserve the vicarious liability of the Crown itself, the clause will
immunize the Crown as well: the general rule is that the liability of the servant is
a precondition of the vicarious liability of the master. But such clauses can be
drafted so as to preserve the vicarious liability of the Crown and this practice,
42 The widespread implications of the case for the personal liability of Crown servants may not
have been brought to the attention of the Court in DICO, since the action in that case was
brought against the statutory agency rather than the individual Crown servants.
43 The distinction was recently affirmed in a different context: see Placzek v. Green (2009) 307
D.L.R. (4th) 441 (Ont. C.A.).
44 [1999] 289 N.R. 201. In brief oral reasons, Gonthier J. for a seven-judge panel noted that the
principal action giving rise to the third party claim had been settled. There was thus no longer
a live controversy between the parties and the Court declined to exercise its discretion to hear
the appeal, based on principles enunciated in Borowski v. Can. [1989] 1 S.C.R. 342.
45 In B.C. v. Imperial Tobacco Can. (2009) 313 D.L.R. (4th) 651 (B.C.C.A.), Hall J.A., in dissent
(Lowry J.A. concurring), declined to follow DICO, on the basis that “it would make for a
radical alteration in the law relating to contribution and indemnity” (para. 55). The majority
did not speak specifically to this aspect of his reasons. The Supreme Court of Canada granted
leave to appeal in this case ([2010] S.C.R. vi, appeal heard February 24, 2011, with judgment
reserved), and it is to be hoped that it also declines to follow DICO.
282
JUDICIAL IMMUNITY 8.5(a)
which is common, is the only defensible one, because it leaves the injured victim
with recourse against the Crown.46
8.5 Judicial immunity
(a) Common law protection
A judge is immune from liability in tort for any act done within his or her
jurisdiction.47 An error of law or fact or both will not expose the judge to liability.
This rule is said to be necessary to ensure that a judge is “free in thought and
independent in judgment”,48 which would be impossible if the judge were liable
to be “harassed by vexatious actions”.49 It is true that a judge would be placed in
an intolerably vulnerable position, and there would be no end to litigation, if a
disappointed litigant could turn around and bring fresh proceedings against the
judge. These explanations treat the immunity as a doctrine specific to judges. But
46 See ch. 6, Tort: General Principles, under heading 6.2(d)(ii), “Statutory immunity clauses”,
above. In some jurisdictions, Crown servants are also protected by special limitation periods
and notice requirements: see ch. 4, Procedure, under heading 4.5, “Limitation of actions”,
above.
47 On judicial immunity, see Rubinstein, note 28, above, 127-149; M. Brazier, “Judicial Immunity
and the Independence of the Judiciary” [1976] Public Law 397; B. Feldthusen, “Judicial
Immunity: In Search of an Appropriate Limiting Formula” (1980) 29 U.N.B.L.J. 73; R.J. Sadler,
“Judicial and Quasi-judicial immunities: A Remedy Denied” (1982) 13 Melbourne U.L. Rev.
508; Aronson and Whitmore, note 31, above, 138-147; H.P. Glenn, “La responsabilité des
juges” (1983) 28 McGill L.J. 228; Olowofoyeku, Suing Judges: A Study of Judicial Immunity
(1993); A. Olowofoyeku, “State Liability for the Exercise of Judicial Power” [1998] Public
Law 444; B. Harris, “Remedies and Accountability for Unlawful Judicial Action in New
Zealand” (2008) N.Z.L.R. 483. As to whether judicial immunity persists in the face of a
constitutional violation, see Charters v. Harper (1986) 31 D.L.R. (4th) 468 (N.B.Q.B.); Koita
v. Toronto Police Services Bd. (2000) 79 C.R.R. (2d) 28 (Ont. S.C.J.); Pispidikis v. Scroggie
(2002) 62 O.R. (3d) 596 (S.C.J.), aff’d (2003) 68 O.R. (3d) 665 (C.A.); Maharaj v. A.-G.
Trinidad and Tobago (No. 2) [1979] A.C. 385 (P.C.); and generally M. Pilkington, “Damages
as a Remedy for Infringement of the Canadian Charter of Rights and Freedoms” (1984) 62
Can. Bar Rev. 517, 558-561.
48 Garnett v. Ferrand (1827) 6 B. & C. 611, 625, 108 E.R. 576, 581 (K.B.).
49 Fray v. Blackburn (1863) 3 B. & S. 576, 578, 122 E.R. 217, 217 (Q.B.). Additionally, to avoid
possible “harassment”, no judge of any court is compellable as a witness to give evidence in
relation to the exercise of their judicial functions: see MacKeigan v. Hickman [1989] 2 S.C.R.
796; and Warren v. Warren [1997] Q.B. 488 (C.A.). It was argued in Warren that only superior
court judges should be immune from being compelled to testify as to matters relating to their
judicial duty. But the Court of Appeal rejected this attempt to narrow the immunity, arguing
that no distinction should be drawn between different classes of judges in terms of their
compellability. Although not compellable, all judges remain competent to give evidence, and
the Court of Appeal commented that “if a situation arises when his evidence is vital, the judge
should be able to be relied on not to allow the fact that he cannot be compelled to give evidence
to stand in the way of his doing so”: 1137.
283
8.5(b) TORT: LIABILITY OF SERVANTS
in truth judicial immunity is in one sense analogous to that enjoyed by all public
officials who act within the scope of their statutory (or prerogative) authority.50
What is distinctive about the position of judges, however, and what justifies
a broader immunity than is applicable to public officials in general, is the special
responsibilities associated with the judicial office. Litigants turn to judges and
courts to resolve difficult problems “involving not merely great pecuniary inter-
ests, but the liberty and character of the parties, and consequently exciting the
deepest feelings”.51 If judges could be sued by disappointed litigants for damages,
their independence and impartiality would be compromised. As the Federal Court
of Appeal has observed, faced with the potential of a lawsuit from the losing
party, judicial decisions “might not be based on a dispassionate appreciation of
the facts and law related to the dispute. . . [but, rather] by thoughts of which party
would be more likely to bring an action if they were disappointed by the re-
sult. . .”52 Thus the common law has fashioned a more extensive immunity for
judges than is available to other public officials.53
(b) Superior court judges
It is sometimes said that a judge of a “superior court” is absolutely immune

from personal liability for anything done as a judge.54 The explanation usually
given for this “absolute immunity” is that a superior court, because it is a court
of general jurisdiction, has jurisdiction to determine its own jurisdiction, and can
therefore never act outside its jurisdiction.55 This explanation is far-fetched. There
are limits to the jurisdiction of even a superior court. If a judge of a superior court,
believing a jury’s verdict of acquittal to be perverse, were to order the imprison-
ment of a person who had just been acquitted, it would be plain that the judge
had acted without jurisdiction. The better view, in such a case, as articulated by
50 Judges, like other public officials, may lose their immunity if they act outside the power legally
conferred on them. The clearest case is the judge who commits a tort off the bench, for example,
by driving a car negligently. In that case, his or her judicial office is irrelevant. But, even on
the bench, a judge who acts outside the powers conferred upon him or her ceases to be a judge.
51 Bradley v. Fisher (1872) 13 Wall. 335 (U.S.S.C.).
52 Taylor v. Can. [2000] 3 F.C. 298, para. 28 (C.A.), leave to appeal refused (2000) 263 N.R. 399
(note) (S.C.C.).
53 Judicial independence and judicial impartiality are constitutionally recognized: see Hogg, note
27, above, ch. 7. Judicial immunity was linked to judicial independence in, e.g., MacKeigan v.
Hickman, note 49, above, 830; and Taylor, previous note, paras. 50-66.
54 See, e.g., Sirros v. Moore [1975] 1 Q.B. 118, 134-135, 146-147 (C.A.); Nakhla v. McCarthy
[1978] 1 N.Z.L.R. 291, 303-304 (C.A.); Morier v. Rivard [1985] 2 S.C.R. 716, 739.
55 See, e.g., Sirros v. Moore, previous note, 138; Nakhla v. McCarthy, previous note, 304.
284
JUDICIAL IMMUNITY 8.5(b)
the House of Lords, is that the judge who acted knowingly56 without jurisdiction
would be liable in damages for the tort of false imprisonment.57 The fact is,
however, that there is no reported example of a superior court judge having been
held liable in damages while acting as a judge.58 The jurisdiction of a superior
court is regarded as so broad that only the most egregiously arbitrary act could
expose the judge to liability. Moreover, the requirement to prove bad faith (i.e.,
knowledge of the invalidity of the action taken) is a virtually insuperable practical
difficulty, particularly given the fact that judges are not compellable to give
evidence in relation to matters pertaining to the exercise of judicial office.59
However, in the event that the conduct of a superior court judge were such as to
constitute an actionable tort, the only recourse would be an action for damages,
56 Recall the discussion of the ’knowledge’ requirement for the tort of misfeasance in a public
office, in which subjective recklessness on the part of a public official is sufficient to constitute
actual knowledge of invalidity. (See the discussion in ch. 6, Tort: General Principles, under
heading 6.5(c), “Misfeasance in a public office”, above.) It is difficult to imagine how a situation
of subjective recklessness (as opposed to actual knowledge of invalidity) could ever arise in
practice in relation to a judge since, even if the judge is uncertain as to his or her jurisdiction
to make a particular decision, the judge must have the liberty to make that decision without
fear of suit. As such, it would seem that, in the judicial context, actual knowledge of the
invalidity of the decision must be established before an action in tort could succeed.
57 In re McC [1985] 1 A.C. 528, 540 (H.L.), quoted (with some doubt) by Chouinard J. in Morier
v. Rivard, note 54, above, 741. Despite some equivocation on the point by Chouinard J. in
Morier (as discussed below in sec. 8.5(d), “Statutory protection”), lower courts in Canada have
generally proceeded on the basis that a “bad faith” exception exists to the absolute immunity
of superior court judges: see Taylor, note 52, above; Royer and Fortier v. Mignault (1988) 50
D.L.R. (4th) 345 (Que. C.A.), leave to appeal refused [1988] 1 S.C.R. xiii; Proulx v. Que.
(1997) 145 D.L.R. (4th) 394 (Que. C.A.); Kosko c. Bijimine [2006] R.J.Q. 1539, paras. 38-39
(Que. C.A.); Bourbonnais v. Can. [2006] 4 F.C.R. 170, para. 26 (C.A.). See also the Friedland
report on judicial independence, which seems to proceed on the assumption that a bad faith
exception exists: M.L. Friedland, A Place Apart: Judicial Independence and Accountability in
Canada (Ottawa: Canadian Judicial Council, 1995), 35-36; and Gazley v. Lord Cooke of
Thorndon [1999] 2 N.Z.L.R. 668 (C.A.), 680-682 per Henry J. (leaving open the possibility of
a limited exception to judicial immunity), 685 per Keith J. (“members [of a superior court are]
protected so long as they are acting in the bona fide exercise of their office and in the belief
that they have jurisdiction”). But see: Manson v. Can. (2004) 364 A.R. 180, paras. 13-14 (Alta.
Q.B.) (“absolute immunity”), aff’d (2006) 401 A.R. 26, para. 2 (Alta. C.A.) (compare J.W.
Abernethy Management & Consulting v. 705589 Alberta Ltd. and Trillium Homes (2005) 44
Alta. L.R. (4th) 24, para. 24 (Alta. C.A.) (acknowledging an exception “when a judge ‘know-
ingly acts outside of official capacity; without a good faith belief of jurisdiction’”)); Baryluk v.
Campbell (2008) 61 C.C.L.T. (3d) 292, para. 30 (Ont. S.C.J.) (declining to recognize a limited
bad faith exception); and Gonzalez v. A.-G. (2009) 95 B.C.L.R. (4th) 185 (S.C.) (suggesting
that the “Ontario approach” outlined in Baryluk is the correct one).
58 Sadler, note 47, above, 510.
59 See Warren v. Warren, note 49, above; MacKeigan v. Hickman, note 49, above.
285
8.5(c) TORT: LIABILITY OF SERVANTS
rather than a complaint before an administrative tribunal such as a human rights

commission.60
(c) Inferior court judges
An “inferior court” is a court of limited jurisdiction, and any decision made

by an inferior court regarding the limits of its own jurisdiction is subject to review
by a superior court. It cannot be doubted, therefore, that a judge of an inferior
court can act without jurisdiction, and “where there is no jurisdiction there is no
judge”.61
The absence of jurisdiction will not by itself give rise to any liability. All it
will do is deprive the judge of the defence of judicial immunity. Only if the judge’s
order would be a trespass to person or property, or some other tort, will the judge
be liable. The Marshalsea Case (1612)62 is one of the few cases where the two
elements of lack of jurisdiction and a tortious act were present. The Court of
Marshalsea had jurisdiction only over members of the King’s household. When
the Court ordered the committal to prison of a person who was not a member of
the King’s household, the judge was held liable in damages for false imprison-
ment. Houlden v. Smith (1850)63 is a similar case. A county court judge whose
jurisdiction was limited to the county of Lincolnshire tried a resident of Cam-
bridge, which was outside the county, and sentenced him to imprisonment. The
judge was held liable in damages for false imprisonment.
Based on these older cases, an inferior court judge could be held liable for
an act that was outside jurisdiction, even though the judge honestly believed that
the act was within jurisdiction. The possibility that a judge could be exposed to
liability for an innocent mistake so troubled Lord Denning M.R. that he proposed
a new rule, under which a judge who acted outside jurisdiction would be deprived
of immunity only if the judge knew that the act was outside jurisdiction. In Sirros
v. Moore (1974),64 a judge of an inferior court ordered that an alien be detained
60 See Taylor v. Can., note 52, above (holding that complaints against superior court judges fall
wholly outside of the jurisdiction of the Canadian Human Rights Commission, since even the
power to investigate such a complaint by the Commission would undermine the independence
of the judiciary). Note, however, that there is the opportunity to complain to the Canadian
Judicial Council. In Taylor, such a complaint was filed and the Chairperson of the Judicial
Conduct Committee (but not the whole Council) expressed disapproval of the conduct of the
judge in question, but did not consider the conduct to be sufficiently serious as to warrant any
further action: Id., para. 19. An application for judicial review of this decision was unsuccessful:
Taylor v. Can. [2003] 3 F.C. 3 (C.A.).
61 Rubinstein, note 28, above, 128. Note, however, that in an action for damages, the concept of
jurisdiction may be broader and less refined than it is for the purpose of judicial review: In re
McC [1985] 1 A.C. 528, 542-544 (H.L.); Morier v. Rivard [1985] 2 S.C.R. 716, 716, 741-743.
62 (1612) 10 Co. Rep. 68b, 77 E.R. 1027 (K.B.).
63 (1850) 14 Q.B. 841, 117 E.R. 323.
64 [1975] 1 Q.B. 118.
286
JUDICIAL IMMUNITY 8.5(c)
in custody pending the completion of proceedings for his deportation. The judge
had no power to make this order and the detained person was released on habeas
corpus two days later. The judge was not actuated by malice or any other improper
purpose: he simply made a mistake as to the extent of his power. The detained
person sued the judge for false imprisonment. On the traditional view of the law,
the plaintiff was entitled to succeed: he had been injured by the tortious act of an
inferior court judge acting without jurisdiction. But Lord Denning M.R., for the
majority of the Court of Appeal,65 held that the traditional rule was no longer
appropriate “in this new age”. In his view, a judge of any level should be protected
from liability for an act outside jurisdiction, as long as the judge acted in the
honest belief that the act was within jurisdiction. This broader immunity was
needed so that judges “may be free in thought and independent in judgment”. No
judge would have “to turn the pages of his books with trembling fingers, asking
himself: ‘If I do this, shall I be liable in damages?’”.66
The expanded immunity for inferior court judges announced by Lord Den-
ning M.R. in Sirros v. Moore was subsequently rejected by the House of Lords.
In In re McC (1984),67 the House of Lords allowed an action for damages for
false imprisonment to proceed against a magistrate. In this case, the magistrate
had imposed a sentence of detention on a young offender who was not represented
by counsel without first advising the defendant of his right to apply for legal aid.
However, the magistrate lacked the power to impose a sentence of detention on
a young offender who was not represented by counsel, unless the defendant had
first been advised of his right to apply for legal aid. The House of Lords held that
the sentence was given without jurisdiction and that the magistrate could be sued
for damages for false imprisonment.68 Because the magistrate’s error was an
innocent one, he would have escaped liability under Lord Denning’s expanded
rule of immunity. But their Lordships were unanimous in rejecting the view that
a judge was liable only if he or she knew that his or her act was outside jurisdiction.
To introduce a requirement of knowledge would be a “fundamental” change in
the law that would require legislation.69 On this point, the decision in Sirros v.
Moore was overruled.70
65 Ormrod L.J. in a separate opinion agreed with Lord Denning. Buckley L.J. rejected the new
honest belief defence; he concurred in the result, however, because in his view the judge’s error
was not jurisdictional.
66 Note 64, above, 136.
67 Note 61, above.
68 There was an express immunity clause which provided that no action would lie against a
magistrate “unless the court before which the action is brought is satisfied that he acted without
jurisdiction or in excess of jurisdiction”. The decision could be treated as turning on this clause
rather than on the common law of judicial immunity, but the House of Lords assumed that this
clause made no change in the common law and treated the case as if it were a common law
case.
69 Note 61, above, 550, 559.
70 Id., 551, 558.
287
The New Zealand Court of Appeal attempted to strike a middle ground

between Sirros v. Moore and McC in Harvey v. Derrick (1995).71 In that case, a
district court judge had ordered an individual committed to prison for failure to
comply with an attachment order in respect of outstanding fines. However, the
warrant was issued in error since the individual had complied with the attachment
order and he ought never to have been committed to prison. He subsequently
brought an action for damages against the district court judge for false impris-
onment and negligence. The Court of Appeal declined to follow McC since, in
the majority’s view,72 holding judges liable for actions taken outside their juris-
diction without proof of personal fault would be an overly strict rule that would
interfere with judicial independence. But neither did the Court of Appeal believe
that it should be necessary to prove subjective bad faith on the part of the judge
in order for an action to succeed, as Sirros v. Moore had proposed. Instead, the
Court of Appeal concluded that a district court judge should be immune from
liability only if “his or her order, although outside jurisdiction in the administrative
law sense, was made in good faith and without gross negligence”. The requirement
that a plaintiff prove “gross negligence” was thought by the Court to give judges
sufficient immunity from the threat of lawsuits arising from their decisions,
without shielding them entirely from liability for their wrongful acts. In Harvey
v. Derrick the action was allowed to proceed, since it was possible that the plaintiff
would have been able to prove gross negligence on the part of the judge who had
ordered his committal.
In our view, the rationale which underlies the immunity accorded to superior
court judges – namely, the need to preserve their independence and impartiality
– applies with equal force to judges of so-called inferior courts.73 Thus we see no
reason to distinguish between the immunity accorded to different classes of judges
or courts, a view which (as is discussed in the next section) has been widely
accepted by legislatures which have dealt expressly with this matter. Moreover,
we note that the House of Lords and the Supreme Court of Canada, in their
definition of the elements of the tort of misfeasance in a public office, have
expressly limited the tort to circumstances where the public official knew of the
invalidity of the act in question, rejecting gross negligence as a basis for such a
suit.74 In our view, members of the judiciary generally (rather than simply superior
court judges) are entitled to the same immunity. Accordingly, we do not believe
71 [1995] 1 N.Z.L.R. 314.

72 Cooke P. and Richardson J. wrote concurring judgments permitting the action against the judge
to proceed; Fisher J. dissented, holding that the action taken was within jurisdiction and no
action could be brought against the judge, regardless of any question of bad faith.
73 See the discussion of the principle of judicial independence and its application to all members
of the judiciary in Man. Provincial Judges Assn. v. Man. (Minister of Justice) [1997] 3 S.C.R.
3 (holding that principle of judicial independence requires special process for establishing of
judicial salaries).
74 See Three Rivers District Council v. Bank of England (No. 3) [2003] 2 A.C. 1 (H.L.); Odhavji
Estate v. Woodhouse [2003] 3 S.C.R. 263.
288
JUDICIAL IMMUNITY 8.5(d)
the New Zealand Court of Appeal’s narrowing of the immunity so as to permit

suits against judges who have acted with gross negligence should be followed in
other jurisdictions.
(d) Statutory protection
Judicial immunity can, of course, be expanded or contracted by statute.75

The trend in recent years has been to expand the immunity of inferior court judges
by statute, affording judges and other judicial officials at all levels identical
immunity from suit. This parity of treatment has been achieved in one of two
ways. In some cases, it has been achieved by statutory provisions that simply
provide that certain inferior court judges are to enjoy the same immunity as
superior court judges. This approach was adopted in New Zealand in 2004 for
district court judges,76 following the decision in Harvey v. Derrick, and the
recommendation of the New Zealand Law Commission.77 This approach was also
adopted in various Canadian jurisdictions.78 In other cases, parity of treatment
has been achieved by statutory provisions that basically replicate the common
law immunity of superior court judges. This approach was adopted in the United
Kingdom in 1990, where justices of the peace are now liable for acting without
75 Public actors exercising adjudicative functions outside the formal court system (“quasi-judicial
actors”) also often enjoy a measure of immunity. Although the law is not entirely clear, the
position at common law seems to be that quasi-judicial actors are protected from liability in
tort if they act bona fides and within jurisdiction: see, e.g., Welbridge Holdings v. Greater
Winnipeg [1971] S.C.R. 957; Calvert v. Law Society of Upper Can. (1981) 32 O.R. (2d) 176
(H.C.J.); and Dechant v. Stevens [2001] 5 W.W.R. 405, paras. 70-78, 117-118 (Alta. C.A.).
Fortunately, the question is often addressed by statute: see, e.g., Law Society Act, R.S.O. 1990,
c. L.8, s. 9 (immunity for good faith decision-making), considered in Edwards v. Law Society
of Upper Can. [2001] 3 S.C.R. 562.
76 District Courts Act 1947 (N.Z.), s. 119 (providing that District Court judges enjoy “the same
immunities as a Judge of the High Court”). There has, however, been no change to the position
of justices of the peace and magistrates: see Summary Proceedings Act 1957 (N.Z.), s. 193; but
see s. 197(1) (making provision for indemnity).
77 Law Commission, Crown Liability and Judicial Immunity: A Response to Baigent’s Case and
Harvey v. Derrick (Report No. 37, May 1997), para. 163.
78 The Canadian jurisdictions that have adopted this approach are Canada, Ontario, British Co-
lumbia, Quebec, Nova Scotia, Newfoundland and Labrador, Prince Edward Island, and New
Brunswick: for Canada, see Federal Courts Act, R.S.C. 1985, c. F-7, s. 12(6); for Ontario, see
Courts of Justice Act, R.S.O. 1990, c. C.43, s. 82, and Justices of the Peace Act, R.S.O. 1990,
c. J.4, s. 20; for British Columbia, see Provincial Court Act, R.S.B.C. 1996, c. 379, s. 42; for
Quebec, see Magistrate’s Privileges Act, R.S.Q., c. P-24, s. 1; for Nova Scotia, see Family
Court Act. R.S.N.S. 1989, c. 159, s. 5B, Provincial Court Act, R.S.N.S. 1989, c. 238, s. 4A,
and Small Claims Court Act, R.S.N.S. 1989, c. 430, s. 35; for Newfoundland and Labrador,
see Provincial Court Act, 1991, S.N.L. 1991, c. 15, s. 32; for Prince Edward Island, see
Provincial Court Act, R.S.P.E.I. 1988, c. P-25, s. 11(2); and for New Brunswick (which adopted
this approach in only two of three cases), see Small Claims Act, S.N.B. 1997, c. S-9.1, s. 18,
and Judicature Act, R.S.N.B. 1973, c. J-2, s. 56.3.
289
8.5(d) TORT: LIABILITY OF SERVANTS
jurisdiction only where they act in “bad faith”;79 previously, justices of the peace
had been liable for actions taken outside their jurisdiction, regardless of whether
they knew or ought to have known of the invalidity.80 This approach was also
adopted in various Canadian jurisdictions, which now have provisions providing
that inferior court judges (judges, justices of the peace, and so on) are immune
from suit unless it is proved that the act or omission that forms the basis of the
action was done maliciously and without reasonable cause.81 Both of these types
of legislative reforms effectively abolish the traditional common law distinction
between different classes of judge or court,82 and as a result, it is now largely
impossible to pursue tort actions against members of the judiciary.83
79 Courts and Legal Services Act 1990 (U.K.), s. 108. Provision for indemnity is made by Justices
of the Peace Act 1997 (U.K.), s. 54, as amended by Access to Justice Act 1999 (U.K.), s. 99.
80 Justices Protection Act, 1849 (U.K.) 12 Vict., cap. 16, ss. 1, 2.
81 The Canadian jurisdictions that have adopted this approach are Saskatchewan, Alberta, Mani-
toba and the Northwest Territories: for Saskatchewan, see Provincial Court Act, S.S. 1998, c.
P-30.11, s. 63; for Alberta, see Provincial Court Act, R.S.A. 2000, c. P-31, s. 9.51, s. 68, and
Justice of the Peace Act, R.S.A. 2000, c. J-4, s. 13; for Manitoba, see Provincial Court Act,
C.C.S.M., c. C275, s. 71; and for the Northwest Territories, see Territorial Court Act,
R.S.N.W.T. 1988, c. T-2, s. 17(3).
82 The Yukon Territory and New Brunswick seem, at first sight, to be the only outliers: see
Territorial Court Act, R.S.Y. 2002, c. 217, s. 79(1) (territorial court judges and justices not
liable for acting outside of their jurisdiction, unless they acted in “bad faith or with gross
negligence”), but see also s. 79(3) (territorial court judges and justices have “the same protec-
tions and privileges. . .as are by law given to judges of the Supreme Court”); and for New
Brunswick, see Protection of Persons Acting Under Statute Act, R.S.N.B. 1973, c. P-20, ss. 1,
3 (officers of the law, including provincial court judges (see s. 3), not liable “for or by reason
of any act or thing by him done under and by virtue of [an Act of the provincial Legislature or
Parliament]”). The Yukon Territory provision contemplates liability for gross negligence, but
then seems to qualify this by assimilating the immunity of territorial court and superior court
judges. The New Brunswick provision seems to contemplate that provincial court judges, who
operate “under and by virtue of” the Provincial Courts Act, R.S.N.B. 1973, c. P-21, can be
liable for merely acting outside their jurisdiction, but the courts seem to interpret the legislation
as conferring the same immunity available to superior court judges: Lawpost v. N.B. (1999)
214 N.B.R. (2d) 297, para. 21 (N.B.Q.B.) (“The immunity applicable to superior courts also
applies to the Provincial Court”), aff’d (1999) 182 D.L.R. (4th) 167 (N.B.C.A.), leave to appeal
refused [2000] 1 S.C.R. xiv.
83 In Rawlinson v. Rice [1998] 1 N.Z.L.R. 454 (C.A.), a district court judge was sued for misfea-
sance in a public office. (Recall that in New Zealand, Harvey v. Derrick had held that district
court judges were liable for acts outside of jurisdiction where there was gross negligence.) The
plaintiff Rawlinson alleged that a series of errors made by the judge implied or meant that he
had acted in a way that no judicial officer could, unless there was an indirect motive. The
defendant judge moved to have the pleadings struck out as disclosing no reasonable cause of
action. The New Zealand Court of Appeal held that the tort of misfeasance in a public office
could extend to judicial officers as well as to members of the executive. The Court refused to
strike out the pleadings, noting that the facts as pleaded, if proven at trial, could establish the
commission of the tort of misfeasance, in accordance with the test set out in Harvey v. Derrick.
See also Cannon v. Tache (2002) 5 V.R. 317, para. 44 (Vic. C.A.). However, since it is necessary
to prove subjective recklessness (rather than simply gross negligence), any such tort action
would appear impractical; given the fact that judges are not compellable witnesses, it would be
290
JUDICIAL IMMUNITY 8.5(d)
In Morier v. Rivard (1985),84 the Supreme Court of Canada had occasion to

interpret one of these statutory immunity provisions. In Morier the question was
whether the Quebec Police Commission was liable in damages for statements
made by the Commission in a report of a public inquiry censuring the conduct of
a person who had been given no opportunity to be heard by the Commission at
its inquiry. The Commission had failed to fulfil a statutory obligation to provide
an opportunity to be heard to any person at risk of censure, and, as a result, the
Commission was probably acting outside its jurisdiction in reporting as it had.85
At common law, therefore, the Commission would be liable to suit if its report
were otherwise actionable.86 However, the members of the Commission were, by
statute, afforded the same immunity as superior court judges “for any act done or
omitted in the execution of their duty”. The Supreme Court of Canada, in a
majority opinion written by Chouinard J., held that “duty” was a broader concept
than jurisdiction, and that the phrase “in the execution of their duty” was apt to
include acts that were outside jurisdiction. Since the Police Commission was
carrying out its duty when it held an inquiry and submitted a report, it was immune
from liability even for acts outside its jurisdiction. Chouinard J. noted that superior
court judges could only be sued in cases where a “judge in bad faith did something
which he knew he did not have the jurisdiction to do, or. . .a judge who was not
acting in the course of his judicial duties knowing that he had no jurisdiction to
act”.87 Since the pleadings did not allege facts that would constitute such bad
faith, they did not disclose a cause of action and were struck out.88
extremely difficult to obtain evidence of the alleged misfeasance. For a discussion, see J.
Manning, “Civil Liability of District Court Judges: Harvey v. Derrick” (1995) 4 N.Z.U.L.R.
431, 439-440. The situation may be otherwise if a court was willing to infer subjective reck-
lessness from the surrounding circumstances, an idea that finds some support in Finney v.
Barreau du Québec [2004] 2 S.C.R. 17, para. 38. However, it is less than clear that this approach
would, or should, be adopted with respect to the judiciary (rather than, as in Finney, a provincial
law society), given the increased nature of the concerns about liability in that context. See
further, note 56, above.
84 [1985] 2 S.C.R. 176.
85 Chouinard J. for the majority did not specifically so decide, but said (at 745) that it was
“possible” that the Commission had exceeded its jurisdiction. La Forest J. for the minority said
(at 750) that the Commission had acted outside its jurisdiction.
86 The facts do not seem to disclose a tort, unless the statements made were defamatory. However,
the plaintiff sued for damages under a statutory cause of action created by Quebec’s Charter of
Human Rights and Freedoms, R.S.Q. 1977, c. C-12.
87 Note 84, above, 744.
88 See also Fingleton v. R. (2005) 227 C.L.R. 166 (H.C., Aust.) (immunity from criminal liability
in discharge of administrative functions by Chief Magistrate); Bourbonnais v. Can. [2006] 4
F.C.R. 170 (C.A.) (judicial review of decision not to indemnify a former member of the
Immigration and Refugee Board for the legal costs incurred while defending against charges
of fraud, breach of trust, and obstruction of justice; no entitlement to indemnity); and Criminal
Code (Can.), R.S.C. 1985, c. C-46, ss. 25-31 (“Protection of Persons Administering and En-
forcing the Law”).
291
8.6 Prosecutorial immunity

In the United States, the immunity of judges from liability in tort has been
extended to public prosecutors, on the theory that the rationale for judicial im-
munity also applies to public prosecutors. It is said that public prosecutors, like
judges, could not be expected to carry out their duties with courage and inde-
pendence if they were exposed to suit whenever they failed to secure a convic-
tion.89 Even when a prosecutor has acted out of malice, or for some reason
unconnected with the public good, the immunity persists. No lesser figure than
Judge Learned Hand has defended this absolute immunity on the basis that it is
impossible to know whether an allegation of malice is well founded until the case
has been tried, “and to submit all officials, the innocent as well as the guilty, to
the burden of a trial and to the inevitable danger of its outcome, would dampen
the ardour of all but the most resolute, or the most irresponsible, in the unflinching
discharge of their duties”.90
In Canada, the American doctrine of immunity was considered and rejected
by the Supreme Court of Canada in Nelles v. The Queen (1989).91 In that case,
the plaintiff nurse had been charged with the murder of several babies at the
hospital where she worked. The case against her was weak, and she was discharged
by the preliminary inquiry judge, who found that there was insufficient evidence
to send her to trial. She sued the Crown, the Attorney General and four police
officers for malicious prosecution. Relying heavily on the American authorities,
the Ontario Court of Appeal92 held that neither the Attorney General nor any of
his prosecutorial agents, the Crown attorneys, could be sued for malicious pros-
ecution. The Supreme Court reversed this decision. The Supreme Court noted
that the Crown itself would remain absolutely immune from a suit for malicious
prosecution by statute, since the decision on whether to prosecute was a decision
of a “judicial nature”.93 But the Court refused to extend such absolute immunity
to the Attorney General and Crown attorneys in their personal capacity. These
officials were not absolutely immune from suit and the proceeding brought by
Ms. Nelles was permitted to proceed to trial. However, the Court defined the
ingredients of the tort of malicious prosecution in a way that would make them
extremely difficult to establish. In order to succeed, the plaintiff would have to
prove that the prosecution was: 1) initiated by the defendant, 2) terminated in the
plaintiff’s favour, 3) undertaken without reasonable and probable cause, and 4)
89 Imbler v. Pachtman (1975) 424 U.S. 409, 427-428.

90 Gregoire v. Biddle (1949) 177 F. 2d. 579, 581, cert. denied 339 U.S. 949.
91 [1989] 2 S.C.R. 170. See generally Horsman and Morley (eds.), Government Liability (2006,
supplemented annually), ch. 8 (by Lawn).
92 (1985) 51 O.R. (2d) 513.
93 Section 5(6) of Ontario’s Proceedings Against the Crown Act provided that no proceedings
could be brought against the Crown for “anything done or omitted to be done by a person while
discharging or purporting to discharge responsibilities of a judicial nature...”.
292
PROSECUTORIAL IMMUNITY 8.6
motivated by malice. The requirement to prove both the absence of reasonable

and probable cause (involving proof of a negative) and malice (involving proof
of “an improper purpose” that rises to the level of “an abuse or perversion of” or
a “fraud on the process of criminal justice”94) ensured that malicious prosecution
would be established only in the rarest of cases.
One of the rare cases where these four elements were held to be established
is Proulx v. Quebec (2001).95 In that case, the plaintiff, Proulx, had been a suspect
in the mid-1980s in the killing of his former girlfriend. The Crown attorney
assigned to the case concluded that there was not enough reliable identification
evidence to prosecute Proulx, and closed the case. However, he reopened the case
five years later, after a new eyewitness came forward with evidence allegedly
linking Proulx to the murder. This new eyewitness was brought to the Crown
attorney’s attention by Tardif, a former police officer who had worked on the
original investigation five years earlier; Proulx was suing Tardif at the time for
defamation. The Crown attorney enlisted Tardif’s help, allowing him to assist
with the collection of evidence, and decided to prosecute Proulx for first degree
murder. Proulx was convicted at trial, but that conviction was overturned by the
Quebec Court of Appeal, which strongly criticized the lack of credible evidence.
Proulx then brought an action for malicious prosecution. Proulx was successful
at trial, but lost in the Quebec Court of Appeal, ultimately ending up in the
Supreme Court of Canada, where the primary issue was (as is usually the case)
whether the third and fourth elements of Nelles were established.
Iacobucci and Binnie JJ., writing for a narrow majority, answered yes, af-
firming that this was one of “the exceptional cases in which Crown immunity for
prosecutorial misconduct should be lifted”.96 The focus of the third element
(reasonable and probable cause) was whether there was sufficient evidence for
the Crown attorney to believe that guilt could properly be proved beyond a
reasonable doubt.97 Here, the charges brought against Proulx were grounded in
“mere suspicion and hypotheses”, not evidence sufficient to ground a conviction.98
The Crown’s case was based upon two key pieces of evidence: the eyewitness
identification and a surreptitiously-recorded conversation between Proulx and the
94 Nelles, note 91, above, 193-194, 199 per Lamer J.

95 [2001] 3 S.C.R. 9. Iacobucci and Binnie JJ. wrote for a four-judge majority, L’Heureux-Dubé
J. for a three-judge minority.
96 Id., para. 7. The case involved Quebec, but there was general agreement that Nelles applied.
97 The majority did not openly acknowledge that this shifted the focus of the third element of the
tort, as framed in Nelles, or that it had any role to play in their disagreement with the dissent.
However, the shift in focus, while subtle, is important. Under the majority’s approach, the
prosecutor must believe that there is sufficient evidence, such that the guilt of the accused is
legally capable of being proved beyond a reasonable doubt (see para. 31). But under the approach
outlined in Nelles, and adopted by the dissent, the prosecutor must believe in the guilt of the
accused (see para. 151). The different manner in which this requirement was framed calls into
question the majority’s claim that their disagreement with the dissent “turns on the facts of this
particular case” (para. 5).
98 Id., para. 34.
293
victim’s father from around the time of the murder. However, the eyewitness
identification was “flagrantly inadequate”99 (the Crown attorney admitted at trial
that the eyewitness did not make, and could not make, a positive identification),
and the surreptitiously-recorded conversation was likely inadmissible (it was
obtained in violation of Proulx’s Charter rights), but also devoid of probative
value (in the recording the plaintiff denied any involvement in the crime). The
focus of the fourth element (malice) was evidence “that reveals a wilful and
intentional effort on the Crown’s part to abuse or distort its proper role within the
criminal justice system”.100 In this case, there were several “indicators of an
improper purpose”.101 One “particularly noteworthy” indicator was the absence
of reasonable and probable cause: “no prosecutor acting in good faith would have
proceeded to trial on a first degree murder charge with such substandard and
incomplete proof”.102 In addition, the Crown attorney improperly manipulated the
text of the recording at trial, attempting to give the jury a misleading impression
that Proulx was admitting his guilt. And finally, Tardif was invited to work as a
member of the prosecution team, and given an important role in gathering evi-
dence, even though he was being sued by Proulx. These “indicators of an improper
purpose”, taken together, led to one of only two conclusions: the Crown attorney
was permitting his office to be used in aid of the defence of the defamation claim,
or he was determined to secure a conviction of Proulx at all costs.103 Both were
improper purposes that were sufficient to establish malice.104
The decision in Proulx shows that there is prosecutorial misconduct that will
be caught by the tort of malicious prosecution. However, Iacobucci and Binnie
JJ. referred to Proulx as an “exceptional case”, and if there was any doubt that
this was true, it was firmly laid to rest by the Supreme Court of Canada in Miazga
v. Kvello Estate (2009).105 In that case, three children implicated their biological
parents, their biological mother’s boyfriend, their foster parents and eleven mem-
bers of their foster family in a litany of sexual assaults and gruesome satanic or
ritualistic acts, including animal and human sacrifice, and the drinking of human
blood. After a police investigation, all sixteen were charged, and Miazga, a
provincial Crown attorney, assumed carriage of the case. Before trial, Miazga
began to have concerns about the children’s credibility, but after consulting with
his superiors, he decided to carry on with the case. The biological parents and
boyfriend were convicted at trial and, although those convictions were overturned
by the Supreme Court of Canada, the Court did conclude that there was enough
99 Id., para. 22.

100 Id., para. 35.
101 Id., para. 37.
102 Id., para. 38; see also para. 21.
103 Id., para. 44.
104 For another rare successful case, involving a police officer, not a Crown prosecutor, see A. v.
N.S.W. (2007) 230 C.L.R. 500 (H.C., Aust.). For comment, see N. Maamary, Comment (2008)
30 Sydney L. Rev. 357.
105 [2009] 3 S.C.R. 339. Charron J. wrote the opinion of the Court.
294
evidence to warrant a retrial.106 A plea bargain was also negotiated with one
member of the foster family, who did not join the civil action. However, the
charges against the remaining twelve members of the foster family (the plaintiffs)
were stayed. Years later, the children recanted their allegations, and the plaintiffs
launched an action for malicious prosecution against various individuals that had
been involved in the case. Miazga and two others – a police officer involved in
investigating the allegations, and a child therapist who treated the children and
testified in the criminal proceedings – were found liable at trial. The police officer
did not appeal, and the judgment against the child therapist was set aside on
appeal, but the judgment against Miazga was affirmed. The case ended up in the
Supreme Court of Canada, where the only issue was whether the lower courts
had been right to find Miazga liable for malicious prosecution.
Charron J., writing the opinion of the Court, said that the answer was no, but
not before taking the opportunity to emphasize four principles that will apply in
malicious prosecution cases “against the Attorney General or his agents”.107 First,
where a Crown attorney is involved, the issue under the third element of the tort
(reasonable and probable cause) is not a subjective belief in guilt, but rather the
sufficiency of the evidence, such that “proof beyond a reasonable doubt could be
made out in a court of law”.108 Second, the decisive question under the third
element is whether there were objectively sufficient grounds for proceeding. If
the answer is yes, the suit must fail, regardless of the subjective views of the
Crown attorney. Third, the fourth element (malice) is not to be inferred solely
from an absence of subjective belief in guilt.109 The absence of a subjective belief
in sufficient cause is suggestive (a “relevant factor”), but not determinative, of
malice.110 Finally, and related to the third point, in order to satisfy the fourth
106 R. v. R. (D.) [1996] 2 S.C.R. 291.

107 Miazga, note 105, above, para. 44. The implication is that these restrictions are not to apply in
cases involving purely private defendants. Any question about whether all or some of them
apply in cases involving police defendants is probably largely moot, because the investigative
activities of the police are now subject to liability in negligence: see Hill v. Hamilton-Went-
worth Regional Police Services Bd. [2007] 3 S.C.R. 129.
108 Id., para. 63. Compare A. v. N.S.W., note 104, above (majority suggesting that similar tests in
the Australian authorities should not be read as “radically different” (para. 65), eliciting a
dissent from Callinan J.).
109 This resolved a debate that had broken out in the lower courts as to the extent to which it was
proper to infer malice: see, e.g., Oneil v. Metropolitan Toronto (Municipality) Police Force
(2001) 195 D.L.R. (4th) 59 (Ont. C.A.), leave to appeal refused (2001) 284 N.R. 397 (note
(S.C.C.); Folland v. Ont. (2003) 64 O.R. (3d) 89 (C.A.); Mammoliti v. Niagara Regional Police
Service (2007) 279 D.L.R. (4th) 643 (Ont. C.A.), leave to appeal refused [2007] 3 S.C.R. xiv;
and Miguna v. Toronto Police Services Bd. (2008) 301 D.L.R. (4th) 540 (Ont. C.A.).
110 Note 105, above, para. 73; see also paras. 86-89. Charron J. did not say that malice can never
be inferred, but rather that it is impermissible to infer malice solely from the absence of
reasonable and probable cause (see e.g. para. 52). Indeed, Charron J. acknowledged that it may
not be possible to provide direct evidence of a Crown defendant’s state of mind, and that “a
state of mind may be inferred from the facts” (para. 80). This would seem to leave open drawing
an inference of malice where the facts of the case, taken as a whole, are such that malice (an
295
element a plaintiff must point to evidence that the Crown attorney “wilfully
perverted or abused the office of the Attorney General or the process of criminal
justice”.111 This ensures that a Crown attorney is not held liable for “inexperience,
incompetence, negligence, or even gross negligence, none of which are actiona-
ble”.112 Applying this approach, Charron J. said that the courts below erred in
finding Miazga liable for the tort of malicious prosecution. The majority of the
Court of Appeal had concluded that Miazga could not possibly have had a sub-
jective belief in reasonable and probable cause (because the allegations of the
three children were simply too fantastic), and that this satisfied both the third
element (because subjective reasonable and probable cause was lacking) and the
fourth element (because, absent a belief in guilt, it was a fair inference that some
improper purpose was at work). However, the conclusion that Miazga did not
have a subjective belief in reasonable and probable cause was not supported by
the evidence, and in any event it was improper to infer malice from this alone.
The plaintiffs were required to provide some evidence of an improper purpose.
Because they were unable to do so, their claim could not succeed.
In our view, the Supreme Court was right in Nelles to reject the American
doctrine of absolute prosecutorial immunity, and to affirm that decision in Proulx
and Miazga.113 It is likely that even a judge could be sued for conduct knowingly
taken in excess of jurisdiction, assuming such conduct could be proven. Thus, if
prosecutorial officials were absolutely immune, they would enjoy more extensive
immunity than judges.114 That cannot be right. Moreover, it is not true, as Judge
Learned Hand implied,115 that a trial is always necessary whenever an action for
malicious prosecution is properly pleaded. Frivolous actions can be dealt with
before trial, on a motion for summary judgment.116 This is usually what occurs in
improper purpose) is the only plausible explanation for the Crown defendant’s conduct. This
arguably provides the best explanation for the result reached in Proulx, which Charron J.
affirmed (see paras. 83-84).
111 Id., para. 80 [emphasis original]; see also paras. 56, 81-89.
112 Ibid.
113 Even if statutory immunity is granted to prosecutorial officials acting within the scope of their
duties (see sec. 8.4, “Statutory immunity”, above), this may not survive Charter scrutiny: see
L. Sossin, “Crown Prosecutors and Constitutional Torts” (1993) 19 Queen’s L.J. 372, 389-391;
see also B.C. v. Davies (2009) 308 D.L.R. (4th) 577 (B.C.C.A.), leave to appeal refused (2010)
406 N.R. 394 (note) (S.C.C.) (no “constitutional principle of Crown immunity”).
114 See comments by Chouinard J. in Morier v. Rivard, note 84, above, respecting the immunity
of superior court judges. Note also the comment of Sexton J.A. in Taylor v. Can. [2000] 3 F.C.
298, para. 28 (C.A.), leave to appeal refused (2000) 263 N.R. 399 (note) (S.C.C.), to the effect
that “any ‘bad faith’ exception to judicial immunity that exists is just as narrow, if not more so,
than the exception to prosecutorial immunity addressed in Nelles”.
115 Note 90, above.
116 See Miazga, note 105, above, para. 74. In some jurisdictions, the final decision as to whether
there was reasonable and probable cause is reserved for the ultimate trier of fact (either a judge
or jury): see, e.g., Courts of Justice Act R.S.O. 1990, c. C.43, s. 108(10); Jury Act, R.S.P.E.I.
1988, c. J-5, s. 3(5). However, factual inadequacy can still form the basis of a pre-trial motion
296
practice: of those actions that have been initiated since Nelles, very few make it
to trial, either because they are discontinued, or fail to survive a pre-trial motion.117
Finally, even if a claim for malicious prosecution does go to trial, the plaintiff
will still have to prove the elements of the tort, as defined in Nelles and refined
in Proulx and Miazga. This involves proving, not only that there was no reasonable
and probable cause, but also that the prosecution was actuated by malice (“fraud
on the process of criminal justice”). The difficulty involved in proving these two
elements of the tort surely guarantees that prosecutorial officials will be able to
carry out their duties without undue fear of suit. Reasonable people can disagree
about whether citizens should go without a civil remedy where they are injured
by negligent or reckless prosecutorial conduct; that, of course, is the result of the
law as it stands.118 However, in our view, a civil remedy is certainly warranted in
those cases where citizens are subjected to baseless criminal prosecutions under-
taken for a malicious purpose.119
A civil remedy is warranted in these cases, but that does not mean that it is
the individual Crown attorney that has to be named in the suit. That is a result
that flows from the judicial-immunity provisions contained in the standard Crown
proceedings statutes; these provisions have been held to exempt the Crown (but
not individual Crown attorneys) from liability for the exercise of prosecutorial
functions.120 In our view, it is bad policy to leave individual Crown attorneys
for summary judgment, because the question of whether there is a sufficient case to be put to
the jury remains “a matter to be determined by the judge as a matter of law”: Ibid.
117 This is reflected in statistics prepared for the Uniform Law Conference of Canada: see Report
of the Joint Criminal/Civil Working Group On: Malicious Prosecution (September 2007),
paras. 8-12. Of the claims that were brought, very few made it to trial (e.g., only 4 of 107 open
claims in Ontario made it to trial in the one-year period beginning November 1, 2005), and of
those that did make it to trial, the vast majority failed (e.g., of the four claims in Ontario that
did make it to trial, all four were dismissed). See also M. Rosenberg, “The Attorney General
and the Administration of Criminal Justice” (2008-2009) 34 Queen’s L.J. 813, 844-845 (ex-
pressing a similar view); and K. Roach, “The Attorney General and the Charter Revisited”
(2000) 50 U. Toronto L.J. 1, 12-14 (same).
118 Miazga, note 105, above, paras. 80-81. However, Krieger v. Law Society of Alta. [2002] 3
S.C.R. 372 does distinguish between “core” exercises of prosecutorial discretion and “decisions
that govern a Crown prosecutor’s tactics or conduct before the court” (para. 47), suggesting
that deference is less warranted when dealing with the latter than the former. It is not clear
whether this distinction has any bearing on civil liability: see Driskell v. Dangerfield [2007] 9
W.W.R. 323 (Man. Q.B.), affirmed and varied in part [2008] 6 W.W.R. 615 (Man. C.A.); and
Ferron v. Goodier 2010 ONSC 540 (S.C.J.). See also Brooks v. Commr. of Police for the
Metropolis [2005] 1 W.L.R. 1495, paras. 22 (Lord Steyn), 38 (Lord Rodger) (H.L.) (outlining
policy reasons for immunizing prosecutorial officials from negligence claims); and Elguzouli-
Daf v. Commr. of Police of the Metropolis [1995] Q.B. 335 (C.A.) (Crown Prosecution Service
not liable to crime suspects for the conduct of a prosecution).
119 Prosecutorial misconduct may also result in a constitutional remedy (Nelles, note 91 above,
641); a professional misconduct complaint (Krieger, previous note, above); a stay of criminal
proceedings (R. v. Jewitt [1985] 2 S.C.R. 128; and R. v. Power [1994] 1 S.C.R. 601); or a public
inquiry (B.C. v. Davies, note 113, above).
120 See ch. 6, Tort: General Principles, under heading 6.2(d)(iv), “Judicial functions”, above.
297
8.7(a) TORT: LIABILITY OF SERVANTS
exposed to liability, while denying the plaintiff the ability to sue the Crown. This
is a situation that ought to be addressed by legislatures,121 for reasons that we
outline earlier.122
8.7 Immunity from defamation proceedings
(a) Judicial proceedings
The law of defamation in all jurisdictions in Canada (except Quebec),123 the

United Kingdom, Australia and New Zealand accords complete immunity from
liability to persons who make statements in the course of judicial proceedings.124
Such statements are “absolutely privileged”, that is, they cannot be made the basis
of an action for defamation even if made maliciously.125 This immunity applies
121 Ontario recently enacted legislation making the Attorney General solely liable for the prose-
cutorial misconduct of individual Crown attorneys: see Good Government Act, 2009, S.O.
2009, c. 33, sch. 2, s. 46, amending Ministry of the Attorney General Act, R.S.O. 1990, c. M.
17, s. 8. (Various Australian jurisdictions also have provisions protecting Crown prosecutors:
see ch. 6, Tort: General Principles, under heading 6.2(d)(iv), “Judicial functions”, above.) A
working group of the Uniform Law Conference of Canada has also proposed draft legislation
to the same effect (and in fact, the Ontario legislation seems to be inspired by this draft
legislation): see Report of the Joint Criminal/Civil Working Group On: Malicious Prosecution
(August 2008). We agree with the general thrust of the Ontario and draft legislation. It is worth
pointing out, however, that the immunity for Crown attorneys does go beyond that which is
usually provided to civil servants, who are usually protected only by “good faith” immunity
provisions.
122 See ch. 6, Tort: General Principles, under heading 6.2(f), “Policy favouring vicarious liability”,
above.
123 In Quebec, there is only a qualified privilege for statements made in the course of judicial
proceedings; the defence in that jurisdiction only applies to statements that are relevant to the
proceedings and made in good faith: e.g., Fontaine v. Lalonde (1964) 49 D.L.R. (2d) 547 (Que.
C.A.) (liability for derogatory remarks about plaintiff’s professional capacity).
124 The immunity is not confined to defamatory statements or actions, but “attaches to anything
said or done by anybody in the course of judicial proceedings whatever the nature of the claim
made in respect of such behaviour or statement”: Heath v. Commr. of Police for the Metropolis
[2004] EWCA Civ. 943, paras. 17-18 (C.A.) (complaint of unlawful sex discrimination under
the Sex Discrimination Act 1975 (U.K.)); see also Darker v. Chief Constable of the West
Midlands Police [2001] 1 A.C. 436, 445-446 (H.L.) (negligence); Samuel Manu-Tech v. Redipac
Recycling Corp. (1999) 124 O.A.C. 125, para. 20 (C.A.) (intentional interference with contrac-
tual relations); and Elliott v. Insurance Crime Prevention Bureau (2005) 256 D.L.R. (4th) 674,
para. 113 (N.S.C.A.) (negligence).
125 Gatley on Libel and Slander (11th ed., 2008) (Milmo and Rogers, eds.), ch. 13; Linden and
Feldthusen, Canadian Tort Law (8th ed., 2006), 787-789; Williams, The Law of Libel and
Slander in Canada (2nd ed., 1988), 66-69; Brown, The Law of Defamation in Canada (2nd
ed., looseleaf), ch. 12. See Kopyto v. Judge C.H. Paris [1995] O.J. No. 601 (Gen. Div.) (striking
out statement of claim alleging malicious and defamatory comments by a judge and duty
counsel in the course of court proceedings). Note, however, Royer and Fortier v. Mignault,
note 57, above (striking out statement of claim alleging defamatory comments by judge, but
298
IMMUNITY FROM DEFAMATION PROCEEDINGS 8.7(b)
not only to the judge and jury but also to counsel, parties and witnesses. It is not
confined to statements made at the actual hearing in court but includes occasions
preparatory to the hearing, such as a briefing of the evidence to be given.126
The immunity applies to the proceedings of all the ordinary courts and of
some other tribunals with adjudicatory functions.127 The courts have been cautious
in extending the immunity to administrative tribunals,128 and the mere fact that a
tribunal is required “to act judicially”, in the sense that it must comply with the
rules of natural justice, is not sufficient to make its proceedings judicial for the
purpose of attracting absolute privilege.129 “The question . . . in every case”, it
has been said, “is whether the tribunal in question has similar attributes to a court
of justice or acts in a manner similar to that in which such courts act”.130 In other
words, at least some of the trappings or formalities of the ordinary courts must
also be present. Tribunals that have been held to satisfy this test include a military
court of inquiry,131 a professional disciplinary body,132 a public service appeal
board,133 and a commission of inquiry into the dismissal of a schoolteacher.134
(b) High executive communications
Absolute privilege has also been accorded to some communications within

the executive branch of government.135 This privilege applies when three condi-
noting that such an action might have been permitted to proceed to trial had there been evidence
that the judge acted outside of his jurisdiction knowing that he had no such power).
126 But see Mann v. O’Neill (1997) 191 C.L.R. 204 (H.C., Aust.) (privilege does not extend to a
letter written by a litigant to the Attorney General in which the mental capacity of a magistrate
who presided over the litigant’s case was questioned); and Darker, note 124, above (privilege
does not extend to the fabrication of evidence). For a thorough review of the authorities, see
Elliott v. Insurance Crime Prevention Bureau, note 124, above, paras. 101-204.
127 However, a statutory provision conferring only a qualified privilege may be held to displace
the absolute privilege available at common law: see Dechant v. Stevens [2001] 5 W.W.R. 405
(Alta. C.A.), leave to appeal refused [2001] 3 S.C.R. v; compare Schut v. Magee (2003) 15
B.C.L.R. (4th) 250 (C.A.).
128 Woolf et al., De Smith’s Judicial Review (6th ed., 2007), 991-992; General Medical Council
v. Meadow [2007] Q.B. 462, para. 17 (C.A.).
129 Heath v. Commr. of Police, note 124, above, para. 30; see also Royal Aquarium and Summer
and Winter Garden Society v. Parkinson [1892] 1 Q.B. 431, 447 (C.A.).
130 O’Connor v. Waldron [1935] A.C. 76, 81 (P.C., Can.); cited de Smith, note 128, 87; see also
Trapp v. Mackie [1979] 1 W.L.R. 377, 379 (H.L.); Mann v. O’Neill, note 126, above.
131 Dawkins v. Lord Rokeby (1873) L.R. 8 Q.B. 255.
132 Addis v. Crocker [1961] 1 Q.B. 11 (C.A.); Lincoln v. Daniels [1962] 1 Q.B. 237 (C.A.);
Marrinan v. Vibart [1963] 1 Q.B. 528 (C.A.).
133 Thompson v. Turbott [1962] N.Z.L.R. 298 (S.C.).
134 Trapp v. Mackie, note 130, above.
135 Linden and Feldthusen, note 125, above, 788 702; Williams, note 125, above, 64-66. There is
also absolute immunity at common law for defamatory comments made during parliamentary
proceedings: see Brown, note 125, sec. 12.3; and Jennings v. Buchanan [2005] 2 All E.R. 273
299
8.7(b) TORT: LIABILITY OF SERVANTS
tions are satisfied: (1) the statement must have been made by a high officer of
state to another officer of state (who need not be a “high” officer of state);136 (2)
it must relate to state matters; and (3) it must be made by the officer of state in
the course of his or her official duty.137
The privilege extends only to statements by “high” officers of state. A
communication from the Secretary of State for India to the Under-Secretary of
State has been held privileged,138 and so has a communication from the Australian
High Commissioner in the United Kingdom to the Australian Prime Minister.139
How far down the hierarchy of government the privilege will afford protection
has always been uncertain. The High Court of Australia has divided evenly on
the question whether a report from the Commonwealth Commissioner of Taxation
to the Commonwealth Treasurer was protected by the privilege.140 On the other
hand, the same Court had no difficulty in deciding that an inspector of police was
not a high officer of state.141
In Dowson v. The Queen (1981),142 the plaintiff sued for defamation con-
tained in a report from a Chief Superintendent of the Royal Canadian Mounted
Police to an Acting Assistant Deputy Attorney General for Ontario. The Federal
Court of Appeal struck out the statement of claim on the ground that the statement
was protected by absolute privilege. Le Dain J. for the Court acknowledged doubt
as to whether the privilege would flow down to a Chief Superintendent of the
R.C.M.P. But because the statement had been made in response to a question
directed to the Solicitor General of Canada by the Attorney General for Ontario
(concerning an investigation allegedly conducted by the R.C.M.P. into the affairs
of the New Democratic Party), Le Dain J. held that the statement was to be
regarded as if it were a statement by the Solicitor General. The Solicitor General,
being a minister of the Crown, was a sufficiently high officer of state to enjoy the
privilege.
Dowson is a significant extension of the scope of the privilege, because no
previous case had used the idea of delegation to move the privilege so far down
the hierarchy of government. Indeed, the reasoning starts us down a slippery slope
which ends in the protection of communications by civil servants at any level.
(P.C., N.Z.). As this book is concerned with Crown liability, we do not consider this case law
here.
136 Peerless Bakery v. Watts [1955] N.Z.L.R. 339 (C.A.) (statement by minister to subordinate
protected).
137 The three points are a paraphrase of the summary by Le Dain J. in Dowson v. The Queen (1981)
124 D.L.R. (3d) 260, 269 (F.C.A.).
138 Chatterton v. Secretary of State for India [1895] 2 Q.B. 189 (C.A.).
139 M. Isaacs & Sons v. Cook [1925] 2 K.B. 391.
140 Jackson v. Magrath (1947) 75 C.L.R. 293 (H.C., Aust.).
141 Gibbons v. Duffell (1932) 47 C.L.R. 520 (H.C., Aust.).
300
IMMUNITY FROM DEFAMATION PROCEEDINGS 8.6(c)
After all, it could be said that every civil servant exercises responsibility that has
been delegated from a superior, and, ultimately, from a minister.143
(c) Critique of immunity
Our view is that any extension of the absolute privilege of statements by

high officers of state is unfortunate, and, indeed, that the privilege ought not to
exist at all. This point emerges most clearly if one contrasts the high officer
privilege with the judicial privilege.
The reason for the absolute privilege of statements made in judicial pro-
ceedings is that the ascertainment of truth and hence the administration of justice
might well be impeded if all or some of the persons concerned felt inhibited from
speaking freely. Furthermore, there are a number of features of the ordinary courts
which militate against any abuse of the privilege. The judge who presides is, by
training and tradition, usually keenly aware of the responsibility to maintain
dignity and fairness in the proceedings; and the judge has the power to compel
the lawyers, parties and witnesses to conform to proper standards. The profes-
sional training and discipline of lawyers in any case serve to discourage the use
of defamatory tactics; the oath and general formality and dignity of the proceed-
ings serve to discourage witnesses from reckless assertions; and evidence is
subject to immediate cross-examination and to rebuttal by other evidence.
The reasons for the absolute privilege of statements made by “high officers
of state” are much less obvious. Not only is the need for complete freedom of
speech less important, but the safeguards inherent in judicial proceeding are
almost entirely absent.144 The reasons which have been given by the courts are
that the privilege is necessary to ensure “freedom of action in a matter concerning
the public weal”,145 and that the privilege must be absolute so that officials will
not be harassed by proceedings in which malice is alleged.146 But this reasoning
would justify the lifting of all legal restraints on official action, and plainly fails
to provide a specific reason for the special immunity of statements made by high
officers of state. There does not seem to be any specific reason for this. This
becomes particularly clear when it is recalled that the general law of defamation
accords a qualified privilege to meet the case where a person is under a legal or
moral duty to make a communication to a person who is under a corresponding
duty to receive it.147 Thus, the general law would in any case accord a limited
protection - one that is defeasible only on proof of malice - to statements made
143 The judgment is severely criticized by the losing counsel in the case: H. Kopyto, Comment
(1982) 27 McGill L.J. 915.
144 See J.F. Handler and W.A. Klein, “The defense of privilege in defamation suits against gov-
ernment executive officials” (1960) 74 Harv. L.R. 44.
145 Chatterton v. Secretary of State for India, note 138, above, 191.
146 Id.
147 Linden and Feldthusen, note 125, above, 795-797.
301
by high (or low) officers of state to their colleagues or subordinates where those
statements were required for the carrying out of their duties.148 The doctrine of
Crown privilege would apply to any statement the disclosure of which would be
injurious to the public interest:149 any such statement, whether oral or written,
could be withheld from defamation proceedings and its absence would presum-
ably stultify the proceedings. Surely these protections are ample for high officers
of state without the further security of the doctrine of absolute privilege.
It is perhaps too late for the courts to abrogate altogether the doctrine of
absolute privilege for high officers of state, but the foregoing remarks may be
regarded as an argument in favour of confining the doctrine within the tightest
limits that precedent will support. From this standpoint, the decision in Dowson150
is a step in the wrong direction.151
148 See, e.g., Jackson v. Magrath, note 140, above 306-307; Latham C.J. held that the Cth. Commr.
of Taxation was not a sufficiently high officer of state to be accorded absolute privilege, but
that he was entitled to qualified privilege under the general law.
149 Chapter 5, Evidence, above.
151 In the U.S., the doctrine has been extended from “high officers” to subordinate officers and
from statements with narrow internal circulation to public statements: Barr v. Matteo (1959)
360 U.S. 564; trenchantly criticized by Handler and Klein, note 144, above. See also Mann v.
O’Neill, note 126, above (rejecting extension of privilege for judicial communications on
grounds that absolute privilege is wholly exceptional and ought not to be expanded).
302
9
Contract
9.1 Introduction 304

9.2 Private law of contract 304
9.3 Intention to create contractual relations 307
(a) Government promises 307
(b) Statutory provisions 308
(c) Election promises 308
(d) Policy promises 309
(e) Tendering contracts 311
9.4 Power of Crown to make contracts 313
(a) Power of a natural person 313
(b) Statutory authority 315
(c) Legislative appropriation 316
(d) Constitutional limits 318
(e) Statutory limits 320
9.5 Power of Crown servants to make contracts 322
(a) General rules of agency 322
(b) Statutory limits 323
9.6 Fettering legislative power 324
(a) Direct fettering of legislative power 324
(b) Indirect fettering of legislative powers 325
(c) The Pacific National case 326
(d) Policy reasons for permitting indirect fettering 329
(e) Conclusion on fettering legislative power 331
9.7 Liability of Crown servants 332
(a) General rule of immunity 332
(b) Warranty of authority 332
(c) Agent’s personal liability 333
9.8 Contracts with Crown servants 333
(a) Application of general law of contract 333
(b) Action for loss of services 339
9.1 CONTRACT
9.1 Introduction
The Crown is liable in contract at common law. There is no history of
immunity, as in the case of tortious liability. We have already noticed1 that the
petition of right would lie against the Crown for breach of contract, even if the
claim were for unliquidated damages. The equitable remedy of a declaratory
judgment was also available, although the Crown was immune (and, in most
jurisdictions, still is immune)2 from the coercive remedies of injunction and
specific performance. The various Crown proceedings statutes simply preserve
the Crown’s liability in contract, while simplifying the procedure for suit.
9.2 Private law of contract

There is a distinct body of law regulating government contracts in the sense
that in all jurisdictions there are statutory provisions and regulations governing
the making of government contracts, and there are rules and practices developed
by the government itself, including standard terms and conditions of contracting.
These rules are designed to ensure that government contracting decisions are
made under appropriate bureaucratic supervision and control, that corruption and
unfairness are eliminated from the letting of contracts, that competitive prices
and performance are obtained, that the work is monitored by government, and
that there are remedies for unsatisfactory performance. In addition, some rules
pursue social and political objectives, such as preference for domestic suppliers,
and prohibitions of discrimination and unfair labour practices by contractors. Not
surprisingly, a considerable literature has developed on the subject of government
contracts.3
The distinctive law and practice relating to government contracts has devel-
oped within the rules of the private law of contract. These rules have not been
radically altered, and, as the ensuing account will show, the position of a person
contracting with the government continues to be governed primarily by the private

2 Chapter 2, Remedies, under the headings 2.4, “Injunction”, and 2.5, “Specific performance”,
above.
3 For the U.K., see Mitchell, The Contracts of Public Authorities (1954); Turpin, Government
Contracts (1972); Arrowsmith, Civil Liability and Public Authorities (1992). For Australia, see
Puri, Australian Government Contracts (1978); Aronson and Whitmore, Public Torts and
Contracts (1982), chs. 5-9; Rose, “The Government and Contract” in Finn (ed.), Essays on
Contract (1987), Chapter 9; Seddon, Government Contracts (4th ed., 2009). For Canada, see
Lemieux, Les contrats de l’administration fédérale, provinciale et municipale (1984); Lajoie,
Contrats administratifs (1984); Dussault and Borgeat, Administrative Law (1985), vol. 1, part
2, ch. 3; Arrowsmith, Government Procurement and Judicial Review (1988); Waddams, The
Law of Contract (5th ed., 2005), ch. 17. Horsman and Morley (eds.), Government Liability
(2006, annually supplemented), ch. 2; Emanuelli, Government Procurement (2nd ed., 2008).
304
PRIVATE LAW OF CONTRACT 9.2
law of contract.4 Canada, like the United Kingdom, Australia, New Zealand and
the United States, has not followed the French model of a “public law” of contract
or a special category of “administrative contracts”.5
An argument that has been advanced in favour of a public law of contract is
that the government’s responsibility for public policy differentiates the Crown
from private contracting parties. According to this theory, the Crown ought to be
able to escape from its contractual obligations when the government determines
that public policy calls for non-compliance.6 This idea has been the basis of at
least one, now discredited, decision,7 and continues to have some life in the more
limited guise of a rule against the fettering of legislative power, which is discussed
later in this chapter.8 The better view, in our opinion, is that the Crown should be
bound by its contracts in the same way as a private person. The Crown is not
obliged to enter into contracts; the assumption of contractual liability is a volun-
tary policy choice by the Crown. If the Crown can escape from its liability
whenever it chooses, that is unfair to the other contracting party, who is denied
the normal remedy of damages for any work performed, supplies delivered, or
profits anticipated.
Is the obvious unfairness to the other contracting party outweighed by the
advantage to the public weal? At first blush, it would certainly seem to be an
advantage to the Crown to be able unilaterally to escape from any contractual
obligation that it no longer wished to honour. But that view is mistaken. The
unilateral power of termination would be a major disadvantage to the Crown in
the administration of public affairs. The Crown is a huge borrower of money and
a huge purchaser of goods and services. Many contracts are of a long-term nature.
Government bonds generally have a long term to maturity when the loan is
supposed to be repaid by the borrowing government. And many other obligations
stretch across several years, for example, the development and installation of a
computer system for a department, the construction of a building, or the purchase
of special-purpose ships, aircraft or vehicles (which take a long time to build to
Crown specifications). It is a benefit, not a hindrance, that the Crown has the legal
capacity to bind itself for the future. It means that the government, like the private
contractor, can make promises that are binding and can be relied on. The binding
4 The most heavily regulated area may be the contracts with Crown employees, but the Supreme
Court of Canada has been at pains to insist that, subject to any statutory provisions, it is the
private law of contract that governs these relationships: Wells v. Nfld. [1999] 3 S.C.R. 199;
Dunsmuir v. N.B. [2008] 1 S.C.R. 190; the cases are discussed in sec. 9.8(a), “Application of
general law of contract”, below.
5 A.G. Que. v. Labrecque [1980] 2 S.C.R. 1057, 1080-1085. The Civil Code of Quebec, S.Q.
1991, c. 64, makes no special provision for government contracts. The French system is
discussed by Mitchell, note 3, above, part iv; Aronson and Whitmore, note 3, above, 178-181.
6 This is the thesis of Mitchell, note 3, above. Accord, A.M. Mewett, “The Theory of Government
Contracts” (1959) 5 McGill L.J. 222; Aronson and Whitmore, note 3, above, 179.
7 The Amphitrite [1921] 3 K.B. 500; note 104, below.
8 Section 9.6, “Fettering legislative power”, below.
305
9.2 CONTRACT
character of government contracts reduces the cost of government operations

because it makes it unnecessary for the government to pay a “risk premium” for
goods and services. A bank (or other private lender) need not demand a higher
interest rate (or refuse to lend entirely, as happened in the United Kingdom)9 to
guard against the risk of a unilateral government decision not to repay the loan.
And, without the risk of unilateral cancellation, a private contractor need not
demand a higher price for goods and services procured by government.
We do not suggest that the Crown should be prevented from acting incon-
sistently with the terms of a contract when there is a change of government policy.
It must be remembered that even a private contracting party can usually refuse to
perform a contractual obligation. The law of contract does not actually preclude
a contracting party from refusing to perform its contractual obligations; the law
simply imposes the sanction of damages for breach of the contract, which requires
that compensation be paid for the loss caused to the other contracting party.10 The
Crown is exempt from the remedies of injunction and specific performance,11 so
that damages is the only remedy that is available for a breach of contract by the
Crown. If government had the power unilaterally to terminate a contract, damages
would not be payable to the other party. In our view, the government should be
liable for damages for a breach of contract. In that way, the cost of a change in
government policy is borne by the government (the general body of taxpayers)
and not by the innocent private party.
The law of contract makes it possible to insert into a Crown contract a
unilateral right enabling the Crown to terminate the contract. In fact, in many
jurisdictions, “termination for convenience” or “break” clauses are sometimes
included in government procurement contracts, allowing the Crown to terminate
a contract on notice to the private contractor. Significantly, such clauses always
call for compensation to be paid to the private contractor for any work actually
performed.12 Nevertheless, to the extent that the compensation falls short of full
common-law damages for breach, presumably these clauses add to the price of
the goods and services being procured. In other words, the government, like other
participants in the marketplace, can contract for special privileges in its contracts,
9 After Credit Suisse v. Allerdale Borough Council [1997] Q.B. 306 (C.A.) (and other cases)
decided that a local authority could evade its contractual responsibilities on the ground that it
lacked the power to make the contract, banks refused to lend to local authorities. Parliament
was forced to act, legislating that such a contract should still be effective notwithstanding a
finding of lack of power in the local authority to make the contract: Local Government (Con-
tracts) Act 1997 (U.K.), c. 65.
10 In some circumstances, where damages is not an adequate remedy to the other party, an
injunction or specific performance may be issued to force compliance with the contract. These
are relatively uncommon situations. Damages will normally be an adequate remedy.
11 Chapter 2, Remedies, under headings 2.4, “Injunction”, and 2.5, “Specific performance”, above.
12 Termination for convenience clauses are discussed by Turpin, note 3, above, 239-243; Puri,
note 3, above, 180-182; Arrowsmith, note 3, above, 55-57; Seddon, note 3, above, secs. 5.4-
5.9.
306
INTENTION TO CREATE CONTRACTUAL RELATIONS 9.3(a)
provided it is willing to pay for them.13 Indeed, the law of contract would permit
the government to contract for a right of unilateral termination without any
compensation at all. If the government could find a contractor who would agree
to that term, and if the government was willing to pay the price that the contractor
demanded for that term, then that term would be in the contract.
The Crown does have one unavoidable advantage over private contractors,
and private contractors have to be mindful of one unique risk that they bear when
they contract with the Crown. The executive branch of government, at least in a
situation of majority government, controls the legislative branch, and can secure
the passage of legislation to terminate a contract or cancel any other Crown
obligation14 that the executive branch no longer wishes to honour. Needless to
say, this power is exercised very rarely, and if its exercise became common it
would severely impair the credit of the Crown with the bad consequences de-
scribed earlier in this section of the book. However, it has happened occasionally;
the reported cases are discussed later in this book.15
9.3 Intention to create contractual relations

(a) Government promises
An essential element of a valid contract, along with offer and acceptance

and consideration, is an intention to create contractual relations. If the parties did
not intend to create binding contractual obligations, then any promise made or
apparently made will not be enforceable. This rule takes on special importance
in the case of the Crown because the role of government is so different from the
role of private persons. For example, governments may enact statutory provisions
designed to provide incentives to investment, or they may make promises in an
election campaign, or at any time they may promise to grant subsidies or tax
exemptions or other benefits to those in need (or special-interest groups). These
13 An argument that has been offered in support of a special law applicable to government contracts
is that they are often standard-form contracts (contracts of adhesion), which are “imposed” on
a take-it-or-leave-it basis on the private contractor, and which routinely include terms that are
“dictatorial” or “unfair” to the private contractor: Puri, note 3, above, 183-184; Aronson and
Whitmore, note 3, above, 186, 220-221. Even if these points are factually correct, the argument
ignores the role of a negotiated or tendered price in evaluating the “fairness” of a contract with
government. It also ignores the government’s interest in preserving a profitable relationship
with the private industries on which it relies.
14 An obligation to pay money can be cancelled by the legislative branch refusing to appropriate
the money necessary to meet the obligation in the year that the obligation falls due. In most
Canadian jurisdictions, this is an excuse for non-performance, although in some jurisdictions
it would constitute a breach of contract by the Crown: sec. 9.4(c), “Legislative appropriation”,
below.
15 Section 9.4(d), “Constitutional limits”, below. For a fuller account, see ch. 11, Taking, under
heading 11.6, “Extinguishment of contractual rights”, below.
307
9.3(b) CONTRACT
kinds of promises are not at all like commercial contracts, and may indeed lack
offer and acceptance or consideration as well as an intention to create contractual
relations. It is not surprising that the “dominant trend of the case law is to hold
that promises made outside the normal formalities of government contracting are
intended to have only political effect”.16
(b) Statutory provisions
Statutory provisions do not create contractual rights. In A.G.B.C. v. E. & N.

Railway (1950),17 British Columbia had enacted a statute exempting the lands of
a railway from provincial property taxes as an inducement to investors to finance
the building of the railway, and the railway had been built on the faith of that
inducement. So long as the statute was in force the railway obviously had a
statutory right to the tax exemption. But, 60 years later, when the Privy Council
was asked on a reference whether the repeal of the exemption would be a breach
of contract, the Privy Council said no. The Legislature (as opposed to the Crown)
could not be a party to a contract, and, unless the Legislature expressly gave
contractual force to a provision, the Crown was under no contractual obligation
to fulfil the terms of the statute. “Legislation and contract are entirely different
methods of creating rights and liabilities and it is essential to keep them distinct.”18
This case makes clear that tax exemptions or statutory subsidies, even if relied
upon by investors, do not give rise to contractual rights, and no remedy is available
if the exemptions or subsidies are repealed.19
(c) Election promises
Even when it is clear that a promise has been made by government, unless
the promise complies with the normal formalities of a government contract, the
conclusion will often be that the government had no intention to create contractual
relations. The clearest example may be an election promise, as is illustrated by
Canadian Taxpayers Federation v. Ontario (2004).20 During the 2003 general
election campaign in Ontario, Dalton McGuinty, then the leader of the opposition
Liberal Party, promised that, if his party was elected as the next government, he
would not raise taxes without the explicit consent of Ontario voters and would
not run a deficit. This promise was made in an instrument in writing called the
Taxpayer Protection Promise which Mr. McGuinty signed at a well-publicized
16 Horsman and Morley, note 3, above, sec. 2.20.40, contains an excellent account of the cases.
17 [1950] A.C. 87 (P.C.).
18 Id., 110.
19 The Crown could enter into a contract to provide a tax exemption or subsidy (even though this
would require legislative action) so as to be liable in contract if the required legislative action
were not taken. However, this would require clear language in a document that was clearly a
contract: sec. 9.3(d), “Policy promises”, below.
20 (2004) 73 O.R. (3d) 621 (S.C.J.).
308
INTENTION TO CREATE CONTRACTUAL RELATIONS 9.3(d)
press conference convened by the Canadian Taxpayers’ Federation (an organi-

zation dedicated to lower taxes). The Liberal Party did win the ensuing election,
and one of the new government’s first acts was to propose and secure the enact-
ment of a new health tax. Premier McGuinty acknowledged that the tax was a
breach of the promise, but explained that the province’s finances were in a worse
state than he had previously believed. The Federation brought an action against
the Crown for a declaration that the new tax had been levied in breach of contract.
No damages were sought, simply a declaration.21 Rouleau J. dismissed the ac-
tion,22 holding that the promise, although made in as solemn a way as possible,
was not intended to create a legal obligation. It was not framed as a contract
between two parties and was not a promise to anyone in particular. As well,
although the signing of the promise drew favourable publicity and probably
induced some voters to vote for the Liberal Party, there was no legal consideration
for the promise. Nor was there any consideration moving from the Crown: Rou-
leau J. took the view that “undertakings given as to what the government will or
will not legislate in the future are without value, do not amount to consideration,
and cannot form the basis for a contract”.23 The remedy for broken promises of
this kind lay with the public at the ballot box24 and not with the courts.25
(d) Policy promises
Outside the context of an election campaign, governments often make prom-

ises that are unlike the promises found in private contracts. For example, a
government may promise to grant a tax exemption or subsidy or provide some
other governmental benefit or service. If the normal formalities of government
contracting were not followed, the conclusion will usually be that the promise
was a mere statement of government policy, evincing no intention to create
contractual relations with anyone.26 In that case, no legal remedy will be available
to those who are disappointed by a failure to fulfil the promise.27
21 The legislation itself was also challenged on the basis that it had not been enacted in the correct
manner and form because it should have been preceded by a referendum required by legislation
enacted by the previous government. This claim was also rejected by the Court.
22 The tort of negligent misrepresentation was also relied upon, but was also rejected by the Court.
See ch. 7, Tort: Negligence, under heading 7.3(b)(iii), “negligent misrepresentation”, above.
23 (2004) 73 O.R. (3d) 621, para. 60, citing Rothmans of Pall Mall v. A.G. [1991] 2 N.Z.L.R. 323
(H.C.). This is a dubious point for the reasons given in text accompanying note 30, below.
24 The broken promise was highly controversial at the time, but the next election did not take
place for four years, by which time other issues had supervened, and the McGuinty government
was in fact re-elected in 2007.
25 Accord, Hogan v. Nfld. (2000) 183 D.L.R. (4th) 225, paras. 36-38 (Nfld. C.A.) (campaign
promises guaranteeing public funding for denominational schools not enforceable).
26 Other ingredients of a valid contract, such as offer and acceptance, consideration and certainty
as to the terms are also often lacking in the case of government policy promises.
27 E.g., Lethbridge Collieries v. The King [1951] S.C.R. 138 (promise to pay coal production
subsidies); Joy Oil Co. v. The King [1951] S.C.R. 624 (promise to pay subsidy on gasoline
309
9.3(d) CONTRACT
The fact that a government promise deals with a matter of policy does not
preclude a finding that there is a binding contract if the nature of the agreement,
the conduct of the parties and the surrounding circumstances indicate that the
Crown intended to enter into a legally binding contract. In R. v. C.A.E. Industries
(1986),28 the federal government formed a policy to maintain employment at an
aircraft maintenance base in Winnipeg that Air Canada had decided to close.
Three ministers of the federal government wrote a letter to CAE, a potential buyer
of the base, assuring the company that the government would provide levels of
work to enable the base to be operated profitably. Relying on these assurances,
CAE bought the base from Air Canada. When the government failed to deliver
the promised work, CAE sued the federal Crown for breach of contract. The only
possible contract was the letter, no more formal agreement ever having been
entered into; and some (but not all) of the assurances in the letter were vaguer
than would typically be found in a more formal agreement. In the Federal Court
of Appeal, Pratte J.A. held that the letter did not evidence an intention to assume
contractual obligations. But that was the dissenting view. Stone J.A., writing for
the majority, held that the letter was not a “purely political arrangement”: the
parties had always treated the letter as a contract, it had been partly performed,
and “there was an intention on the part of both parties to enter into a binding legal
contract”.29 The Crown was ordered to pay damages for breach of contract.
The fact that a government promise calls for action by the legislature has
sometimes been treated as precluding a finding that there is a binding contract.30
But this is surely wrong. Even if the government is not in fact able to control the
legislature, there is no reason why the government cannot make commitments
that depend upon the future action of the legislature. A party to a contract can
provide an undertaking that depends upon the action of a third party. The failure
of the third party to act as undertaken in the contract will render the party to the
contract liable in damages.31 That is a contract that a private party can make, and
the Crown should have no lesser competence. To be sure, a government cannot
by contract fetter the future action of the legislature, but there is no reason why a
government cannot agree to be liable in contract and subject to damages if the
prices); Australian Woollen Mills v. Cth. (1954) 92 C.L.R. 424 (H.C., Aust.); (1955) 93 C.L.R.
546 (P.C., Aust.) (promise to pay subsidy on wool); Milne v. A.G. Tasmania (1956) 95 C.L.R.
460 (H.C., Aust.) (promise to pay rebate on freight charges); Administration of Papua and New
Guinea v. Leahy (1961) 105 C.L.R. 6 (H.C., Aust.) (promise to eradicate ticks from cattle).
28 [1986] 1 F.C. 129 (C.A.).
29 Id., 153-154.
30 Rothmans of Pall Mall v. A.G. [1991] 2 N.Z.L.R. 323 (H.C.) (government promise, in an
agreement with tobacco companies, not to regulate the marketing of tobacco products held to
be ineffective because the government could not bind the legislature by contract); followed in
Can. Taxpayers Federation v. Ont. (2004) 73 O.R. (3d) 621, para. 60 (S.C.J.); note 20, above.
31 In a contract of insurance the insurer will undertake to pay the insured on the occurrence of
some event, such as accident, death, loss of employment, fire, flood, theft or death – all matters
over which the insurer has no control.
310
INTENTION TO CREATE CONTRACTUAL RELATIONS 9.3(e)
legislature fails to act in conformity with an undertaking by the government or if

the legislature acts in breach of such an undertaking.32
(e) Tendering contracts
It is a basic principle of contract law that a mere invitation to treat (as opposed
to an offer) does not, when accepted, become a contract. However, the courts
have created an exception to this general rule for tendering contracts.33 Where a
person (conventionally described as an “owner”) issues a call for tenders, inviting
competitive bids as a means of selecting a party with whom to enter into a contract
for the supply of goods or services, the bidders will normally have to go to
considerable expense to prepare their bids in compliance with the specifications
in the call for tenders. In these competitive bidding situations, bidders are entitled
to assume that only bids that comply with the specifications (compliant bids) will
be considered, that all compliant bidders will be treated equally and fairly, that
the lowest compliant bid will be selected (if the call for tenders is silent on the
point),34 and that undisclosed criteria other than the merits of the competing bids
will not influence the owner’s evaluation of the bids. In order to reach these
desirable results, the courts have held that a call for tenders creates an implied
contract (called “contract A” by the courts) between the owner and those who
submit compliant bids. (The ultimate contract for the supply of goods or services,
which is awarded to the successful bidder, is called “contract B”.) An attempt by
the owner to revoke the tender, or an attempt by a bidder to revoke its bid, is a
breach of contract A.35 The unfair rejection of a bid by the owner,36 or the selection
of a non-compliant bid,37 or a failure to award the contract to the lowest compliant
bidder,38 would also be breaches of contract A. In these cases, the disappointed
32 Section 9.6, “Fettering legislative power”, below.

33 See Horsman and Morley, note 3, above, sec. 2.50.
34 This implied term is customarily changed by an express term in the call for tenders (a “privilege
clause”) that allows the owner to select a bid other than the lowest one, recognizing that value
is not measured solely by price.
35 The Queen v. Ron Engineering and Construction [1981] 1 S.C.R. 111 (bidder’s deposit forfeited
to owner despite attempted withdrawal of the bid).
36 Martel Building v. Can. [2000] 2 S.C.R. 860 (duty of good faith to treat all bidders fairly);
M.J.B. Enterprises v. Defence Construction [1999] 1 S.C.R. 619 (duty of good faith restricts
selection to compliant bidders even in the face of a privilege clause granting to the owner
discretion in selection).
37 E.g., M.J.B. Enterprises, previous note; Tercon Contractors v. B.C. [2010] 1 S.C.R. 69 (selection
of ineligible bidder a breach of contract A); Double N Earthmovers v. Edmonton [2007] 1
S.C.R. 116 (but owner under no duty to unsuccessful bidders under contract A to supervise the
execution of contract B to ensure continuing compliance with the terms of the tender); Design
Services v. Can. [2008] 1 S.C.R. 737 (but no duty in tort to potential subcontractors who were
not bidders and therefore not parties to contract A).
38 Chinook Aggregates v. Abbotsford [1990] 1 W.W.R. 624 (B.C.C.A.) (in the absence of any
privilege clause (note 34, above), selection of local bidder a breach of contract A with non-
local bidder who submitted the lowest bid).
311
9.3(e) CONTRACT
bidders would be entitled to a remedy in contract, certainly damages, and in some

cases the rescission of contract B.39
The law of tendering is all part of the law of contract. It will therefore yield
to express terms in the call for tenders, which may negate the implied terms of
contract A, for example, by expressly granting to the owner the discretion to
select a non-compliant bid, or to select a bid that is not the lowest price. The call
for tenders can also limit the damages for breach of contract A (for example, to
the cost of preparing the bid), or even exclude all damages for breach of contract
A,40 or make clear that the call for tenders is no more than an invitation to treat
(so that there is no contract A). If the express terms of the call for tenders are
more favourable to the owner than the implied terms of contract A or the normal
consequences of breach of contract, the remedy for those who regard the terms
as too harsh is not to submit a bid. Those who do bid are bound by the express
terms of the call for tenders.
The law of tendering is not unique to the Crown: it applies to a call for
tenders in the private sector as well as the public sector. However, tender calls
are not as common in the private sector as they are in the public sector, where
government contracts for the purchase of goods or services (government pro-
curement) are typically required by statute to be preceded by a competitive bidding
process.41 Any perception that government officials have selected a bid on the
basis of criteria that were not disclosed in advance to all bidders, or have “waived”
for the successful bidder some of the conditions in the call for tenders, will give
rise to suspicions of collusion or corruption or at least of inappropriate political
influence in the procurement process. Indeed, it is to allay such concerns that
most jurisdictions have required by statute that significant government contracts
be awarded only on the basis of a competitive bidding process, and have regulated
that process.42 In addition to statutory requirements respecting the tender process,
the law of contract will insist upon open and fair competition, disclosure to all
39 A government decision to reject a bid may also be subject to judicial review. However, a
successful application for judicial review is not a pre-condition to bringing an action for breach
of contract: Can. v. TeleZone [2010] 3 S.C.R. 585; see ch. 2, Remedies, under heading 2.10,
“Collateral attack”, above.
40 Tercon Contractors v. B.C., note 37, above (exclusion clause given a narrow construction and
held inapplicable on the facts by the majority, but no doubt cast on its validity).
41 The federal-provincial Agreement on Internal Trade includes a chapter 5 on government pro-
curement, which prohibits discrimination based on province of origin and regulates the tender-
ing process in some detail. The provisions of chapter 5 apply to contracts over $25,000 for
goods, and over $100,000 for services (including construction), and they require a competitive
bidding process. The Agreement is not enforceable against the provinces (although there is a
non-binding complaint process), but the terms of the Agreement have been implemented by
statute in most provinces, including the monetary thresholds. The Agreement is enforceable
against the federal government through the Canadian International Trade Tribunal, which is
established and empowered by the Canadian International Trade Tribunal Act, R.S.C. 1985, c.
47 (4th Supp.). See Horsman and Morley, note 3, above, sec. 2.50.
42 For detail, see Emanuelli, Government Procurement (2nd ed., 2008).
312
POWER OF CROWN TO MAKE CONTRACTS 9.4(a)
bidders of all material information, a fair process to evaluate the bids, and the
selection of a compliant bidder. Unfair practices will lead to a breach of the terms
of contract A, and remedies against the government for breach of contract.
9.4 Power of Crown to make contracts
(a) Power of a natural person
There are two requirements for the validity of a contract purporting to be

made by a government representing the Crown: first, the contract must be within
the power of the particular government; and, secondly, the contract must have
been made by a servant or agent acting within the scope of his or her authority.
This section deals with the first of these requirements.
The Crown has the power of a natural person to enter into contracts.43 The
existence of this common-law power is normally explained on the basis that the
monarch is a natural person who in her official (as well as her private) capacity
possesses the same powers as other natural persons.44 This simple idea has been
articulated by the Supreme Court of Canada.45 The natural-person theory is not
entirely successful as an explanation of governmental power in that it makes it
difficult to explain the division of the Crown into separate governments, each
bearing separate responsibility for its own contracts. But no theory of the state is
wholly satisfactory, and this one works well in most contexts. As we have sug-
gested earlier,46 it is sometimes helpful to think of the Crown as a common law
corporation with all the powers of a natural person to enter into contracts.
One implication of the natural-person theory is that the Crown does not need
statutory authority in order to enter into contracts. The power is an executive one
granted by the common law.47 Of course, the power may be regulated by statute,
in which case the statute prevails over the common law. This is elaborated in the
next section of this chapter.48
Since contracts often involve the payment (or repayment) of money by the
Crown, it is important that the power to contract be aligned with the power to
spend money. All Canadian governments have a “spending power” that is not
explicitly granted by any particular provision of the Constitution of Canada.
43 Chapter 1, Introduction, under heading 1.4(a), “Executive branch of government”, above.

44 Bankers’ Case (1700) 14 St. Tr. 1; 90 E.R. 270 (Crown has power to enter into contracts to
borrow money without the authority of a statute).
45 Verreault v. A.G. Que. [1977] 1 S.C.R. 41, 47; A.G. Que. v. Labrecque [1980] 2 S.C.R. 1057,
1082.
46 Chapter 1, Introduction, under heading 1.4(d), “Corporate character”, above.
47 Recall the debate about whether it is correct to describe a common law power that is not unique
to the Crown, being possessed by the Crown in common with private persons, as a “prerogative”
power: ch. 1, Introduction, under heading 1.5(b), “Crown prerogative”, above.
48 Section 9.4(b), “Statutory authority”, below.
313
9.4(a) CONTRACT
Notwithstanding some academic controversy on the point, the better view is that
each government has the same power to spend as it has to contract, namely, that
of a natural person.49 The significance of this in a federal system of government
is that the federal government is not constrained by its list of legislative powers
in spending money, and the provinces are similarly unconstrained in their powers
to spend. In fact, the federal government routinely spends money for purposes
that it could not directly legislate, for example, in grants to the provinces. And,
relying on their natural-person powers to contract and spend, both levels of
government routinely engage in commercial activities without regard for their
legislative powers. Governments sell liquor, insurance, books, wheat, eggs and
other natural products. They own airlines, pipelines, telephone systems, and radio
and television networks. They often make no use of their legislative powers for
these purposes, and in fact commercial activity often takes a government outside
its legislative authority. This does not place the federal principle in jeopardy,
because the commercial activity of a government, like that of a private person, is
subject to the regulatory authority of the level of government that possesses the
applicable legislative power. For example, a province can own and operate a
telephone system, and carry out all the contracting and spending associated with
the enterprise, but the telephone system is subject to the regulatory authority of
the Parliament of Canada, which has the legislative authority to regulate telecom-
munications.50
The same natural-person theory applies to Crown powers over property,
including land. In its role as proprietor of Crown land, the Crown can enter into
agreements for sale and purchase, mortgages, leases, licences or other instruments
to the same extent as a private proprietor.51 These are contracts that do not require
the coercive force of a statute: they have the force of law by virtue of the agreement
of the lessee or licensee or other contracting party. No statutory authority is
needed, and indeed the executive power of the Crown, whether federal or provin-
cial, over its own property exceeds its legislative authority over the property of
private persons. For example, the provincial Crown as proprietor could (and
routinely does) insert in leases or licences that authorize the extraction of minerals
49 Hogg, Constitutional Law of Canada (5th ed., 2007, annually supplemented), sec. 6.8, “Spend-
ing power”.
50 Alberta Govt. Telephones v. C.R.T.C. [1989] 2 S.C.R. 225, 275, 301 (telephone system owned
and operated by an agent of the Crown in right of Alberta held to be subject to federal regulatory
authority). See also The Queen (Ont.) v. Bd. of Transport Commrs. (Go Train) [1968] S.C.R.
118 (commuter railway service owned and operated by the Crown in right of Ontario on
interprovincial track held to be subject to federal regulatory authority). In principle, the power
of the provinces to regulate the Crown in right of Canada when it engages in commercial
activity within provincial jurisdiction should be the same, but this is less clear on the cases. For
discussion, see Hogg, previous note, sec. 10.9, “Federal complications”.
51 Compare Henco Industries v. Haudenosaunee Six Nations (2006) 82 O.R. (3d) 721, paras. 72-
74 (C.A.) (injunction issued against Aboriginal protestors on private land had to be dissolved
once Crown acquired the land and exercised its proprietary right to consent to the ongoing
protest on the land).
314
POWER OF CROWN TO MAKE CONTRACTS 9.4(b)
or timber from Crown land an obligation to pay a royalty that would be invalid
as an indirect tax if it were enacted by the Legislature as an impost on the extraction
of minerals from private land. So long as the power to impose the royalty stems
from a contract associated with the ownership of property, restrictions on the
legislative powers of the province are irrelevant.52
Any expenditure by the Crown of public money requires the authority of
Parliament or the Legislature. The authorizing law is described as an “appropri-
ation” or a grant of “supply”. The rule makes it difficult for the executive to
govern for a prolonged period without calling Parliament into session, which is
one of the safeguards of parliamentary democracy. The rule is elaborated in a
later section of this chapter.53 For present purposes, it should be noted that an
appropriation of money need not be limited to the objects that are competent to
that legislative body in enacting other kinds of laws. That is because the spending
power is not constrained by the same restrictions as apply to the enactment of
other kinds of laws. An appropriation is not like other laws. It has no coercive
force, imposing obligations on no one. An appropriation simply provides the
Crown with the authority to do with public money what a private person can do
with private money.
(b) Statutory authority
In the previous section of this chapter, we noticed that the Crown’s natural-
person power to enter into contracts has the consequence that no statutory au-
thority is needed to enable the Crown to enter into contracts.54 It is in fact common
for governments to enter into contracts for which there is no clear statutory
authorization. So long as the contract is entered into by a Crown servant with the
authority to bind the Crown to that kind of contract, which is an issue governed
by normal rules of agency (and some statutory regulation),55 the contract will bind
the Crown. However, much government contracting, and notably high-value
procurement, is regulated by statute, and, where there is a statute, obviously, the
statute supplants the common law and must be complied with.
Legislation may also approve a contract or agreement that has already been
made.56 Furthermore, legislation can go so far as to provide that a contract shall
52 A.G.B.C. v. Deeks Sand and Gravel Co. [1956] S.C.R. 336 (royalty that might have been ultra
vires if legislated upheld as a contract). For fuller discussion, see Hogg, note 49, above, sec.
29.3, “Executive power over public property”.
53 Section 9.4(c), “Legislative appropriation”, below.
54 In the case of contracts involving the expenditure of money by the Crown, a legislative
appropriation will be needed at the time any payment falls due, but this requirement is not
necessary to the validity of the contract (unless a statute so provides), and as will be explained
in the next section, 9.4(c), “Legislative appropriation”, below, the absence of an appropriation
is not even an excuse for non-performance in some jurisdictions (although it is in others).
55 Section 9.5, “Power of Crown servants to make contracts”, below.
56 E.g., North American Free Trade Agreement Implementation Act, S.C. 1993, c. 44, s. 10.
315
9.4(c) CONTRACT
have the force of law.57 Such an enactment has the effect of elevating the con-
tractual rights and obligations to statutory rights and duties. A breach of the
agreement becomes a statutory breach, possibly conferring rights on persons who
may not have been a party to the contract. However, the contract and the rights
and obligations under it are not terminated by raising the contract to legislative
status.58
(c) Legislative appropriation
It is a fundamental constitutional principle that all expenditures of public

funds must be authorized by statute.59 It is one of a cluster of rules that safeguard
parliamentary democracy by making it difficult for the executive to govern with-
out calling Parliament or the Legislature into session. A statute authorizing the
expenditure of public funds is commonly referred to as an appropriation or supply.
In practice, of course, the Parliament or Legislature cannot authorize each indi-
vidual payment, and appropriation (or supply) statutes usually authorize broad
categories of expenditures up to monetary limits stipulated in estimates approved
by the Treasurer (or Minister of Finance). For this reason, it is rare that an
appropriation does not exist to meet an obligation incurred by government.
The requirement of a legislative appropriation applies to an expenditure by
the Crown to perform a contract no less than an expenditure for any other purpose.
Therefore, when a payment under a contract falls due, there must be an appro-
priation of funds in place to authorize the payment. If there is no appropriation,
then the payment cannot be made, and the Crown will be in breach of its contrac-
tual obligation. The common law rule is that the absence of an appropriation does
not excuse the Crown from performance. On the contrary, the Crown’s failure to
make the contracted payment will be a breach of contract.60
Whether a judgment against the Crown for damages for breach of contract
could be satisfied in the absence of an appropriation for the purpose is a question
that depends upon the rules regarding the enforceability of judgments against the
57 J. Nonggorr, “The Legal Effect and Consequences of Conferring Legislative Status on Con-
tracts” (1995) 17 U. Queensland L. J. 169.
58 Nonggorr, previous note, 183.
59 Auckland Harbour Bd. v. The King [1924] A.C. 318 (P.C., N.Z.); E. Campbell, “Parliamentary
Appropriations” (1971) 4 Adelaide L. Rev. 145. The rule is a fundamental rule of the common
law, but it has been given written form in some constitutions, e.g., Constitution of Australia, s.
83; New Zealand’s Constitution Act 1986, s. 22. Canada’s Constitution Act, 1867, by ss. 53,
54, requires only that an appropriation bill originate in the House of Commons and that it be
recommended by message of the Governor General. The rule has been given written form in
some statutes, e.g., Financial Administration Act, R.S.C. 1985, c. F-11, s. 26.
60 N.S.W. v. Bardolph (1934) 52 C.L.R. 455, 49 (H.C., Aust.); Turpin, note 3, above, 27; Aronson
and Whitmore, note 3, above, 193.
316
POWER OF CROWN TO MAKE CONTRACTS 9.4(c)
Crown.61 In all Canadian jurisdictions, the United Kingdom and New Zealand,
the Crown proceedings statute requires or authorizes the payment of a judgment
debt in terms that make clear that no further appropriation is necessary.62 In each
of these jurisdictions, the Crown proceedings statute is, in effect, a permanent
appropriation of funds for the satisfaction of judgments, and it ensures that a
judgment creditor will be paid, even if the underlying contractual obligation did
not come within an appropriation.63
In the Canadian federal jurisdiction, s. 40 of the Financial Administration
Act64 provides:
It is a term of every contract providing for the payment of any money by Her Majesty
that payment under that contract is subject to there being an appropriation for the
particular service for the fiscal year in which any commitment under that contract
would come in course of payment.
By making the existence of an appropriation “a term” of any contract providing
for the payment of public monies, s. 40 of the Financial Administration Act seems
to make the absence of an appropriation an excuse for non-performance by the
government.65 This reverses the common law and is an unfortunate rule. It would
permit the Crown to escape from its contractual obligations even after the private
party had performed his or her side of the contract. Persons contracting with the
Crown should not be exposed to this risk. Certainly, such a risk is not necessary
61 The law is described in ch. 3, Enforcement of Judgments, under heading 3.1(c), “Duty to pay
judgment debts”, above.
62 In certain Australian jurisdictions, an appropriation is necessary to pay a judgment debt: see
previous note.
63 Compare Northrop Corp. v. The Queen [1977] 1 F.C. 289 (T.D.), refusing to enter a consent
judgment against the Crown for breach of contract on the ground that the consent judgment
would cause a large unappropriated sum of money to be payable out of the Consolidated
Revenue Fund. Thurlow A.C.J. said (at 295) that the parties ought “either to obtain the imple-
mentation of the settlement reached through an appropriate Parliamentary vote or to take steps
to establish the actual liability of the Crown for damages by bringing the issue to trial”.
64 R.S.C. 1985, c. F-11; see also s. 32. Section 40 has its counterpart in the following provinces:
British Columbia – Financial Administration Act, R.S.B.C. 1996, c. 138, s. 28(2); Saskatchewan
– Financial Administration Act, S.S. 1993, c. F-13.4, s. 33(2); Quebec – Financial Administra-
tion Act, R.S.Q. c. A-6.001, s. 21; New Brunswick – Financial Administration Act, S.N.B.
1973, c. F-11, s. 38(2) (2); Newfoundland – Financial Administration Act, R.S.N.L. 1990, c.
F-8, s. 25(6); Prince Edward Island – Financial Administration Act, R.S.P.E.I. 1998, c. F-9, s.
38.
65 Section 40 probably has no application to contracts by Crown agents that have their own assets,
even if the assets originally had their source in a parliamentary appropriation. Query also
whether s. 40 would apply in the event that a statute provided specific authority for the
government to enter into a particular contract. In such circumstances, since Parliament has
already expressly authorized the entering into of this particular agreement, it seems implicit
that it has also recognized and accepted the duty to compensate the other contracting party in
the event of a breach by the Crown. Such a situation may therefore be distinguishable from
cases in which the original contract was entered into by the Crown alone, without the approval
or express authorization of Parliament.
317
9.4(d) CONTRACT
to preclude the unauthorized expenditure of public monies, since there are nu-
merous internal governmental controls for this purpose, including the oversight
of the Treasury Board, the Auditor General and the Public Accounts Committee
of Parliament.
Six provinces have a statutory provision similar to the federal provision, and,
although there is some variation in the statutory language, the absence of an
appropriation is probably an excuse for non-performance in those jurisdictions.66
Elsewhere in Canada, and in the United Kingdom, Australia and New Zealand,
the common law rule prevails. As explained three paragraphs earlier, the common
law rule is that the existence of an appropriation is not a condition precedent to
the validity of a contractual obligation to pay public monies. In this respect, the
common law is consistent with the assimilation of the Crown to a private person
in respect of contractual liability.
(d) Constitutional limits
The Crown’s common law power to enter into contracts could, of course, be
restricted by the terms of the Constitution. However, the Constitution of Canada
does not change the general rule that the Crown in right of each government
possesses the contractual power of a natural person. As explained earlier,67 the
Crown’s power to contract is not restricted by the constitutional limits that con-
strain the exercise of legislative power. A contract creates rights and obligations
by virtue of the voluntary agreement of the parties. It does not unilaterally impose
rights and obligations as a statute does. There is therefore no reason to confine
the power to contract within the limits of the power to legislate, and the courts
have not done so.68 The government of Canada, or the government of a province,69
may enter into contracts for purposes that it could not accomplish by legislation.
There is no constitutional limit on the power of Parliament or a Legislature
to unilaterally extinguish or alter private rights created by a contract entered into
by the Crown. This is one of the risks of contracting with the Crown. Needless to
say, a unilateral change in a contract can only be accomplished by statute, and
therefore must come within the legislative power of the enacting body. However,
Parliament’s power over “the public debt and property” extends to the extinguish-
ment or alteration of the federal Crown’s contractual obligations.70 And each
66 Note 64, above.

67 Sec. 9.4(a), “Power of a natural person”, above.
68 Hogg, note 49, above, sec. 6.8.
69 Note however that all action by “government”, including government contracting , is bound by
the Charter of Rights: Hogg, previous note, sec. 37.2(e).
70 Constitution Act, 1867, s. 91(1A); Re Canada Assistance Plan [1991] 2 S.C.R. 525 (upholding
federal statute reducing transfer payments promised by Canada to provinces under federal-
provincial agreements). See also Authorson v. Can. [2003] 2 S.C.R. 40 (upholding federal
statute, presumably passed under the defence power, extinguishing veterans’ rights to interest
on funds held by the federal Crown on their behalf).
318
POWER OF CROWN TO MAKE CONTRACTS 9.4(d)
provincial Legislature’s power over “property and civil rights in the province”
extends to the extinguishment or alteration of the contractual obligations of the
provincial Crown (as well as those of private persons in the province).71 Nor is
there any constitutional requirement of compensation for the taking of property
– or the extinguishment or alteration of contractual rights.72 As has been colourfu-
lly explained, “the prohibition ‘Thou shalt not steal’ has no legal force upon the
sovereign body.”73
The Constitution of Canada, including the Charter of Rights,74 contains no
protection for property rights or for contractual rights, and no requirement of
compensation for taking away property or contractual rights.75 The courts have
generally been careful to respect the intention of the framers and not to interpret
the Charter guarantees as extending to purely economic rights. However, in an
unexpected reversal of previous authority, the Supreme Court of Canada, in the
Health Services Bargaining case (2007),76 held that a contractual right contained
in a collective agreement with the Crown is constitutionally protected by the
guarantee of freedom of association in s. 2(d) of the Charter. The constitutional
protection is not merely a right to compensation for breach of the collective
agreement. The collective agreement actually takes precedence over an inconsis-
tent law duly enacted by the competent legislative body, rendering the law un-
constitutional. No comparable protection extends to the terms of an individual
contract of employment,77 or to any other contractual right.
It has been argued that the recognition by the Supreme Court of Canada of
the rule of law as an unwritten constitutional principle78 might provide some
constitutional restriction on the power of Canadian legislative bodies to extinguish
71 Constitution Act, 1867, s. 92(13); cases in note 81, below; ch. 11, Taking, below.
72 The classic statement of the rule is that of Dicey, Introduction to the Law of the Constitution
(10th ed., 1959), 40.
73 Florence Mining Co. v. Cobalt Lake Mining Co. (1909) 18 O.L.R. 279 per Riddell J.; aff’d
[1911] A.C. 412 (P.C.); quoted with approval in Authorson v. Can., note 70, above, para. 53
per Major J. for the Court. See also ch. 11, Taking, under heading 11.3(a), “No constitutional
right to compensation”, below.
74 Compare the Constitution of the United States, art. I, s. 10: “No state shall...pass any law
impairing the obligation of contracts”. This clause does not apply to the federal Congress.
However, “property” is protected in the due process clauses of the 5th Amendment (Congress)
and 14th Amendment (states).
75 The Canadian Bill of Rights, S.C. 1960, c. 44, applicable only to federal laws, contains (in s.
1(a)) a due process clause that protects “property”, but this confers only procedural rights, not
substantive rights to compensation for expropriation: Authorson v. Can., note 70, above.
76 Health Services and Support-Facilities Subsector Bargaining Assn. v. B.C. [2007] 2 S.C.R.
391, para. 96 (striking down “laws that unilaterally nullify significant negotiated terms in
existing collective agreements”). For criticism, see Hogg, note 68, above, sec. 1.4, “Constitution
of Canada”.
77 Clitheroe v. Hydro One (2009) 96 O.R. (3d) 203 (S.C.J.), aff’d 2010 ONCA 458 (C.A.)
(upholding statute clearly extinguishing contractual pension right).
78 Re Secession of Quebec [1998] 2 S.C.R. 217, paras. 70-78.
319
9.4(e) CONTRACT
contractual rights without compensation.79 However, since announcing the un-

written constitutional principle, the Court has upheld a federal statute taking away
from veterans their rights to payment of interest on funds held on their behalf by
the federal Crown.80 The Crown’s obligation to pay interest in that case was a
fiduciary one, not a contractual one, but there is no doubt that the decision would
have been the same if the obligation were contractual.81 And, in a case upholding
a provincial statute retroactively imposing new liabilities on tobacco companies,
the Court not only expressly rejected a rule-of-law argument, but said that a
breach of the rule of law could not lead to the invalidity of a statute.82 After these
cases, it seems fairly clear that the unwritten constitutional principle of the rule
of law will not be applied by the Court to strike down statutes that take away
private rights, including contractual rights against the Crown.
While there is no constitutional requirement of compensation for the taking
of property, there is a principle of statutory interpretation that a statute taking
away private property is to be read as implicitly requiring that compensation be
paid to the owner.83 Since this is only a principle of statutory interpretation, it
gives way to a clearly expressed statutory denial of compensation, but, if the
statute authorizing the taking of property is silent on the issue of compensation,
then compensation is payable. This principle was extended to the extinguishment
of contractual rights in Wells v. Newfoundland (1999),84 a case that is discussed
later in this chapter.85
(e) Statutory limits
The Crown’s common law power to enter into contracts could, of course, be
restricted by statute. In every jurisdiction, there are statutory provisions respecting
procurement and other government contracts,86 and it is a matter of interpretation
whether any of them actually limit the power of the Crown to enter into contracts.
For example, the common provision that contracts of a certain kind be signed by
79 P.J. Monahan, “Is the Pearson Airport Legislation Unconstitutional? The Rule of Law as a
Limit on Contract Repudiation by Government” (1995) 33 Osgoode Hall L.J. 411.
80 Authorson v. Can. [2003] 2 S.C.R. 40. There was no discussion of the rule of law.
81 E.g., Bacon v. Saskatchewan Crop Insurance Corp. [1999] 11 W.W.R. 51 (Sask. C.A.) (up-
holding statute clearly denying compensation for statutory changes to contracts of crop insur-
ance); Clitheroe, note 77, above.
82 B.C. v. Imperial Tobacco [2005] 2 S.C.R. 473, para. 60 per Major J. for the Court. But note
suggestion in B.C. v. Christie [2007] 1 S.C.R. 873, para. 21 per the Court, that “the rule of law
may include additional principles”.
83 Chapter 11, Taking, below.
84 [1999] 3 S.C.R. 199.
85 Sections 9.6(b), 9.8(a), below; for fuller discussion, see ch. 11, Taking, under heading 11.6,
“Extinguishment of contractual rights”, below.
86 See Horsman and Morley, note 3, above, sec. 2.20.20(3).
320
POWER OF CROWN TO MAKE CONTRACTS 9.4(e)
a minister, or other designated official,87 is probably best regarded not as a

limitation on the capacity of the Crown itself, but as a limitation on the authority
of servants or agents of the Crown, a topic that is taken up in the next section of
this chapter.
An example of another common statutory provision is s. 16 of Ontario’s
Ministry of Government Services Act,88 which used to require that all contracts
in excess of $10,000 for the construction, renovation or repair of a public work
be subject to competitive tendering. The Supreme Court of Canada in The Queen
v. Woodburn (1899)89 has characterized a requirement of this kind as mandatory,
and held invalid a contract made in breach of the requirement. Breton v. St.
Gedeon (1956)90 is a decision of the Quebec Court of Appeal that reaches a
contrary result, upholding the contract despite the absence of a public tender.
These cases leave the position unclear, but the Woodburn decision certainly
suggests that a public tender requirement is a limitation on the power of the Crown
to enter into contracts.91
It does not necessarily follow that a breach of statutory requirements in the
making of a contract ought to make the contract invalid. The requirements could
be regarded as directory, rather than mandatory, in which case their breach would
not lead to invalidity. Directory rules are rules that do not limit the power of the
Crown or a statutory official or agency. Directory rules are not necessarily unen-
forceable, since they might form the basis of an injunction prior to the making of
a contract, and their breach might expose civil servants to disciplinary action or
even to prosecution. However, a breach of directory rules does not lead to the
invalidity of the contract. Where no strong public interest is engaged, it is surely
preferable to construe statutory prerequisites to Crown contracts as directory only.
It seems wrong that a private contractor should be able to escape from his or her
contractual obligations by relying on what is, to the contractor at least, a techni-
cality. And it also seems wrong that the Crown should be able to invoke its own
wrongdoing to escape from its contractual obligations, at least where the private
contractor was unaware of the breach.92
87 E.g., Executive Council Act, R.S.O. 1990, c. E.25, s. 6.

88 R.S.O. 1990, c. M.25. The monetary threshold has since been replaced by amendment with
“policies of the management board of cabinet”.
89 (1899) 29 S.C.R. 113. Note that the failure to tender was not the only infirmity of the invalid
contract. A statutory requirement of the approval of the Governor General in Council had also
not been complied with.
90 [1956] B.R. 442 (Que. C.A.). Note that tenders had been obtained by invitation, which was not
the public call for tenders required by the statute, but which could perhaps have been treated
as substantial compliance.
91 Statutory requirements respecting the fair treatment of bidders have also been held to be
mandatory: Health Care Developers v. Nfld. (1996) 136 D.L.R. (4th) 609 (Nfld. C.A.). See
also sec. 9.3(e), “Tendering contracts”, above.
92 Accord, The Queen v. Transworld Shipping [1976] 1 F.C. 159 (C.A.) (regulatory requirement
of Treasury Board approval merely directory).
321
9.5(a) CONTRACT
9.5 Power of Crown servants to make contracts

(a) General rules of agency
A contract within the power of a government representing the Crown will

bind the Crown only if it is made by a servant or agent of the Crown who is acting
within the scope of his or her authority.
Under the general law of agency, the act of an agent will bind the principal
if the act is within (1) the agent’s actual authority, or (2) the agent’s ostensible
authority,93 or, perhaps, (3) the agent’s usual authority.94 Where the act is outside
the agent’s actual authority but is within the agent’s ostensible or usual authority,
the act will bind only if the other party to the transaction believed it to be within
the agent’s actual authority.
Apart from statute, the scope of a Crown servant’s authority to bind the
Crown by contract is determined by the general law of agency.95 No statute or
order in council is required to provide the authority to contract. Unless limited by
statute or by order in council (or other direction of cabinet), a minister, as the
chief executive officer of a department, has actual authority to bind the Crown
by contract in respect of all matters within the scope of his or her department’s
operations.96 The minister’s power may be delegated to the deputy minister and
93 Ostensible authority (or apparent authority or agency by estoppel) involves a “holding out” by
the principal that the agent has authority. The principal will then be bound by the act of the
agent, even if the agent had no actual authority to bind the principal. For discussion, see
Bowstead and Reynolds on Agency (18th ed., 2006), article 72; Fridman, Canadian Agency
Law (2009), ch. 2, paras. 2.27-2.33.
94 Usual authority is an implied authority to do whatever an agent of the kind would usually have
authority to do: Watteau v. Fenwick [1893] 1 Q.B. 346; discussed in its application to the Crown
by Treitel, “Crown Proceedings” [1957] Public Law 321. Usual authority differs from ostensible
authority in that usual authority does not involve a holding out by the principal. Fridman,
previous note, 53-54, treats usual authority as a branch of actual authority — implied actual
authority. Bowstead, previous note, article 22, notes that there is little authority for a separate
doctrine of usual authority that is not a sub-set of either actual or ostensible authority. Meates
v. A.G. [1979] 1 N.Z.L.R. 415, 462 (S.C.) stands for the proposition that a Crown agent possesses
usual authority although this proposition remained unelaborated in the decision. However,
Arrowsmith, Civil Liability and Public Authorities, note 3, above, 69-70, suggests that the
doctrine of usual authority is inapplicable with respect to agents of the Crown. She contends,
unconvincingly in our view, that the offices and jurisdictions that the Crown gives to its agents,
whether by statute or on an ad hoc basis, are ever-changing, unique, and not easily classified
into what is usual or unusual for any particular position. Said another way, Arrowsmith submits
that it is impossible to decipher what is usual in a fundamentally unusual position. In our view,
however, these difficulties are no different in kind from those that arise in agency situations
involving private parties, and do not justify the refusal to apply ordinary agency principles.
95 Verreault v. A.-G. Que. [1977] 1 S.C.R. 41, 47 (rejecting older cases that insisted upon statutory
authority).
96 The Queen v. Transworld Shipping [1976] 1 F.C. 159, 163 (C.A.); R. v. C.A.E. Industries [1986]
1 F.C. 129, 165 (C.A.).
322
POWER OF CROWN SERVANTS TO MAKE CONTRACTS 9.5(b)
to lower officials,97 and even in the absence of a delegation, the doctrine of

ostensible or usual authority may make contractual undertakings by officials
binding.
(b) Statutory limits
Where there are statutory restrictions on the authority of servants or agents

to bind the Crown, those restrictions must of course be complied with, and no
actual, ostensible or usual authority can override a statutory prohibition.98 This is
so even if the private contractor is unaware of the statutory restrictions: “A
contractor dealing with the Government is chargeable with notice of all statutory
limitations placed upon the power of public officers.”99 For example, where there
is a statutory requirement of an order in council to authorize a contract, a contract
entered into without order-in-council authority or beyond the scope of order-in-
council authority is invalid.100
While there is no doubt about the obligation to adhere to statutory restrictions,
the tendency of the cases is to require very clear statutory language to displace
the normal rules of agency. For example, provisions regulating contracting power
have been interpreted narrowly so as not to apply to the contract in issue.101 Or
such provisions have been interpreted as empowering rather than restricting and
not precluding the operation of the normal rules of agency.102 Or the provisions
have been construed as directory rules of indoor management, rather than man-
datory restrictions on the authority of ministers or officials.103 By these various
devices, the Crown has been held to be bound by contracts that did not comply
with statutory requirements. In each of the footnoted cases, the Crown tried to
escape from its contractual obligations by invoking a defect in its own internal
contracting procedures. It is not surprising that the courts struggled to find a way
to avoid the injustice to the private contractor by holding that the Crown was
bound.
97 The Queen v. Transworld Shipping, previous note, 164.

98 A.-G. Ceylon v. Silva [1953] A.C. 461 (P.C., Ceylon).
99 R. v. Woodburn, note 89, above, 123.
100 Ibid.; Mackay v. A.-G. B.C. [1922] 1 A.C. 457 (P.C., Can.); Gooderham & Worts v. C.B.C.
[1947] A.C. 66 (P.C., Can.). A requirement of order-in-council authority is unlikely to be
construed as merely directory, although it is possible: note 92, above.
101 For example, formal requirements have been held inapplicable to oral contracts: The Queen v.
Henderson (1898) 28 S.C.R. 425, 432; The Queen v. Transworld Shipping, note 96, above,
172.
102 E.g., Verreault v. A.-G. Que., note 95, above, 45; R. v. C.A.E. Industries, note 96, above, 166-
168. Compare Clark v. The Queen (1979) 99 D.L.R. (3d) 454 (B.C.S.C.).
103 The Queen v. Transworld Shipping, note 96, above, 171.
323
9.6(a) CONTRACT
9.6 Fettering legislative power

(a) Direct fettering of legislative power
The future exercise of legislative power104 may not be fettered by contract.

If a government, by contract, undertakes to enact a law or to keep a law in force,
the legislative body is not bound by the contract and is free to act as it chooses in
breach of the contractual undertaking. “Ministers of State cannot . . . by means
of contractual obligations entered into on behalf of the State fetter their own
freedom, or the freedom of their successors or the freedom of other members of
Parliament to propose, consider and, if they think fit, vote for laws, even laws
which are inconsistent with the contractual obligations.”105 Of course, contracts
are entered into by the executive branch of government (the Crown), not by the
legislative branch, and therefore neither Parliament nor the Legislature is a party
to any contract purportedly fettering its powers. As well, the principle of parlia-
mentary sovereignty is that Parliament or the Legislature is free to make or unmake
any law whatever, and this power cannot be fettered even by statute.106 Obviously,
it cannot be fettered by contract. A party to a contract cannot obtain an injunction
or any other remedy that would require a legislature to adhere to a contract that
required a particular law to be enacted or not to be repealed.107 However, although
the legislative branch cannot be directly compelled to perform a contract to enact
or repeal or not repeal a particular law, the contract may nevertheless be valid
and enforceable by the remedy of damages against the Crown (the executive
branch); this is the topic of the following text.
104 The no-fettering doctrine was for a time framed in terms of executive power, based on The
Amphitrite [1921] 3 K.B. 500, which held that an undertaking by the Crown to a foreign
shipowner that, if he delivered a particular cargo to Britain during World War I, his ship would
not be seized by the government, need not be honoured by the Crown. The wartime context,
coupled with the recognition that all Crown contracts fetter executive discretion to some degree,
has caused this decision to fall into desuetude. For extended discussion, see the previous edition
of this book: Hogg and Monahan, Liability of the Crown (3rd ed., 2000), sec. 9.6 “Doctrine of
executive necessity”. It is the fettering of legislative power that is the topic of this section of
the book.
105 Re Canada Assistance Plan [1991] 2 S.C.R. 525, 560 per Sopinka J. for the Court. The case
upheld federal legislation reducing transfer payments to the provinces, but the Court held that
the reduction was not inconsistent with the Canada Assistance Plan agreements with the
provinces.
106 Hogg, note 49, above, ch. 12.
107 The remedy of injunction is unavailable against the Crown in all Canadian jurisdictions (ch. 2,
Remedies, under heading 2.4, “Injunction”, above), but the no-fettering doctrine does not
depend on that immunity, and would survive if the immunity were repealed or if the remedy
were sought against a defendant other than the Crown.
324
FETTERING LEGISLATIVE POWER 9.6(b)
(b) Indirect fettering of legislative power
While a contract entered into by the Crown (or anyone else) cannot validly
impose a direct fetter on legislative power, an exercise of legislative power in
breach of contract will give rise to an obligation on the Crown to compensate the
private contracting party for any loss suffered by the breach of contract. That
obligation is an indirect fetter on legislative power, but it is not forbidden by the
rule against fettering; on the contrary, it is required by the rule of law.
In Wells v. Newfoundland (1999),108 the government of Newfoundland en-
tered into a contract with the plaintiff to appoint him to the office of a commis-
sioner of the province’s public utilities board. The contract provided for the
appointment to last until age 70, subject to good behaviour. The assumption of
the contract was that the board would continue in existence for the period of the
contract. Despite the contract (or perhaps because of it), the Legislature abolished
the board and replaced it with a different body. The plaintiff lost his office as a
result. He sued for breach of contract. The government argued that its implied
undertaking to maintain the board in place was invalid as a fetter on legislative
power. The Supreme Court of Canada agreed that the contract could not fetter
the power of the Legislature to abolish the board, but it did not agree that the
contract was invalid. On the contrary, the statute abolishing the board caused a
breach of the contract, and the plaintiff was entitled to damages for the breach.
Major J., who wrote for the Court, held that “in a nation governed by the rule of
law, we assume that the government will honour its obligations unless it explicitly
exercises the power not to.”109 In the exercise of parliamentary sovereignty, the
Legislature could have extinguished the plaintiff’s contractual rights, but the
Court held that only “specific and unambiguous” language would be held to
accomplish such a “harsh and extraordinary use of governmental authority”.110
Since the legislation was silent about the plaintiff’s right to compensation, the
right had not been extinguished.
What Wells makes clear is that a statute that causes a breach of contract gives
rise to an obligation on the part of the Crown (or other contracting party in breach
of the contract) to pay damages to the party who has suffered loss as the result of
the breach.111 No doubt, the obligation to pay damages is a disincentive to any
exercise of legislative power that would cause a breach of contract. The obligation
to pay damages is in that sense an indirect fetter on legislative power. But the rule
against fettering of legislative power applies only to a direct fetter. If the plaintiff
109 Id., para. 46.
110 Id., para. 49.
111 Accord, United States v. Winstar Corp. (1996) 518 U.S. 839 (damages award against govern-
ment upheld for enactment of federal legislation inconsistent with contractual obligations to
private investors); Port of Portland v. Vic. [2010] HCA 44 (H.C., Aust.), para. 14-15 (damages
award against government upheld for failure to perform contract to enact amendments to a
statute).
325
9.6(c) CONTRACT
in Wells had sought an injunction to prevent the Legislature from abolishing the
board, he would have been defeated by the rule against fettering legislative power.
But all he sought was damages. The Court held that the Legislature was free to
abolish the board, but that the government must still bear the financial conse-
quences of the breach of contract. That was required by the rule of law. “To argue
the opposite”, Major J. said,112 “is to say that the government is bound only by its
whim, not its word”; that “does not accord with the nation’s understanding of the
relationship between the state and its citizens”.
(c) The Pacific National case
The wisdom of Wells was forgotten rather quickly when, in the following
year, the Supreme Court decided Pacific National Investments v. Victoria
(2000).113 In that case, the City of Victoria entered into a contract with a Crown
corporation to redevelop the corporation’s land located around the City’s Inner
Harbour. The corporation sold the land to Pacific National Investments, a private
developer, which succeeded to the contract with the City, and which became the
plaintiff in the subsequent action for breach of contract. It was an express term of
the contract that the City would re-zone the land to permit the planned develop-
ment, which included a sea wall, roads, parks and condominiums, as well as
several three-storey buildings with mixed residential and commercial uses that
were going to be on platforms on piles going into the harbour. The City enacted
the necessary by-law to re-zone the land as agreed. The plaintiff in turn started to
carry out its side the contract, building a sea wall, roads, parks and condominiums.
However, before the plaintiff could build the multi-storey buildings that were
planned for the water lots on the site, public opposition emerged to that part of
the project, and the City enacted a new zoning by-law, “down-zoning” the water
lots so as to restrict buildings there to one storey in height. The plaintiff sued the
City for breach of contract. The zoning required for the project was an express
term of the contract, and the contract plainly envisaged that the zoning would
remain in place for a reasonable period of time and certainly until the plaintiff
had completed the project. The plaintiff did not attack the validity of the new by-
law or seek an injunction to force the City to carry out its side of the contract.
The plaintiff sought only damages for breach of contract. If the plaintiff had been
successful, the City would have retained the new by-law that it wanted, but it
would have been required to pay compensation for the private loss caused by the
breach of its contract. It seems obvious that this was the right result, and that it
was compelled by Wells, but, in the Supreme Court of Canada, that was the view
of only the three dissenting judges. By a majority of four to three, the Court
denied the plaintiff’s claim on the ground that “a municipality may engage in
112 [1999] 3 S.C.R. 199, para. 46.

113 [2000] 2 S.C.R. 919. LeBel J., with Gonthier, Iacobucci and Arbour JJ., wrote the majority
opinion. Bastarache J., with Major and Binnie JJ., wrote the dissenting opinion.
326
FETTERING LEGISLATIVE POWER 9.6(c)
business and proprietary contracts, but it cannot agree to terms that fetter its
legislative power.”114 To the argument that an obligation on the municipality to
pay compensation for its breach of contract did not fetter its legislative power,
LeBel J., who wrote for the majority, replied that an indirect fetter was no different
from a direct fetter: “an agreement to compensate for a legislative decision like
the one in the present case is no more acceptable than an outright restriction on
the legislative power”.115
In Wells, of course, compensation for breach of contract caused by a legis-
lative decision was not merely treated as “acceptable”, but as a governmental
obligation required by the rule of law. Why was that not applicable to the facts
of Pacific National? LeBel J. explained that in Wells the contract in dispute was
“a business contract in relation to the hiring of senior civil servants”,116 and the
indirect-fettering rule did not apply to business contracts. No rationale and no
precedent was offered for this distinction. Nor did he offer any definition of a
“business contract”. What is a “business” contract for a governmental organiza-
tion that does not engage in business? As Bastarache J. commented in dissent,
“the artificial creation of categories of business contracts is unjustified and un-
workable”.117 In Wells, no one thought to characterize the appointment of a public
utilities commissioner as a “business contract”, not only because the distinction
had not then been invented by the Court but also because it is so implausible. In
Wells, the so-called business contract – the long-term contract with the commis-
sioner – was undeniably an indirect fetter on the legislative power of the province,
because it meant that the Legislature could not abolish the public utilities board
without compensating Mr. Wells for the breach of his contract. And the ratio
decidendi of the case was that it was no objection to a contract that it imposed an
indirect fetter in the form of an obligation to compensate for any breach of contract
caused by the Legislature. Surely, Bastarache J. was right in his dissenting view
that Wells was the governing authority for Pacific National. The plaintiff in Pacific
National, like the plaintiff in Wells, did not argue that legislative power had been
directly fettered by its contract. The plaintiff accepted that the City was free to
enact the down-zoning by-law, even though the by-law was a breach of contract.
As in Wells, all that was claimed was that compensation should be paid for the
breach of contract. In Pacific National, that claim should have been accepted by
the Court.
LeBel J. provided a second reason to distinguish Wells. He said that the
contract in Wells did not engage “the exercise of municipal legislative powers”,118
suggesting that the no-indirect-fettering rule applies only to the municipal level
114 Id., para. 65.

115 Id., para. 63.
116 Id., para. 61 (emphasis added).
117 Id., para. 119.
327
9.6(c) CONTRACT
of government.119 This restriction on the decision is also suggested by the ma-

jority’s extensive discussion of the history of British Columbia’s municipal law
respecting zoning, which, LeBel J. concluded, supported his view that the appli-
cable municipal law did not include a power in the province’s municipalities to
indirectly fetter future legislative action.120 On the other hand, if the decision
really were limited to municipalities, there would have been no point in charac-
terizing the contract in Wells as a business contract, and much of the reasoning
in support of the no-indirect-fettering rule was far too widely expressed. This
remains as an unexplained ambiguity in the decision. Nevertheless, the narrower
interpretation of the decision (applicable only to municipalities) is, in our view,
the better interpretation of the majority opinion – and it has the advantage of
limiting the harm that the decision can do. However, in our view, the decision is
wrong, even if it is limited to the exercise of municipal legislative powers. Why
should they alone be free to disregard contractual obligations? As the dissenting
judges insisted, in a society governed by the rule of law, no level of government
should be free to be heedless of private rights, even in response to changes in
public opinion.
In Pacific National, the plaintiff had brought an alternative claim against the
City for restitution of the $1.08 million that it had spent on the construction of
the seawall, roads, parkland and walkways in the mistaken reliance on the City
maintaining the required zoning as called for in the (invalid) contract. The resti-
tution claim was lower than the contract claim because it would compensate the
plaintiff only for the cost of the amenities that had been acquired by the City (the
unjust enrichment), not for all the loss (including lost profit) that had been caused
to the plaintiff by the City’s failure to carry out its side of the bargain. The
restitution claim had not been dealt with in the lower courts, and the Supreme
Court sent the claim back to the trial court for resolution. The Supreme Court
may have assumed that the City would be willing to at least pay for the cost of
the amenities that it had demanded and received at the expense of the plaintiff,
but that was not the case, and four years later the restitution claim arrived in the
Supreme Court as Pacific National Investments v. Victoria (No. 2) (2004).121 The
City argued that damages for unjust enrichment, although not as high as damages
for breach of contract, would still constitute an indirect fetter on its legislative
power. That argument, although without moral appeal, was plainly correct, since
the obligation to pay for the amenities would impose a cost on the enactment by
the City of the down-zoning by-law. But now the reaction of the Supreme Court
was completely different. Binnie J., who had dissented in Pacific National (No.
119 See also Id., paras. 68-71, where LeBel J. offers policy justifications for his decision – all
limited expressly to the municipal level of government.
120 Id., paras. 45-52, and note para. 65 (emphasis added): “Unless there is legislation expressing
a public policy permitting it to do so, a municipality may engage in business and proprietary
contracts, but it cannot agree to terms that fetter its legislative power.”
121 [2004] 3 S.C.R. 575. Binnie J. wrote the opinion of the seven-judge bench.
328
FETTERING LEGISLATIVE POWER 9.6(d)
1), wrote the judgment of a unanimous Court that included LeBel J. but no other
members of the majority in Pacific National (No. 1). Binnie J. summarily denied
that the City’s obligation to pay for the amenities it had acquired would be an
“indirect fetter” on the City’s legislative power: “The power to down-zone in the
public interest does not immunize the City against claims of unjust enrichment.”122
The Court awarded the plaintiff the damages it claimed for the unjust enrichment
of the City. The tenor of the opinion in Pacific National (No. 2) is a striking
contrast to that of the majority opinion in Pacific National (No. 1). In the first
place, Binnie J. in referring to the earlier decision, always referred to municipal-
ities and statutory powers, giving no suggestion of any wider application of the
no-indirect-fettering rule.123 Secondly, Binnie J. said: “I am not persuaded that it
would be good public policy to have municipalities making development com-
mitments, then not only have them turn around and attack those commitments as
illegal and beyond their own powers, but allow them to scoop a financial windfall
at the expense of those who contracted with them in good faith.”124 It is hard to
read that dictum without discerning some criticism of the majority decision in
Pacific National (No. 1). Finally, Binnie J. said: “Municipalities are subject to
the law of unjust enrichment in the same way as other individuals or entities”.125
We would add: what a shame that the same cannot be said of the law of contract!
But Pacific National (No. 2) gives reason to hope that the majority ruling in
Pacific National (No. 1) will be narrowly interpreted and may even have a short
life.
(d) Policy reasons for permitting indirect fettering
The result in Pacific National (No. 1) was unfair. LeBel J. acknowledged as

much: “To some, it will seem like a harsh result” to deny the plaintiff a remedy
for the City “withdrawing its consideration after the construction of costly im-
provements by [the plaintiff].”126 The harshness of the result was of course miti-
gated by the plaintiff’s success in the restitution claim in Pacific National (No.
2). At least the plaintiff recovered the cost of constructing the “costly improve-
ments”, although it lost the costs that were unrelated to the improvements as well
as the profits that would have been derived from completion of the agreed-upon
development. In Pacific National (No. 1), LeBel J. offered four policy justifica-
tions for the result.127 First, he said that “those in the business know that dealing
with a municipal government is different from dealing with a purely private
122 Id., para. 52. The indirect-fettering argument was only one of the arguments offered to resist
paying for the amenities. For more discussion of the case, see ch. 10, Restitution, under heading
10.3, “Benefit to Crown”, below.
123 Id., paras. 1, 57.
124 Id., para. 57.
125 Id., para. 58.
126 [2000] 2 S.C.R. 919, para. 68.
127 Id., paras. 68-71.
329
9.6(d) CONTRACT
corporation”, and the plaintiff “was aware of the special legal and political risks
attendant on dealing with a municipality”. (The plaintiff had in fact relied on the
City keeping its word, and in any case developers are not the only parties to whom
zoning and other municipal commitments are made.) Secondly, “municipalities
will be bound by their business contracts,” and “will not be free to break them on
a whim”. (The plaintiff might wonder why his contract should receive singular
treatment.) Thirdly, “there remain legal protections against a municipality that
acts in bad faith.” (The plaintiff had not attacked the by-law on the ground of bad
faith, which would almost certainly have been unsuccessful.) Finally, there was
“nothing irrational about preventing municipalities from restraining themselves
from striving for the public good in the future”. (The municipality was striving
for the public good when it entered into the original contract which required the
plaintiff to construct amenities for the city.) Of course, the short answer to all this
is that no justifications would be required if the City had simply been required to
honour its contract with the plaintiff, not by repealing the new by-law, but by
compensating the plaintiff for the loss caused by the new by-law.128
On the face of it, a no-indirect-fettering doctrine would appear to benefit
governments, as it did in Pacific National (No. 1), where it permitted the City to
escape without full cost from a bargain that it no longer wished to honour. That
is hardly a good and sufficient reason for the doctrine in a legal system governed
by the rule of law. But the benefit to government is in any case illusory. In the
long run, the doctrine would impair the credit of government, forcing government
to pay higher prices (risk premiums) for everything obtained by a contract that
might be caught by the doctrine.129 In Pacific National (No. 1), Bastarache J. in
his dissenting opinion quoted from the previous edition of this book130 to point
out that “the Crown benefits no less than private persons from the principle that
contractual undertakings should be reliable”. A change in public policy should
always take account of the vested rights of private persons as well as the public
at large. If it is determined that the change in public policy requires the breaking
of a contract, then so be it: the power to enact new law cannot be fettered by
contract. But “the public purse should bear the cost of the change in public policy”.
128 There have been some cases where the no-indirect-fettering doctrine has been read into a
contract as an implied term: Bd. of Trade v. Temperley Steam Shipping Co. (1927) 27 Ll.L.R.
230 (C.A.); Commrs. of Crown Lands v. Page [1960] 2 Q.B. 274 (C.A.); Fairland Overseas
Development Co. v. Secretary for Justice [2007] 4 H.K.L.R.D. 949 (Hong Kong H.C.). If this
is an accurate reading of the implicit understandings of both parties which meets the stringent
rules of contract for an implied term, then such decisions are not subject to the criticisms in the
text.
129 As explained earlier (text accompanying note 12, above), Crown contracts do sometimes contain
“termination for convenience” or “break” clauses that permit the Crown to cancel the contract.
Such clauses always provide for compensation to be paid by the Crown, and of course they
form part of the package for which a contract price is determined.
130 [2000] 2 S.C.R. 919, paras. 123, 124, 127.
330
FETTERING LEGISLATIVE POWER 9.6(e)
In the rare case where government is determined to act inconsistently with

a contractual obligation, and also determines that the deep pocket of government
cannot afford the compensation that is due to the private contractor, then, as Wells
emphasized, the solution is for the new law to explicitly extinguish the contractual
obligation. Parliament or the Legislature has the constitutional power to cancel a
contract, and this power is not limited by any obligation to pay compensation.131
Similarly, judicial decisions can be retroactively reversed or modified by legis-
lation. Through legislation, the will of the community can be made to prevail over
private contract rights.132 For the senior levels of government, that is the ultimate
safeguard of public policy. It is true that municipalities do not command a legis-
lature with power to cancel contracts. However, in a truly sympathetic case, the
responsible provincial government might well be prepared to sponsor legislation
to protect the municipal fisc.
(e) Conclusion on fettering legislative power
We conclude that contracts that provide for or assume the enactment of new
legislation or the maintenance of existing legislation are valid and enforceable,
provided that the only remedy is an award of damages to any party to the contract
that suffers loss from legislative action or inaction that is inconsistent with the
contract. An injunction preventing the legislature from acting inconsistently with
the contract would be a direct fetter on legislative power forbidden by the principle
of parliamentary sovereignty. A liability to pay damages is an indirect fetter on
legislative power, but it leaves parliamentary sovereignty intact, and indeed the
liability itself could be extinguished by the legislature so long as it uses clear
language for the purpose. With respect to contracts entered into by the Crown,
this position is firmly established by Wells, and is not limited to “business” or
“proprietary” contracts. With respect to contracts entered into by municipalities,
Pacific National (No. 1) invalidated a contract that was no more than an indirect
fetter on the municipal power to enact zoning by-laws, and so it would appear
that a no-indirect-fettering rule applies to municipalities, although business and
proprietary contracts are exempted from the rule, and restitution for any unjust
enrichment by a municipality remains available. However, in our view, Pacific
National (No. 1) is inconsistent with Wells and is wrongly decided as a matter of
legal principle. The narrow four-three majority, the force of the dissent, and the
implicit criticism in Pacific National (No. 2) make it unlikely that Pacific National
(No. 1) is the last word on the indirect fettering of legislative power by munici-
palities.
131 Section 9.4(d), “Constitutional limits”, above.

132 Compare T1T2 Limited Partnership v. Can. (1995) 23 O.R. (3d) 81 (Gen. Div.), aff’d (1995)
24 O.R. (3d) 546 (C.A.) (bill introduced into Parliament to cancel government contracts pri-
vatizing airport terminals, but bill not enacted before (or after) judicial decision; held, govern-
ment liable for repudiating the contracts).
331
9.7(a) CONTRACT
9.7 Liability of Crown servants

(a) General rule of immunity
The general rule of the common law is that an agent who makes a contract
between his or her principal and a third party is not liable under the contract. This
rule applies to contracts made on behalf of the Crown: the Crown servant who
made the contract is not personally liable under the contract.133
(b) Warranty of authority
The general rule that an agent is not liable under a contract made on behalf
of a principal applies even if the self-styled agent was acting without the authority
of the principal. However, where an unauthorized agent has expressly or impliedly
represented that he or she had authority to bind the principal, and the third party
has entered into the contract in reliance of that representation, the agent is liable
to the third party under a “warranty of authority”. The warranty of authority is a
separate contract between the agent personally and the third party.
In Dunn v. Macdonald (1897),134 the English Court of Appeal held that a
Crown servant could not be held personally liable under an implied warranty of
authority. The decision is unsatisfactory. The reason given for the immunity was
that the servant who made the contract in that case did so solely in his capacity
as agent for the Crown. But this is true of every situation in which the implied
warranty of authority arises: as will be explained below, if an agent contracts
personally, as well as on behalf of the principal, then the agent is personally liable
under the main contract and there is no need to rely on a warranty of authority at
all. The Court’s reason would also confer immunity from an express warranty no
less than an implied warranty, yet the Court conceded that a Crown servant would
be liable under an express warranty.135 The unauthorized contract in Dunn v.
Macdonald was a contract to employ a consular agent for a fixed term. In previous
proceedings it had been held that it was a rule of law that Crown servants are
dismissible at pleasure, and that the servant who purported to make the contract
of service for a fixed term could not have had the authority to do so.136 It is clear
that no warranty of authority arises where the agent’s lack of authority is a matter
of law of which the third party should have been aware. It is submitted that the
decision in Dunn v. Macdonald can be explained on this basis; and that it should
133 Macbeath v. Haldimand (1786) 1 T.R. 172, 99 E.R. 1036; Rice v. Chute (1801) 1 East 579, 102
E.R. 224.
134 [1897] 1 Q.B. 555 (C.A.).
135 Id., 557.
136 Dunn v. The Queen [1896] 1 Q.B. 116; for discussion of the dismissibility of Crown servants,
see sec. 9.8, “Contracts with Crown servants”, below.
332
CONTRACTS WITH CROWN SERVANTS 9.8(a)
not be accepted as laying down a rule that a Crown servant may never be liable
under an implied warranty of authority.137
(c) Agent’s personal liability
There is an important exception to the general rule that an agent is not liable
under a contract made on behalf of a principal. If the agent contracts personally,
as well as on behalf of the principal, then the agent is liable as well as the principal.
There is no doubt that this rule would apply to an individual Crown servant who
was sufficiently imprudent to bind himself or herself as well as the Crown to
perform the terms of a Crown contract. However, there are no illustrative reported
cases involving individual Crown servants. The rule of personal liability also
applies to public bodies that are agents of the Crown, and there are several cases
in which a Crown corporation or other public body has been held to be liable in
contract in its own right, despite the Crown-agent status of the public body.138
These cases are discussed later in chapter 16, Crown Agents.139
9.8 Contracts with Crown servants

(a) Application of general law of contract
The common law rule was that Crown servants are dismissible at pleasure.140
Dismissal at pleasure meant that neither cause nor notice was required for the
Crown to dismiss a public servant.141 The rule developed originally with respect
to members of the armed forces,142 and was explained as one of the Crown’s
137 Street, Governmental Liability (1953), 93, and Williams, Crown Proceedings (1948), 3, each
regard Dunn v. Macdonald as explicable on a basis similar to (but not the same as) that suggested
in the text. However, the decision has been followed in at least two cases: Kenny v. Cosgrove
[1926] Ir. R. 517, 526; O’Connor v. Lemieux (1927) 60 O.R. 365, 369 (H.C.), aff’d on other
grounds, 374 (C.A.).
138 International Ry. Co. v. Niagara Parks Commn. [1941] A.C. 328 (P.C., Can.); Yeats v. Central
Mortgage and Housing Corp. [1950] S.C.R. 513; Langlois v. Can. Commercial Corp. [1956]
S.C.R. 954; Northern Pipeline Agency v. Perehinec [1983] 2 S.C.R. 513.
139 Chapter 16, Crown Agents, under heading 16.4 (e), “Contract”, below.
140 Street, note 137, above, 111-119; Aronson and Whitmore, note 3, above, 205-207; Logan, “A
Civil Servant and His Pay” (1945) 62 L.Q.R. 240; Richardson, “Incidents of the Crown-Servant
Relationship” (1955) 33 Can. Bar Rev. 424; Blair, “Civil Servant – a Status Relationship”
(1958) 21 Mod. L. Rev. 265; Nettheim, “Dunn v. The Queen Revisited” (1975) 34 Camb. L.J.
254; Neilson, “Service at the Pleasure of the Crown” (1984) 27 Can. Pub. Admin. 556; Molot,
“Employment during Good Behaviour and at Pleasure” (1989) 2 Can. J. Admin. L.P. 238.
141 A competing formulation, found in some statutes and contracts that intend to provide security
of tenure, is employment “during good behaviour”, which requires cause for dismissal.
142 Dickson v. Combermere (1863) 3 F. & F. 527, 176 E.R. 236.
333
9.8(a) CONTRACT
prerogative powers over the armed forces.143 An alternative or additional expla-

nation was that there is no contract between the Crown and members of the armed
forces.144 Neither of these explanations transfers plausibly to the position of non-
military servants, where draconic powers of dismissal are unnecessary, and where
the relationship with the Crown is contractual.145 Nevertheless, the dismissal-at-
pleasure rule was extended to civil servants as well.146 The assumption seems to
have been that public servants were no different from the “personal servants of
the monarch”, whose employment (it was again assumed) would be subject to the
whim of the monarch.147 That assumption has no force whatever in a contemporary
setting of public administration by departments of government under the control
of ministers. Nor does it sit easily with the contractual and statutory rights that
public servants have – rights that should be similar to those of private employees.
In Wells v. Newfoundland (1999),148 the Supreme Court of Canada had an
opportunity to clarify the relationship between the Crown and its employees, and
to bring it into line with contemporary understandings of the state’s role and
obligation in dealing with its employees. The plaintiff was the holder of a public
office – he was a commissioner of Newfoundland’s public utilities board – and
his office disappeared when the board was abolished by statute. He sued the
province for damages for breach of contract. The province argued that the office
was a creature of statute and could be abolished by statute, and, if the statute
made no provision for compensation, there was no obligation to compensate the
holder. Major J., writing for a unanimous Court, agreed that the office was
statutory, and agreed that the office could be abolished by statute. But, he held,
143 Id., 585, 267; China Navigation Co. v. A.-G. [1932] 2 K.B. 197, 215-216; Johnson v. Cth.
(1995) 59 IR 173, 173-75 (Industrial Relations Court of Australia).
144 Members of the forces have no contractual rights against the Crown, not even the right to sue
for arrears of pay: Leaman v. The King [1920] 3 K.B. 663; Cooke v. The King [1929] Ex. C.R.
20; Allpike v. Cth. (1948) 77 C.L.R. 72 (H.C., Aust.); Gallant v. The Queen (1978) 91 D.L.R.
(3d) 695 (F.C.T.D.); Coutts v. Cth. (1985) 157 C.L.R. 91 (H.C., Aust.); Johnson v. Cth., previous
note, 173-75. Of course, members of the armed forces may have statutory rights against the
Crown.
145 Actions for breach of contract were successful in Carey v. Cth. (1921) 30 C.L.R. 132 (H.C.,
Aust.) (recovery of travelling allowances); Sutton v. A.-G. (1923) 39 T.L.R. 294 (H.L.) (recovery
of arrears of pay); Kodeeswaran v. A.-G. Ceylon [1970] A.C. 1111 (P.C., Ceylon) (recovery of
arrears of pay); A.-G. Que. v. Labrecque [1980] 2 S.C.R. 1057 (recovery of arrears of pay);
Province of N.B. v. Mallett (1983) 2 D.L.R. (4th) 766 (N.B.C.A.) (damages for wrongful
dismissal). See also Street, note 137, above, 114-117; Logan, note 140, above, 242; Richardson,
note 140, above, 425-426. Contra, Lucas v. Lucas [1943] P. 68 (no right to recover arrears of
pay); Blair, note 140, above (no contract between Crown and civil servants). In A.-G. Que. v.
Labrecque, this note, above, at 1080-1085, the non-contractual theory was examined and
rejected.
146 Shenton v. Smith [1895] A.C. 229 (P.C., Aust.) seems to be the first case.
147 Council of Civil Service Unions v. Minister for Civil Service [1985] 1 A.C. 374 (H.L.), 409 per
Lord Diplock.
148 [1999] 3 S.C.R. 199. Major J. wrote the opinion of the Court. This important opinion is discussed
elsewhere in this chapter in sec. 9.6(b), “Indirect fettering of legislative power”, above.
334
the plaintiff’s employment relationship with the Crown was contractual, and the
general law of contract was applicable unless it had been specifically superseded
by a statute or by agreement. The terms of the plaintiff’s appointment had in fact
been agreed upon by the province and the plaintiff. He was to serve during good
behaviour until age 70. That was a contractual obligation of the province which
had been breached by the enactment of the statute, and the plaintiff was entitled
to damages for the termination of his employment in breach of the contract.
In Wells, Major J. did not treat the plaintiff’s situation as unusual. On the
contrary, he made clear that most civil servants and public officers are employed
under contracts of employment, either as members of unions bound by collective
agreements or as non-unionized employees under individual contracts of em-
ployment.149 Only certain officers, like judges and ministers of the Crown, and
others who fulfil “constitutionally defined state roles” would be outside the gen-
eral law of contract because the terms of their positions were defined by rules and
conventions of the constitution and could not be modified by agreement.150 Out-
side these kinds of exceptional cases, the government’s relationship with its
employees and officers is to be governed by the general law of contract – in the
same way as private employment relationships.151 In Wells, that meant that a
breach of the employment contract attracted the normal private-law remedy of
damages for the dismissed employee.
A logical implication of the application of the private law of contract to
public employment was that public-law remedies would not be available to the
dismissed employee. That second step was taken by the Supreme Court of Canada
in Dunsmuir v. New Brunswick (2008).152 Dunsmuir was a non-unionized em-
ployee in the Department of Justice of New Brunswick. The Deputy Minister of
Justice dismissed him with four months’ salary in lieu of notice. Dunsmuir in-
voked a statutory grievance process contained in the province’s public service
statute. The process culminated in a decision by an adjudicator, who reinstated
Dunsmuir on the ground that he had been denied procedural fairness (natural
justice): the government had failed to inform Dunsmuir of the reasons for his
dismissal and give him an opportunity to respond. The province applied for
149 Id., paras. 20-21, 29-32.

150 Id., 29-32.
151 Note that employees of Crown agents may have contracts of service with the Crown agent and
not the Crown itself, as in Northern Pipeline Agency v. Perehinec [1983] 2 S.C.R. 513. See ch.
16, Crown Agents, under heading 16.4(e), “Contract”, below. A side benefit of the application
of the law of contract to Crown employees is that Crown-agent employees will not be treated
any differently despite their different employer.
152 [2008] 1 S.C.R. 190. Bastarache and LeBel JJ. (with McLachlin C.J., Fish and Abella JJ.) wrote
the majority opinion. Binnie J. wrote a concurring opinion, as did Deschamps J. (with Charron
and Rothstein JJ.). The majority opinion undertook a general review of the law of judicial
review of administrative action, reducing the levels of judicial scrutiny from three to two
(reasonableness and correctness). This gave rise to the two concurring opinions, but Binnie J.
(para. 119) and Deschamps J. (para. 173) approved the majority reasons respecting public
employment.
335
9.8(a) CONTRACT
judicial review of the adjudicator’s decision. The Supreme Court, affirming the
lower courts, quashed the reinstatement order. Although the province’s public
service legislation provided a grievance procedure for public servants, it also
made clear that non-unionized public servants were governed by the general law
of contract. Under the general law of contract, an employer was entitled to dismiss
an employee, either for cause or without cause on reasonable notice (or pay in
lieu of notice). In this case, the government had followed the latter course. Under
the general law of contract, an employee dismissed without cause had only the
right to a period of reasonable notice.153 The government was therefore under no
obligation to follow any particular procedure in dismissing Dunsmuir, and the
adjudicator was wrong to so hold.
In Dunsmuir, the Court rejected a distinction that had been made in earlier
cases between public office holders (who were entitled to procedural fairness)
and ordinary employees (who were not). The Court ruled that it made no difference
whether the employee was the holder of a public office or simply an ordinary
employee. The critical distinction, the Court held, was between persons who were
protected by a contract of employment and those who were not. “Where a public
employee is protected from wrongful dismissal by contract, his or her remedy
should be in private law, not in public law.”154 Following Wells, most public
employment relationships should be assumed to be contractual. “Where this is
the case, disputes relating to dismissal should be resolved according to the express
and implied terms of the contract of employment and any applicable statutes and
regulations, without regard to whether the employee is an office holder”.155 A
public authority that dismisses an employee with a contract of employment is
subject to the private law of contract, but is not subject to any additional public-
law duty of procedural fairness.156
Dunsmuir did not entirely banish the public-law duty of procedural fairness
from public sector employment. The Court acknowledged that there would be
153 The Court accepted the adjudicator’s view that the reasonable period of notice was eight months
rather than four, and granted the employee the extra period of pay.
154 [2008] 1 S.C.R. 190, para. 114.
155 Id., para. 113.
156 The Court (para. 101) distinguished Ridge v. Baldwin [1964] A.C. 40 (H.L.) (dismissal of
police officer subject to natural justice) and Nicholson v. Haldimand-Norfolk Regional Bd. of
Commrs. of Police [1979] 1 S.C.R. 311 (ditto) on the basis that the public office holders in
those cases had no contractual protections against summary discharge. But the Court (para. 81)
overruled Knight v. Indian Head School Division No. 19 [1990] 1 S.C.R. 653 (dismissal of
Director of Education subject to duty of fairness), where the public office holder had a written
contract of employment that provided for dismissal on three months’ notice. Compare Jarratt
v. Commr. of Police (2005) 224 C.L.R. 44 (H.C., Aust.) (dismissal of a Deputy Police Com-
missioner with a five-year contract, although dismissible “at any time” by statute, held subject
to procedural fairness).
336
some public employees who were not protected by a contract of employment.157

They would be protected by a public-law duty of fairness. This would include
those public office holders whose “terms of appointment” expressly provided for
summary (“at pleasure”) dismissal. “Because an employee in this situation is truly
subject to the will of the Crown, procedural fairness is required to ensure that
public power is not exercised capriciously”.158 While this part of the opinion is
not perfectly clear, we believe that the Court is not suggesting that a right of
procedural fairness protects those public employees whose at-pleasure terms of
employment are contained in a contract (as opposed to a statute or order in council
or other unilateral governmental instrument). No such protection would be avail-
able to a private employee who had expressly agreed to dismissal at pleasure.
Where there is a contract of employment, its terms must be respected, and ordinary
contractual remedies are all that are available in the event of dismissal, which of
course means no remedy at all if the dismissal complies with the contract.159
In Société de l’assurance automobile du Québec v. Cyr (2008),160 decided
only three weeks after Dunsmuir, the Supreme Court divided on the question
whether the dismissal of an employee was covered by public or private law.
Quebec’s Highway Safety Code established a regulatory agency, Société de
l’assurance automobile du Québec (SAAQ), and authorized the agency to regulate
the mechanical safety of vehicles registered in the province, and to appoint persons
to inspect vehicles and issue certificates of fitness. The SAAQ entered into a
contract with the Centre de vérification mécanique de Montréal (CVMM) to
perform inspections and issue certificates in Montreal. The contract designated
Yvan Cyr as an “accredited mechanic” who was licensed to perform inspections,
and Cyr signed the appendix to the contract which listed the accredited mechanics.
CVMM also entered into a separate contract with Cyr to do the work. The SAAQ,
after determining that Cyr had committed breaches of its code of standards of
vehicle inspection, revoked his accreditation. This had the effect of terminating
157 Id., para. 115. The only examples offered were “judges” and “ministers of the Crown”, two
examples that were singularly inapt. In the case of judges, the duty of procedural fairness is
inapplicable since constitutional, statutory and conventional guarantees of independence pro-
vide far more stringent protections. In the case of ministers of the Crown, the duty of procedural
fairness is also inapplicable since by custom (and it may well be a constitutional convention)
they really can be dismissed at the pleasure of the Prime Minister (or Premier) without cause,
notice or procedural fairness. Must every cabinet shuffle now be accompanied by notice and
hearings to all ministers who have been demoted or dismissed, with judicial review available
to remedy breaches? We think not.
158 Ibid.
159 In Knight, note 156, above, the terms of the contract provided for dismissal on three months’
notice, hardly a long period for a senior employee like a Director of Education, and yet the
Court in Dunsmuir said that no right to procedural fairness should have been accorded. Pre-
sumably it would make no difference if the terms of the contract expressly called for one week’s
notice or no notice at all.
160 [2008] 1 S.C.R. 338. Bastarache J. wrote the opinion of the six-judge majority. Deschamps J.
wrote the opinion of the three-judge dissenting minority.
337
9.8(a) CONTRACT
his employment with CVMM. Cyr applied for judicial review of the SAAQ’s
decision on the ground that the agency had not accorded him a hearing before
revoking his accreditation. Bastarache J., writing for the majority of the Court,
held that, although Cyr’s accreditation was contained in a contract between SAAQ
and CVMM, the accreditation was an “administrative authorization” that was
governed by public law, including the duty of procedural fairness.161 Cyr was not
an employee of the state agency SAAQ; his contract of employment was with
CVMM; and Dunsmuir was inapplicable. Deschamps J., writing for the dissenting
minority, took the view that the SAAQ contract with CVMM was a “tripartite
contract” to which Cyr (who had signed the appendix) was also a party. Following
Dunsmuir, she would have held that Cyr was a public office holder who was
protected by a contract with the state. On that premise, his relationship with the
state was governed by the private law of contract, not public administrative law,
and the remedy against the state for the termination of his employment without
just cause was to be found in the law of contract. The majority view prevailed, of
course, and Cyr was entitled to apply for judicial review on the basis of the public-
law duty of procedural fairness.
To summarize the state of Canadian law regarding dismissal at pleasure,
once the general rule for all public servants: it has not completely disappeared,
but survives only in vestigial form. In Dunsmuir, the Court confirmed that, if the
terms of appointment of a public office holder were “silent on the matter”, then
the holder of the office would serve at pleasure.162 Presumably the same would
be true of an ordinary public servant as well, if no contract or statute said anything
explicitly or implicitly that was inconsistent with dismissal at pleasure.163 This
could be the case for casual or temporary employees or order-in-council employ-
ees who were outside the scope of the public service statute.164 As well, if the
government expressly contracted for dismissal at pleasure, or provided for it by
statute, then of course it would become a term of appointment. Such provisions
are not unknown, especially for public office holders.165 For those appointed at
pleasure under contract, the position would be governed solely by the terms of
the contract, and the employee would not be protected even by the administrative-
161 Id., para. 29.

162 [2008] 1 S.C.R. 190, para. 115. In the federal jurisdiction, this rule is enacted by statute for
many office holders: Financial Administration Act , R.S.C. 1985, c. F-11, s. 105(5) (directors
and officers of Crown corporations hold office “during pleasure”); Interpretation Act, R.S.C.
1985, c. I-21, s. 23(1) (public officers appointed under an enactment are deemed to hold office
“during pleasure”).
163 In Dunsmuir, note 152, above, the province’s Civil Service Act provided only that termination
(of non-unionized employees) “shall be governed by the ordinary rules of contract”. The Court,
without discussion, assumed that this was enough to negate dismissal at pleasure.
164 Compare Hewat v. Ont. (1998) 37 O.R. (3d) 161 (C.A.) (order in council appointments to
labour relations board could not be revoked at pleasure because they were for a three-year
term).
338
CONTRACTS WITH CROWN SERVANTS 9.8(b)
law duty of procedural fairness. For those appointed at pleasure without a contract,
the administrative-law duty of procedural fairness would apply and would provide
some modest protection.166 However, in all Canadian jurisdictions, the great
majority of public servants are governed by public service statutes and (for
unionized employees) collective agreements made under the authority of public
service statutes. These statutory regimes typically provide protections against
arbitrary dismissal, demotion or discipline of employees that are inconsistent with
a dismissal-at-pleasure rule.167
(b) Action for loss of services
The action per quod servitium amisit is an action which is available to a

master who loses the services of a servant as a result of a tort committed to the
servant by a third party: the master has an action against the tortfeasor for damages
for the loss of services. On principle, one would expect this action to be available
to the Crown, since the Crown is affected by injury to its servants in exactly the
same way as a private employer.
In Canada, the Supreme Court of Canada has held in several cases that the
Crown can bring an action for loss of the services of a member of the armed
forces.168 Although none of the decisions concerned the loss of the services of a
civilian Crown servant, there can be no doubt that the per quod action is available
in that case too.169
In Australia, the High Court of Australia has held that the per quod action is
not available for the loss of the services of a member of the armed forces because
of the special, non-contractual status of the armed forces.170 Nor is the action
available for the loss of the services of police officers employed by the Crown,
because of the independent discretion exercised by police officers in carrying out
their functions.171 These cases may well be wrongly decided because, as Dixon J.
166 E.g., Pelletier v. Can. (2008) 289 D.L.R. (4th) 77 (F.C.A.) (chairman of board of directors of
Via Rail without contract of employment dismissible at pleasure, subject to a duty of fairness,
which had been fulfilled); Keen v. Can. 2009 FC 353 (president of Canadian Nuclear Safety
Commission without contract of employment dismissible at pleasure, subject to a duty of
fairness, which had been fulfilled).
167 So held in Gould v. Stuart [1896] A.C. 575 (P.C., Aust.); Hunkin v. Siebert (1934) 51 C.L.R.
538 (H.C., Aust.); Emms v. The Queen [1979] 2 S.C.R. 1148; Nova Scotia Govt. Employees’
Assn. v. Civil Service Commn. of N.S. [1981] 1 S.C.R. 211. The position in the United Kingdom
is the same: Sunkin and Payne (eds.), The Nature of the Crown (1999), ch. 11 (R. Watt).
168 The King v. Richardson [1948] S.C.R. 57; Nykorak v. A.-G. Can. [1962] S.C.R. 331; The Queen
v. Buchinsky [1983] 1 S.C.R. 481.
169 The per quod action does not exist in the civil law, and is unavailable to a master (including
the Crown) where the tort was committed in Quebec: The Queen v. Sylvain [1965] S.C.R. 164
(French only), 52 D.L.R. (2d) 607.
170 Cth. v. Quince (1944) 68 C.L.R. 227 (H.C., Aust.).
171 A.-G. (N.S.W.) v. Perpetual Trustee Co. [1955] A.C. 457 (P.C., Aust.), aff’g (1952) 85 C.L.R.
237 (H.C., Aust.).
339
9.8(b) CONTRACT
has commented, the distinctive features of employment as a soldier or police

officer “do not appear to me to be relevant to the cause of action, either in point
of historical development or in point of principle ...”.172 However, when the injured
employee is an ordinary civil servant, the per quod action is available to the
Crown in Australia.173
In England, the Court of Appeal has gone further in limiting the scope of the
per quod action. The Court held in Inland Revenue Commissioners v. Hambrook
(1956)174 that the action was not available to the Crown for loss of the services of
an ordinary civil servant. The Court’s ruling was that the action was available
only for loss of the services of servants within the “household” of a master, that
is to say, domestic servants. This ruling denies the action not only to the Crown
but also to the great majority of private employers who keep no household. This
drastic limitation of the action (which was driven by the Court’s view that the per
quod action was an anachronism) has been rejected in Canada, Australia and New
Zealand.175
172 This passage comes from Dixon J.’s opinion in the Perpetual Trustee case, previous note, in
the High Court of Australia (1952) 85 C.L.R. 237, 244. In that case, he concurred, but only
because he felt constrained to follow Cth. v. Quince, note 170, above, although he thought that
it had been wrongly decided. In Quince, there were powerful dissenting opinions by Latham
C.J. and Williams J., and Williams J. dissented again in Perpetual Trustee in the High Court
of Australia.
173 Commr. for Rwys (N.S.W.) v. Scott (1959) 102 C.L.R. 392 (H.C., Aust.) (railway employee).
This case was followed in A.-G. v. Wilson and Horton [1973] 2 N.Z.L.R. 238 (C.A.) (railway
employee).
174 [1956] 2 Q.B. 641 (C.A.).
175 The Hambrook ruling was expressly disapproved in Buchinsky, note 168, above; Scott, note
173, above, and Wilson and Horton, note 173, above.
340
10
Restitution
10.1 Definition of restitution 341

10.2 Crown liability for restitution 342
10.3 Benefit to Crown 343
10.4 Detriment to plaintiff 345
10.5 No juristic reason for enrichment 347
10.6 Recovery of unauthorized taxes 348
(a) General right of recovery 348
(b) Uncertainty before the Kingstreet decision 349
(c) The Kingstreet decision 352
(d) The passing-on defence 354
(e) Limitation periods 354
10.1 Definition of restitution

Restitution, or quasi-contract as it used to be called, is a cause of action that
enables a plaintiff to recover property from a defendant where the defendant has
been unjustly enriched at the expense of the plaintiff. For example, the plaintiff
may sue to recover money paid to the defendant by mistake or under an ineffective
contract, or the plaintiff may sue for the value of goods or services supplied to
the defendant at his request but without a contract. Restitution is not part of the
law of contracts because the defendant’s obligation to the plaintiff is not founded
on an agreement or promise. Nor is restitution part of the law of torts because the
defendant’s obligation to the plaintiff is not based on the commission of a wrong
causing injury or loss to the plaintiff. The defendant’s obligation to make resti-
tution to the plaintiff is based on the principle of unjust enrichment.
Restitution has a venerable history, but the common law recognized several
distinct causes of action for the restoration of benefits not covered by the law of
contracts or torts. It has been the contribution of modern academic writers to show
that these separate causes of action were examples of a more general principle of
restitution for unjust enrichment. The wider principle is now accepted by the
10.2 RESTITUTION
courts. According to the Supreme Court of Canada,1 the plaintiff is entitled to

restitution for unjust enrichment where three elements are present: (1) the defen-
dant obtained a benefit (enrichment); (2) the plaintiff suffered a corresponding
detriment; and (3) no juristic reason exists for the defendant to retain the benefit
(the enrichment is unjust). Each of these elements, in their application to restitution
claims against the Crown, will be examined in later sections of the chapter.2
10.2 Crown liability for restitution

The Crown is liable for restitution.3 The petition of right extended to all the
causes of action4 covered by quasi-contract or restitution.5 In the United Kingdom,
when the petition of right was abolished by the Crown Proceedings Act 1947,6
the Act provided in s. 1 that the Crown remained liable in all circumstances where
the petition of right would previously have been available. In that way, the
Crown’s liability for restitution was preserved. In Canada, the same drafting
1 Pettkus v. Becker [1980] 2 S.C.R. 834, 848 (wife entitled to constructive trust over husband’s
property reflecting her contribution to the acquisition of the property); Pacific National In-
vestments v. Victoria (No. 2) [2004] 3 S.C.R. 575, para.14 (discussed at note 15, below). The
relationship between the three elements and old established categories of restitution is discussed
by Maddaugh and McCamus, next note, sec. 2:300.
2 For a comprehensive account of the law, see P.D. Maddaugh and J.D. McCamus, The Law of
Restitution (Canada Law Book, Aurora, Ont., 2nd ed., 2004, regularly supplemented).
3 Horsman and Morley (eds.), Government Liability (2006, annually supplemented), ch. 3; Mad-
daugh and McCamus, note 2, above, ch. 24; J.D. McCamus, “Restitutionary Liability of Public
Authorities in Canada” in C.E.F. Rickett and R.B. Grantham (eds.), Structure and Justification
in Private Law: Essays for Peter Birks (Hart Publishing, Oxford, 2008), 291; L.D. Smith,
“Public Justice and Private Justice: Restitution after Kingstreet” (2008) 46 Can. Bus. L.J. 11.
4 An exception was salvage claims, from which the Crown was (and still is) immune: Couette v.
The King (1892) 3 Ex. C.R. 82; Tyne Improvement Commrs. v. Armemant [1949] A.C. 326
(H.L.); and see the Merchant Shipping Act, 1995 (U.K.), s. 230; Crown Liability and Proceed-
ings Act (Can.), s. 5. See the discussion of in rem claims generally in ch. 2, Remedies, under
heading 2.12, “Proceedings in rem”.
5 One view is that the petition of right lay for only an exhaustive list of circumstances, and that
some heads of quasi-contract were excluded: Anglo-Saxon Petroleum Co. v. Lords Commrs. of
Admiralty [1947] K.B. 794, 801-802 (C.A.); Glanville Williams, Crown Proceedings (1948),
12-14. But the better view is that all heads were covered: Street, Governmental Liability (1953),
125-127; A.W. Mewett, “The Quasi-Contractual Liability of Governments” (1959) 13 U.
Toronto L.J. 56. Quasi-contractual claims of all kinds have been brought by petition of right,
e.g., Bankers’ Case (1700) 14 St. Tr. l, 90 E.R. 270; Dickson v. The Queen (1864) 11 H.L.C.
175, 11 E.R. 1298; Hall v. The Queen (1893) 3 Ex. C.R. 373; Stern v. The Queen [1896] 1 Q.B.
211; The Queen v. W.M. Bannatyne & Co. (1901) 20 N.Z.L.R. 232 (C.A.); Assets Co. v. The
Queen (1902) 22 N.Z.L.R. 459 (C.A.); Blundell v. The King [1905] 1 K.B. 516; Malkin v. The
King [1906] 2 K.B. 886; Royal Bank v. The King [1931] 2 D.L.R. 685 (Man. K.B.); Hogarth
v. The King [1934] 2 W.W.R. 340 (Sask. C.A.); Massein v. The King [1934] Ex. C.R. 223; The
Queen v. Premier Mouton Products [1961] S.C.R. 361; Walsh Advertising Co. v. The Queen
[1962] Ex. C.R. 115.
342
BENEFIT TO CROWN 10.3
technique was employed in seven provincial statutes;7 in the federal jurisdiction

and the other three provinces, other language is used which makes the Crown
liable under all heads of restitution.8
10.3 Benefit to Crown

The first element of the cause of action in restitution is that the defendant
obtained a benefit (enrichment) at the expense of the plaintiff. This will be present
if the defendant has received property or services provided by the plaintiff or if
the defendant has been relieved of a legal liability by the plaintiff. Where the
Crown is the defendant, the role of government sometimes complicates the ques-
tion whether a benefit has been obtained. Does the furtherance of a public policy
that benefits the public but does not directly enrich the Crown count as a benefit?
In Regional Municipality of Peel v. Canada (1992),9 the Supreme Court said “no”.
In a previous proceeding, the municipality had challenged the validity of court
orders, purportedly made under the authority of the federal Juvenile Delinquents
Act, placing young persons found guilty of crime in group homes in the munici-
pality and requiring the municipality to pay for the placements. That proceeding
went up to the Supreme Court, which decided that the requirement of payment
by the municipality went beyond the criminal-law power of Parliament, which
was the head of power that sustained the Act. The court orders requiring payment
by the municipality were therefore invalid.10 The municipality followed up with
7 B.C., s. 2; Alta., s. 4; Sask., s. 4; Man., s. 3; Ont., s. 3; P.E.I., s. 3; Nfld., s. 4. Note that B.C., s.
2, also provides that “the government is subject to all the liabilities to which it would be liable
if it were a person”. Full references to the foregoing statutes are to be found in ch. 2, Remedies,
note 2, above.
8 N.B., s. 3, and N.S., s. 4, provide that the Crown is liable in all cases “in which ... the land,
goods or money of the subject are in the possession of the Crown”. This might not extend to
all quasi-contractual claims, e.g., a claim for payment for services rendered to the Crown, but
presumably the cause of action in contract could be stretched to reach such a case. Que., s. 94,
seems broad enough to cover all quasi-contractual claims. The federal Crown Liability and
Proceedings Act is silent on the issue, which presumably is the same as retaining liability in all
circumstances where the petition of right would previously have been available. The purpose
of the Crown proceedings statutes is to facilitate proceedings against the Crown, and ambiguous
or unclear language should be interpreted in light of that purpose. Full references to the foregoing
statutes are to be found in ch. 2, Remedies, note 2, above.
9 [1992] 3 S.C.R. 762. McLachlin J. wrote the opinion of the Court. Lamer C.J. wrote a brief
concurring opinion agreeing with her reasons and disposition and adding some supplementary
reasons.
10 Regional Municipality of Peel v. MacKenzie [1982] 2 S.C.R. 9.
343
10.3 RESTITUTION
proceedings for restitution against the federal Crown11 to recover the money spent
in compliance with the invalid court orders. That municipality’s expenditure had
furthered the goals of the federal Act by providing resources to the group homes
which had incarcerated and no doubt attempted to rehabilitate the young offend-
ers. But the money had not been paid to the Government of Canada. Nor had the
Government of Canada been relieved of a legal liability, because the Court held
(rather surprisingly) that the Government of Canada was not under any obligation
to pay for the support of the young offenders who were incarcerated under its
legislation.12 The Court held that “the fact that the municipality’s payments can
be said to have furthered Canada’s general interest in the welfare of its citizens
or its more particular interest in the effective administration of its scheme for the
regulation of criminal conduct by minors” was not a sufficient benefit to found
an action for restitution by the municipality.13 Because the advance of a public
policy did not count as a benefit to the federal Crown, the Court denied the
municipality’s claim for restitution.
In the previous chapter, we discussed the cases of Pacific National (No. 1)14
and Pacific National (No. 2).15 The first case held that the City of Victoria lacked
the power to fetter its legislative power by contracting to maintain the zoning of
land that would enable the plaintiff to complete a development of water-frontage
land that had been agreed upon between the City and the plaintiff. It followed
that, when the City enacted a down-zoning by-law that made it impossible for the
plaintiff to complete the agreed-upon development, the plaintiff was not entitled
to recover damages (including lost profits) for the City’s breach of contract. The
second case held that the plaintiff was entitled to succeed in its alternative claim
for restitution of unjust enrichment. The restitution claim was for the $1.08 million
that the plaintiff had spent on the construction of a seawall, roads, parkland and
walkways in the mistaken reliance on the City carrying out its side of the contract.
These amenities had been built and had become the property of the City. The
Supreme Court held that the plaintiff was entitled to damages for unjust enrich-
11 A complication for the plaintiff was that it was not entirely clear which level of government
would have paid for the upkeep of the incarcerated young offenders if the municipality had not
done so. The plaintiff accordingly added the Crown in right of Ontario as a defendant. But the
Court held ([1992] 3 S.C.R. 762, 802) that the province was under no obligation to pay for the
upkeep and dismissed the action against the provincial Crown. Since the Court also decided
(next note) that the federal government was under no obligation, and dismissed the action
against the federal Crown, it followed that no level of government had any obligation to pay
for the upkeep of the young offenders! Therefore, neither Crown was relieved of a legal
obligation, which would have been a benefit (pp. 790-791). The “benefits” [presumably of
incarceration] were conferred on “the children” and “their parents” (p. 805).
12 [1992] 3 S.C.R. 762, 799 (“the federal government had no greater responsibility for the welfare
of these children than did the municipality”).
13 Id., 798-799.
14 Pacific National Investments v. Victoria [2000] 2 S.C.R. 919.
15 Pacific National Investments v. Victoria (No. 2) [2004] 3 S.C.R. 575; both cases are discussed
in ch. 9, Contract, under heading 9.6(c), “The Pacific National case”, above.
344
DETRIMENT TO PLAINTIFF 10.4
ment: (1) the City had obtained the benefit of the new amenities (which it now
owned); (2) the plaintiff had suffered a corresponding detriment, having built the
amenities at its own cost; and (3) there was no juristic reason for the City to keep
the amenities since the contract that was the reason for the enrichment of the City
had been held to be invalid. In the course of reaching this straightforward result,
the Court had to deal with the City’s argument that it had not been enriched
because it had not really received a benefit from the new amenities. It was a fact
that the people of the City had received a benefit because they were making good
use of the new amenities provided by the plaintiff. But the City argued that the
corporation of the City did not benefit from the amenities because it was obliged
to spend $40,000 per annum on their upkeep. The Court summarily rejected this
ingenious argument. Binnie J. said that “the City’s portrayal of itself as a victim
of the plaintiff’s generosity is not credible”.16 Binnie J. did not refer to Peel, and
it is possible that his opinion presages a reconsideration of Peel, but the benefit
conferred on the City in Pacific National (No. 2) went well beyond the advance
of a municipal public policy (to provide pleasant amenities for the residents) since
the City actually acquired title to the works that were constructed by the plaintiff.17
10.4 Detriment to plaintiff
The second element of the cause of action in restitution is that the plaintiff
suffered a detriment corresponding to the benefit that was acquired by the defen-
dant. In Pacific National (No. 2), for example, the expenditure by the plaintiff in
constructing the works that had been acquired by the City was a detriment that
corresponded to the benefit (ownership of the works) that had unjustly enriched
the City.
In restitution actions against the Crown for recovery of unauthorized taxes,
a topic treated more fully later in this chapter,18 the Supreme Court of Canada
from 1989 to 2007 maintained a suggestion that the Crown would have a defence
of “passing on” where the plaintiff taxpayer had passed the burden of the tax on
to its customers in the form of higher prices for the taxed goods or services.19 The
theory was that, if the taxpayer had succeeding in passing on the burden of the
16 Id., para. 17, and see also para. 19.

17 Id., para. 18, pointing out that the City insisted on a clause in the contract with the plaintiff that
the works were to be the property of the City. Horsman and Morley, note 3, above, sec. 3.20.10,
rely on this distinction for their conclusion that Peel has not been departed from: the benefit to
the defendant “will not be made out solely by the advancement of a government policy
objective”. See also Alta. v. Elder Advocates of Alberta Society 2011 SCC 24, para. 88 (citing
Pacific National (No. 2) for the preposition that “benefits under an agreement with a public
authority that is beyond the power of the state actor to make are recoverable in a restitutionary
claim” (emphasis original)).
18 Section 10.6, “Recovery of unauthorized taxes”, below.
19 See Maddaugh and McCamus, note 2, above, sec. 11:700.20, “Passing on”.
345
10.4 RESTITUTION
tax, then the taxpayer would have suffered no detriment that could form the basis
of an action for restitution.
In Air Canada v. British Columbia (1989),20 Air Canada and other airlines
sued the Crown in right of British Columbia to recover provincial gasoline taxes
that the airlines had paid on fuel acquired in the province. The taxes were uncon-
stitutional, because they were held to be “indirect” and the taxing power of the
provinces is restricted by the Constitution Act, 1867 to “direct” taxes. The airlines
failed in their action because the province had enacted a new retroactive direct
tax that permitted the province to keep the payments that had been made under
the old indirect tax. However, La Forest J., writing for the majority of the Court,
held that, if it were not for the new retroactive tax, he would still have found in
favour of the Crown by giving effect to a Crown defence of passing on.21 La
Forest J. found that “the evidence supports that the airlines had passed on to their
customers the burden of the tax imposed upon them”, and he held that the passing-
on would defeat their action because “the law of restitution is not intended to
provide windfalls to plaintiffs who have suffered no loss”.22
There is some appeal to the windfall point, but the better view is that the
taxpayer who actually paid an unauthorized tax should be able to recover it from
the Crown, even if there were opportunities for the taxpayer to recoup the tax
from others. As between the taxpayer and the Crown, that seems the simple and
just result. The passing-on defence involves an inquiry into the ultimate incidence
of the tax, which is a notoriously complex and uncertain exercise. Prices are set
in competitive markets where demand is typically elastic. If prices are increased,
the volume of sales will probably fall and so will profits. If the demand for the
product is so inelastic that prices can be raised without any effect on the volume
of sales, then the taxpayer could have raised his prices anyway even without the
new tax. For these kinds of reasons, restitution scholars have typically criticized
the passing-on defence,23 and the defence has been rejected by the High Court of
Australia.24
20 [1989] 1 S.C.R. 1161.

21 In a companion case, Canadian Pacific Airlines v. B.C. [1989] 1 S.C.R. 1133, it was held that
the province had no constitutional power to impose a retail sales tax on drinks sold by the
airlines to passengers in flight (and not in the province). However, the airlines were unsuccessful
in recovering the payments in that case too. The provincial tax was structured as a tax on the
person consuming the drink, and the airlines simply collected the tax on behalf of the Crown.
No reliance on passing on was needed to decide that the airlines had suffered no detriment in
paying to the Crown taxes that they had collected as agent of the Crown. Accord, Kingstreet
Investments v. N.B. [2007] 1 S.C.R. 3, para. 50.
22 [1989] 1 S.C.R. 1161, 1202.
23 Maddaugh and McCamus, note 2, above, sec. 11:700.20 (providing ample scholarly references).
24 Commissioner of State Revenue v. Royal Insurance Australia (1994) 182 C.L.R. 51, 90 (“The
passing on of the burden of the payments made does not affect the situation that, as between
the [Crown] and [the taxpayer], the former was enriched at the expense of the latter.”)
346
NO JURISTIC REASON FOR ENRICHMENT 10.5
In Kingstreet Investments v. New Brunswick (2007),25 which is now the

leading case on the recovery of unauthorized taxes and is discussed more fully
later in this chapter,26 the Supreme Court of Canada disapproved La Forest J.’s
dictum in Air Canada and rejected the defence of passing on. In that case, the
taxpayers were night clubs who had paid an unconstitutional indirect tax on the
drinks that they sold. The taxpayers sued the Crown in right of New Brunswick
to recover the tax. The trial judge, relying on Air Canada, denied recovery on the
ground that the taxpayers had passed on the cost of the tax to their customers by
charging higher prices for their drinks. In the Supreme Court of Canada, Bastar-
ache J., who wrote the opinion of the Court, rejected the passing-on defence on
principle. He said that it was contrary to general principles of restitution, which
in fields other than the recovery of taxes had never permitted a person unjustly
enriched by a mistaken payment of money to avoid reimbursement on the basis
that the payer of the money could recoup the expense from some other source.
Any possible recoupment of the loss from a third party was “simply irrelevant”.27
For Bastarache J., the wisdom of this general rule was manifested by the fact that
“the task of determining the ultimate location of the burden of a tax is exceedingly
difficult”.28 The Court’s conclusion was that the defence of passing on should be
banished from the Canadian law of restitution: it “constitutes an inappropriate
basis for denying relief”.29
10.5 No juristic reason for enrichment

The third and final element of the cause of action in restitution is that there
must be no juristic reason for the enrichment of the defendant. Examples of no
juristic reason would be the absence of a contract, a trust, a gift or other common
law or equitable or statutory30 obligation on the part of the plaintiff that would
entitle the defendant to keep the benefit. In Pacific National (No. 2),31 we noticed
that the City of Victoria received title to the works constructed by the plaintiff
under the terms of a contract that was later held to be invalid on the ground that
it unlawfully fettered the legislative power of the City. Because the contract was
not valid, there was no juristic reason for the City to retain the works constructed
by the plaintiff, and the plaintiff was entitled to restitution of the cost incurred in
constructing the works. In Kingstreet,32 we noticed that the province received tax
25 [2007] 1 S.C.R. 3. Bastarache J. wrote the opinion of the Court.

26 Section 10.6(c), “The Kingstreet decision”, below.
27 [2007] 1 S.C.R. 3, para. 45.
28 Id., para. 44, and see para. 48 for more detail.
29 Ibid.
30 Gladstone v. Can. [2005] 1 S.C.R. 325, paras. 16-22 (statutory authorization defeats claim for
restitution).
31 Note 15, above.
32 Note 25, above.
347
10.6(a) RESTITUTION
revenue from the plaintiffs under an unconstitutionally imposed tax. Because the
tax was unconstitutional, there was no juristic reason for the province to keep the
revenue, and the plaintiffs were entitled to restitution of the taxes that had unjustly
enriched the province.
10.6 Recovery of unauthorized taxes
(a) General right of recovery
A common kind of restitutionary claim that has no private analogue is a suit

by a taxpayer to recover back from the Crown (or other public authority) a tax
that has been imposed on the taxpayer without legislative authority.33 The absence
of legislative authority may be caused in Canada (as in other federal countries
such as Australia and the United States) by the taxing statute being held to be
unconstitutional. In Canada, while the federal Parliament has the power to levy
“any mode or system of taxation”, the provincial Legislatures are restricted to
“direct taxation within the province”.34 Occasionally, a province will levy a tax
that is not “direct”, and in that case the taxing statute is unconstitutional. A second
way in which an absence of legislative authority may occur is where the power
to tax is delegated by the primary legislative body (Parliament or the Legislature)
to a minister or official or public body (such as a municipality or school board),
but the delegate imposes a tax that is outside the power that has been delegated.
In that case, the tax-authorizing statute enacted by the primary legislative body
is not unconstitutional, but the delegated legislation (regulation or by-law) im-
posing the tax is unauthorized (ultra vires) in the administrative-law sense.
It would seem to be obvious that taxes levied without legislative authority
should be recoverable by the taxpayer. The three elements of restitution are
applicable, because (1) the Crown (or other public authority) has received a benefit
(enrichment), (2) the plaintiff taxpayer has suffered a corresponding detriment,
and (3) there is no juristic reason for the Crown to keep a tax that was levied
without statutory authority. Moreover, a right of recovery accords with the fun-
damental constitutional principle that the Crown may not levy a tax except by the
authority of the Parliament or Legislature. That principle, enshrined in the English
Bill of Rights of 1689,35 ensures not merely that the executive branch is subject
33 Hogg, Constitutional Law of Canada (5th ed., 2007, annually supplemented), sec. 58.8, “Un-
constitutional taxes”; P.W. Hogg, “Recovery of Unconstitutional Taxes: A New Constitutional
Right” (2008) 46 Can. Bus. L.J. 5.
34 Constitution Act, 1867, s. 91(3) (federal power), 92(2) (provincial power). These provisions
and other restrictions on the taxing powers are discussed in Hogg, previous note, ch. 31.
35 An Act Declaring the Rights and Liberties of the Subject and Settling the Succession of the
Crown, 1689, 1 Will. & Mar. sess. 2, c. 2, article 4; and see Bowles v. Bank of England [1913]
1 Ch. 57 (resolution of legislative committee, approved by House of Commons, but not by
House of Lords and King, cannot authorize levy of tax).
348
RECOVERY OF UNAUTHORIZED TAXES 10.6(b)
to the rule of law, but also that the executive branch must call the legislative
branch into session to raise taxes (and vote supply). To permit the Crown to retain
a tax that was levied without legislative authority is to condone a breach of one
of the most fundamental constitutional principles. A right of recovery by the
taxpayer is also consistent with the corresponding rule that the Crown may recover
moneys paid out of the consolidated revenue fund without legislative authority.36
The latter rule is based on the fundamental constitutional principle that prohibits
the Crown from spending public funds except with legislative authority.
(b) Uncertainty before the Kingstreet decision
Kingstreet Investments v. New Brunswick (2007)37 will be discussed in the

next section of this chapter. As the result of that decision, the law is as it should
be: the taxpayer has the right to recover a tax levied without statutory authority.
However, before discussing that decision, it is necessary to briefly explain the
confused state of the pre-2007 law. Not only is the journey to Kingstreet inter-
esting, but some of the stops on the way have continuing importance.
In Amax Potash v. Government of Saskatchewan (1976),38 potash producers
in Saskatchewan had brought proceedings against the Government of Saskatch-
ewan to challenge the validity of a provincial tax on potash that, they argued, was
an unconstitutional “indirect” tax; and they sought the recovery of the taxes that
they had paid. Before these proceedings were brought to a conclusion, the courts
had to determine the constitutionality of a provision in the province’s Crown
proceedings statute that purported to bar proceedings against the Crown to recover
taxes that had been paid to the province under an unconstitutional statute. The
Supreme Court of Canada held that the statutory bar was unconstitutional. That
result was demanded by a principle of federalism: the constitutional restriction
on the province’s legislative power to tax could not be evaded by the indirect
means of barring recovery of taxes levied in violation of the restriction.39 The
Court did not decide whether the potash taxes were unconstitutional or, if so,
whether they would be recoverable by the taxpayers once the statutory bar was
removed.
36 Auckland Harbour Bd. v. The King [1924] A.C. 318 (P.C., N.Z.); The King v. Toronto Terminals
Ry. Co. [1948] Ex. C.R. 563; Breckenridge Speedway v. The Queen [1970] S.C.R. 175. In the
Auckland Harbour Bd. case, Viscount Haldane said (327) that the money is recoverable “if it
can as here be traced”. This probably meant only that the recipient could be identified, since
the Crown’s action was a personal action against the recipient who had been enriched; it was
not a proprietary claim based on tracing.
37 [2007] 1 S.C.R. 3.
38 [1977] 2 S.C.R. 576. Dickson J. wrote the opinion of the Court.
39 Amax Potash was followed in Air Canada v. B.C. [1986] 2 S.C.R. 539 (petition of right to
recover unconstitutional taxes, levied at a time when the petition of right was the only means
of suing the Crown, cannot be blocked by refusal of fiat).
349
10.6(b) RESTITUTION
Amax Potash decided an important point of principle, but it did deny to

governments a solution to the fiscal problem that would be created by an obligation
to return unconstitutional taxes that the government had relied upon and spent in
ignorance of their unlawful provenance. The way around this problem was found
in Air Canada v. British Columbia (1989).40 In that case, the airlines sued the
Government of British Columbia to recover a provincial gasoline tax that they
had paid between 1974 and 1976. The Supreme Court agreed with the airlines
that the tax was indirect and therefore unconstitutional. However, the unconsti-
tutional tax stopped in 1976, when the province repealed the unconstitutional tax
and replaced it with a new gasoline tax that was a valid direct tax. By an amend-
ment in 1981, the new direct tax was made retroactive, so that it also covered the
1974 to 1976 period, and the taxes collected during that period from the indirect
tax were “confiscated” to satisfy the liability to pay the direct tax. Was the 1981
amendment effective to bar the recovery of the unconstitutional taxes levied
between 1974 and 1976? The Supreme Court of Canada, by a majority of five to
one, said yes. La Forest J., who wrote for the majority, said that there was a
difference between directly barring the repayment of an unconstitutional tax, as
in Amax Potash, and doing so indirectly by levying a retroactive constitutional
tax, as in this case. The latter procedure was effective to abrogate any obligation
to refund the invalid tax. Only Wilson J., who dissented, found the distinction
unconvincing. In her view, the confiscation provision showed that the true purpose
of the 1981 amendment was to give effect to an unconstitutional statute, which is
what was prohibited by Amax Potash.
The Air Canada case demonstrated that the imposition of a new, valid,
retroactive tax is a way around the Amax Potash restriction on barring recovery
of an unconstitutional tax. That was a sufficient reason for the majority to deny
recovery of the unconstitutional gasoline tax. But La Forest J. went on to give an
additional reason to deny recovery. In his view, there should be a special rule of
restitution applicable to an unconstitutional tax: the rule should be that the tax is
irrecoverable by the taxpayer because of the potential disruption of government
finances (“fiscal chaos”) that recovery would cause.41 On this point, La Forest
J.’s opinion was agreed to by two of the majority judges (Lamer and L’Heureux-
Dubé JJ.), but not by the other two judges in the majority (Beetz and McIntyre
JJ.), who based their decision solely on the retroactive tax. So in the end this
reason for decision did not attract a majority, only three members of the six-judge
bench. Wilson J., the dissenter, strenuously argued for the opposite rule, namely,
that an unconstitutional tax should be recoverable by the taxpayer.42 She argued
that the problem of fiscal disruption was not a sufficient reason to cast the burden
40 [1989] 1 S.C.R. 1161. La Forest J. with the agreement of Lamer and L’Heureux-Dubé JJ. wrote
the plurality judgment for the six-judge bench. Beetz and McIntyre JJ. wrote concurring
opinions. Wilson J. dissented.
41 Id., 1204-1207.
42 Id., 1215.
350
RECOVERY OF UNAUTHORIZED TAXES 10.6(b)
of governmental error on the innocent taxpayer. And she was troubled by the
implicit requirement that the taxpayer must refuse to pay (or at least pay under
protest) to avoid losing her taxes: citizens were expected to be law-abiding, but
under La Forest J.’s proposed rule the compliant citizen would be punished by
the loss of her taxes.
The new rule of irrecoverability suggested by La Forest J. in Air Canada
would apply, he said, to “ultra vires taxes, at least in the case of unconstitutional
statutes”.43 The qualification left in doubt the question whether the new rule would
apply to taxes that were ultra vires in the administrative-law sense. But La Forest
J. did make clear that “this rule should not apply where a tax is extracted from
the taxpayer through a misapplication of the law”.44 In the latter case, the tax
would be recoverable.45 This exception was applied in the companion case of
Canadian Pacific Airlines v. British Columbia (1989),46 where the same six-judge
Supreme Court bench, now unanimous, permitted an airline to recover a sales tax
paid to British Columbia on aircraft entering the province in the course of inter-
provincial and international flights. That was a case of misapplication of the law
because the taxing statute on its true interpretation did not apply to the aircraft.
However, the Court invoked constitutional considerations in giving the narrow
interpretation to the taxing statute, which was literally capable of applying to the
aircraft. The Court could have held that the statute did purport to apply to the
aircraft, but could not do so because the province lacked the constitutional power
to tax aircraft in interprovincial or international transit. On that reasoning, the
new rule of irrecoverability would have applied. Surely, the taxpayer’s ability to
recover an unauthorized tax ought not to turn on such an illusory distinction.
La Forest J.’s suggested rule of irrecoverabilty did not gain any traction
outside Canada, where there was a general recognition that constitutional values
43 Id., 1206.
44 Id., 1207.
45 The tax would only be recoverable if the old rule of restitution that denied recovery for payments
made under a mistake of law were abolished, and La Forest J. (1199-1201) advocated that
change in the law. On this point, he had a majority (with Lamer, L’Heureux-Dubé and Wilson
JJ.), but it was an obiter dictum. However, in the companion case of Canadian Pacific Airlines
v. B.C. [1989] 1 S.C.R. 1133, discussed in the following text (at next note), the Court unani-
mously allowed recovery of taxes despite a mistake of law by the taxpayer, and the same
majority of four were explicit in rejecting the mistake-of-law bar. That settled the law of Canada.
See also Alta. v. Elder Advocates of Alberta Society 2011 SCC 24, para. 86. The mistake-of-
law bar has also been judicially repealed in Australia (David Securities v. Commonwealth Bank
of Australia (1992) 175 C.L.R. 353 (H.C., Aust.)) and the United Kingdom (Kleinwort Benson
v. Lincoln City Council [1999] 2 A.C. 349 (H.L.)), and no longer forms part of the common
law of restitution: Maddaugh and McCamus, note 2, above, sec. 11:500.
46 [1989] 1 S.C.R. 1133.
351
10.6(c) RESTITUTION
required the return of unauthorized taxes as of right. In the United Kingdom,47

Australia48 and the United States,49 the courts articulated this as a clear rule. In
Canada, however, until the Kingstreet decision in 2007, the Supreme Court went
out of its way to avoid commenting on La Forest J.’s proposed rule,50 leaving the
state of the law in uncertainty.51 In one case, however, Re Eurig Estate (1998),52
where the Court found Ontario’s probate fees dating back to 1950 to have been
unconstitutionally imposed, Major J. for the Court acknowledged the fiscal dis-
ruption that would be caused by an immediate ruling of invalidity “with no
opportunity to remedy the legislation or find alternative sources of funding”; and
he suspended the declaration of invalidity for six months “to enable the province
to address the issue”.53 Within the six-month period of grace, the province enacted
a new and valid “estate administration tax” on the same tax base and at the same
rate as the old probate fees, and made the new tax retroactive to 1950.54 This was
of course the procedure sanctioned by Air Canada, and the new tax was never
challenged.
(c) The Kingstreet decision
The cloud of uncertainty that had laid over Canada’s law following the Air
Canada case in 1989 was finally lifted in 2007, when the Supreme Court decided
the Kingstreet case (2007).55 In that case, New Brunswick had for many years
been levying a “user charge” on night clubs that were licensed to sell liquor. The
night clubs sued to recover the charges they had paid on the ground that the
charges were unconstitutional indirect taxes. The Supreme Court agreed with the
plaintiffs that the charges were unconstitutional. That raised the question whether
47 Woolwich Equitable Building Society v. Inland Revenue Commrs. [1993] A.C. 70 (H.L.) (re-
covery of ultra vires taxes a matter of right), esp. 176-177 per Lord Goff, discussing the Air
Canada case and preferring the dissenting view of Wilson J. See also Sempra Metals v. Inland
Revenue Commrs. [2008] 1 A.C. 561 (H.L.) (recovery of overpayment of tax with compound
interest).
48 Commr. of State Revenue v. Royal Insurance Australia (1994) 182 C.L.R. 51 (H.C., Aust.),
esp. 68 par Mason C.J.
49 McKesson Corp. v. Florida (1990) 496 U.S. 18 (invoking due process clause of fourteenth
amendment).
50 Regional Municipality of Peel v. Can. [1992] 3 S.C.R. 762, 805 (discussed at note 9, above);
Air Canada v. Ont. [1997] 2 S.C.R. 581 (recovery of gallonage fees ordered because of
misapplication of the law); Re Eurig Estate [1998] 2 S.C.R. 565 (recovery of unconstitutional
probate fees ordered because they were paid under compulsion).
51 However, the civil law of Quebec allowed recovery: Abel Skiver Farm Corp. v. Sainte-Foy
[1983] 1 S.C.R. 403; Willmor Discount Corp. v. Vaudreuil [1994] 2 S.C.R. 210.
52 [1998] 2 S.C.R. 565.
53 Id., para. 44.
54 Estate Administration Tax Act, 1998, S.O. 1998, c. 34. (Note s. 7(2) expressly exempting from
the new tax the Eurig estate, which had brought the litigation that succeeded in invalidating the
probate fees.)
55 Kingstreet Investments v. N.B. [2007] 1 S.C.R. 3. Bastarache J. wrote the opinion of the Court.
352
RECOVERY OF UNAUTHORIZED TAXES 10.6(c)
the plaintiffs were to be defeated by La Forest J.’s suggested rule of irrecovera-

bility. The Court emphatically rejected La Forest J.’s suggestion, and substituted
the opposite rule, namely, that taxpayers had the right to recover unconstitutional
taxes that had been collected from them.
Bastarache J. wrote the opinion of the Court in Kingstreet. He proceeded
from the premise that the governing constitutional principle is that the Crown
may not levy a tax without legislative authority. This principle would be “under-
mined” if a tax could be imposed without legislative authority and then could
simply be retained by the Crown.56 An analogous constitutional principle allows
the Crown an absolute right to recover expenditures that have been made without
legislative authority.57 The spending of money and the raising of money are “two
sides of the same coin”. Just as the Crown is entitled to recover unauthorized
expenditures, so the taxpayer should be entitled to recover unauthorized taxes.58
As for La Forest J.’s policy concern that governmental finances would be dis-
rupted by the return of unauthorized taxes, that was a problem for governments
to solve, not the innocent taxpayer. Bastarache J. pointed out that a court striking
down an unconstitutional tax could suspend the declaration of invalidity for a
period of time to allow the government to address the financial problems that the
decision would cause, as had been done in the Eurig case.59 And he noted that the
problem could sometimes be solved by the enactment of a new, valid, retroactive
tax, as had been done and upheld in the Air Canada case60 and been done without
challenge after the Eurig case.
Having decided that taxes levied without valid legislative authority could be
recovered, Bastarache J. went on to determine the juridical basis of the recovery.
He held that, because of the constitutional principles that govern the levy of taxes,
the recovery of unconstitutional taxes is “a matter of constitutional right”.61
Separate and apart from the private law of restitution, the restitution of taxes is a
“public law remedy”.62 It is not necessary to show that the taxpayer has paid under
protest or under duress. The right of recovery does not depend on the beliefs or
actions of the taxpayer, but simply “on the objective consideration of whether the
tax was exacted without proper legal authority”.63 Moreover, the same right of
recovery is available, not only in the case where taxes were levied under an
unconstitutional statute (as in this case), but also where taxes were levied without
56 Id, paras. 14-15, 19-22, quoting from the previous edition of this book; and see note 35, above.
57 Id., para. 23, quoting from the previous edition of this book; and see note 36, above.
58 Id., para. 24.
59 Note 52, above.
60 Note 40, above.
61 [2007] 1 S.C.R. 3, para. 34. This is generally the position outside Canada: notes 47-49, above.
62 Id., para. 40. With the demise of the mistake-of-law rule (note 45, above), it would seem that
the private law of restitution would afford an equally effective remedy, since the three elements
of a private-law restitution claim (note 1, above and accompanying text) are present in a claim
for the recovery of unauthorized taxes.
63 Id., para. 53.
353
10.6(d) RESTITUTION
legislative authority in the administrative law sense.64 Both situations offend the
same constitutional principle that taxes may only be levied by statute.
(d) The passing-on defence
In Kingstreet, the Crown defended the restitution claim on the basis that the
taxpayers had passed on the unconstitutional tax in the form of higher prices for
the drinks upon which the tax was imposed. The Court held that this defence is
not available in actions for restitution of unconstitutional taxes (or any other kind
of unjust enrichment). The person who actually paid the tax is entitled to restitution
from the Crown regardless of any opportunity for recoupment from third parties.
The topic of passing-on is discussed in more detail in an earlier section of this
chapter.65
(e) Limitation periods
What about limitation periods? Do they restrict the right to recover invalid
taxes? It will be recalled that, in the Amax Potash case,66 the Supreme Court
struck down a law that purported to bar recovery of an unconstitutional tax.
However, in Kingstreet, Bastarache J. drew a distinction between a law that was
enacted for the purpose of barring the recovery of an unconstitutional tax (Amax
Potash) and a pre-existing law of general application that imposes limitation
periods on causes of action. There was no reason, he said, why a general limitation
statute (assuming its terms were apt to apply to the action for recovery of taxes),
should not be effective to bar stale claims for recovery of taxes.67 In this case,
New Brunswick’s limitation of actions statute contained a number of specific
limitation periods for particular kinds of causes of action and a residuary clause
imposing a limitation period of six years on all causes of action not otherwise
provided for. That residuary limitation period applied to the plaintiffs’ action for
recovery of the invalid taxes, and limited the claim to those taxes paid during the
six years preceding the commencement of the action. Taxes that had been paid
64 Id., paras. 54-58. These passages are not perfectly clear in that they are directed only to the
issues of protest and duress. However, the constitutional principle of no taxation without
legislative authority is equally violated whether the taxing law is itself invalid (as a matter of
constitutional law) or whether the language of a valid statute does not authorize the levy of the
tax (as a matter of administrative law). Accord, Woolwich Equitable Building Soc. v. Inland
Revenue Commrs. [1993] A.C. 70, 172 per Lord Goff (applying constitutional principle to
permit recovery of administrative-law ultra vires taxes). Contra, Sorbara v. Can. (2009) 98
O.R. (3d) 673 (C.A.) (restricting Kingstreet ruling to cases where the taxing law is itself invalid);
Merchant Law Group v. C.R.A. 2010 FCA 184 (C.A.) (same decision); in our opinion, those
decisions are wrong.
65 Section 10.4, “Detriment to plaintiff”, above.
66 Note 38, above.
67 [2007] 1 S.C.R. 3, paras. 59-61.
354
RECOVERY OF UNAUTHORIZED TAXES 10.6(e)
more than six years before the commencement of the action were barred from
recovery by the limitation period.68
68 For discussion generally see ch. 4, Procedure, under heading 4.5, “Limitation of actions”, and
especially 4.5(f), “Constitutional claims”, above.
355
11
Taking
11.1 Constitutional power to take property 357

11.2 Crown property 359
11.3 Compensation for taking 360
(a) No constitutional right to compensation 360
(b) Statutory right to compensation 362
11.4 Regulation of property 363
11.5 Constructive taking 364
11.6 Extinguishment of contractual rights 367
11.1 Constitutional power to take property
The taking (or compulsory acquisition or expropriation) of private property

by the Crown is the subject of this chapter.1
There are prerogative powers that enable the executive to take or borrow
(requisition) private property in wartime, but these have probably been entirely
displaced by statute in Canada and elsewhere in the Commonwealth.2 Indeed the
leading case on displacement of the prerogative is a taking case from the United
Kingdom arising out of the First World War. In Attorney General v. De Keyser’s
Royal Hotel (1920),3 the Crown occupied a building for the administration of the
air force during the War, and claimed a prerogative power to take private property
1 See Horsman and Morley (eds.), Government Liability (2006, annually supplemented), ch. 4
(by R. Brown); Hogg, Constitutional Law of Canada (5th ed., 2007, annually supplemented),
sec. 29.5, “Expropriation”; La Forest, Natural Resources and Public Property under the Ca-
nadian Constitution (1968); Lajoie, Expropriation et fédéralisme au Canada (1972); Todd,
The Law of Expropriation and Compensation in Canada (2nd ed., 1992); Allen, The Right to
Property in Commonwealth Constitutions (2000); B. Ziff, “‘Taking’ Liberties: Protections for
Private Property in Canada” in E. Cooke (ed.), Modern Studies in Property Law (Hart Publish-
ing, Oxford, 2005), vol. 3, 341; D.R. Christie, “A Tale of Three Takings: Taking Analysis in
Land Use Regulation in the United States, Australia and Canada” (2007) 32 Brook. J. Int. Law
343.
2 On the prerogative and its displacement by statute, see Hogg, note 1, above, sec. 1.9, “Prerog-
ative”.
3 [1920] A.C. 508 (H.L.).
11.1 TAKING
for defence purposes without the payment of compensation.4 The House of Lords
agreed that the Crown used to have a prerogative power to take property for
defence purposes, but held that it had been displaced by a statute that authorized
the occupation of private property for defence purposes, and, because the statute
required the payment of compensation, the Crown had to pay for its use of the
property. In Canada, the taking of property by the Crown is closely regulated by
expropriation statutes (all of which require the payment of compensation),5 and
it is safe to assume that any prerogative powers have been displaced: the taking
of property by the Crown can only be accomplished under the authority of a
statute.
In Canada, a statute authorizing the Crown (or other public body) to take
private property for public use is no different from any other statute in that it must
be authorized by a head of power in the Constitution. The federal Parliament’s
list of powers in s. 91 of the Constitution Act, 1867 includes a power over “the
public debt and property” (s. 91(1A)), which authorizes the regulation of existing
federal Crown property, but this has never been regarded as authorizing the
creation of new federal Crown property by the taking of private property.6 How-
ever, most if not all of the other heads of power in s. 91 will authorize the taking
of private property for a purpose linked to that head of power. For example, the
power over the national capital region will authorize the expropriation of property
to create a “green belt” in the region.7 The power over navigation and shipping
will authorize the expropriation of property to permit the erection of works
required for navigation.8 The power over interprovincial undertakings will au-
thorize the expropriation of property for the building of a railway or pipeline.9 In
4 It was argued by the Crown that the prerogative power to take private property in time of war
did not involve any obligation to compensate the private owner. This point did not need to be
decided in De Keyser, because the House of Lords decided that the governing power was
statutory, but the point was later decided against the Crown: Burmah Oil Co. v. Lord Advocate
[1965] A.C. 75 (H.L.) (destruction by Crown of oil installations owned by Burmah Oil during
the Second World War to deny them to the advancing Japanese held to be authorized by the
prerogative, but the prerogative required the payment of compensation); Allen, note 1, above,
32-33.
5 The federal government, all ten provinces and all three territories have expropriation statutes,
e.g., Expropriation Act, R.S.C. 1985, c. E-21; Expropriations Act, R.S.O. 1990, c. E.26; Ex-
propriation Act, R.S.Q., c. E-24: Todd, note 1, above. The National Defence Act, R.S.C. 1985,
c. N-5, does not make provision for the taking of property for defence purposes, although, by
s. 260, it does provide for compensation to be paid for losses caused by “manoeuvres”.
6 La Forest, note 1, above, 149; Lajoie, note 1, above, 72-73; Laskin, Canadian Constitutional
Law (5th ed., 1986 by Finkelstein), 668-670.
7 Munro v. National Capital Commn. [1966] S.C.R. 663. The power over the national capital
region comes from the peace, order, and good government language in the opening words of
s. 91.
8 Montreal v. Montreal Harbour Commrs. [1926] A.C. 299, 313, 320 (P.C.). The power over
“navigation and shipping” is in s. 91(10).
9 Re Dyke and Cochin Pipe Lines (1978) 85 D.L.R. (3d) 607 (Sask. C.A.). The power over
interprovincial undertakings is in s. 91(29) read with s. 92(10)(a).
358
CROWN PROPERTY 11.2
short, Parliament does have a power of expropriation, but the expropriating law
must be for a purpose otherwise falling within Parliament’s legislative authority.10
The provincial Legislatures’ list of powers in s. 92 of the Constitution Act,
1867 probably does include a general power to expropriate property in the prov-
ince simply by virtue of the breadth of the head of power over “property and civil
rights in the province” (s. 92(13)).11 That is not an unlimited power, however,
since ordinary federal principles of classification will apply to an expropriating
law; and the law would be invalid if in pith and substance it was a law in relation
to a matter allocated to the federal Parliament.12
11.2 Crown property
Can the federal Parliament authorize the expropriation of property owned

by a province? And can the provincial Legislatures authorize the expropriation
of property owned by Canada? These questions often raise a question of statutory
interpretation: does the expropriating statute apply to property owned by the
Crown in right of another government? The application of a statute to the Crown
in right of another government is a complicated issue of interpretation that is
discussed later in this book.13 If the expropriating statute is interpreted as extend-
ing to the taking of property owned by the Crown in right of another government,
then a constitutional issue arises: does the enacting legislative body have the
capacity to enact laws binding on the Crown in right of another government? An
extended discussion of this issue is outside the scope of this book.14 However,
generally speaking, federal legislative power will extend to bind the Crown in
right of a province, and there have been cases in which the federal Parliament has
validly expropriated provincial Crown property.15 There is no good federal reason
why the provincial Legislatures should not have a comparable capacity to expro-
10 Laskin, note 6, above, 669; Hogg, note 1, above sec. 29.5(a).

11 McAfee v. Irving Refinery (1970) 17 D.L.R. (3d) 729 (N.B.A.D.) (expropriation of land to
construct intraprovincial pipeline upheld); Can. Industrial Gas and Oil v. Govt. of Sask. [1978]
2 S.C.R. 545, 569 (expropriation of oil and gas rights upheld); Société Asbestos v. Société
nationale de l’aminate (1981) 128 D.L.R. (3d) 405 (Que. C.A.) (expropriation of assets of
asbestos mining company upheld). LaForest, note 1, above, 173 and Laskin, note 6, above,
669, both assert an extensive provincial power of expropriation.
12 Hogg, note 1, above, sec. 29.5(b). Compare Lajoie, note 1, above, ch. 4, who argues that
expropriation is merely a means to an end, and the end must be within the legislative competence
of the province.
13 Chapter 15, Statutes, under heading 15.16, “Federal complications”, below.
14 Hogg, note 1, above, sec. 10.9, “Federal complications”.
15 A.G.B.C. v. C.P.R. [1906] A.C. 204 (P.C.); A.G. Que. v. Nipissing Central Ry. Co. [1926] A.C.
715 (P.C.); Hogg, note 1, above, sec. 10.9(f); La Forest, note 1, above, 150-155; Lajoie, note
1, above, 139-148. Note also s. 117 of the Constitution Act, 1867, which refers to “the right of
Canada to assume any lands or public property for the defence of the country”, which in context
seems to be an express power to take provincial Crown property for defence purposes.
359
11.3(a) TAKING
priate federal Crown property. However, this issue has never been decided. The
cases that deal with the more general question of whether provincial laws can
bind the Crown in right of Canada are sparse and inconsistent, but the weight of
modern dicta suggests that provincial legislative power will not extend to bind
the Crown in right of Canada.16 It may well be, therefore, that the provincial
Legislatures lack the power to expropriate federal Crown property.
11.3 Compensation for taking
(a) No constitutional right to compensation
The Constitution of Canada is unusual in not containing any guarantee of

compensation for private property taken for public purposes, or indeed any guar-
antee of property rights generally.17 Most countries with written constitutions
contain explicit guarantees of property rights which impose an obligation on
government to pay compensation for the taking of private property. In the United
States, the fifth amendment to the Constitution requires the federal Congress to
pay “just compensation” when private property is taken for public use, and the
due process clause of the fourteenth amendment by implication imposes the same
obligation on the state Legislatures.18 In Australia, although the Constitution lacks
a bill of rights, the federal Parliament has the power to expropriate property only
“on just terms”;19 there is no comparable limitation on the state Legislatures.
Many other Commonwealth countries adopted a constitutional obligation to pay
compensation for the taking of private property when they achieved independence
and an entrenched written constitution.20
In Canada, by contrast, neither the Constitution Act, 1867 nor the Consti-
tution Act, 1982 (including the Charter of Rights) contains any guarantee of
compensation, and legislative power is unlimited by any such condition.21 In R.
v. Appleby (No. 2) (1976),22 for example, it was held that no compensation was

17 The framers of the Constitution Act, 1867 apparently assumed that property rights would be
protected by the Senate whose members were to be appointed from the propertied class. The
framers of the Constitution Act, 1982 (which includes the Charter of Rights) deliberately omitted
any guarantee of property rights, intending to avoid any repetition of the Lochner era in the
United States. See Christie, note 1, above 364-373.
18 Chicago, Burlington and Quincy Rd. Co. v. Chicago (1897) 166 U.S. 226.
19 Constitution of Australia, s. 51(31).
20 Allen, note 1, above. The United Kingdom and New Zealand never adopted entrenched written
constitutions, and retained parliamentary sovereignty over the payment of compensation for
the taking of property. The statutory bills of rights that have been adopted by both countries
(Human Rights Act 1998 (U.K.); New Zealand Bill of Rights Act 1990 (N.Z.)) also lack any
obligation to pay compensation.
22 (1976) 76 D.L.R. (3d) 110 (N.B.C.A.).
360
COMPENSATION FOR TAKING 11.3(a)
payable to a publisher who, in compliance with the federal National Library Act,
sent two copies of each new book to the National Library. The Act stipulated that
the books were to be sent to the Library “at [the publisher’s] own expense”. This
language validly excluded any implied obligation to compensate the publisher.
As another example, in Authorson v. Canada (2003),23 it was held that a federal
statute that unambiguously denied to veterans interest on funds held for them by
the Department of Veterans Affairs was effective in extinguishing the Crown’s
fiduciary duty to pay interest for the use of the funds.24 These cases illustrate the
accuracy of the famous dictum that “the prohibition ‘Thou shalt not steal’ has no
legal force upon the sovereign body”.25
The Canadian Bill of Rights,26 which has only statutory force and is appli-
cable only to federal laws,27 confers on “an individual” a right to “enjoyment of
property”, and the right not to be deprived thereof “except by due process of law”
(s. 1(a)). This language is sufficiently similar to the due process clause of the
fourteenth amendment to the Constitution of the United States that it could be
interpreted (as the American clause has been)28 as conferring a right to compen-
sation on the deprivation of property. However, in both Appleby and Authorson,
discussed above, this argument was rejected. The courts held that due process in
the Canadian Bill of Rights was a procedural requirement only, and that it was
satisfied if property was taken by clear language in a federal statute. The nearest
thing to a due process clause in the Charter of Rights is s. 7, but it protects only
“life, liberty and security of the person”, making no reference to property. Section
8 of the Charter, which protects against “unreasonable search or seizure”, is
directed to seizures of property for evidentiary or investigative purposes and has
never been extended to an expropriation.
The North American Free Trade Agreement (NAFTA), which is an inter-
national treaty between Canada, the United States and Mexico, by article 1110,
requires Canada to pay compensation at fair market value for a “measure” that is
“tantamount” to an “expropriation” from an American or Mexican “investor”.
The investor is entitled to bring proceedings for compensation against Canada in
an international arbitration tribunal established under the treaty. (Canadian in-
vestors in the United States or Mexico receive the same protection.) The treaty
23 [2003] 2 S.C.R. 40.

24 Even when compensation for a taking has been judicially awarded to the property owner, the
Crown’s obligation can be extinguished by retroactive legislation. This has happened in the
United Kingdom where compensation was awarded in the Burmah Oil case, note 4, above, and
the decision was subsequently annulled by the War Damage Act 1965 (U.K.).
25 Florence Mining Co. v. Cobalt Lake Mining Co. (1909) 18 O.L.R. 275, 279, per Riddell J.,
aff’d [1911] 2 A.C. 412 (P.C.); quoted with approval in Authorson v. Can., note 23, above,
para. 53.
26 Hogg, note 1, above, ch. 35.
27 The Alberta Bill of Rights, R.S.A. 2000, c. A-14, s. 1(a) uses the same language as s. 1(a) of
the Canadian Bill of Rights, which makes similar protections applicable to Alberta statutes.
28 Note 18, above.
361
11.3(b) TAKING
defines a “measure” as including “any law”, and it makes no exception for an

express statutory denial of compensation or even for a “reasonable limit” on the
right. In Canada, an international treaty does not have legal force in domestic law,
but the American or Mexican investor has a right and a remedy in international
law (that is, under the treaty) to compensation by Canada for a taking of property
by a Canadian statute, whether the statute is federal or provincial. This would be
so even if the Canadian statute (the expropriating measure) expressly denied
compensation.29 In that case, the American or Mexican investor would have a
right against Canada that is not possessed by a Canadian investor (who, however,
enjoys a similarly privileged position when investing in Mexico or the United
States).
(b) Statutory right to compensation
Despite the lack of constitutional protection, property rights are in practice

well respected in Canada. Governments rarely behave in high-handed ways that
would discourage investment or add a risk premium to the cost of doing business
in the jurisdiction. Most takings of property occur under expropriation statutes
that confer an explicit right to compensation and include rules for establishing
market value, disturbance damages and ancillary losses.30 And, for the cases that
slip through the cracks, there is a rule of statutory interpretation31 in Anglo-
Canadian law that a statute that authorizes the taking of private property, and is
silent about compensation, is to be read as implicitly requiring that compensation
be paid to the private owner. The leading case is Attorney General v. De Keyser’s
Royal Hotel (1920),32 which was discussed earlier in this chapter. In that case, the
Crown had taken a hotel property for wartime purposes under powers conferred
by a Defence of the Realm Act that said nothing about the payment of compen-
sation. The House of Lords rejected the Crown’s argument that the silence of the
29 Horsman and Morley, note 1, above, sec. 4.50.30.

30 Note 5, above.
31 The conventional view is that this is a rule of statutory interpretation: Attorney General v. De
Keyser’s Royal Hotel, quotation at note 34, below; Manitoba Fisheries v. The Queen [1979] 1
S.C.R. 101, 109, 118 (relying on De Keyser quotation and describing rule as a “rule of con-
struction”); Sisters of Charity of Rockingham v. The King [1922] 2 A.C. 315, 322 (P.C., Can.)
(no entitlement to compensation “unless he can establish a statutory right”); Allen, note 1,
above, 17 (“no common law right to compensation for an authorized taking of property”);
Todd, note 1, above, 35 (no common law right to compensation in Canada); Ritchie, note 1,
above, 393. Horsman and Morley, note 1, above, sec. 4.20.60 (by R. Brown), argue that the
right to compensation is not a mere rule of statutory interpretation, but a substantive common
law right, applicable to both prerogative and statutory takings. No practical result turns on the
disagreement because there is general agreement that the rule (whatever its source) can be
displaced by a clear statutory denial of compensation. If the source of the rule were constitu-
tional, as is the case in many countries with written constitutions (notes 18-20, above), then of
course a statutory denial of compensation would be ineffective.
32 [1920] A.C. 508 (H.L.); discussed at note 3, above.
362
REGULATION OF PROPERTY 11.4
statute, reinforced by considerations of public safety and national defence, re-

lieved the Crown of any liability to compensate the private owner.33 Lord Atkinson
articulated the governing principle in this way: “The recognized rule for the
construction of statutes is that, unless the words of the statute clearly so demand,
a statute is not to be construed so as to take away the property of a subject without
compensation.”34 The Crown was ordered to pay a reasonable rent for the period
of its occupation of the premises.
11.4 Regulation of property
The De Keyser principle applies to the taking of property, not to the regu-
lation of property. Statutes often authorize restrictions on the use of property —
municipal zoning powers being the most obvious examples — and the imposition
of restrictions on the use of property will lower the value of the affected property.
That is a common effect of regulation, and the general rule is that no compensation
is payable for a devaluation caused by regulation.35 Most forms of regulation,
whether or not involving the use of property, impose costs on those who are
regulated and any general obligation of compensation would be intolerably costly
and often contrary to the regulatory purpose.36 Of course, compensation could be
required by statute in a particular case, but this is highly unusual. Much more
common are statutory provisions that make explicit the lack of any obligation to
pay compensation.37
In Mariner Real Estate v. Nova Scotia (1999),38 private land with a beach
frontage was designated a “beach” under a power granted by the Nova Scotia
Beaches Act. The effect of the designation was to restrict severely private uses
of the land, and even the erection of private residences on designated land needed
ministerial permission. The statute was silent as to any compensation for the
owners of designated land. The owners of the designated land in this case were
in fact denied ministerial permission to build private residences on their land, and
they sued the provincial Crown for compensation, arguing that the Crown had
taken their land for public purposes. The owners were unsuccessful. The Nova
33 The House of Lords also rejected the Crown’s argument that it had a prerogative power to take
property for defence purposes without the payment of compensation: note 4 and accompanying
text, above.
34 [1920] A.C. 508, 542.
35 Alta. v. Nilsson (2002) 220 D.L.R. (4th) 474 (Alta. C.A.), (freeze on development not a taking
of land; no compensation payable).
36 Chapter 6, Tort: General Principles, under heading 6.6(b), “Compensation based on risk”,
above.
37 These are common in statutes authorizing the zoning of land. For an example, see note 51,
below.
38 (1999) 177 D.L.R. (4th) 696 (N.S.C.A.). Cromwell J.A. and Hallett J.A. wrote concurring
opinions, each with the agreement of Glube C.J.N.S.
363
11.5 TAKING
Scotia Court of Appeal held that this was a regulation of land, not a taking. The
Court gave two reasons. First, the Court held that a decline in value of land
through “down-zoning” or other regulation of its use was not equivalent to a loss
of an interest in the land unless virtually all incidents of ownership had been
denied, which was not the case here. Second, there had been no acquisition of an
interest in the land by the Crown. The enhancement in value of the neighbouring
public property was not an acquisition by the Crown of an interest in the private
land.
11.5 Constructive taking

There are cases in which, unlike Mariner, it has been successfully argued
that the impact of regulatory measures on private property amounts to an indirect
or de facto taking — a constructive taking — that calls for compensation.39 What
is involved in a constructive taking is (1) regulation of the use of private property
that is so restrictive that it amounts to the confiscation from the private owner of
virtually all incidents of ownership, coupled with (2) an acquisition by the Crown
of benefits comparable to those taken away from the private owner. Both elements
must be present: a confiscation without an acquisition is not a taking, and the
achievement of regulatory (public policy) goals does not count as an acquisition.40
The leading case is Manitoba Fisheries v. The Queen (1979),41 where a
company that operated a fish exporting business was put out of business when a
federal statute, the Freshwater Fish Marketing Act, created a Crown corporation
and conferred upon it the exclusive right to export fish. The statute was silent on
the question of compensation. The private company sued for compensation. It
lost in the lower courts on the ground that there had been no taking of any of the
company’s assets. But the company was successful in the Supreme Court of
Canada. It was true that the company retained its physical assets, but the effect
of the statute was to take away the company’s ability to carry on its business. The
company’s suppliers and customers were now required to do business with the
Crown corporation. The company’s connections to those suppliers and customers
constituted its goodwill. Goodwill, “although intangible in character, is a part of
the property of a business just as much as the premises, machinery and equip-
ment”.42 The statute extinguished the company’s goodwill, and “the same good-
39 For analysis of the cases, see R. Brown, “The Constructive Taking at the Supreme Court of
Canada: Once More, Without Feeling” (2007) 40 U.B.C. Law Rev. 315.
40 Compare the requirement of a benefit to the Crown as an element of the cause of action for
restitution against the Crown: ch. 10, Restitution, under heading 10.3, “Benefit to Crown”,
above (furtherance of public policy does not count as benefit).
41 [1979] 1 S.C.R. 101. Ritchie J. wrote the opinion of the Court.
42 Id., 108. However, a government licence to carry on a business funded by government is not
regarded as creating goodwill that entitles the holder to compensation when the licence is
revoked: Home Orderly Services v. Man. (1987) 43 D.L.R. (4th) 300 (Man. C.A.).
364
CONSTRUCTIVE TAKING 11.5
will was by statutory compulsion acquired by the [Crown corporation]”.43 The

Court held that the company was entitled to be compensated for this taking of its
property. This case is important for recognizing that a regulatory statute can in
some circumstances constitute a constructive taking of property for which the
Crown is bound to pay compensation.
The Supreme Court of Canada decided another “constructive taking” case
in The Queen (B.C.) v. Tener (1985).44 A provincial statute prohibited the extrac-
tion of minerals from a provincial park. The plaintiffs owned mineral rights in
the park, and the prohibition made it impossible for them to exploit their rights.
The statute said nothing about compensation. The plaintiffs sued for compensa-
tion, and were successful. The Supreme Court followed the Manitoba Fisheries
case to hold that the loss of access to the mineral rights was a taking of property
that had to be compensated.45 This holding goes a step beyond Manitoba Fisheries.
It will be recalled that, in that case, a Crown corporation had in effect acquired
the business of exporting fish. In Tener, the Crown had acquired neither the
plaintiffs’ mineral rights nor the right to exploit them. The judges struggled with
the question of whether the Crown had acquired anything for which it should pay
compensation. Estey J. for the majority said that the prohibition of mineral op-
erations in the park added “value” to the Crown’s land.46 And Wilson J. for the
concurring minority said that it “effectively removed” an encumbrance from the
Crown’s land, which was a “gain” to the Crown.47 In the end, both judges agreed
that the plaintiffs’ effective loss of their mineral rights was matched by the
Crown’s acquisition of an intangible, but valuable benefit. Therefore, the statute
effected a taking, and the plaintiffs were entitled to compensation.
In Canadian Pacific Railway Co. v. Vancouver (2006),48 the City of Van-
couver, acting under a statutory power granted by its municipal statute, enacted
a by-law restricting the uses to which land owned by the Canadian Pacific Railway
could be put. The land consisted of a 45-acre corridor that held an abandoned
railway line, and the company was contemplating developing the land for resi-
dential or commercial uses, or selling the land. The by-law brought all that to an
end. It designated the corridor as “a public thoroughfare” for the purposes of
transportation and “greenways” like heritage walks, nature trails and cyclist paths;
all other uses were prohibited. The effect of the by-law, as the Supreme Court
43 Id., 110. The loss of private goodwill without the acquisition by the Crown of a comparable
benefit is not a taking: La Ferme Filiber v. Can. (1979), [1980] 1 F.C. 128 (T.D.) (regulation
prohibiting the raising of rainbow trout did not require compensation for the owner of a private
trout hatchery that was put out of business).
44 [1985] 1 S.C.R. 533. Estey J. wrote the opinion for the five-judge majority; Wilson J. wrote
the opinion for the two-judge concurring minority.
45 Followed in Casamiro Resource Corp. v. B.C. (1991) 80 D.L.R. (4th) 1 (B.C.C.A.) (denial of
access to mineral rights in a provincial park held to be a taking).
46 [1985] 1 S.C.R. 533, 564-565.
47 Id., 552.
365
11.5 TAKING
acknowledged, was “to freeze the redevelopment potential of the corridor and
confine CPR to uneconomic uses of the land”.49 And yet the City neither purchased
the land from the company nor paid any compensation to the company. The
company sued the City for compensation, arguing that a government act that
deprives a landowner of all reasonable use of its land constitutes a taking. The
Supreme Court held that there was no taking of property, and the City was under
no obligation to compensate the company.
In Canadian Pacific, the Court restated the test for a constructive taking.
McLachlin C.J. said that two requirements had to be met: “(1) an acquisition of
a beneficial interest in the property, or flowing from it, and (2) removal of all
reasonable uses of the property.”50 The Court held that neither requirement was
met. As to (1) (acquisition), since the property was designated as a public thor-
oughfare for the people of the City, one would have thought that there was an
acquisition of something like a beneficial interest by the City. But the Court held
otherwise, pointing out that the private ownership of the company would enable
the company to exclude the public from the corridor as trespassers (a “futile
exercise” according to the trial judge in view of the length of the corridor being
used as a public pathway). As to (2) (removal of all reasonable uses of the
property), one would have thought that a restriction to “uneconomic uses” would
have been enough. But again the Court held otherwise, holding that there were
some uses (none of which seemed very practical) still open to the company within
the public thoroughfare designation. Therefore, the company was denied com-
pensation for property that had basically been converted by by-law into a city
park.51 The result seems unfair,52 and a departure from Manitoba Fisheries and
Tener, in neither of which was there an acquisition by the Crown of a beneficial
interest in property. Indeed, if that requirement were taken literally, it would be
the end of compensation for constructive (or de facto) takings, because the ac-
quisition of an equitable interest in property is an actual taking (or expropriation).53
49 Id., para. 8.
50 Id., para. 30. The insistence on the second requirement would be puzzling if “beneficial interest”
in the first requirement had its literal meaning of an equitable interest in property. That would
amount to an actual taking and compensation would be due to the former owner for that reason
alone, as Brown argues, note 53, below. The phrase “beneficial interest” must mean something
less than an actual beneficial (equitable) interest.
51 The Court also held (para. 37) that a provision in the municipal statute that barred compensation
for the loss of value caused by a zoning by-law was a conclusive answer to the company’s
claim. That would surely have been a safer ground of decision than the reasons for denying a
taking in this case, and yet the statutory bar occupied only a single paragraph near the end of
the reasons.
52 The company was actually left worse off than if there had been an actual taking of the title to
the land without compensation, because the company was left with the burdens of ownership,
including liability for property taxes.
53 Brown, note 39, above, 321, argues that the requirement of the acquisition of a beneficial
interest conflates actual taking (expropriation) with constructive taking, and he refers to the
insubstantial nature of the benefit received by the Crown in Tener.
366
EXTINGUISHMENT OF CONTRACTUAL RIGHTS 11.6
11.6 Extinguishment of contractual rights

The extinguishment of a contractual right against the Crown54 has been held
to be equivalent to a taking of property, as indeed it should be. The holder of the
contractual right loses the right (which is a chose in action), and the Crown is
relieved of the concomitant obligation. This was decided in Wells v. Newfound-
land (1999),55 where the abolition by statute of the province’s Public Utilities
Board had the effect of extinguishing the contractual right of the plaintiff to hold
office as a member of the Board until age 70. The statute was silent as to whether
the board members were entitled to compensation for the loss of their offices.
The Supreme Court of Canada held that the plaintiff was entitled to be compen-
sated for the extinguishment of his contractual right. The compensation took the
form of damages for breach of the contract.
Major J., who wrote for the Court in Wells, made clear that the result would
have been different if the statute abolishing the board had, in “specific and
unambiguous language” denied compensation to persons who had a contractual
right to hold office on the board.56 This is true of all takings cases because, as has
been emphasized earlier in this chapter, the right to compensation is statutory,
not constitutional, and must give way to a clear statutory denial of compensation.57
According to Major J., this would be a “harsh and extraordinary use of govern-
mental authority”, but from time to time governments do persuade their legislative
bodies to do just that. In Authorson v. Canada (2003),58 Major J., again writing
for the Court, had to deny compensation to veterans for the extinguishment by
statute of the Crown’s fiduciary duty to pay interest on the funds held by the
Crown on behalf of the veterans. This was indeed harsh and extraordinary treat-
ment of the veterans by Parliament, but the statutory language taking away their
right to interest was specific and unambiguous, and therefore had to be given
effect.59
54 For more discussion, see ch. 9, Contract, under heading 9.4(d), “Constitutional limits”, above;
see also Horsman and Morley, note 1, above, sec. 4.20.50(1)(c).
56 Id., para. 49.
57 Section 11.3(a), “No constitutional right to compensation”, above.
59 See also Clitheroe v. Hydro One (2009) 96 O.R. (3d) 203 (S.C.J.), aff’d 2010 ONCA 458 (C.A.)
(upholding statute clearly extinguishing employee’s contractual right to pension).
367
12
Trust
12.1 Definition of trust 369

12.2 Crown liability as trustee 369
12.3 Political trusts 370
12.4 Crown’s duties as trustee 371
12.5 Crown as fiduciary 372
(a) Definition of fiduciary 372
(b) Crown liability as fiduciary 373
(c) No ordinary fiduciary 374
(d) Legislation modifying fiduciary duty 376
(e) Conclusion on Crown as fiduciary 379
12.1 Definition of trust

A trust is a relationship under which one party, the trustee, holds property
for the benefit of another party, the beneficiary. The trustee comes under several
fiduciary duties that essentially require the trustee to administer the property with
due care and for the exclusive benefit of the beneficiary. These duties, if broken,
expose the trustee to an action by the beneficiary for breach of trust. In that action,
the beneficiary may seek a range of remedies, including damages, an accounting
of profits, a declaration, an injunction, specific performance and an order remov-
ing the trustee from office.
12.2 Crown liability as trustee

The Crown may be a trustee,1 and the Crown has been held liable for breach
of trust.2 The petition of right extended to breaches of trust,3 and the Crown
1 Chitty, Prerogatives of the Crown (1820), 178; Robertson, Civil Proceedings by and against
the Crown (1908), 482; Street, Governmental Liability (1953), 128-130.
2 Canada Central Ry. Co. v. The Queen (1873) 20 Gr. 273 (Ont. Ch.); Miller v. The King [1950]
12.3 TRUST
proceedings statutes of all Canadian jurisdictions preserve that liability.4 The full
range of remedies will not be available against the Crown because of the Crown’s
immunity from injunction and specific performance.5 The Crown will also be
immune from statutory remedies if they derive from a statute (such as a Trustee
Act) that does not bind the Crown.6 But the most commonly sought remedy for
breach of trust is damages, and the Crown has no immunity from damages. For
the unusual case where damages is not an adequate remedy, some remedy will be
available, even if it is only a declaration.7
12.3 Political trusts
The intention to create a trust is to be discerned from the language of the

constituting instrument. With private trusts, an agreement or deed or will is the
instrument that normally creates the trust, and that instrument, usually profes-
sionally drafted, will typically use the word “trust” to describe the relationship
between the holder of the property and the person to be benefited. A trust can
also be created by statute,8 and in most contexts the use of the word “trust” would
make clear that a trust had been created. However, where it is the Crown upon
which the statute imposes an obligation to individuals with respect to property,
including an obligation expressed in terms of trust, the courts have leaned against
interpreting the statute as creating an enforceable trust; the courts have preferred
to characterize the Crown’s obligation as an unenforceable “political trust”.
The leading case is Kinloch v. Secretary of State for India (1882),9 in which
the House of Lords held that war booty captured during the Indian mutiny cam-
paign, although stipulated by royal warrant to be held by the Crown “in trust” for
members of the armed forces, did not create an enforceable trust. The reference
to “trust” was not intended to confer private rights of action, but merely described
a political obligation that was not enforceable in the courts. A similar result was
S.C.R. 168. Compare Guerin v. The Queen [1984] 2 S.C.R. 335 (Crown not a trustee but liable
for breach of fiduciary duty); discussed sec. 12.5(b), “Crown liability as fiduciary”, below.
3 Glanville Williams, Crown Proceedings (1948), 15.
4 Liability for breach of trust depends on the same provisions as liability for restitution (or quasi-
contract): ch. 10, Restitution, under heading 10.2, “Crown liability for restitution”, notes 1-5,
above.
5 Chapter 2, Remedies, under headings 2.4, “Injunction” and 2.5, “Specific performance”, above.
6 Chapter 15, Statutes, below.
7 Henry v. The King [1905] Ex. C.R. 417, holding that a trust is unenforceable against the Crown,
is wrongly decided: Street, note 1, above, 130.
8 One category of statutory trusts is imposed on the employer or retailer over tax withheld from
employees or consumers to secure the remittance of the withheld tax. In these situations, the
Crown is the beneficiary, not the trustee, and the intention to create a trust is undoubted,
although such trusts are not always enforceable for reasons explained in ch. 14, Crown as
Creditor, under heading 14.5, “Statutory reinforcement of Crown Priority”, below.
9 (1882) 7 App. Cas. 719 (H.L.).
370
CROWN’S DUTIES AS TRUSTEE 12.4
reached in Tito v. Waddell (No. 2) (1977),10 in which royalties for phosphate

mined on Ocean Island were, according to various statutes and ordinances, to be
held by the Crown “on trust” for the islanders. Megarry V.-C. held that in this
context the word “trust” denoted an unenforceable “political trust” rather than a
“true trust”. He acknowledged that the language of trust would normally impose
a true trust on a private person, but in the case of the Crown the existence of
governmental powers and obligations made the political trust a plausible alter-
native interpretation.11
In the Tito case, Megarry V.-C. was at pains to describe the political trust as
a trust “in the higher sense” and “not a mere moral obligation”.12 That lofty
sentiment would have provided cold comfort to the beneficiaries, who had been
unsuccessful in obtaining satisfaction from the government out of court, and had
then lost prolonged and expensive litigation. This failure to achieve an effective
private-law remedy (such as damages) led us, in the previous edition of this
book,13 to describe the political trust as a “nothing”. That is an exaggeration, since
it is possible that the language of trust could cause a reviewing court to impose
more severe public-law (administrative-law) restrictions on the exercise of dis-
cretion by the Crown than would have been imposed without that language.14
However, to persuade a court to go the next step and award damages or other
private-law remedies against the Crown to the beneficiaries of a trust created by
statute does call for rather clear indications in the statute that a true trust and not
merely a political trust has been created. Short of express language,15 it is not
clear what kind of indications would suffice, but the more specific the description
of the Crown’s powers and duties, the affected property and the class of benefi-
ciaries, the more likely it is that a true trust will be found.
12.4 Crown’s duties as trustee

Where the Crown is the trustee of a true trust (as opposed to a political trust),
the Crown’s fiduciary duties are the same as those of a private trustee. To this
10 [1977] 1 Ch. 106.

11 Id., 211, 217. To the same effect, Hereford Ry. Co. v. The Queen (1894) 24 S.C.R. 1; Town
Investments v. Dept. of Environment [1978] A.C. 359 (H.L.); Pawis v. The Queen [1980] 2 F.C.
18 (T.D.); Aboriginal Dvlpt. Commn. v. Treka Aboriginal Arts and Crafts [1984] 3 N.S.W.L.R.
502 (C.A.); Penikett v. Can. (1987) 45 D.L.R. (4th) 108 (Y.T.C.A.).
12 [1977] 1 Ch. 106, 207.
13 Liability of the Crown (3rd ed., 2000), 259.
14 L. Sossin, “Public Fiduciary Obligations, Political Trusts, and the Equitable Duty of Reason-
ableness in Administrative Law” (2003) 66 Sask. L. Rev. 129, 163 (“misleading to conclude
that the absence of a true trust gives rise to a ‘nothing’”).
15 It has been suggested that a true trust will not be imposed on the Crown by implication as
opposed to express words: Chipman v. The Queen [1934] Ex. C.R. 152, 159. That goes too far.
A trust arose by implication from statutory language in Canada Central Ry. Co. v. The Queen,
note 2, above. Accord, Gardner v. The Queen (1984) 45 O.R. (2d) 760, 772 (H.C.).
371
12.5(a) TRUST
general proposition three qualifications should be made. First, as a large organi-

zation, the Crown cannot personally administer the trust in the way that a private
individual can — and indeed must — administer a trust. In this respect, however,
the Crown is no different from a trust company or other corporate trustee, which
can only act through its employees, relying on appropriate organization to ensure
that all discretionary decisions are made at a responsible level.
Secondly, in all but two Canadian provinces, a statute is not binding on the
Crown except by express words or necessary implication. It is possible that duties
or remedies that find their source in a trustee act or other statute that lacks express
words binding the Crown will be held to be inapplicable to the Crown.16
Thirdly, the Crown may be prohibited by statute from keeping trust funds
segregated from other Crown funds, as a private trustee is obliged to do. In many
jurisdictions, public money (whether or not held on trust or subject to trust-like
duties) is statutorily required to be placed in the consolidated revenue fund, where
it is mixed with other government revenues and available for general government
expenditures.17 In that case, the Crown must of course maintain a separate account
for each trust fund, but each trust fund is not represented by separate property in
which the beneficiary has a proprietary interest; the trust property is converted
into an obligation by the Crown to pay an equivalent sum with interest.18 Even if
there is no statutory obligation on the Crown to pay trust funds into the consoli-
dated revenue fund, it has been suggested by the High Court of Australia that the
Crown would be legally justified in doing that, on the basis that: “It has always
been considered by Courts of Equity that the highest form of security for trust
funds was an investment upon the public credit of the country.”19
12.5 Crown as fiduciary
(a) Definition of fiduciary
A person who is not holding property on behalf of another cannot be a

trustee. However, a person who is not a trustee may be a “fiduciary”, owing trust-
like duties to others. A fiduciary relationship will arise where one party (the
fiduciary) has an obligation to act on behalf of another (the beneficiary) and that
16 We are advisedly cautious in saying this outcome is “possible” because the position of the
Crown and statutes is complicated, as our long ch. 15, Statutes, below, demonstrates. In
particular, there could be a necessary implication that the Crown is bound, or a court could
decide that, since the Crown can take advantage of the beneficial provisions of a Trustee Act,
it is bound by the burdensome provisions as well.
17 That is the case in the federal jurisdiction, absent any specific statutory direction to the contrary:
Ermineskin Indian Band and Nation v. Can. [2009] 1 S.C.R. 222, discussed in sec.12.5(d),
below.
18 As to the rate of interest, see Ermineskin, previous note.
19 N.S.W. v. Cth. (No. 3) (1932) 46 C.L.R. 246, 262.
372
CROWN AS FIDUCIARY 12.5(b)
obligation carries with it some discretionary power. In that situation, the fiduciary
is under a duty to exercise the discretion in much the same way as a trustee, that
is, with due care and exclusively for the benefit of the beneficiary. In appropriate
circumstances, the Crown may be a fiduciary, although, as we shall see, the
Crown is “no ordinary fiduciary”.20
(b) Crown liability as fiduciary
The leading case on the Crown as a fiduciary is Guerin v. The Queen (1984).21
In that case, the Musqueam Indian Band surrendered a portion of its reserve lands
in Vancouver to the Crown for lease to a golf club. The Crown leased the
surrendered land to the golf club, but the lease was on less favourable terms than
the Band had agreed to at its surrender meeting. The Band sued the Crown for
damages for breach of trust. The Band was successful at trial, but the Federal
Court of Appeal set aside the judgment, following the Kinloch and Tito cases to
hold that the Crown’s relationship with the Band was an unenforceable political
trust.22 In the Supreme Court of Canada, the political-trust cases were distin-
guished on the basis that those cases involved the distribution of property by the
Crown to beneficiaries who were identified by ordinance or statute but had no
pre-existing legal claim to the property.23 In this case, however, the Band had a
pre-existing aboriginal title to the surrendered land. That pre-existing right gave
rise, not to a trust,24 but to a fiduciary duty on the part of the Crown to scrupulously
adhere to the conditions imposed by the Band on its agreement to surrender the
land. Dickson J. said that where “one party has the obligation to act on behalf of
20 For a comprehensive review of the law, see Horsman and Morley (eds.), Government Liability
(2006, annually supplemented), ch.10 (by K. Ring). See also R. Flannigan, “Fiduciary Control
of Political Corruption” (2002) 26 Advocates’ Quarterly 252; L. Sossin, “Public Fiduciary
Obligations, Political Trusts, and the Equitable Duty of Reasonableness in Administrative Law”
(2003) 66 Sask. L. Rev. 129; D.E. Elliott, “Much Ado About Dittos: Wewaykum and the
Fiduciary Obligation of the Crown” (2003) 29 Queen’s L.J. 1; L.I. Rotman, “Wewaykum: A
New Spin on the Crown’s Fiduciary Obligations to Aboriginal Peoples?” (2004) 37 U.B.C.L.R.
219; L. Sossin, “Redress for Unjust State Action: An Equitable Approach to the Public/Private
Distinction” in D. Dyzenhaus and M. Moran (eds.), Calling Power to Account (University of
Toronto Press, 2005), 196.
21 [1984] 2 S.C.R. 335. Dickson J. wrote the plurality opinion for himself and three others; Wilson
J. wrote a concurring opinion for herself and two others. Estey J. wrote a concurring opinion.
Laskin C.J. did not participate in the judgment.
22 Section 12.3, “Political trusts”, above.
23 [1984] 2 S.C.R. 335, 352 per Wilson J., 378-379 per Dickson J.
24 Dickson J. held (p. 386) that the Crown was a fiduciary because the proprietary interests
following the surrender did not fit the traditional definition of a trust, although he acknowledged
(p. 387) that “the Crown must hold surrendered land for the use and benefit of the surrendering
Band”, and that obligation is subject to “principles very similar to those which govern the law
of trusts”. Wilson J. held (p. 355) that the Crown was a trustee. Estey J. held (pp. 394-395) that
the Crown was an agent and the law of agency produced the same result, making it unnecessary
to resort to the law of fiduciaries or trusts.
373
12.5(c) TRUST
another, and that obligation carries with it a discretionary power, the party thus
empowered becomes a fiduciary”.25 That obligation was breached when the
Crown, without consulting the Band, accepted a less valuable lease for the sur-
rendered land than had been contemplated by the Band members at the time of
surrender. For breach of the fiduciary duty, the Crown was liable to pay damages
to the Band.26
(c) No ordinary fiduciary
The Guerin concept of the Crown’s fiduciary duty towards aboriginal people
was elaborated by the Supreme Court27 in Wewaykum Indian Band v. Canada
(2002).28 Binnie J., who wrote for the Court, accepted that the fiduciary duty was
not restricted to the protection of pre-existing aboriginal title (as in Guerin), but
“is called into existence to facilitate supervision of the high degree of discretionary
control gradually assumed by the Crown over the lives of aboriginal peoples”.29
However, the fiduciary duty “does not exist at large”; it exists only where the
Crown’s discretionary control is over “specific Indian interests”.30 In that case,
two Indian bands on the east coast of Vancouver Island laid claim to each other’s
reserve land, and each sought damages from the Crown for breach of fiduciary
duty in allocating the reserves to the wrong band. Unlike the case of Guerin, the
bands did not assert any pre-existing aboriginal right over the lands that they
claimed should have been allocated to them. (The purpose of creating the reserves
was to protect the aboriginal peoples from displacement by European settlers.)
On these facts, it was far from clear that any sufficiently specific Indian interest
was involved, and Binnie J. said only that a fiduciary duty may exist,31 although
he then proceeded on the basis that it did exist. He emphasized that, in the creation
of reserves, as in many other contexts, the Crown “can be no ordinary fiduciary”32
because it is obliged to have regard to the interests of all affected parties, not only
the Indian interest. This did not mean that no fiduciary duty existed, but the most
that would be entailed by the duty would be general duties of loyalty, good faith,
full disclosure and due diligence. Binnie J. accepted the trial judge’s findings that
25 [1984] 2 S.C.R. 335, 384.

26 The Court was unanimous on both the liability and the amount of damages, despite the three
different bases of liability relied on in the three opinions: note 24, above. Technically, there is
no majority (four of eight) for the fiduciary-duty reasoning of Dickson J., but later cases
(described in the text that follows) have treated the Dickson opinion as the binding ruling.
27 The Crown’s fiduciary duty to aboriginal peoples was expressed in very broad terms in R. v.
Sparrow [1990] 1 S.C.R. 1075, 1108 per Dickson C.J. and La Forest J. for the Court. But that
case did not involve an issue of fiduciary duty, and the concept was invoked to assist in
interpreting s. 35 of the Constitution Act, 1982.
28 [2002] 4 S.C.R. 245. Binnie J. wrote the opinion of the Court.
29 Id., para. 79.
30 Id., para. 83; and see para. 85 (“a cognizable Indian interest”).
31 Id., para. 86.
32 Id., para. 96.
374
CROWN AS FIDUCIARY 12.5(c)
these obligations had been fulfilled by the Crown in its creation of the disputed
reserves and dismissed the actions for breach of fiduciary duty.
In Haida Nation v. British Columbia (2004),33 the question was whether the
province of British Columbia was obliged to consult with aboriginal people before
issuing to a forestry company a licence to cut trees on provincial Crown land in
the Queen Charlotte Islands. The Islands were the traditional homeland of the
Haida people, and were the subject of a land claim by the Haida Nation which
had been accepted for negotiation, but had not been resolved. The Supreme Court
held that no fiduciary duty attached to the Crown because aboriginal title to the
land had only been asserted, not defined or proved. This aboriginal interest was
“insufficiently specific” to satisfy the Wewaykum test for the existence of a
fiduciary duty to the aboriginal people.34 Nevertheless, the Court held that, be-
cause the Crown in right of the province was aware of the land claim, the “honour
of the Crown” imposed a duty to consult with the affected aboriginal people
before taking any discretionary action that would impact adversely on the value
of the claim.35 In the end, therefore, the Haida people achieved the result they
sought, although not by the route of fiduciary duty.
Where the Crown acts under a statutory scheme, the Crown’s actions will
be subject to judicial review on the grounds permitted by public law (administra-
tive law), including good faith and fairness, but the Crown will not generally be
subject to private-law fiduciary duties as well. In Gladstone v. Canada (2005),36
the plaintiff was entitled to the proceeds of sale of herring spawn that had been
seized from him by the Crown (but had not been forfeited to the Crown), acting
under the federal Fisheries Act. The Crown paid over the proceeds, but did not
add interest for the eight years that the money had been withheld. The Supreme
Court of Canada held that there was no fiduciary duty to pay interest. The Fisheries
Act was a comprehensive statutory scheme, which imposed a duty on the Crown
to pay the proceeds of sale to the plaintiffs, but the statutory duty was not overlaid
by any private-law fiduciary duty to add interest to the proceeds. The same result
ensued in Gorecki v. Canada (2006),37 where the plaintiff was entitled to a lump-
sum retroactive payment of Canada Pension Plan benefits, which was duly paid
to him, but without interest. The Ontario Court of Appeal held that the relationship
between the plaintiff and the Crown was wholly regulated by statute, and in any
case bore none of the hallmarks of a fiduciary duty. The CPP Act did not confer
34 Id., para. 18.
35 The legal basis for the enforceable honour-of-the-Crown obligation seems to have been s. 35
of the Constitution Act, 1982, which guarantees the aboriginal rights that the Haida Nation
claimed. In effect, the duty of consultation and accommodation is an interim protection measure
pending resolution of the claim to the guaranteed right: see paras. 20, 32, 35. On the complexities
of the constitutional law respecting aboriginal rights, see Hogg, Constitutional Law of Canada
(5th ed., 2007, annually supplemented), ch. 28, Aboriginal Peoples.
37 (2006) 265 D.L.R. (4th) 206 (Ont. C.A.). Sharpe J.A. wrote the opinion of the Court.
375
12.5(d) TRUST
any discretion on the Crown to act for the benefit of the plaintiff. The Act simply
imposed a duty to pay the benefits to the plaintiff — but without interest.38
Alberta v. Elder Advocates of Alberta Society (2011),39 the plaintiffs, who
were chronic care patients in public nursing homes in Alberta, claimed that they
had been overcharged for the costs of their food and accommodation (for which
they were liable to pay) in order to subsidize the costs of their medical care (for
which they were not liable to pay). They sued the Crown for damages for breach
of fiduciary duty. The Supreme Court held that the statement of claim disclosed
no cause of action for breach of fiduciary duty.40 The plaintiffs’ entitlement to
chronic care flowed exclusively from statute, and the impugned charges were
imposed by regulation made under statutory authority. As in Gorecki, the rela-
tionship between the plaintiffs and the Crown was wholly regulated by statute.
The Crown’s duties to provide health care all arose from public law, and did not
include any private-law fiduciary duty to the plaintiffs. In any event, the Crown’s
duties were owed to all segments of the population (since everyone received
health care), and the Crown should not be held to a fiduciary standard of conduct
for one group among so many others.
(d) Legislation modifying fiduciary duty
Wewaykum recognized that the traditional fiduciary duty had to be modified

to take account of the “many hats” that the Crown must wear. Ermineskin Indian
Band and Nation v. Canada (2009)41 added the important point that the law
respecting government operations could also have the effect of modifying the
traditional fiduciary duty. Four Indian bands, which had oil and gas resources
under their reserves, surrendered their interests in the oil and gas to the Crown so
that the Crown could enter into arrangements with third parties to exploit the
resources. The Crown did that and (unlike the case in Guerin) those arrangements
were not under attack. What was under attack was the failure of the Crown to
invest the oil and gas royalties that the Crown received and held on behalf of the
bands. The royalties were paid into the federal consolidated revenue fund and
special accounts were kept for each of the four bands. These accounts were
regularly credited with interest at a floating rate that was calculated by reference
to the average rate for long-term government bonds over the period for which the
interest was paid. The bands sued the Crown for damages for breach of fiduciary
duty. According to the bands, the duty of the Crown was to invest the monies
38 Both Gladstone and Gorecki are open to criticism, not on the fiduciary-duty point, but for
failing to apply a statutory entitlement to pre-judgment interest against the Crown: see ch. 2,
Remedies, under heading 2.2(e), “Interest on damages”, above.
39 2011 SCC 24. McLachlin C.J. wrote the opinion of the Court.
40 The Court also held (para. 78) that “the law does not recognize a stand-alone action for bad
faith”. A plea of negligence was also struck out. A plea of restitution was permitted to proceed.
41 [2009] 1 S.C.R. 222. Rothstein J. wrote the opinion of the Court.
376
CROWN AS FIDUCIARY 12.5(d)
received on behalf of the bands as a trustee would be obliged to do, which, they
argued, was in a prudently-selected diversified portfolio of investments.42 They
presented evidence to show that the return on external investments would have
greatly exceeded the interest which they had been paid. The difference was the
amount they sued for as damages for breach of fiduciary duty.
Rothstein J., who wrote for the Court in Ermineskin, pointed out that “the
Crown possesses a discretionary power to act in the best interests of the bands,
and the bands are vulnerable to the Crown’s exercise of that discretion”.43 It
followed that “the relationship between the Crown and the bands is a fiduciary
relationship that is trust-like in nature”.44 Although the Crown was “not strictly
speaking a trustee at common law”, as a fiduciary holding funds on behalf of the
bands, the Crown would be “under a duty to invest those funds in the manner of
a common law trustee, subject to any legislation limiting its ability to do so”.45
But, he held, there was legislation that limited the ability of the Crown to invest
the royalties. The Financial Administration Act required the royalties to be paid
into the consolidated revenue fund, and prohibited external investment of any
part of the fund.46 Therefore, the crediting of interest to the bands’ accounts was
all that the Crown was permitted to do to provide a return on the bands’ monies.47
It was true that the Crown was not constrained by legislation in setting the rate
of interest to be applied to the bands’ monies, and could therefore have set a rate
that provided a return equivalent of that on a diversified portfolio of investments.
However, Rothstein J. held that, “without knowing the direction of interest rates
and anticipated inflation, it cannot be said that the adoption of a floating long-
term rate was an imprudent choice by the Crown”.48 He concluded that there was
no breach of the fiduciary duty owed by the Crown to the bands.
42 The Court did not question this premise of the argument, but in fact a trustee’s freedom to
invest in a diversified portfolio of investments (as opposed to being restricted to government
bonds and other secure debt instruments) is in most Canadian jurisdictions a statutory innovation
of the late 20th century, except for those trusts that had an express and broad investment power
in their trust instruments.
43 [2009] 1 S.C.R. 222, para. 74.
44 Ibid.
45 Id., para. 73.
46 The Act modified the fiduciary duty in another way as well. The requirement to pay Indian
monies into the consolidated revenue fund, where it was available for general government
expenditures, was in effect a borrowing of the bands’ monies by the Crown, something that
would be prohibited by a fiduciary duty of loyalty, but which was unavoidable on the part of
the Crown: Id., paras.124-128.
47 If the duty of investment arose from an Indian treaty, as the bands argued, it would have been
arguable that the constitutional protection of Indian treaty rights in s. 35 of the Constitution
Act, 1982 would have nullified the statutory restriction on the investment of the bands’ monies.
But Rothstein J. (para. 67) rejected this argument, holding that the applicable treaty did not
contemplate external investment of the bands’ funds.
48 Id., para. 149.
377
12.5(d) TRUST
Ermineskin illustrates that legislation may limit the duties of a fiduciary.

That is true of any fiduciary, whether the Crown or anyone else, but the Crown
is more likely to be blanketed with legislative restrictions on its use of money and
other property. And, because the Crown is the executive branch of government,
which typically controls the legislative branch, it may have the practical ability
to relieve itself of unwanted fiduciary obligations, including those that accrued
in the past and require retroactive legislation.49 This happened in Authorson v.
Canada (2003).50 The federal Department of Veterans’ Affairs received and held
the pensions of disabled veterans who were incompetent to manage their own
money. The plaintiff was one of those veterans. He became competent in 1991,
and the Department duly paid him the pension money that had accumulated in
his account from 1950 to 1990, but the Department paid him no interest on the
money that had accumulated in his account over the 40-year period. He sued for
damages for breach of fiduciary duty. The pension receipts were (like the royalties
in Ermineskin) required by law to be paid into the consolidated revenue fund, but
(unlike the accounts in Ermineskin) the accounts of the individual pensioners
were not credited with any interest. In 1990, the Department began paying interest
on the pensioners’ accounts, but Parliament enacted an amendment to the De-
partment of Veterans’ Affairs Act providing that “no claim shall be made” for
“interest” for any period before 1990. The Supreme Court of Canada held that,
when the Crown received money on behalf of the disabled veterans, the Crown
came under a fiduciary duty to pay interest on that money. But the Court also
held that Parliament had the power to abolish the duty, even retroactively. Since
the obligation to pay pre-1990 interest had been unambiguously extinguished by
the 1990 amendment, the Court had no choice but to give effect to Parliament’s
will. The veterans were no longer entitled to pre-1990 interest on the monies held
by the Crown on their behalf.
The plaintiff in Authorson, so badly treated by his government, battled on.
In sequel proceedings, he made the ingenious argument that only his right to
“interest” had been extinguished, and that he was still entitled to damages for the
Crown’s breach of fiduciary duty, provided an interest figure was deducted from
the award. This argument was accepted at trial, and substantial damages (minus
an interest figure) were awarded. In the Ontario Court of Appeal,51 however, he
ran into the same government defence that later defeated the plaintiffs in Ermines-
kin. The pension receipts were subject to the same statutory provisions as applied
to the royalties in Ermineskin. Because the pension receipts were required by law
to be paid into the consolidated revenue fund, the Crown was precluded by law
from investing the accumulating funds in external markets and could only pay
interest as an investment return on the funds. “The Crown, even when acting as
49 See ch. 11, Takings, under heading 11.6, “Extinguishment of contractual rights”, above.
51 Authorson v. Can. (2007) 86 O.R. (3d) 321 (C.A.).
378
CROWN AS FIDUCIARY 12.5(e)
a fiduciary, cannot act contrary to the law.”52 Since interest was all that the
government was liable to pay as a fiduciary, the extinguishment of the govern-
ment’s liability to pay interest deprived the plaintiff of any further relief for the
Crown’s breach of fiduciary duty. Leave to appeal to the Supreme Court of Canada
was denied.
(e) Conclusion on Crown as fiduciary
Authorson shows that the Crown’s fiduciary duties (although vulnerable to

legislation) are not limited to aboriginal cases,53 but the courts are likely to be
cautious in expanding the fiduciary duties of the Crown. The role of fiduciary is
normally not an appropriate one for the Crown, which is expected to act in the
broader public interest, taking account of the impact of its actions on the com-
munity as a whole. If the situation calls for the Crown to pay attention to a number
of different interests, it is not appropriate to recognize a fiduciary duty in favour
of only one interest (let alone all interests), especially if there is a conflict between
relevant interests. Moreover, the Crown usually acts under statutory or prerogative
powers, and its actions are subject to judicial review on public-law (administrative
law) principles. To overlay those principles with an additional private-law fidu-
ciary duty calls for either clear statutory language or surrounding circumstances
that place the Crown in a relationship that clearly indicates the assumption of a
fiduciary duty.54 But the categories of Crown fiduciary duty are not closed, the
law is vague and it will take more decisions by the Supreme Court to bring further
clarity.
52 Id., para. 102.

53 See also K.L.B. v. B.C. [2003] 2 S.C.R. 403 (Crown owes fiduciary duty to children in foster
care, but no breach of duty in this case); Blackwater v. Plint [2005] 3 S.C.R. 3 (Crown may
owe fiduciary duty to aboriginal children in state-run residential school, but no breach of duty
in this case); Re Broome v. P.E.I. [2010] 1 S.C.R. 360 (Crown owes no fiduciary duty to children
in private residential home for orphans); Dolmage v. Ont. 2010 ONSC 1726 (S.C.J.) (Crown
may owe fiduciary duty to disabled persons in state-run residential facility; class action certi-
fied).
54 Sossin, note 20, above (both references), argues that a “public” fiduciary duty could be inte-
grated into administrative law and recognized as one of the bases for judicial review — and for
private redress. That development has not found favour with the courts, which have so far
insisted that private redress be governed by private-law principles: see, e.g., Alta. v. Elder
Advocates of Alberta Society 2011 SCC 24, paras. 37-54 (emphasizing difficulties in finding
government subject to fiduciary duties).
379
13
Estoppel
13.1 Definition of estoppel 381

13.2 Crown bound by estoppel 382
13.3 Estoppel and statutory duties 383
13.4 Estoppel and statutory powers 383
13.5 Res judicata 385
13.1 Definition of estoppel
An estoppel1 arises when a person (the representor) makes a statement

(representation) that is intended to be relied upon, and is relied upon to the
detriment of the person to whom it was made (the representee); the representor is
then prevented, or “estopped”, from subsequently denying the statement. The
statement may be made by words in a formal legal instrument (estoppel by deed),
but this is no longer a requirement. The statement may also be made by words or
conduct in any other setting, for example, in an informal letter (estoppel by
conduct). A promise is also treated as a representation for this purpose (promissory
estoppel). These three kinds of estoppel are branches of estoppel by representa-
tion, and are governed by similar rules.2 Res judicata is sometimes treated as a
branch of estoppel (estoppel by record), but it is a doctrine that is governed by
distinctive rules, and it is treated in a separate section of this chapter.3
The traditional view was that the doctrine of estoppel is a shield and not a
sword. There is no doubt that estoppel is a shield in the sense that the representee
is shielded from any action by the representor that would be inconsistent with the
1 For discussion of the definition, see Spencer Bower, The Law Relating to Estoppel by Repre-
sentation (4th ed., 2004), 3-12.
2 Another doctrine, which is perhaps a kind of estoppel, is the doctrine of officially induced error
as a defence in criminal law which was recognized in Lévis v. Tétrault [2006] 1 S.C.R. 420,
paras. 20-27 (adopting a six-part test for the availability of the defence, but without using the
word “estoppel”). This doctrine will not be discussed in this book, but it is obviously binding
on the Crown (the prosecutor).
3 Section 13.5, “Res judicata”, below.
13.2 ESTOPPEL
representor’s earlier relied-upon statement. The question is whether the doctrine

is a sword in the sense that the representee can rely upon the statement as part of
a cause of action against the representor. The traditional answer to that question
was “no”. However, courts in Canada, the United Kingdom and Australia have
now recognized that estoppel can give rise to a cause of action in appropriate
circumstances,4 a development that has been welcomed by leading commenta-
tors.5
13.2 Crown bound by estoppel

The Crown is bound by the law of estoppel: a representation by the Crown
will raise an estoppel against the Crown if the ingredients of estoppel are present.6
There are some dicta to the effect that the Crown is not bound by estoppel,7 but
there is no good reason for this position and it is opposed by the overwhelming
weight of authority.
A representation, like a contract, will bind the Crown only if it is (1) within
the power of the Crown itself, and (2) made by a servant or agent of the Crown
within the scope of his or her authority. The earlier discussion of the power of the
Crown and its servants or agents to bind the Crown by contract is also relevant
to the power to bind by representation.8 In the context of estoppel, these issues
commonly arise when a minister or official has made a representation that is
arguably inconsistent with a statutory duty or power that imposes legal restrictions
on the Crown. These cases are the subject of the next two sections of this chapter.
4 Crabb v. Arun District Council [1976] Ch. 179 (C.A.); Waltons Stores v. Maher (1988) 164
C.L.R. 387 (H.C., Aust.); Hill v. N.S. [1997] 1 S.C.R. 69.
5 S.M. Waddams, The Law of Contracts (5th ed., 2005), 149; B.J. Reiter, “Courts, Consideration
and Common Sense” (1997) 27 U. Toronto L.J. 439.
6 Spencer Bower, note 1, above, 143-144; Farrer, “A Prerogative Fallacy – that the Crown is not
bound by Estoppel” (1933) 49 L.Q.R. 511; Street, Governmental Liability (1953), 156-159; P.
McDonald, “Contradictory Government Action: Estoppel of Statutory Authorities” (1979) 17
Osgoode Hall L.J. 161; Quigley, Estoppel against the Crown: Selected Problems in the Tax
Context (1982), ch. 2. These works cite many authorities; note especially Plimmer v. Wellington
Corp. (1884) 9 App. Cas. 699 (P.C., N.Z.); R. v. Paulson [1921] 1 A.C. 271 (P.C., Can.). See
also cases cited in sec. 13.4, “Estoppel and statutory powers”, below.
7 Bank of Montreal v. The King (1907) 38 S.C.R. 258, 273; The King v. Royal Bank of Can.
(1919) 50 D.L.R. 293, 304 (Man. C.A.); The King v. Capital Brewing Co. [1932] Ex. C.R. 171,
182; Lyman, “Estoppel and the Crown” (1978) 9 Man. L. Rev. 15. There are also some old
dicta to the effect that the Crown is not bound by estoppel by deed: Farrer, note 6, above, 517-
519; Street, note 6, above, 156-157; there is no modern justification for this curious exception
and it is open to the courts to overrule the old cases if an occasion ever presents itself.
8 Chapter 9, Contract, under headings 9.4, “Power of Crown to make contracts”, and 9.5, “Power
of Crown servants to make contracts”, above.
382
ESTOPPEL AND STATUTORY POWERS 13.4
13.3 Estoppel and statutory duties

No representation by a minister or official or other Crown servant can give
the government or its officials the power to do something that the law does not
allow. For example, when a payment is made out of the consolidated revenue
fund without legislative authority (appropriation), the recipient is not permitted
to raise an estoppel as a defence to an action by the Crown to recover the illegal
payment.9 Nor can an estoppel be raised where the effect would be to allow the
government to dispense with the requirement of a statute; the statute must be
complied with notwithstanding any representation to the contrary.10 In the taxation
context, for example, the Crown is not bound by an incorrect statement of the law
made by a taxation official, even where the taxpayer has reasonably relied on the
prior statement to his detriment.11 The tax authority retains the power to assess
tax inconsistently with the official’s statement, and the assessment will be upheld
in court if it is found to be correct in law. This is a harsh result for the taxpayer
who receives wrong advice, but the obligation to obey the law is paramount and
“any other conclusion would lead to inconsistency and confusion”.12
13.4 Estoppel and statutory powers
The previous section of this chapter has made the point that a statutory duty
cannot be defeated by estoppel. But a statutory power, meaning a power that
confers a measure of discretion on a public official, may be constrained by an
estoppel where the official has made a representation as to the intended exercise
9 Cth. v. Burns [1971] V.R. 524 (S.C.); A.G. v. Gray [1977] 1 N.S.W.L.R. 406 (C.A.). This rule
was criticized as too harsh by the Law Reform Commn. (B.C.), Report on the Recovery of
Unauthorized Disbursements of Public Funds (1980) and reversed for B.C. by the Financial
Administration Act, S.B.C. 1981, c. 15, s. 67 (allowing recipient to raise estoppel). See also
ch. 10, Restitution, under heading 10.6(a), “General right of recovery”, at note 36, above.
10 Maritime Electric Co. v. General Dairies [1937] A.C. 610 (P.C., Can.); Howell v. Falmouth
Boat Construction Co. [1951] A.C. 837; A.G. Ceylon v. Silva [1953] A.C. 461 (P.C., Ceylon);
Apple Meadows v. Man. (1985) 33 Man. R. (2d) 251 (C.A.); McCague v. The Queen (2001)
203 D.L.R. (4th) 619 (F.C.A.).
11 Woon v. M.N.R. [1950] C.T.C. 263 (Ex. Ct.); M.N.R. v. Inland Industries [1974] S.C.R. 514;
Granger v. Can. [1989] 1 S.C.R. 141; Moulton v. Can. [2002] 2 C.T.C. 239 (T.C.). Woon,
above, decides that advance tax rulings are not binding. However, since 1970 there has been a
formal program of advance tax rulings, which are issued for a fee for the purpose of allowing
taxpayers to safely govern their affairs. In theory, the program should be authorized by the
Income Tax Act in order to make the rulings binding. In practice, since the inception of the
formal program, advance tax rulings have always been treated by the tax authorities as binding.
12 Moulton, previous note, para. 11.
383
13.4 ESTOPPEL
of the power.13 For example, in Re Violi (1965),14 it was held that the action of
the Minister of Immigration in staying deportation orders against two brothers
for a probationary period (“to give you a chance to demonstrate that you can
rehabilitate yourself”) estopped the Minister from later deporting the brothers.
They had remained in the country on good behaviour for three years in reliance
on the Minister’s act. This case illustrates that “when an authority by its conduct
leads the individual to believe that a decision has been made, it is to be treated as
having made that decision. And, having made it, the authority must act accord-
ingly”.15 To the same effect is Commonwealth v. Verwayen (1990),16 where the
Australian government had stated that its policy was not to plead the statute of
limitations as a defence to actions against the Crown by members of the navy
who had been injured when two warships collided 20 years previously. When the
Crown did attempt to plead the statute of limitations as a defence to such an
action, the High Court of Australia held that it was estopped from doing so.17
Statutory powers are hedged by restrictions that are derived from the terms
or purpose of the statute, as well as the rules of statutory interpretation (which
include the doctrines of administrative law), and a court has to be satisfied that
an estoppel does not lead to an outcome that would be inconsistent with the
statute. If an outcome would be a non-exercise or an unlawful exercise of the
statutory power that provides the discretion, then estoppel will not apply. As
Binnie J. has noted, “the legislation is paramount”, and estoppel against a public
authority accordingly “requires an appreciation of the legislative intent embodied
in the power whose exercise is sought to be estopped.”18 For example, in one
case,19 a false representation by a planning official that a piece of land had an
existing user right as a builder’s yard, was held to be not binding on the local
13 Kenora Hydro v. Vacationland Dairy [1994] 1 S.C.R. 80 (public utility estopped from recov-
ering an amount that it had underbilled the customer); Hill v. N.S., note 4, above (Crown
estopped from denying a farmer a promised right of way over a highway); Can. v. Adamoski
2004 BCCA 625 (C.A.) (Crown estopped from suing to recover student loan); B.C. v. Coe
(2007) 275 D.L.R. (4th) 57 (B.C.S.C.) (Crown estopped from relying on limitation period).
14 [1965] S.C.R. 232.
15 McDonald, note 6, above, 172-181, citing other cases.
16 (1990) 170 C.L.R. 394 (H.C., Aust.).
17 Deane and Dawson JJ. relied on the doctrine of estoppel, while the other members of the
majority, Toohey and Gaudron JJ., relied on the doctrine of waiver. See also Coe, note 13,
above, where estoppel precluded the Crown from relying on a limitation period.
18 Mount Sinai Hospital Center v. Que. [2001] 2 S.C.R. 281, para. 47 per Binnie J. concurring.
In that case, Binnie J. denied that the Crown was estopped by ministerial promises to modify
the hospital’s operating permit, but he held nevertheless that the Crown could not now act
inconsistently with the ministerial representation. Bastarache J. for the majority reached the
same decision on the basis that the ministerial representation was the actual exercise of the
discretion which could not now be reversed; he said (para. 95) that he did not have to consider
estoppel. The Supreme Court affirmed the decision of the Quebec Court of Appeal, which had
decided the case on the basis of estoppel. With respect, the Court of Appeal’s reasons seem to
us to be a clearer path to the result than either of the two paths taken in the Supreme Court.
19 Southend-on-Sea Corp. v. Hodgson (Wickford) [1962] 1 Q.B. 416.
384
RES JUDICATA 13.5
planning authority, which was the only body that could decide whether or not to
terminate a non-conforming use of land. The governing principle, admittedly
more difficult to apply to statutory powers than to statutory duties, is that “estoppel
cannot be used to defeat the operation of legislation”.20
13.5 Res judicata
The doctrine of res judicata is sometimes treated as a kind of estoppel

(estoppel by record). However, it has little in common with the three kinds of
estoppel by representation that have been discussed in the previous sections of
this chapter. The doctrine of res judicata is designed to bring finality to litigation.
Once litigation has been concluded, and an issue has been decided by a court of
competent jurisdiction, the issue is said to be res judicata, which means that the
same issue cannot be re-litigated by the parties to the litigation. This doctrine is
required in order to bring disputes to an end; and indeed it is entailed by the rule
of law. Litigation would have little point if the losing party, without appealing,
or after exhausting all appeals, were free to ignore the judgment and return to the
courts again. The doctrine of res judicata binds only the parties to the concluded
litigation. It is not the same as the doctrine of precedent (or stare decisis), which
stipulates that the decision of an issue by a court of competent jurisdiction is
binding on all courts lower in the same judicial hierarchy. The doctrine of prec-
edent shares with the doctrine of res judicata the purpose of foreclosing the re-
arguing of decided issues, but the doctrine of precedent is binding on everyone,
not just the parties to the original decision.21
The Crown is bound by res judicata.22 Any other conclusion would be
fundamentally inconsistent with the Crown’s subjection to legal proceedings in
tort, contract, restitution, trust and other heads of liability, which plainly implies
20 McDonald, note 6, above, 161. This article is an excellent review of the authorities. Craig,
Administrative Law (5th ed., 1994), 659-675, argues that an estoppel should be effective even
if the result is an ultra vires decision, except in the rare case where the injury to the public
interest outweighs the injury to the representee. Wade and Forsyth, Administrative Law (9th
ed., 2004), 340-342 and P. Finn and K.J. Smith, “The Citizen, the Government and ‘Reasonable
Expectations’” (1992) 66 Aust. L.J. 139, 146-147, argue that, where individuals are barred
from invoking estoppel for inconsistency with a statute, compensation should be provided. To
allow an estoppel to bar lawful government action or to give rise to compensation for lawful
government action would require statutory intervention since such remedies would run counter
to the general principle that the Crown is not liable for lawful action.
21 Res judicata, in its narrow field of operation, is a much more serious constraint than the doctrine
of precedent, which can often be overcome by distinguishing the apparently binding prior
decision.
22 Fonseca v. A.G. Can. (1890) 17 S.C.R. 612, 619; The Queen v. St. Louis (1897) 5 Ex. C.R.
330, 353 (Ex. Ct.); Kienapple v. The Queen [1975] 1 S.C.R. 729; Farrer, note 6, above, 511-
513; Street, note 6, above, 156; Spencer Bower, Turner and Handley, Res Judicata (3rd ed.,
1996), 226.
385
13.5 ESTOPPEL
that the Crown as well as the private party is bound by the outcomes of those
legal proceedings.23
23 A study paper of the Law Reform Commn. (Can.), Immunity from Execution (1987), 30-32,
suggests that the Crown’s immunity from execution entails immunity from res judicata. The
author acknowledges that this is a “surprising conclusion”, as indeed it is. The fact that a
judgment against the Crown cannot be enforced by execution against Crown property seems
to us to have no relevance to the question whether the issue determined by the judgment can
be re-litigated by the Crown.
386
14
Crown as Creditor
14.1 Legal proceedings by Crown 387

14.2 Prerogative of priority 387
14.3 Competing Crown debts 388
14.4 Statutory abolition of Crown priority 389
14.5 Statutory reinforcement of Crown priority 391
14.1 Legal proceedings by Crown
The Crown as creditor1 is able to sue for its debts and enforce any resulting
judgments in the same way as other creditors. Special remedies that were formerly
available to the Crown have either been abolished or have fallen into desuetude,
and are no longer used anywhere.2
14.2 Prerogative of priority
At common law,3 one of the Crown’s prerogatives is the right to repayment

of Crown debts in priority to other debts of equal degree.4 This privilege only
applies where the competing debts are of equal degree. If the Crown’s debt is
unsecured and the private creditor’s debt is secured, the general rule of priority
1 See McNairn, Governmental and Intergovernmental Immunity in Australia and Canada (1977),
ch. 5; Senate Standing Committee on Constitutional and Legal Affairs of the Parliament of
Australia, Priority of Crown Debts (1978); Law Reform Commn. (B.C.), The Crown as Cred-
itor: Priorities and Privileges (1982); Hardy, Crown Priority in Insolvency (1986); Lamer,
Priority of Crown Claims in Insolvency (1996, annually supplemented).
2 Chapter 2, Remedies, under heading 2.13, “Proceedings by the Crown”, above.
3 There is also priority in civil law, but it seems to be less extensive: Exchange Bank of Canada
v. The Queen (1885) 11 App. Cas. 157 (P.C., Quebec); discussed by McNairn, note 1, above,
116-118; Lamer, note 1, above, pp. 14-1-14-6.
4 Re Henley & Co. (1878) 9 Ch. D. 469 (C.A.); The Queen v. Bank of N.S. (1885) 11 S.C.R. 1;
Commrs. of Taxation (N.S.W.) v. Palmer [1907] A.C. 179 (P.C., Aust.); A.-G. N.S.W. v. Curator
of Intestate Estates [1907] A.C. 519 (P.C., Aust.).
14.3 CROWN AS CREDITOR
applies, and the Crown’s debt is subordinated to the secured debt.5 But where
both debts are unsecured, or equally secured, the Crown’s debt takes priority over
the private creditor’s debt.
The Crown’s priority obviously operates to the prejudice of private creditors,
and has the potential to create real hardship. In Crowther v. Attorney General of
Canada (1959),6 Crowther was injured in a car accident. He sued the other driver
for negligence and obtained a judgment for $9,000 to compensate for his injuries.
Crowther was employed by the Crown, and the Crown also sued the other driver,
obtaining a judgment for $11,000 to compensate the Crown for the loss of
Crowther’s services. However, an insurance fund of $5,000 was all that was
available to pay the two judgments. The Crown successfully asserted its right to
priority and took the entire fund. Crowther, the injured party, was left with nothing.
A weak justification of the Crown’s priority is that the Crown cannot choose
its debtors. This is true in the case of taxes, but many Crown debts are acquired
in the course of voluntary contractual transactions. There have been suggestions
in the cases that the Crown’s priority does not extend to commercial debts.7 In
this, as in other areas of Crown activity, it is not easy to distinguish commercial
from governmental activity.8 The High Court of Australia has rejected the dis-
tinction, according the Crown its priority for a debt created by the sale of tractor
parts to a private company.9 Elsewhere, the distinction continues to enjoy some
judicial support, but it has never been affirmed by the highest courts. The issue
has diminished in significance as the Crown’s prerogative has been steadily
displaced by statutory provisions that either abolish the priority or define it with
more precision. These provisions are explained in later sections of this chapter.10
14.3 Competing Crown debts
The Crown’s priority extends to debts owing to the Crown in right of any
jurisdiction.11 Within the federal constitutions of Canada and Australia, the pri-
ority attaches to debts owed to the provinces and states as well as to the Dominion
5 Household Realty Corp. v. A.-G. Can. [1980] 1 S.C.R. 423.

6 (1959) 17 D.L.R. (2d) 437 (N.S. F.C.).
7 The distinction was suggested in obiter dicta in Food Controller v. Cork [1923] A.C. 647, 659-
660, 666-668. The point was left open in Tasman Fruit-packing Assn. v. The King [1927]
N.Z.L.R. 518, 531 (S.C.) and in Farley v. Badley [1992] 1 W.W.R. 638 (Sask. C.A.). The
distinction was accepted in The Queen v. Workmen’s Comp. Bd. (1963) 40 D.L.R. (2d) 243
(Alta. A.D.) and in Alberta Government Telephones v. Selk [1974] 4 W.W.R. 205 (Alta. D.C.).
8 See ch. 15, Statutes, under heading 15.9, “Commercial activity”, below.
9 Re K.L. Tractors (1961) 106 C.L.R. 318.
10 Sections 14.4, “Statutory abolition of Crown priority”, and 14.5, “Statutory reinforcement of
Crown priority”, below.
11 Re Oriental Bank Corp. (1884) 28 Ch. D. 643 (Crown priority extended to debts contracted by
the Crown in right of the colonies of Victoria, Ceylon, Mauritius and Natal).
388
STATUTORY ABOLITION OF CROWN PRIORITY 14.4
and Commonwealth. When two Crown debts of equal degree are in competition
with each other, they rank equally. Thus, debts owed by an insolvent debtor to
the Crown in right of Canada and the Crown in right of Quebec rank equally in
the distribution of assets.12 This equal-ranking rule applies whether the conflicting
priorities have their bases in the prerogative13 or statute.14
In both Canada15 and Australia,16 the federal Parliament has legislative au-
thority over “bankruptcy and insolvency”. Under that power, the Parliament can
enact a scheme of distribution in which the priority of debts owing to the Crown
in right of the provinces or states as well as the Dominion or Commonwealth is
reduced or eliminated.17 Any such scheme would prevail over inconsistent pro-
vincial or state legislation by virtue of the doctrine of federal paramountcy. The
Australian states lack the constitutional authority to reduce the priority of federal
Crown debts,18 and the weight of authority supports the view that the Canadian
provinces are under a similar disability.19
14.4 Statutory abolition of Crown priority
The Crown’s priority, like other prerogatives, may be displaced by statute.20

The statute must, of course, be binding on the Crown, which normally requires
express words or a necessary implication to that effect.21 But there is no doubt
12 Re Silver Bros. [1932] A.C. 514 (P.C., Can.); see also Federal Commr. of Taxation v. Official
Liquidator of E.O. Farley (1940) 63 C.L.R. 278 (H.C., Aust.); Re Walter’s Trucking Service
(1965) 50 D.L.R. (2d) 711 (Alta. A.D.).
13 Walter’s Trucking case, previous note.
14 Re Silver Bros. note 12, above; Farley’s case, note 12, above. These cases illustrate that clear
statutory language is needed to change the rule of parity, even if the legislating body has the
constitutional power to do so.
15 Constitution Act, 1867, s. 91(21).
16 Constitution of Australia, s. 51(xvii).
17 Re Silver Bros., note 12, above, 521; Farley’s case, note 12, above, 313-314; Deputy Minr. of
Revenue v. Rainville [1980] 1 S.C.R. 35; McNairn, note 1, above, 105, 123-124; Husky Oil
Operations Ltd. v. M.N.R. [1995] 3 S.C.R. 453.
18 Cth. v. Cigamatic Pty. (1962) 108 C.L.R. 372 (H.C., Aust.).
19 See Federal Business Dvlpt. Bank v. Hillcrest Motor Inn (1988) 51 D.L.R. (4th) 464 (B.C.C.A.);
Hogg, Constitutional Law of Canada (5th ed., 2007, annually supplemented), sec. 10.9(d).
20 See ch. 15, Statutes, under heading 15.6(d), “Displacement of prerogative”, below. Where the
prerogative belongs to the Crown in right of a jurisdiction other than the legislating jurisdiction,
a constitutional question may arise: see the previous four notes and accompanying text, above.
21 See ch. 15, Statutes, below, but note the many exceptions to the requirement of express words
or necessary implication. For example, in Royal Bank v. Black & White Dvlpts. (1988) 52
D.L.R. (4th) 120 (Alta. C.A.), it was held that a Crown agent, by taking advantage of legislation
providing for the execution of judgments (which did not expressly bind the Crown), was bound
by the legislation, which meant that the Crown’s debt ranked equally with those of other
judgment creditors. For another example, in Re Mar-Lise Industries [1969] 2 O.R. 404 (C.A.),
it was held that a federal Crown agent was implicitly subjected by its constituting legislation
389
that bankruptcy or insolvency laws, which provide an order of payment of debts,

and which expressly bind the Crown, are effective to reduce or eliminate Crown
priority in accordance with their terms. In Canada and Australia, where legislative
authority over bankruptcy and insolvency is federal, the authority extends to
reducing or eliminating the priority of provincial or state Crown debts, as well as
federal Crown debts.22 Indeed, by virtue of federal paramountcy, even statutory
liens or trusts created by provincial or state law to enhance Crown priority will
give way in the face of an inconsistent federal regime of priority.23 Where the
federal regime is inconsistent with provincial laws according priority to provincial
Crown debts, there will be an incentive for a private creditor to force his or her
debtor into bankruptcy so as to make the federal regime applicable.
In Canada, the Bankruptcy and Insolvency Act was amended in 1992 to
abolish (with certain exceptions) the Crown’s priority as creditor in the context
of a bankruptcy or insolvency.24 The effect of the amendments is to treat all Crown
claims (whether of the federal or provincial Crowns)25 as unsecured interests,
with two exceptions. Crown claims will be recognized as secured claims if the
claims have been registered in accordance with a statutory scheme providing
specifically for the granting of security in favour of the Crown, or if the claims
are secured by security of a kind that could be obtained by persons other than the
Crown.26 In the latter case, it would seem that the Crown security would be subject
to higher ranking security of non-Crown creditors, determined in accordance with
to a provincial statute regarding chattel mortgages, although the statute expressly exempted the
Crown.
23 Deputy Minr. of Revenue v. Rainville, note 17, above; Deloitte Haskins and Sells v. Workers’
Comp. Bd. [1985] 1 S.C.R. 785; Federal Business Dvlp. Bank v. Que. [1988] 1 S.C.R. 1061;
B.C. v. Henfrey Samson Belair [1989] 2 S.C.R. 24; Husky Oil Operations Ltd. v. M.N.R., note
17, above; Que. v. Caisse populaire Desjardins de Montmagny [2009] 3 S.C.R. 286, para. 17.
See also A.J. Roman and M.J. Sweatman, “The Conflict between Canadian Provincial Personal
Property Security Acts and the Federal Bankruptcy Act” (1992) 71 Can. Bar Rev. 77.
24 See S.C. 1992, c. 27, s. 39 (enacting new sections 86 and 87 of the Bankruptcy and Insolvency
Act). Amendments with a similar purpose were enacted in 1997 to the Companies’ Creditors
Arrangement Act, providing a code for the priority of various Crown debts: S.C. 1997, c. 12.
25 Priority is still granted to provincial Crown claims pursuant to legislation that has a “similar
purpose” to subsection 224(1.2) of the Income Tax Act”: see section 86(3) of the Bankruptcy
and Insolvency Act. Section 224(1.2) of the Income Tax Act creates a statutory garnishment
procedure, whereby the Crown can require a third party who is liable to make a payment to a
person who has failed to remit source deductions under statutes such as the Income Tax Act (a
“tax debtor”) to pay the money to the Crown instead. The Crown will then take priority over
secured creditors of the tax debtor in respect of the amount payable by the third party. See sec.
14.5, “Statutory reinforcement of Crown priority”, below.
26 The 1992 amendments even render most federal and provincial statutory deemed trusts (sec.
14.5, below) ineffective in the event of bankruptcy: Que. v. Caisse populaire Desjardins de
Montmagny [2009] 3 S.C.R. 286, para. 28; Century Services v. Can. [2010] 3 S.C.R. 379.
390
STATUTORY REINFORCEMENT OF CROWN PRIORITY 14.5
the provisions of the applicable statutory scheme.27 These developments reflect

the widely held view that the common law rule of Crown priority is indefensible
and that, in general, the Crown should be subject to the same rules as apply to
other creditors.28
14.5 Statutory reinforcement of Crown priority
While it is usual for bankruptcy and insolvency statutes to postpone Crown

debts, many taxing statutes contain provisions that are directed to the opposite
end, namely, to advance the Crown’s priority for unpaid taxes. These provisions
attempt to remove a weakness in the prerogative rule of priority, which is that the
Crown’s priority is only over debts “of equal degree”. Under the prerogative, a
Crown debt will be subordinated to a private creditor’s debt if the latter is of
higher degree. Thus, a secured private debt will take priority over an unsecured
Crown debt.
The statutory lien (or charge) is one technique that is commonly used in
taxing statutes to improve the status of the Crown’s claim against a defaulting
taxpayer. By deeming any tax assessed against a taxpayer to be secured by a lien
on the taxpayer’s property, the taxing statute converts the Crown’s claim into a
secured debt, ranking ahead of the debtor’s unsecured debts, and also ranking
ahead of those secured debts that attached to the debtor’s property later in time
than the Crown lien. Such provisions often go further and expressly subordinate
even prior security interests to the Crown’s lien.29
The statutory trust is another technique that is commonly used to enhance
the priority of Crown debts. When a taxing statute provides for the withholding
of tax (by an employer, for example) or the collection of tax (by a retailer, for
example), there is the possibility that the collecting agent (who withholds or
collects the tax) will fail to remit the tax to the Crown. In order to provide for this
possibility, the statute typically deems the collecting agent to hold the tax withheld
27 We regard this interpretation as implicit in the wording of section 86(2)(a), which refers to
“security of a kind that can be obtained by a person other than Her Majesty. . .pursuant to any
law...”. This reference to “security obtained. . .pursuant to any law” would seem to incorporate
by reference the scheme of priority set out in the relevant law. Crown claims would therefore
be subordinate to higher ranking security (for example, a security interest that was registered
prior to the registration of the relevant Crown security.) Note, however, Korchynski v. Sparkle
Car Wash (1998) 8 C.B.R. (4th) 47 (Man. Q.B.), which interprets s. 86 as not affecting the
federal Crown’s common law priority over competing claims of equal degree, where the claims
are established pursuant to provincial legislation.
28 The arguments for reform were set out in the second edition of this book at 196-97. See also
Senate Standing Committee, note 1, above and Law Reform Commn. (B.C.), note 1, above.
29 For discussion of statutory liens and trusts, see Law Reform Commn. (B.C.), note 1, above,
chs. 5, 6, 7, 9; Hardy, note 105, above, passim; Lamer, note 1, above, passim. See also Bank of
Montreal v. M.N.R. (2003) 229 D.L.R. (4th) 402 (Ont. C.A.) (federal statutory garnishment in
favour of Crown given priority over private secured creditor).
391
or collected on trust for the Crown. When this device is effective,30 the retained
tax is owned beneficially by the Crown (the beneficiary), and is not available to
satisfy the trustee’s other creditors, whether unsecured or (in most situations)
secured.31 However, because of the paramountcy of the federal Bankruptcy and
Insolvency Act over inconsistent provincial laws, Canadian courts have held that
provincial laws creating statutory trusts are effective in the bankruptcy context
only when they meet the requirements of the federal legislation. One of those
requirements, according to the Supreme Court of Canada in British Columbia v.
Henfrey Samson Belair (1989),32 is that (absent any provision to the contrary)
provincial statutory trusts must satisfy the general law of trusts, including the
requirement that there be identifiable property to which the trust can attach.
In Henfrey Samson Belair, the collecting agent, which was a bankrupt au-
tomobile dealer, had collected sales taxes as required by provincial law, but had
not kept the retained money in a separate fund. The provincial taxing statute had
anticipated this predictable situation (it did not expressly require that the retained
money be kept in a separate fund) and the statute provided that the taxes owed to
the Crown were to be deemed to be held in trust, and were also deemed to have
been kept separate and apart from the collecting agent’s personal assets, even if
no separate fund in fact was maintained. The province argued that this provision
created a statutory trust of the company’s assets to the extent of the value of the
unremitted tax. It was therefore argued that assets sufficient to pay the Crown in
full should be excluded from the bankrupt’s estate and dedicated to the claim of
the Crown as beneficiary. The Supreme Court of Canada, by a majority, rejected
the province’s argument. The statute was ineffective to create a trust because
there was no identifiable property to which the trust could attach. McLachlin J.,
for the majority, found that the relevant provisions in the federal Bankruptcy Act
mandated that only a trust complying with “general principles of law” – a “true
trust” – would take the trust property out of the bankrupt estate. While this decision
has been criticized on the basis that the relative priority accorded to the claims of
the provincial Crown may differ depending upon whether or not the federal
bankruptcy regime has been engaged, the virtue of the Court’s approach is that it
ensures a uniform national approach to bankruptcy matters. Such national uni-
formity seems implicit in a division of powers that grants Parliament exclusive
legislative jurisdiction over bankruptcy and insolvency.
Of course, the “identifiable property” requirement can be altered by Parlia-
ment, in respect of either the federal or provincial Crown, through the use of clear
statutory language. This was illustrated by Royal Bank v. Sparrow Electric Corp.
30 One problem (discussed below) is that, under general trust law, there must be identifiable
property into which the trust obligation can be traced. A defaulting debtor will usually have
dissipated the collected taxes. However, legislatures try to solve this problem by deeming the
collected taxes to have been kept separate and apart from the debtor’s other assets.
31 Note 30, above.
32 Note 23, above.
392
STATUTORY REINFORCEMENT OF CROWN PRIORITY 14.5
(1997),33 where the Supreme Court considered whether the deemed trust provi-
sions in section 227 of the federal Income Tax Act gave the federal Crown priority
over a secured creditor of a bankrupt business. The business had failed to remit
its payroll deductions in respect of its employees as required by the Act. Section
227 of the Act provided that any amounts unremitted by employers are deemed
to be held in trust for the Crown, whether or not they are set aside in an identifiable
fund; in cases where the subject matter of the trust cannot be identified or traced,
the Crown has a statutory right to access whatever assets the employer has, and
may realize from those assets the original trust debt.34 Although on the facts in
Sparrow the majority of the Supreme Court held that the Crown did not rank
ahead of a secured creditor,35 the Court made it clear that Parliament could have
achieved this result had it employed clear language dictating that result.36 Parlia-
ment subsequently took up this invitation and retroactively amended the relevant
sections of the Income Tax Act to reverse the decision in Sparrow Electric,
granting the deemed trust under section 227 absolute priority over the interests
of other creditors, even those with a security interest.37 In light of the comments
of the Court in Sparrow Electric, there is no doubt that these provisions are
effective to achieve their stated purpose.38
As noted earlier, neither the statutory lien nor the statutory trust, if created
by provincial law, will prevail against federal bankruptcy or insolvency legislation
if the effect of the provincial law would be to alter the scheme of priority under
the federal legislation. This is so even if the province seeks to achieve this result
indirectly by, for example, enhancing the priority of provincial Crown debts
through the use of deemed-liability-and-set-off provisions. In Husky Oil Opera-
tions v. Minister of National Revenue (1995),39 Husky Oil Operations had em-
ployed a contractor to build a heavy oil upgrader but the contractor went bankrupt
before it completed the work. At that time, Husky owed the contractor $800,000.
The contractor had not been paying its workers’ compensation premiums and it
33 [1997] 1 S.C.R. 411.

34 The provisions took priority over the Bankruptcy and Insolvency Act.
35 Iacobucci J. concluded that under the terms of the statute as it existed at the time, the statutory
trust provisions did not permit Her Majesty to attach property which at the time of bankruptcy
belonged to someone else. Since in this case the bank had a fixed charge over the inventory of
the business that was created prior to the date upon which the remittances to the Crown came
due, the inventory was not available for attachment pursuant to the statutory trust provisions.
36 See the judgment of Iacobucci J. at 485, who notes that it is open to Parliament to confer
“absolute priority” on the deemed trust if clear language is employed.
37 S.C. 1998, c. 19, s. 226(1), deemed to have come into force June 15, 1994. Similar deemed
trust provisions overriding the scheme of priorities in the Bankruptcy and Insolvency Act, and
giving absolute priority to claims of the Crown, are found in the federal Excise Tax Act and
the Employment Insurance Act, in respect of unpaid GST and unremitted insurance premiums.
For analysis of the effect of this deemed trust provision, see First Vancouver Finance v. M.N.R.
[2002] 2 S.C.R. 720.
38 So held in Caisse populaire Desjardins de l’Est de Drummond v. Can. [2009] 2 S.C.R. 94.
39 [1995] 3 S.C.R. 453.
393
owed $200,000 to Saskatchewan’s Workers’ Compensation Board. The Workers’

Compensation Act provided that, when a contractor failed to pay its workers’
compensation premiums, the principal (in this case, Husky) became liable to the
Board for the unpaid premiums. However, the Act also allowed the principal to
set off the liability to pay the premiums against any money owed to the contractor.
Outside of bankruptcy, there could be no doubt as to the validity and oper-
ability of Saskatchewan’s deemed-liability-and-set-off provisions: Husky was
liable to pay the deemed liability of $200,000 to the Workers’ Compensation
Board, but could set the deemed liability off against the $800,000 that Husky
owed the contractor. Inside bankruptcy, however, the effect of the provisions was
to ensure that the Workers’ Compensation Board received payment of its debt
out of one of the bankrupt’s assets (the money owed by Husky) ahead of other
creditors. This gave to the Board’s debt a higher priority than the debt was entitled
to under the federal Bankruptcy and Insolvency Act. Gonthier J., writing for a
five-four majority of the Supreme Court of Canada, therefore held that the
deemed-liability-and-set-off provisions were “inapplicable” in the event of the
bankruptcy of the contractor. Since the scheme of priorities under the Bankruptcy
and Insolvency Act made express provision for indebtedness of a bankrupt person
under workers’ compensation legislation, these provisions, rather than those set
out in provincial law, applied exclusively in the bankruptcy context.40
The Bankruptcy and Insolvency Act now makes express provision for the
priority of provincial Crown security interests, with such claims generally being
subject to higher ranking security interests created in accordance with the appli-
cable statutory scheme.41 However a specific exception is made in respect of
statutory garnishment procedures, whereby the provincial Crown is permitted to
establish priority over secured creditors in respect of unremitted payroll or source
deductions owing to the Crown under taxation or similar statutes.42
40 Note that the Bankruptcy and Insolvency Act was amended following Husky Oil to make
specific provision for claims of statutory bodies under provincial workers compensation leg-
islation: see S.C. 1997, c. 12, s. 73 (amending sections 86 and 87 of the Bankruptcy and
Insolvency Act).
41 See ss. 86 and 87 of the Bankruptcy and Insolvency Act.
42 Id., s. 86(3). Under a statutory garnishment, the Crown is permitted to require a third party who
is liable to pay money to a person who has failed to remit source deductions (the “tax debtor”)
to pay the money to the Crown instead. The Crown is then permitted, with certain prescribed
exceptions, to claim priority over secured creditors of the tax debtor in respect of that amount.
394
15
Statutes
15.1 Subjection to common law 396

15.2 Subjection to statute law 396
15.3 Presumption of Crown immunity 397
(a) Rule of construction 397
(b) Rights peculiar to the Crown 400
(c) Public good 400
(d) Necessary implication 400
(e) Modern version of presumption 401
15.4 Effect of Interpretation Acts 406
(a) Codification of presumption 406
(b) Reversal of presumption 409
15.5 Express words 410
15.6 Necessary implication 411
(a) Exception to immunity 411
(b) Purpose of statute 411
(c) Other indications in statute 412
(d) Displacement of prerogative 415
15.7 Benefit of statutes 417
(a) Requirement of prejudice 417
(b) No effect on Crown 418
(c) Beneficial effect on Crown 418
(d) Burden linked to benefit 420
15.8 Implied term of contract 424
15.9 Commercial activity 425
15.10 Incorporation by reference 427
(a) Crown liability 427
(b) Ambulatory or static 428
(c) Interjurisdictional liability 429
15.11 Provincial Crown as defendant 429
(a) Rights-of-the-parties provision 429
(b) Procedural rights 430
(c) Substantive rights 430
(d) Ambulatory effect 432
(e) “As nearly as possible” 433
15.12 Federal Crown as defendant 435
(a) Absence of rights-of-the-parties provision 435
(b) Proceedings in contract 435
(c) Proceedings in tort 435
15.1 STATUTES
15.13 Crown as plaintiff 437

15.14 Criminal liability 440
(a) Strict liability offences 440
(b) Mens rea offences 443
15.15 Crown agents and servants 445
(a) Requirement of prejudice 445
(b) Crown agents 445
(c) Crown servants 446
(d) Crown contractors 448
(e) Crown premises 449
15.16 Federal complications 450
(a) Scope of presumption 450
(b) Meaning of “the Crown” 452
(c) Crown bound by necessary implication 455
15.17 Reform 456
(a) Criticism of presumption 456
(b) Reversal of presumption 459
15.1 Subjection to common law
The Crown is subject to the common law.1 Thus, the common law of property
and contract applies to the Crown in much the same way as it applies to a private
person. The law of torts was a special case, because the Crown could not be sued
in tort; now that the immunity has been abolished, the common law of torts also
applies to the Crown. In Quebec, the Civil Code and the Code of Civil Procedure,
although they are statutes, “play a role comparable to the common law in the
other provinces”, and they have been held to bind the Crown.2
15.2 Subjection to statute law
The Crown is also subject to statute law, in the sense that it is bound by any
statute that applies to the Crown. So long as a legislative body acts within the
limits of its powers, it is free to make its laws applicable to the Crown (or
government), just as it is free to make its laws applicable to other legal persons
1 Eastern Trust Co. v. McKenzie, Mann & Co. [1915] A.C. 750, 759 (P.C., Can.) (“It is the duty
of the Crown and of every branch of the Executive to abide by and obey the [common] law”);
D.W. Mundell, “Legal Nature of Federal and Provincial Governments” (1960) 2 Osgoode Hall
L.J. 56, 58-59. As Mundell points out, the prerogative makes a small part of the common law
different for the Crown than it is for a subject.
2 Côté, The Interpretation of Legislation (3rd ed., 2000), 213, citing Exchange Bank v. The Queen
(1886) 11 App. Cas. 157, 163 (P.C., Can.); Bank of Montreal v. A.-G. Que. [1979] 1 S.C.R.
565, 574. See also article 1376 of the Civil Code of Quebec, which provides that the “rules set
forth in this Book [“Obligations”] apply to the State and its bodies, and to all other legal persons
established in the public interest, subject to any other rules of law which may be applicable to
them”.
396
PRESUMPTION OF CROWN IMMUNITY 15.3(a)
within its jurisdiction.3 Any other conclusion would be inconsistent with the
supremacy of the legislative branch of government. Indeed, it was settled in
England as early as 1561 that the Crown was bound by any statute that applied
to it.4 It is also clear that the Crown has no power to suspend the operation of a
statute for a time, or to dispense with a statute in favour of a particular person or
group. These “suspending” and “dispensing” powers would also be inconsistent
with the supremacy of the legislative branch, and (after their assertion by the
Stuart Kings) they were abolished by the Bill of Rights in 1689. These funda-
mental principles migrated to the colonies of the British Empire to become part
of the law of Canada, Australia and New Zealand, as well as the United Kingdom.5
15.3 Presumption of Crown immunity
(a) Rule of construction
It follows that the Crown is not immune from statutes by virtue of any rule
of the constitution. However, the Crown does enjoy a measure of immunity by
virtue of a common law rule of statutory construction (or interpretation). The rule
3 The question of the extent to which a legislative body can make its laws binding on a Crown
other than that of the legislating jurisdiction is considered in Hogg, Constitutional Law of
Canada (5th ed., annually supplemented), sec. 10.9(c)-(f); A. Twomey, “Federal Limitations
on the Legislative Powers of the States and the Commonwealth to Bind One Another” (2003)
31 Fed. L. Rev. 507; L. Zines, “The Binding Effect of State Law on the Commonwealth”, in
Groves (ed.), Law and Government in Australia (2005), ch. 1; Zines, The High Court and the
Constitution (5th ed., 2008), ch. 14. The High Court of Australia has evidenced an increasing
willingness to bind the Commonwealth to state legislation: see Re Residential Tenancies
Tribunal of N.S.W. and Henderson; Ex parte Defense Housing Authority (1997) 190 C.L.R.
410 (H.C., Aust.) (Commonwealth bound by New South Wales legislation). On the ability of
the Commonwealth to bind the states, see Austin v. Cth. (2003) 215 C.L.R. 185 (H.C., Aust.)
(Commonwealth legislation imposing a superannuation surcharge on state judges invalid, but
Commonwealth having broad power to bind the states). On the ability of one state to bind
another state, see State Authorities Superannuation Bd. v. Commr. of State Taxation for the
State of W.A. (1996) 189 C.L.R. 253 (H.C., Aust.) (New South Wales statutory corporation
bound by Western Australia taxation legislation). See further sec. 15.16, “Federal complica-
tions”, below; and ch. 17, Federal Questions, below.
4 Willion v. Berkley (1561) 1 Plowden 223, 75 E.R. 339 (K.B.).
5 See, e.g., Fitzgerald v. Muldoon [1976] 2 N.Z.L.R. 615 (S.C.) (New Zealand Prime Minister
may not suspend statutory obligation to contribute to state pension plan); Re Anti-Inflation Act
[1976] 2 S.C.R. 373 (Lieutenant Governor in Council may not change law by agreement with
Governor in Council); Man. Govt. Employees Assn. v. Govt. of Man. [1978] 1 S.C.R. 1123
(same decision); R. v. Catagas (1977) 81 D.L.R. (3d) 396 (Man. C.A.) (minister may not
dispense with Migratory Birds Convention Act in favour of aboriginal people); A. v. Hayden
(1984) 156 C.L.R. 532, 548, 562, 580-581, 593 (H.C., Aust.) (no power in the Crown to
dispense its servants or agents from criminal liability for illegal acts); R. v. Stead [1994] 1 Qd.
R. 665 (C.A.) (Crown cannot indemnify a person against prosecution for a future offence since
that would amount to an attempt to suspend the criminal law).
397
15.3(a) STATUTES
is that the Crown is not bound by statute except by express words or necessary
implication.6 What this means is that general language in a statute, such as
“person” or “owner” or “landlord”, will be interpreted as not including the Crown,
unless the statute expressly states that it applies to the Crown, or unless the context
of the statute makes it clear beyond doubt that the Crown must be bound. This
rule is often expressed as a “presumption” that the Crown is not bound by statute
— a presumption that is rebuttable by express words or necessary implication.7
The rule is sometimes described as a “prerogative” of the Crown,8 which is also
accurate as long as the term “prerogative” is not confined (as it is in Dicey’s
classic definition) to the powers of the Crown.9 The rule is not a prerogative
power to override a statute which applies to the Crown; it is a rule of construction,
a presumption, designed to ascertain whether or not the statute does apply to the
Crown.10 Once it is ascertained that the words used by Parliament do include the
Crown, then the Crown is bound: it has no prerogative power to escape from the
obligations imposed by the statute.11
6 See H. Street, “The Effect of Statutes on the Rights and Liabilities of the Crown” (1948) 7 U.
Toronto L.J. 537; Williams, Crown Proceedings (1948), 48-58; Street, Governmental Liability
(1953), 143-156; McNairn, Governmental and Intergovernmental Immunity in Australia and
Canada (1977); Côté, note 2, above, 208-225.
7 Note, however, that the presumption of Crown immunity was varied for Australia by the High
Court of Australia in Bropho v. W.A. (1990) 171 C.L.R. 1 (H.C., Aust.). The High Court held
that in addition to express words or a necessary implication, the presumption could also be
rebutted where a legislative intent to bind the Crown could be inferred (see discussion in sec.
15.3(e), “Modern version of presumption”, below). Note also that the High Court has grown
increasingly wary of the term “Crown” in this context (as in other contexts): see, e.g., Cth. v.
W.A. (1999) 196 C.L.R. 392, 409-410 (H.C., Aust.) (“It would be preferable . . . if the pre-
sumption that a statute ‘does not bind the Crown’ were expressed as a presumption that a statute
which regulates the conduct of rights of individuals does not apply to members of the executive
government of any of the polities in the federation, government instrumentalities and authorities
intended to have the same legal status as the executive government, their servants or agents.
For ease of reference, we shall refer to that presumption as the presumption that legislation
does not apply to members of the executive government”); see also Bass v. Permanent Trustee
Co. (1999) 198 C.L.R. 334, paras. 17-18 (H.C., Aust.); N.T. Power Generation Pty. v. Power
and Water Authority (2004) 219 C.L.R. 90, para. 163 (H.C., Aust.); and Australian Competition
and Consumer Commn. v. Baxter Healthcare Pty. (2007) 212 C.L.R. 1, paras. 85-131 (Aust.,
H.C.).
8 Morley, e.g., refers to the Crown’s presumptive immunity from statute as a Crown “preroga-
tive”: Horsman and Morley (eds.), Government Liability (2006, annually supplemented), sec.
1.30.20(3) (by Morley).
9 Dicey, The Law of the Constitution (10th ed., 1959), 425, described the prerogative as “the
residue of discretionary or arbitrary authority, which at any given time is left in the hands of
the Crown”. But the term is commonly used to refer to common law powers, rights, privileges
and immunities peculiar to the Crown.
10 Bropho v. W.A., note 7, above, 15; see also A. Tomkins, “Crown Privileges”, in Sunkin and
Payne (eds.), The Nature of the Crown (1999), 173.
11 Lord Advocate v. Dumbarton D.C. [1990] 2 A.C. 580, 598 (H.L.) (Crown prerogative cannot
overrule statute that binds Crown).
398
PRESUMPTION OF CROWN IMMUNITY 15.3(a)
The presumption against the Crown being bound by statute seems initially
to have applied only to statutes which, if they applied to the King, would strip
him of his prerogative, that is to say, rights (or powers, privileges or immunities)
were peculiar to him. Statutes that affected the rights enjoyed by the Crown
indifferently with subjects were construed without applying any presumption as
to Parliament’s intention. Thus in Willion v. Berkley (1561),12 the Court of King’s
Bench held that the statute De Donis Conditionalibus (restricting the alienation
of entailed land) bound the Crown, despite the absence of express words or
necessary implication. Brown J. said that “it is a difficult argument to prove that
a statute, which restrains men generally from doing wrong, leaves the King at
liberty to do wrong”.13 He went on to say that when the King perceived a mischief
and ordained a remedy, “it is not to be presumed that he intended to be at liberty
to do the mischief”.14 Dyer C.J. said “that which is necessary and useful to be
reformed requires to be reformed in all, and not in part only”.15
There is no answer to the reasoning of the judges in Willion. There is no
good reason why the Crown should be generally free to ignore the rules that have
been enacted for the regulation of society. However, the presumption eventually
came to be applied to the interpretation of every statute, whether or not the
prerogative was affected, and irrespective of the purpose of the statute.16 That
development culminated in the decision of the Privy Council in Province of
Bombay v. Municipal Corporation of Bombay (1946),17 which settled the present
form of the rule, and which has been accepted as authoritative in the United
Kingdom, Canada, New Zealand and, until recently, Australia.18
The Bombay case raised the question of whether the Crown was bound by a
statute granting powers to a municipality. The Crown in right of the province of
Bombay held land in the City of Bombay. The Crown claimed to be exempt from
the City of Bombay Municipal Act, which conferred power on an official of the
City to lay water-mains “into, through or under any land whatsoever within the
city”. The Act was silent as to whether this power was exercisable over land held
by the Crown. The Privy Council held that the Crown was exempt: the Act did
12 Note 4, above.
13 Id., 248, 380.
14 Id.
15 Id., 250, 384.
16 The melancholy history has been traced in detail by Street (1948), note 6, above.
17 [1947] A.C. 58 (P.C., India).
18 Pre-1946 cases must be approached with caution as a result of the virtually universal acceptance
of Bombay’s broad version of the presumption. Ironically, India, where the case originated,
was the first country to reject the decision: State of West Bengal v. Corp. of Calcutta [1967]
A.I.R. 997 (S.C. of India). Australia has also rejected the Bombay decision and has replaced
the “inflexible” rule with a presumption that is more or less strong depending on the circum-
stances: Bropho v. W.A., note 7, above. Statutory changes or codifications of the rule are
discussed in sec. 15.4, “Effect of Interpretation Acts”, below.
399
15.3(b) STATUTES
not bind the Crown because it did not do so by express words or necessary
implication.
(b) Rights peculiar to the Crown
The Privy Council in the Bombay case definitely rejected the old version of
the rule that confined it to statutes that would affect rights peculiar to the Crown.
(In fact, by 1946 there were many cases in which the rule had been applied to
statutes that would not affect any right peculiar to the Crown.)19 The point had to
be decided in Bombay, because the Privy Council pointed out that the land in
question was not held by virtue of any right peculiar to the Crown, but had been
acquired from private owners.20 The Privy Council held that this made no differ-
ence: the mere fact that the land was owned by the Crown immunized it from the
statute.21
(c) Public good
The Privy Council in the Bombay case also rejected the argument, which
was supported by some dicta of Coke, that a statute enacted “for the public good”
must be held to bind the Crown, even in the absence of express words or necessary
implication. Their lordships pointed out that “every statute must be supposed to
be ‘for the public good’, at least in intention”.22 The beneficent purpose of a statute
was not by itself sufficient to rebut the presumption that the Crown was not bound.
(d) Necessary implication
The Privy Council in the Bombay case also provided a definition of “nec-
essary implication”. The issue here, of course, is how persuasive the inference
from the language or context of a statute must be in order to justify a finding that
the Crown is bound. The High Court of Bombay had been impressed by the City’s
argument that the supply of services to the City of Bombay would be gravely
inconvenienced if the City’s powers did not extend to the considerable area of
land that was held by the Crown. The High Court held that the Act could not
“operate with reasonable efficiency” unless the Crown was bound, and that this
was “a sufficient reason” for holding that the Crown was bound by necessary
implication.23 Their lordships of the Privy Council rejected this interpretation of
19 Street (1948), note 6, above, 365.

20 Contrast land that devolved upon the Crown by escheat or unalienated land in a settled colony,
which could be regarded as held in virtue of a right peculiar to the Crown.
21 Note 17, above, 64.
22 Id., 63.
23 Id., 61.
400
PRESUMPTION OF CROWN IMMUNITY 15.3(e)
the rule which, they said, would tend to “whittle it down”.24 They made clear that
the exception was one of exceedingly narrow scope. The Crown was bound by
necessary implication only “if it can be affirmed that, at the time when the statute
was passed and received the royal sanction, it was apparent from its terms that its
beneficent purpose must be wholly frustrated unless the Crown were bound”.25
The judgment went on to point out that “if it be the intention of the legislature
that the Crown shall be bound, nothing is easier than to say so in plain words”.26
It is hardly necessary to add that their lordships held that the statute under con-
sideration in the Bombay case did not bind the Crown by “necessary implication”.
(e) Modern version of presumption
Despite the many shortcomings of the Bombay presumption,27 both the

House of Lords and the Supreme Court of Canada have reaffirmed their commit-
ment to its strict application in their respective jurisdictions. The House of Lords
had occasion to revisit the scope and application of Bombay in Lord Advocate v.
Dumbarton District Council (1990).28 In Dumbarton, the British Ministry of
Defence had cordoned off a stretch of a road lying adjacent to a nuclear submarine
base in order to facilitate the execution of improvements to the base’s perimeter
fence. The Ministry had not obtained the permission of certain local roads au-
thorities before cordoning off the roads, arguing that the Crown was not bound
by legislative provisions requiring such permission. A lower court had held that
the Crown was bound by the relevant legislative provisions on the basis that the
Crown did not have any right to erect structures and obstructions on a public
road; since the legislation did not prejudice any of the Crown’s rights, the pre-
sumption that the Crown was not intended to be bound did not apply.29 The House
of Lords reversed, noting that there were circumstances where it might have been
lawful for the Crown to have obstructed the highway; therefore it could be argued
that the Crown’s rights were being prejudiced and the Bombay presumption that
24 Id., 62. No doubt it would be an invidious task for a court to have to decide whether an Act
could not “operate with reasonable efficiency” unless the Crown were bound. The test is
probably too vague to serve as a workable legal criterion in this context. However, the Privy
Council’s only reason for rejecting the test is the one given in the text.
25 Id., 63.
26 Id.
27 See sec. 15.17, “Reform”, below, where we argue that the Bombay rule directly conflicts with
the egalitarian value that underlies our public law.
28 Note 11, above.
29 See Lord Advocate v. Strathclyde R.C. & Dumbarton D.C. [1988] S.L.T. 546, 552 (First Division
of the Court of Session). See sec. 15.7(a), “Requirement of prejudice”, below, for a discussion
of the requirement that laws prejudice the Crown before the Bombay presumption applies.
401
15.3(e) STATUTES
the Crown was not intended to be bound did apply.30 However, Lord Keith went
further, holding that there should be no need to demonstrate that the Crown’s
rights were being prejudiced in order for the Bombay presumption to come into
play. According to Lord Keith, it could rarely happen that the Crown was acting
in a manner that was unlawful (apart from the statutory provision sought to be
invoked against it). In such a circumstance, if it were necessary to demonstrate
that the Crown’s rights were being prejudiced, the court would have to consider
whether the statute in question could ever apply in a manner so as to restrict the
exercise of the Crown’s lawful rights.31 This analysis would be “difficult and
inconvenient”, since it would involve the examination of the Crown’s property,
rights, interest and prerogative at the time when the relevant Act was passed. It
was preferable, in Lord Keith’s view, to “stick to the simple rule that the Crown
is not bound by any statutory provision unless there can somehow be gathered
from the terms of the relevant Act an intention to that effect”.32
This “simple rule” appears to extend the scope of the Bombay presumption;
although Bombay ruled that it was not necessary that rights “peculiar to the
Crown” be prejudiced, there was no suggestion that the presumption would apply
absent any prejudice to a lawful Crown right or interest. The House of Lords
appears to be holding that the presumption applies to all statutes that impose any
kind of limit on the Crown’s freedom of action, even if the action in question
would have been unlawful at common law. Even assuming the Bombay rule to
be acceptable in principle, we see no reason for broadening its scope in the manner
suggested by the House of Lords.33
In Alberta Government Telephones v. Canada (CRTC) (1989),34 the Supreme
Court of Canada affirmed that if there is to be any reversal of the Bombay rule in
Canada, the change must come from the legislature rather than the courts. In this
30 Lord Keith (who delivered an opinion which was concurred in by all the other members of the
panel) argued that where a building abutting a highway has fallen into such a state of disrepair
as to present potential danger to passers-by, “the law must surely permit the owner to take steps,
necessarily involving the placing of shores on the highway, to alleviate the danger”: note 11,
above, 600. There was no evidence of any such disrepair in respect of buildings on the Crown’s
land which abutted the highway in this case, but Lord Keith held that the fact that such disrepair
could exist led to the conclusion that the Crown’s rights at common law were prejudiced.
31 This is because, in Lord Keith’s view, the statute must either apply to the Crown generally or
not at all; there is no “logical room for the view that it [a statutory provision] binds the Crown
when the Crown is acting without any right to do so but not when the Crown does have such
rights”: Id., 599. It is therefore necessary to consider all possible applications of the statute in
order to determine whether the Crown’s rights are prejudiced by it, not simply the circumstances
presented in a particular case.
32 Id., 604.
33 See sec. 15.7, “Benefit of statutes”, below. On the other hand, Lord Keith’s conclusion that
statutory provisions must bind the Crown generally or not at all appears sound. Any other
intention (i.e. that the Crown be bound by a specific statutory provision in some instances but
not in others) would be highly uncertain; moreover, one would have expected such an intention
to have been manifest on the face of the statute.
34 [1989] 2 S.C.R. 225.
402
case, a provincial Crown agent, Alberta Government Telephones (AGT), argued

that it was not bound by federal legislation regulating telecommunications traffic.
The Federal Court of Appeal had held that AGT was not entitled to assert Crown
immunity since it had exceeded its statutory mandate. The Supreme Court of
Canada reversed, upholding AGT’s claim to Crown immunity. Chief Justice
Dickson, who wrote the majority opinion,35 emphasized that any exceptions to
the Bombay rule must be narrowly construed, otherwise the exceptions could
“swallow a rule. . .”.36 The strict adherence to the Bombay rule is appropriate,
according to Dickson C.J., even where the creation of an exception to its appli-
cation “may conform to our intuitive sense of fairness”. The creation or expansion
of any exceptions to the common law presumption is the responsibility of Parlia-
ment rather than the courts.37 On this basis, Dickson C.J. rejected arguments to
the effect that AGT had waived its immunity when it derived benefits from the
federal regulatory regime,38 or that it had lost immunity by acting outside its
statutory mandate or by virtue of the fact that it was a commercial enterprise.39
In contrast, the High Court of Australia chose to depart from the strict
application of the Bombay presumption in its important judgment in Bropho v.
State of Western Australia (1990).40 At issue in Bropho was whether a Western
Australian statute protecting aboriginal heritage sites against disturbance applied
to a statutory Crown agent that was seeking to develop certain Crown lands. The
relevant statute provided that it applied to all aboriginal sites wherever located in
the state, but it did not expressly provide that the Crown was bound either in
respect of Crown property or the activities of Crown agents. Returning to first
principles, the High Court unanimously41 noted that there might well have been
a justification for the Bombay presumption in previous eras, when the “Crown”
encompassed little more than the Sovereign, his or her direct representatives and
the basic organs of government. But, the High Court continued, such a presump-
tion is no longer applicable in the contemporary context, when the activities of
government “reach into almost all aspects of commercial, industrial and devel-
opmental endeavour and where it is a commonplace for governmental commer-
cial, industrial and developmental instrumentalities ... to compete and have com-
35 Dickson C.J. wrote for five of the six members of the Court, while Wilson J. dissented on the
basis that the Crown agent had obtained the benefit of the regulatory regime in question and
therefore was bound to accept the burdens as well.
36 Note 34, above, 290.
37 Id., 300 (rejecting a “commercial enterprises” exception to the Bombay rule).
38 Id., 284-291.
39 Id., 292-300.
40 (1990) 171 C.L.R. 1 (H.C., Aust.). See D. Kinley, “Crown Immunity: A Lesson from Australia?”
(1990) 53 Mod. L. Rev. 819; S. Kneebone, “The Crown’s Presumptive Immunity from Statute:
New Light in Australia” (1991) Public Law 361.
41 Six of the seven members of the High Court joined in a single opinion while Brennan J.
delivered a separate but concurring opinion.
403
15.3(e) STATUTES
mercial dealings on the same basis as private enterprise”.42 In fact, the High Court
concluded that the only basis for continued adherence to the Bombay rule was
the mere weight of authority and, perhaps, the fact that legislative counsel might
have relied upon the presumption in their framing of legislation. But even this
consideration could not justify what the High Court described as the “stringent
and unqualified” Bombay rule, under which the presumption that the Crown is
not bound is displaced only where the purpose of the statute would otherwise be
“wholly frustrated”.43
In place of the “inflexible” Bombay rule, the High Court proposed a purpo-
sive approach under which the presumption that the Crown was not to be bound
could be displaced if a contrary intention was evident from the purpose, policy
or subject matter of the statute, including the circumstances of its enactment.44
Under this more flexible approach to necessary implication, it is possible that
certain provisions of a statute may bind the Crown while others may not.45
Moreover, it is relevant to consider the identity of the Crown body that is to be
bound, as well as the effect of applying the provision to the Crown.46 The High
Court further concluded that it was relevant to consider whether the relevant
statute had been enacted during the period from 1947 until 1990, when legislative
drafters might arguably have relied on the existence of the Bombay rule in their
drafting of legislative provisions.47 Yet even in respect of statutes enacted during
this “Bombay period”, if a purposive analysis undertaken in accordance with the
factors identified by the High Court in Bropho indicated an intention to bind the
Crown, then that intent must prevail. Applying this test to the legislation protecting
aboriginal sites, the Court had little trouble in concluding the legislation was
intended to bind the Crown, particularly given the fact that 93 per cent of the land

43 See discussion of this recognized exception to the Bombay presumption in sec. 15.6(b), “Purpose
of statute”, below.
44 Note 40, above, 21-24.
45 Id., 23. Note, however, that the High Court does not appear to differ with Lord Keith’s view
expressed in the Dumbarton District Council case to the effect that a particular provision either
applies or not to the Crown.
46 The High Court suggested that there would be an extraordinarily strong presumption against
an interpretation that would make the Sovereign personally liable to prosecution and conviction
for a criminal offence. Where, however, the issue is whether employees of a government
corporation engaged in commercial and developmental activities are bound by general statutory
provisions “designed to safeguard places or objects whose preservation is of vital significance
to a particular section of the community, the presumption against the applicability of general
words to bind such employees will represent little more than a starting point of the ascertainment
of the relevant legislative intent”: Id., 23.
47 The High Court also pointed out that the question of whether certain statutes that bound the
Crown may have been settled by authoritative judicial decision, and it was not intended to
overturn such settled construction of existing legislative provisions.
404
in the state was Crown land.48 Exempting the Crown from the statute would mean
that it would be extraordinarily ineffective in achieving its stated purpose of
preserving Western Australia’s aboriginal sites and objects.49
In a later section of this chapter we consider the case for legislative reform
of the Bombay rule. However, in the absence of legislative action, we consider
the High Court’s approach in Bropho to be a modest and incremental judicial
reform that should be carefully considered for adoption by courts in other juris-
dictions.50 The Bropho approach does not displace entirely the presumption that
general words in a statute are not intended to bind the Crown. However, it requires
the Court to undertake a purposive and contextual analysis of the relevant statute
in order to discover whether there are indications that the legislature intended the
presumption to be displaced. This approach is to be welcomed since it gives
greater primacy to the underlying purposes of the statutory scheme. Rather than
binding the Crown only where the purpose of the statute would be “wholly
frustrated”, the Bropho doctrine would bind the Crown when this result was more
consistent with the objectives of the statute. The Bropho approach is also more
easily reconciled with the principle of the rule of law, a basic precept of which is
the subjection of government to law. As the High Court in Bropho pointed out,
in an era when government is involved in virtually all areas of the economy, the
notion that government is presumed not to be bound by the general law of the
land appears increasingly anachronistic. Remember, as well, that if a court were
48 “. . .[I]t was not the legislative intent that the activities of government employees, be they
bulldozer drivers, demolition workers or dynamiters, acting in the course of their duties, should
be excluded from s. 17’s prohibition of destroying or damaging Aboriginal sites or objects
without the authorization of the Trustees or the consent of the Minister”: note 40, above, 25.
49 The High Court noted that, on this basis, there was a strong argument to the effect that the
purpose of the Act would be “totally frustrated” if the Crown were not bound, which is one of
the recognized exceptions under the Bombay rule. However, the High Court refused to decide
the case on this basis, preferring to invoke the flexible purposive approach it had earlier outlined.
50 The High Court has repeatedly affirmed the Bropho approach in subsequent cases: see, e.g.,
Baxter Healthcare, note 7, above. However, it is not entirely clear whether this approach applies
in an intergovernmental context, where the issue is whether legislation enacted by one order of
government applies to another order of government. In Jacobsen v. Rogers (1995) 182 C.L.R.
572, 586 (H.C., Aust.), Bropho was said to apply in this context; see also Registrar, Accident
Compensation Tribunal (Vic.) v. Federal Commr. of Taxation (1993) 178 C.L.R. 145, 171
(H.C., Aust.); and Bass v. Permanent Trustee, note 7, above, 346. But in Cth. v. W.A., note 7,
above, doubt was cast on whether it does apply in this context; Gummow J. (at 435) and Hayne
J. (at 472-475) in particular appeared to support the application of a stricter approach in
determining whether the Commonwealth was bound by state legislation, but the other judges
seemed to support this approach as well (McHugh J. (at 421) and Callinan J. (at 479) by agreeing
with Hayne J., and Kirby J. by agreeing with Gummow J. (at 447)). (The case can also be
explained as resting on a stricter presumption that applies to Crown property: see 409-410 per
Gleeson C.J. and Gaudron J.) Greg Taylor has suggested that these inconsistencies demonstrate
that the law relating to the immunity of the Crown from statute in the intergovernmental context
is in a state of flux in Australia: see “Commonwealth v. Western Australia and the Operation
in Federal Systems of the Presumption that Statutes do not Apply to the Crown” (2000) 24
Melbourne U.L. Rev. 77, 122; see also sec. 15.16, “Federal complications”, below.
405
15.4 STATUTES
to hold the Crown to be bound by a statute in circumstances that the government

found unacceptable, it could use its majority in the legislature to reverse the ruling
by express statutory amendment.51
Even absent any reconsideration of Bombay, it is important to emphasize
that the courts in England, Canada and New Zealand have recognized a number
of exceptions to the presumption of Crown immunity. The principal exceptions
are the following: (1) statutes binding the Crown by express words (acknowledged
by the Privy Council in Bombay); (2) statutes binding the Crown by “necessary
implication”, including “logical implication” (acknowledged by the Privy Coun-
cil); (3) statutes beneficial to the Crown, or neutral, or even burdensome, provided
the burden is linked to a benefit; (4) statutes incorporated by reference into a
Crown contract; (5) statutes incorporated by reference into a statute binding the
Crown; and (6) all relevant statutes when the Crown is a litigant in civil proceed-
ings. These exceptions will be discussed in turn later in this chapter, which will
conclude with an argument for reform. First, however, it is necessary to examine
the statutory versions of the immunity that have been enacted in Canada, Australia
and New Zealand.
15.4 Effect of Interpretation Acts
(a) Codification of presumption
The Interpretation Act or Legislation Act of Canada and of each Canadian

province and territory includes a provision which purports to state when the Crown
is to be bound by statute. The provision comes in several versions. The federal
provision is section 17 of the Interpretation Act:52
No enactment is binding on Her Majesty or affects Her Majesty or Her Majesty’s
rights or prerogatives in any manner, except only as therein mentioned or referred to
in the enactment.53
51 The approach outlined in Bropho was criticized by the Australian Law Reform Commission,
on the basis that its “fact-sensitive nature . . . leaves ample room for difference of opinion and,
ultimately, for litigation”: see The Judicial Power of the Commonwealth: Review of the Judi-
ciary Act 1903 and Related Legislation (Report 92, 2001), para. 26.20. We agree that legislation
ought to be enacted that reverses the common law presumption: Id., rec. 26-1-26-3. However,
we also think that, short of legislative reform to this effect, the Bropho approach is, on balance,
preferable to the Bombay approach, and thus ought to be adopted by courts in other jurisdictions.
52 R.S.C. 1985, c. I-21, s. 17. This provision dates from 1967, when it replaced a provision like
Ontario’s (note 56, below), perhaps because of the narrow interpretation given to the predecessor
provision in The Queen (Ont.) v. Bd. of Transport Commrs. (Go Train) [1968] S.C.R. 118; see
note 62, below. If the current provision is broader in its scope, it may be slightly softer in its
requirement of a mention or a reference as opposed to an express statement, a point noted in R.
v. Ouellette [1980] 1 S.C.R. 568, 575 and R. v. Eldorado Nuclear [1983] 2 S.C.R. 551, 561-
562.
53 The N.W.T. provision is similar to the federal provision: R.S.N.W.T. 1988, c. I-8, s. 8.
406
EFFECT OF INTERPRETATION ACTS 15.4(a)
Alberta’s provision,54 which is similar to that of Nova Scotia, Newfoundland and

Labrador, and the Yukon Territory,55 is as follows:
No enactment is binding on Her Majesty or affects Her Majesty or Her Majesty’s
rights or prerogatives in any manner, unless the enactment expressly states that it
binds Her Majesty.
Ontario’s provision,56 which is similar to that of Manitoba, Saskatchewan and
New Brunswick,57 is somewhat shorter:
No Act or regulation binds Her Majesty or affects Her Majesty’s rights or prerogatives
unless it expressly states an intention to do so.
Quebec’s provision58 is the following:
No statute shall affect the rights of the State, unless they are specially included.
Similarly, no statute of a local and private nature shall affect the rights of third parties,
unless specially mentioned therein.
British Columbia and Prince Edward Island have reversed the presumption by
requiring a specific provision to exempt the Crown. Their provisions will be
examined (and warmly approved of) later in this section.
Outside Canada there has been less legislative activity. The Australian states
of Queensland and Tasmania each have a provision similar to Alberta’s reinforc-
ing the common law presumption, while South Australia and the Australian
Capital Territory have provisions reversing the presumption.59 New Zealand has
a provision similar to Ontario’s.60 The common law continues in the United
Kingdom and in the other Australian jurisdictions.61
54 R.S.A. 2000, c. I-8, s. 14.

55 R.S.N.S. 1989, c. 235, s. 14; R.S.N.L. 1990, c. I-19, s. 12; R.S.Y. 2002, c. 125, s. 13.
56 Legislation Act. 2006, S.O. 2006, c. 21, sch. F, s. 71.
57 C.C.S.M. c. 180, s. 49; S.S. 1995, c. I-11.2, s. 14; R.S.N.B. 1973, c. I-13, s. 32.
58 R.S.Q. 1977, c. I-16, s. 42. Article 9 of the Civil Code of Lower Canada was very similar: “No
act of the legislature affects the rights or prerogatives of the Crown, unless they are included
therein by special enactment.” The Civil Code of Quebec, which replaced the Civil Code of
Lower Canada, contains no such provision.
59 Acts Interpretation Act, 1954 (Qd.), s. 13; Acts Interpretation Act 1931 (Tas.), s. 6(6); Acts
Interpretation Act 1915 (S.A.), s. 20; Legislation Act 2001 (A.C.T.), s. 121. It has been suggested
that the provision in Queensland and Tasmania may have the effect of restoring the pre-Bropho
version of the common law presumption in those jurisdictions: see Pearce and Geddes, Statutory
Interpretation in Australia (6th ed., 2006), 5.11.
60 Interpretation Act 1999 (N.Z.), s. 27.
61 The Interpretation Act of New South Wales provides that the Private Acts affect the rights of
the Crown: see Interpretation Act 1987 (N.S.W.), s. 73. The United Kingdom Crown Proceed-
ings Act, s. 40(2)(f) expressly refrains from altering the common law presumption.
407
15.4(a) STATUTES
It is arguable that the Interpretation Act provisions enlarge Crown immunity

by providing that the Crown is only bound by express words.62 None of the
statutory provisions explicitly recognizes that the Crown could be bound by
necessary implication, and there are judicial statements to the effect that under
the statutory provisions only express words will suffice.63 However, there are also
judicial statements that suggest that the statutory provisions are simply declaratory
of the common law, so that the Crown can be bound by necessary implication as
well as by express words.64 Drafting practice in most jurisdictions is undoubtedly
premised on the assumption that the Crown may be bound by a clear implication
62 Another possible alteration in the common law applies to the statutes on the Ontario model,
which provide that no Act “affects the rights of Her Majesty”. It is probable that this phrase
encompasses any prejudicial effect on the Crown, which is the same as the common law.
However, the word “rights” has been given a narrower interpretation in three cases: Dominion
Building Corp. v. The King [1933] A.C. 533, 549 (P.C., Can.) (previous version of Ont. Act
covers “accrued rights” and not “mere possibilities”); Gartland Steamship Co. v. The Queen
[1960] S.C.R. 315, 345 (pre-1967 federal Act covers only “prerogative rights”); The Queen
(Ont.) v. Bd. of Transport Commrs. (Go Train), note 52, above, 124 (pre-1967 federal Act
covers only “accrued rights”). In all three cases, the statute in issue was held to bind the Crown,
despite the absence of express words or necessary implication because “accrued rights” were
not involved. This interpretation is not open under the current federal provision: The Queen
(Alta.) v. Can. Transport Comm. [1978] 1 S.C.R. 61, 75. See generally Côté, note 2, above,
216-220.
63 In re Silver Bros. [1932] A.C. 514, 523 (P.C., Can.); Re W (1925) 56 O.L.R. 611, 613 (Ont.
H.C.); The King v. Rhodes [1934] O.R. 44, 48 (Ont. H.C.); Andres v. Rockell [1934] N.Z.L.R.
1056, 1057 (S.C.); M.N.R. v. Roxy Frocks Mfg. Co. (1936) 62 B.R. 113, 124 (Que. K.B.);
Rankin v. The King [1940] Ex. C.R. 105, 113; Murray v. Cold Road [1969] Qd. W.N. (Q.L.R.)
29, 31 (F.C.); The Queen (Alta.) v. Can. Transport Comm., previous note, 56; Re Caisse de
dépôt et placement du Québec (1983) 42 O.R. (2d) 561, 564 (Ont. D.C.); R. v. Eldorado
Nuclear, note 52, above, 558; Re Doxtator (1984) 44 O.R. (2d) 581, 585 (H.C.).
64 Cushing v. Dupuy (1880) 5 App. Cas. 409, 419-420 (P.C., Can.); Re Buckingham [1922]
N.Z.L.R. 771, 773 (S.C.); Harcourt v. A.-G. [1923] N.Z.L.R. 686, 689 (S.C.); Re Hamer [1923]
N.Z.L.R. 1047, 1048 (S.C.); Crombie v. The King [1923] 2 D.L.R. 542, 547 (Ont. C.A.); Re
Sask. Govt. Ins. Office [1947] 2 W.W.R 1028, 1031 (Sask. C.A.); Kaye v. A.-G. Tas. (1956) 94
C.L.R. 193, 204 (H.C., Aust.); Carseldine v. Director of Children’s Services (1974) 133 C.L.R.
345, 363 (H.C., Aust.); Brisbane City Council v. Group Projects (1979) 145 C.L.R. 143, 167
(H.C., Aust.); R. v. Ouellette, note 52, above, 575; Re The Queen and Heinrichs (1985) 53 O.R.
(2d) 165, 168 (C.A.); A.-G. Que. v. Expropriation Tribunal [1986] 1 S.C.R. 732, 741; Alta.
Govt. Telephones v. Can. [1989] 2 S.C.R. 225, 281; Re Commr. of Water Resources and
Leighton Contractors Pty. [1991] 1 Qd. R. 549, 551-552; Friends of the Oldman River Society
v. Can. [1992] 1 S.C.R. 352-353; Alta. Mortgage and Housing Corp. v. Klapstein (1998) 62
Alta. L.R. (3d) 1, para. 22 (C.A.); Investors Group Trust Co. v. Eckhoff [2008] 9 W.W.R. 306,
para. 32 (Sask. C.A.). Note, however, that the bulk of the Canadian cases consider the federal
provision; that provision uses the phrase “mentioned or referred to”, which may be broader
than the phrases “expressly states” or “expressly stated”, which are found in the provincial
Interpretation Acts: see, e.g., Wheeler v. Ont. (2005) 75 O.R. (3d) 113 (Div. Ct.) (drawing this
distinction); see also N.S.P.S.C. v. N.S.G.E.U. (2004) 238 D.L.R. (4th) 410, para. 30 per
Cromwell J.A. (as he then was) (N.S.C.A.) (leaving open whether necessary implication is
available under the N.S. Act, which uses the words “expressly stated” rather than the words
“mentioned or referred to”).
408
EFFECT OF INTERPRETATION ACTS 15.4(b)
from the context, for it is common to find statutes that do not include an express
statement that the Crown is bound, and yet whose primary purpose is obviously
to control the actions of government.65 Finally, and perhaps decisively, it must be
pointed out that to read the Interpretation Act provisions as insisting upon express
words to bind the Crown is to read the provisions as purporting to impose a
restraint on the future exercise of legislative power. Such a reading requires an
answer to the question whether the Parliament or a legislature has the power to
restrain its future action in this way. This difficult constitutional question66 does
not arise if the Interpretation Act provisions are read as rules of interpretation
only, giving way not merely to express words but to any clear indication of an
intention to bind the Crown.67 It is submitted that this is the better reading of the
provisions.68
(b) Reversal of presumption
In British Columbia, the Interpretation Act used to include one of the standard
Canadian provisions for immunity from statute. But in 1974, in accordance with
a recommendation of British Columbia’s Law Reform Commission,69 the legis-
lature replaced the immunity provision. The current provision reads:70
Unless it specifically provides otherwise, an enactment is binding on the government.
This reverses the position at common law and under the standard statutory pro-
visions.71 Under the unreformed law, and apart from the necessary implication
65 Our audit of the Ontario statutes in 2010 revealed a total of 667 statutes in force, of which only
46 contained an express statement that the Crown was to be bound. In seven additional statutes,
the Crown was bound only by certain parts or to a certain extent, and in one statute the Crown
was expressly not bound, except as provided by certain sections. Those which did not include
such a statement included many which were plainly intended to bind the Crown, for example,
the Crown Attorneys Act, the Escheats Act, the Legislation Act, Proceedings Against the Crown
Act, the Public Service of Ontario Act and the 25 statutes establishing government ministries
or departments. A casual survey of other jurisdictions reveals the same pattern of sparing use
of an express statement and its frequent omission from statutes plainly intended to bind the
Crown.
66 See Hogg, note 3, above, sec. 12.3 (discussing “self-imposed restraints on legislative power”).
67 Id., sec. 15.7 (“reading down” a statute to avoid a constitutional issue).
68 Accord, McNairn, note 6, above, 18-19; Côté, note 2, above, 220-225 (with reference only to
Quebec and the federal jurisdiction).
69 Law Reform Commn. (B.C.), Report on the Legal Position of the Crown (1972), ch. 7.
70 R.S.B.C. 1996, c. 238, s. 14(1).
71 The Queen v. Victoria (1979) 99 D.L.R. (3d) 667 (B.C.C.A.) (Crown bound to pay municipal
business tax); Twinriver Timber v. R. (B.C.) (1979) 15 B.C.L.R. 38 (S.C.), aff’d (1980) 25
B.C.L.R. 175 (C.A.) (Crown bound by limitation periods); R. v. Brown [1980] 1 W.W.R. 547
(B.C.S.C.) (same result); Rutherford v. Rutherford [1980] 2 W.W.R. 330, 345 (B.C.S.C.), aff’d
[1981] 6 W.W.R. 485 (B.C.C.A.) (Crown pension subject to Family Relations Act); Re Cariboo
College (1982) 133 D.L.R. (3d) 241 (B.C.S.C.) (Crown agent bound to pay development cost
charge); Defazio Bulldozing v. Stephenson Construction (1986) 3 B.C.L.R. (2d) 349 (C.A.)
409
15.5 STATUTES
rule, the legislative draftsperson must deliberately bind the Crown when that is
the desired result. Under British Columbia’s reformed law, the legislative drafts-
person must deliberately exempt the Crown when that is the desired result.72
Prince Edward Island followed the example of British Columbia and, as part
of a general revision of the Interpretation Act, repealed the provision requiring
an express statement to bind the Crown and replaced it with a provision that
contained a reversal of the presumption. Unlike the B.C. provision, Prince Edward
Island’s provision is prospective, applicable only to Acts passed after the coming
into force of the provision.73
The state of South Australia and the Australian Capital Territory have also
enacted reversal of presumption provisions.74 The provisions enacted by these
jurisdictions provide the model for reform. The case for reform is argued at the
end of this chapter.75
15.5 Express words

Both the common law rule and the statutory immunity provisions acknowl-
edge that the Crown is bound by express words. This is usually accomplished by
a section near the end of the statute providing that “This Act binds the Crown”.
In some statutes only specified sections are expressed to bind the Crown. Since
it seems obvious that most statutes ought to bind the Crown, one would expect
express provisions to be routinely included in statutes. In fact, in most jurisdic-
(Crown bound by builders’ liens); and Markevich v. Can. [2003] 1 S.C.R. 94, para. 46 (“gov-
ernment” bound by limitation periods). The Act now defines “the government” as “Her Majesty
in right of British Columbia”. However, a prior version of the Act, which was not limited in
this manner, was held not to make a British Columbia statute binding on the federal Crown:
Federal Business Dvlpt. Bank v. Hillcrest Motor Inn (1988) 51 D.L.R. (4th) 464 (B.C.C.A.);
and see sec. 15.16, “Federal complications”, below.
72 In 1974, a subsection (2) was added to s. 14 of the British Columbia Interpretation Act, stating
that enactments regarding “the use or development of land, or in the planning, construction,
alteration, servicing, maintenance or use of improvements, as defined in the Assessment Act”
do not bind the Crown unless such intention is expressly stated. This provision remains in the
current Act. See Squamish (District) v. Great Pacific Pumice (2000) 187 D.L.R. (4th) 483
(B.C.C.A.) (s. 14(2) does not apply to Crown land leased to a private party).
73 R.S.P.E.I. 1998, c. I-8, s. 14. The Alberta Law Reform Institute has noted, in its report entitled
“The Presumption of Crown Immunity” (1994), 73-4, that in Prince Edward Island. the reversal
of the presumption applies not only to new Acts, but also to new amendments to parent statutes.
The somewhat complicated result is that where a statute contains no express words and there
is no necessary implication that the Crown is to be bound, a recent provision will bind the
Crown but the older provisions of the same statute will not.
74 Acts Interpretation Act 1915 (S.A.), s. 20; Legislation Act 2001 (A.C.T.), s. 121. The application
of the South Australian provision is restricted to Acts passed after the enactment of the relevant
provision of the Interpretation Act and does not apply to amendments of pre-existing Acts. The
A.C.T. provision does not apply to the Commonwealth: see Australian Capital Territory Self-
Government Act (Cth.), s. 27.
75 See sec. 15.17, “Reform”, below.
410
NECESSARY IMPLICATION 15.6(b)
tions, express provisions are found in only a small number of statutes.76 However,
the resulting Crown immunity is not as broad as might be thought, because of the
many exceptions that the courts have carved out of the rule of immunity. These
will be explored in the succeeding sections of this chapter.
15.6 Necessary implication
(a) Exception to immunity
The common law rule of immunity acknowledges that the Crown may be
bound not only by express words but also by “necessary implication”. The stat-
utory immunity provisions77 make no mention of necessary implication, but for
the reasons advanced earlier, they should probably be read as also allowing the
Crown to be bound by necessary implication. What is necessary implication?
(b) Purpose of statute
The Bombay case78 included a discussion of the weight to be given to the

purpose of a statute in determining whether the Crown was bound. It will be
recalled that the Privy Council denied that the Crown was bound merely because
the statute was enacted “for the public good”.79 And their lordships also denied
that the Crown was bound merely because the statute could not “operate with
reasonable efficiency” unless the Crown was bound.80 Their lordships held that
the purpose of the statute would provide a necessary implication only if the
purpose “must be wholly frustrated unless the Crown were bound”.81
The Bombay case made clear that the fact that a statute pursues a desirable
public purpose will rarely raise a necessary implication that the Crown is bound.
It is obviously extraordinarily difficult to establish that a statutory purpose would
be “wholly frustrated” if the Crown were not bound. However in Friends of the
Oldman River Society v. Canada (1992),82 the Supreme Court of Canada found
that the Crown in right of Alberta was bound by the federal Navigable Waters
Protection Act partly on the ground that the purpose of the legislation would be
“wholly frustrated” if the province were not bound. The legislation in question
was designed to protect the public right in navigation. The Court noted that
76 Note 65, above.

77 Examined in sec. 15.4, “Effect of Interpretation Acts”, above.
78 Province of Bombay v. Municipal Corp. of Bombay [1947] A.C. 58 (P.C., India); discussed in
text accompanying note 17, above.
79 Id., 63.
80 Id.
81 Id.
82 [1992] 1 S.C.R. 3.
411
15.6(c) STATUTES
provinces are among the bodies that are likely to engage in projects — bridges,
for example — that may interfere with navigation. According to La Forest J., “it
would result in an absurdity if the Crown in right of a province was left to obstruct
navigation with impunity at one point along a navigational system, while Parlia-
ment assiduously worked to preserve its navigability at another point”.83 Accord-
ingly, the Crown in right of Alberta was bound by the statute. While the effect-
iveness of the legislation would clearly have been materially affected if the
provinces had not been bound, it is not clear why the legislation would have been
“totally frustrated” if the provinces were not bound, in the sense that this term
had been used in older cases. In this sense, the Oldman River case may reflect a
greater willingness to find “total frustration” of a legislative purpose.84
(c) Other indications in statute
The Bombay case is sometimes read as if necessary implication could be

satisfied only by showing that the purpose of the statute would be wholly frustrated
if the Crown were not bound. But there is an earlier passage in the Privy Council’s
opinion that makes clear that this is too narrow a reading of the case. The earlier
passage is as follows:85
The Crown may be bound, as has often been said, “by necessary implication”. If,
that is to say, it is manifest from the very terms of the statute, that it was the intention
of the legislature that the Crown should be bound then the result is the same as if the
Crown had been expressly named.
What is contemplated in this passage is that a statute, while lacking an express
statement that the Crown is bound, may contain references to the Crown or to
governmental activity that make no sense unless the Crown is bound. If these
textual indications are sufficiently clear, the courts will hold that the presumption
is rebutted and the Crown is bound.
The term “logical implication” is sometimes used to describe the case where
the inference that the Crown is bound flows from indications in the language of
the statute. However, as their lordships made clear in the quoted passage, it is a
species of necessary implication, albeit not one that arises from the total frustration
of the purpose of the statute.86
83 Id., 61.
84 See also Lord Advocate v. Dumbarton D.C. [1990] 2 A.C. 580, 600 (H.L.), where instead of
using the term “totally frustrated” Lord Keith of Kinkel states that the Crown was not bound
in that case because there was no indication that the purpose of the Act would be “in any
material respect frustrated”.
86 Accord, Bradken Consolidated v. BHP (1979) 145 C.L.R. 107, 116 (H.C., Aust.) (“There will
be such a necessary implication if it is manifest from the very terms of the statute that it was
the intention of the legislature that the Crown should be bound.”) See also Oldman River, note
82, above, where La Forest J. held that the federal legislation was binding on the provincial
412
NECESSARY IMPLICATION 15.6(c)
Until recently, the courts were reluctant to find that the Crown was bound
as a logical implication from the text of the statute. The argument made most
commonly was based on the maxim expressio unius est exclusio alterius (“the
expression of one thing implies the exclusion of the other”). This argument applies
to a statute that contains a provision exempting the Crown from some of its
provisions and is silent as to whether the rest of the statute binds the Crown. The
argument is that the exempting section raises a logical implication that the Crown
is bound by those provisions from which it has not been exempted; if this were
not so, so the argument runs, there would be no need for the exempting section.
This argument has generally not been accepted by the courts, who have tended
to treat the exemption as having been inserted only out of an abundance of
caution.87 It is easy to accept this reasoning. Since expressio unius is a weak
inference at the best of times, it cannot overcome the presumption that the Crown
is not bound.88
A number of decisions of the Supreme Court of Canada have used the logical
implication reasoning to hold that the Crown was bound by a statute. For example,
in R. v. Ouellette (1980),89 the question was whether costs in a criminal proceeding
could be awarded against the Crown. The federal Criminal Code authorized a
court to “make any order with respect to costs that it considers just and reasona-
ble”, but the Code contained no statement that the Crown was bound. The Supreme
Court of Canada, in a unanimous opinion written by Beetz J., held that the Crown
Crown both because the purpose of the legislation would otherwise have been totally frustrated,
as well as because the necessary implication of the federal legislation was that it was intended
to bind the provincial Crown.
87 E.g., Province of Bombay v. Municipal Corp. of Bombay, note 78, above, 65; CBC v. A.-G.
Ont. [1959] S.C.R. 188, 199; Lord Advocate v. Dumbarton D.C. note 84, above, 600 (H.L.);
Alta. Govt. Telephone v. Can. [1989] 2 S.C.R. 225, 276, 282; IBEW v. Alta. Govt. Telephones
[1989] 2 S.C.R. 318, 329. However, when an exemption clause is combined with other indi-
cations of an intention to bind the Crown, a logical implication may arise, as in R. v. Ouellette
[1980] 1 S.C.R. 568, above, and in Oldman River, note 82, above, discussed in the following
text.
88 This may no longer be the case in Australia because the decision in Bropho v. W.A. (1990) 171
C.L.R. 1 (H.C., Aust.) has significantly weakened the presumption: see, e.g., State Authorities
Superannuation Bd. v. Commr. of State Taxation for the State of W.A. (1996) 189 C.L.R. 253
(H.C., Aust.) (exemptions in favour of “the Crown”, defined as the Crown in right of Western
Australia, considered indicative that a New South Wales statutory corporation was bound by
the Western Australia Stamp Act, with the result that it was required to pay stamp duty on a
purchase of property in Western Australia); compare Cth. v. W.A. (1999) 196 C.L.R. 392, para.
40 per Gleeson C.J. and Gaudron J. (H.C., Aust.) (“if it has been recognised by the legislature
that it would be inappropriate for legislation to apply to government property or personnel in
the same way as it applies to individuals, it may be inferred from its silence with respect to
other polities in the federation that it was not intended that it should apply to their property or
personnel”). See also Bass v. Permanent Trustee Co. (1999) 198 C.L.R. 334, paras. 22-24
(H.C., Aust.) (provision in a Commonwealth statute stating that the Act applied to the Com-
monwealth considered indicative that the statute did not apply to New South Wales).
89 Note 82, above
413
15.6(c) STATUTES
was bound by the cost-awarding section of the Code. Beetz J. found an intention
to bind the Crown in various parts of the Criminal Code, especially the definition
of a prosecutor as including the Attorney General.90 What of the requirement, in
section 17 of the Interpretation Act, of a specific mention of or reference to the
Crown? Beetz J. said:91
This section does not exclude the rule by which the various provisions of a statute
are each interpreted in light of the others, and it is possible that Her Majesty be
implicitly bound by legislation if that is the interpretation which the legislation must
be given when it is placed in its context.
The Crown was therefore bound by the statute, although there was no express
statement that the Crown was bound92 and no finding that the purpose of the
statute would be wholly frustrated if the Crown were not bound.
The Supreme Court of Canada reached a similar result in Attorney General
of Quebec v. Expropriation Tribunal (1986).93 In that case, the issue was whether
the Crown in right of Quebec was bound by Quebec’s Expropriation Act, which
regulated the expropriation of land. The Act contained no statement that the Crown
was bound. Quebec’s Interpretation Act, by section 42, provided that “no statute
shall affect the rights of the Crown unless they are specially included” (“expres-
sément compris” in the French version). The Supreme Court of Canada, in a
unanimous opinion written by Chouinard J., held that the Crown was bound by
the Expropriation Act. The Court reached this conclusion because the Act stated
that it replaced the provisions of the Code of Civil Procedure, and those provisions
had specifically dealt with expropriations by the Crown. This was enough for the
Court to infer that the Crown was bound by the replacement provisions. Chouinard
J. said that “it was not in any way necessary, in order to comply with s.42 of the
Interpretation Act, to make a special reference to the Crown in [the Expropriation
Act]”.94
In Friends of the Oldman River Society v. Canada (1992),95 at issue was
whether the Crown in right of Alberta was bound by the federal Navigable Waters
Protection Act. Alberta had proposed and commenced a dam project on the river,
but the project had implications for navigability, an area of exclusive federal
jurisdiction. Federal provisions required proposals for which the federal govern-
90 Similar arguments based on definitions were rejected in CBC v. A.-G. Ont., note 87, above,
198; A.-G. Ont. v. Watkins (1975) 8 O.R. (2d) 513, 515 (C.A.); R. v. Eldorado Nuclear [1983]
2 S.C.R. 551, 558-562.
91 Note 82, above, at 575. Accord, Alta. Govt. Telephones v. Can., note 87, above, 281: “the words
‘mentioned or referred to’ in s. 16 [now s. 17] are capable of encompassing. . .an intention [to
bind the Crown] revealed when provisions are read in the context of other textual provisions. . .”.
92 Beetz J. (at 575) pointed out that s. 17 no longer used the word “expressly” (see note 52, above),
but it seems unlikely that this was crucial to his reasoning.
93 [1986] 1 S.C.R. 732.
94 Id., 741.
95 Note 82, above; and see text accompanying note 82, above, for the Supreme Court’s discussion
of necessary implication.
414
NECESSARY IMPLICATION 15.6(d)
ment had “decision making responsibility” to submit to an environmental assess-

ment. The Supreme Court of Canada used the logical inference argument to hold
that the statute bound the Crown in right of Alberta, even though the statute did
not explicitly mention the provincial Crown. The Court found two grounds for
the logical inference. One was that the statute specifically exempted works au-
thorised by the provincial Crown prior to confederation (implying that works
authorized thereafter were not exempted – an expressio unius argument). The
other ground was that since the Crown in right of Alberta could only interfere
with navigation if it had statutory authority from Parliament, and since the only
method to obtain such authority was the Navigable Waters Protection Act, the
province was therefore bound by the Act.
In the Ouellette, Expropriation Tribunal and Oldman River cases, the Crown
was held to be bound by logical implication, although in all three cases, the
contextual indications of an intention to bind the Crown were not particularly
compelling, considering that the presumption had to be overcome. It is hard to
resist the conclusion that in these cases the presumption did not weigh very heavily
in the process of interpretation. These cases suggest that logical implication is
now an important branch of necessary implication. Of course, the logical impli-
cation test is highly uncertain because judges reading a statute will inevitably
differ as to the force of oblique indications that the Crown may be covered.
(d) Displacement of prerogative
A series of cases has construed statutes as displacing Crown prerogatives.

The leading case arose during the first world war. In Attorney-General v. De
Keyser’s Royal Hotel (1920),96 the Crown took possession of a hotel for wartime
administrative purposes. The lessees petitioned for compensation, arguing that
possession had been taken under a statutory power that gave them a right to
compensation. The Crown argued that possession had been taken not under the
statutory power but under a prerogative power which gave the lessees no right to
compensation. The House of Lords held that where a statute authorized the Crown
to do something that was also authorized by the prerogative, and the statute
imposed conditions or restrictions on the exercise of the power, then the prerog-
ative power was superseded by the statute so that the power could only be
exercised subject to the statutory conditions or restrictions. It followed that the
Crown had to comply with the statutory obligation to pay compensation.
In the De Keyser case, the question before the House of Lords was not,
strictly speaking, whether the Crown was bound by the statutes in issue, for it
was obvious that the Crown must be bound by statutes that purported to regulate
its acquisition of property. The question was which of two alternative interpre-
tations of the statutes was to be preferred. The interpretation urged by the lessees
96 [1920] A.C. 508 (H.L.).
415
15.6(d) STATUTES
was that the statutes formed a code that regulated the acquisition of property by
the Crown and that abrogated the prerogative in all cases in which the statutory
power could be exercised. The Crown on the other hand argued that the statutes
should be interpreted as not affecting the existence of the prerogative power and
as leaving the Crown free to choose in each case which power it would exercise.
Since the former of these alternatives trenched upon the prerogative power of the
Crown and the latter did not, the question for the House of Lords was in principle
indistinguishable from the question of whether the Crown was bound by a statute;
and it hardly comes as a surprise to find counsel for the Crown submitting that
the statute should not be construed as taking away prerogative powers without
express words or necessary implication.97 Curiously, however, although the House
of Lords did interpret the statutes as taking away the prerogative power (at least
for so long as the statutes remained in force), none of their lordships answered or
even referred to this submission by the Crown; and none of them thought it
necessary to find in the statutes a “necessary implication” that the prerogative
power was affected. Nevertheless, the rule established in this case for the inter-
pretation of statutes covering the same field as the prerogative is quite consistent
with the necessary implication rule, even under the “total frustration” definition
of necessary implication.98 The purpose of statutes imposing conditions or restric-
tions on the exercise of a statutory power would indeed be frustrated if, in the
words of Lord Atkinson, “the Crown were free, at its pleasure, to disregard all
[their] provisions and by virtue of the prerogative do the very thing which the
statutes empowered it to do”.99
The De Keyser principle has been applied in later cases concerning statutes
covering the same ground as the prerogative.100 For example, the winding-up
provisions of the Companies Act have been held to supersede the prerogative
rights to priority in payment of debts101 and to bona vacantia;102 the provisions of
the Children Act conferring certain powers of care and control over children on
local authorities have been held to supersede some of the prerogative powers over
wards of court;103 and the provisions of the Indian Act and Territorial Lands Act
97 Id., 516.
98 See sec. 15.6(b), “Purpose of Statute”, above.
99 Note 96, above, 539.
100 An exception is R. v. Home Secretary; Ex p. Northumbria Police Authority [1989] 1 Q.B. 26
(C.A.), where a Police Act was construed as not displacing the prerogative power to supply riot
equipment to the police. But in this case individual rights were not affected, and the total
frustration argument (which was never referred to) would have been implausible. Less easy to
explain is Barton v. Cth. (1974) 131 C.L.R. 477 (H.C., Aust.), where the prerogative power to
seek extradition of fugitives was held to survive the enactment of extradition statutes, which
imposed restrictions on the power of extradition. See generally the discussion of the displace-
ment of the prerogative in Chapter 1, “Introduction” under the heading 1.5, “Power of Crown”,
above.
101 Food Controller v. Cork [1923] A.C. 647 (H.L.).
102 Re Azoff-Don Commercial Bank [1954] 1 Ch. 315.
103 Re M. (An Infant) [1961] Ch. 328 (C.A.).
416
BENEFIT OF STATUTES 15.7(a)
have been held to limit (but not entirely supersede) the prerogative powers in
relation to reserve creation.104 But the courts in these cases have also acknowl-
edged the relevance of the rule that the Crown is not bound except by express
words or necessary implication, and De Keyser has been impliedly treated as a
case where the Crown was bound by necessary implication.
15.7 Benefit of statutes

(a) Requirement of prejudice
Prejudice to the Crown is an essential ingredient of the presumption that the

Crown is not bound by statutes.105 The presumption has no application to statutes
that could not prejudice the Crown in any way. Words that would be neutral or
beneficial to the Crown are interpreted in the ordinary way, without applying the
presumption against the Crown being included. The requirement of prejudice to
the Crown applies to the statutory codifications of the rule of immunity106 as well
as to the common law rule.
In the Dumbarton District Council case107 the House of Lords appeared to
somewhat relax the requirement that the Crown be prejudiced before the Bombay
presumption applied. In Dumbarton District Council, Lord Keith indicated that
it should not be necessary to establish that an existing right of the Crown is being
prejudiced in order for the Bombay presumption to apply. In Lord Keith’s view,
it should be sufficient if the Crown’s discretion to act is being limited, even if the
Crown had no lawful right at common law to undertake the activity in question.
The reason for adopting this “simple rule”, according to Lord Keith, was to avoid
the “difficult and inconvenient process” of determining whether the Crown activ-
ity in question was lawful or unlawful, apart from the statutory provision that is
sought to be invoked against it.
While the rule proposed by Lord Keith is certainly simple, this simplicity is
obtained only by broadening the application of the Bombay presumption. In our
view, reliance on this presumption in circumstances where the Crown activity
would have been unlawful at common law is inappropriate. In fact, where a
particular Crown activity would have been unlawful at common law, we see no
104 Ross River Dena Council Band v. Can. [2002] 2 S.C.R. 816. Bastarache J., in dissent, seemed
to question whether necessary implication was sufficient (para. 4). However, LeBel J., for a
six-judge majority, accepted that necessary implication was sufficient (para. 54).
105 Alta. Govt. Telephones v. Can., note 87, above, 284.
106 The references in the statutes to “binding” and “bound” imply that only a prejudicial effect is
contemplated: In re Silver Bros. [1932] A.C. 514, 524 (P.C., Can.). Contra, D.M. Gordon,
“How far privative or restrictive enactment binds the Crown” (1940) 18 Can. Bar Rev. 751,
761, who argues that the word “affects” could include a beneficial effect, but he ignores the
later word “bound”.
107 Lord Advocate v. Dumbarton D.C. [1990] 2 A.C. 580 (H.L.); discussed in text accompanying
note 28, above.
417
15.7(b) STATUTES
reason why it should not be presumed that the legislature intended that a relevant
statutory provision apply to the Crown when engaged in such activity. It is no
doubt true, as Lord Keith argued in the Dumbarton District Council case, that the
task of distinguishing those Crown activities that are lawful from those that are
unlawful at common law may in some cases be complex and difficult. Yet, given
the complexity of the Bombay presumption, we do not regard this additional
complexity as providing a convincing justification for broadening the presump-
tion in the manner suggested by Lord Keith.
(b) No effect on Crown
In Madras Electric Supply Corporation v. Boarland (1955),108 the compu-

tation of a corporation’s income tax depended upon whether the corporation had
sold its undertaking to a “person”. The corporation had actually sold its under-
taking to the Crown, and so the question in issue was whether the word “person”
included the Crown. The House of Lords answered yes. Their lordships reasoned
that in this context the “ordinary meaning” of the word “person” included the
Crown. If the word were given its ordinary meaning, the computation of the
corporation’s tax would be affected, but this would make no difference to the
Crown (except in its capacity as tax collector, of course, which was irrelevant).
Since the statutory provision could not operate to the prejudice of the Crown,
there was no reason to give the word “person” other than its ordinary meaning.
The result in the Madras case would have been different if the word “person”
had appeared in the context of a provision imposing some duty or restraint upon
a person. Then the presumption would have applied and would have dictated that
the word be interpreted as excluding the Crown (unless there were express words
or a necessary implication that the Crown was to be included).109
(c) Beneficial effect on Crown
In the Madras case, the statutory provision had no effect on the Crown, and
was accordingly not subject to the presumption of Crown immunity. Where a
statutory provision would confer a benefit on the Crown, it is also not subject to
the presumption of Crown immunity. The question whether the Crown is indeed
entitled to the benefit of a statutory provision is answered by the application of
ordinary principles of interpretation. It follows that the Crown may be able to
take advantage of a statute which does not name it or apply to it by necessary
108 [1955] A.C. 667 (H.L.).

109 See McGraw-Hinds v. Smith (1979) 144 C.L.R. 633 (H.C., Aust.); discussed in text accompa-
nying note 111, below.
418
BENEFIT OF STATUTES 15.7(c)
implication.110 This leads to the apparent paradox that the Crown may be able to
deny that a generally-worded provision applies to its prejudice, while asserting
that the same provision applies to its benefit.
In McGraw-Hinds v. Smith (1979),111 the High Court of Australia had to
decide whether a Crown agent (the Queensland Government Tourist Bureau)
could take the benefit of a statute that imposed restraints on the sale of space in
trade directories by a “person” to a “person”. The statute did not bind the Crown
by express words or necessary implication, and so it was undisputed that the
Crown was not a “person” who could commit an offence under the statute. It was
argued that the word “person” should be given the same meaning when it referred
to the victim of the offence. On that argument, the defendant, who had sold
directory space to the Crown agent without complying with the statute, would be
entitled to be acquitted. The High Court of Australia rejected the argument. The
word “person”, when referring to the offender, excluded the Crown only because
of the presumption of Crown immunity. But the presumption did not apply to the
interpretation of the same word when it would benefit the Crown. Therefore,
when the word “person” referred to the victim of the offence, it should be given
a sensible interpretation, which in this context included the Crown.
The McGraw-Hinds case illustrates that the Crown may be entitled to take
advantage of a statute, even though it is not bound by the statute. The same
reasoning would enable the Crown to deny that a statutory limitation period
applied to it, while asserting the limitation period as a defence to an action brought
against it.112 Such a result is counter-intuitive, even unfair,113 but it flows inexo-
rably from the fact that the presumption of Crown immunity applies only to
statutory provisions that would prejudice the Crown. The remedy is not to extend
110 The Queen v. Fraser (1877) 11 N.S.R. 431 (C.A.) (Crown may bring action of replevin under
provincial statute); The King v. Can. Accident & Fire Ins. Co. [1948] 4 D.L.R. 660 (N.B.K.B.)
(Crown may bring action against insurer under provincial statute). In the United Kingdom and
New Zealand, the right of the Crown to take advantage of statutes is affected by a provision in
the Crown proceedings statutes: U.K., s. 31(1); N.Z., s. 29(1). This provision seems to be
declaratory of the common law, except that it seems to permit the Crown to avail itself of
statutory defences even if the statutes do not on their true construction make those defences
available to the Crown: see Street (1953), note 6, above, 155-156. A truncated version of this
provision appears in the standard Canadian Crown proceedings statutes: Can., s. 24; B.C., s.
16; Alta., s. 21; Sask., s. 20; Man., s. 17; Ont., s. 17; N.B., s. 18; N.S., s. 22; P.E.I., s. 19; Nfld.,
s. 19 (not in Que.). (Full references to the Crown proceedings statutes of each jurisdiction are
given in ch. 2, Remedies, note 1, above.)
112 Compare A.-G. Ont. v. Watkins (1975) 8 O.R. (2d) 513 (C.A.) (Crown may bring proceedings
outside limitation period) with A.-G. Ont. v. Palmer (1980) 28 O.R. (2d) 35 (C.A.) (Crown may
invoke limitation period to bar proceedings brought against it). Query correctness of former
decision on basis of cases holding Crown as plaintiff to the same body of law as a private
plaintiff: see sec. 15.13, “Crown as plaintiff”, below.
113 The proposition that the Crown could take advantage of a limitation period by which it was not
bound was doubted, in obiter, in Cayzer Irvine & Co. v. Bd. of Trade [1927] 1 K.B. 269, 194
(C.A.).
419
15.7(d) STATUTES
the presumption to neutral or beneficial statutory provisions. The remedy is to

abolish the presumption altogether. The case for abolition is argued later in this
chapter.114
(d) Burden linked to benefit
A statutory right is often burdened with restrictions. When the Crown is

entitled to the benefit of the right, is it also burdened with the restrictions? In
principle, it is logically possible that the legislative body intended that one pro-
vision (the one conferring the benefit) should apply to the Crown, while another
provision (the one imposing the restriction) should not apply to the Crown.115 But
in many contexts such a construction would be absurd. Street gives the example
of a statute that states that infants are to be liable on contracts, provided that those
contracts are in writing;116 it would be farcical if the Crown could take advantage
of the statute and hold an infant liable in contract, but could disregard the require-
ment of writing. Plainly, Parliament intended that infants should be liable only
on contracts in writing; the requirement of writing is an integral part of the
definition of the right that is conferred.
The problem is more difficult when the beneficial provision and the restric-
tive provision are contained in different sections of the statute. It then becomes
more plausible to argue that the restrictive provision can be severed from the
beneficial provision and interpreted as not binding the Crown. Thus a statute
establishing an administrative tribunal might, by one section, confer a right of
appeal on any party aggrieved by the tribunal’s decision and, by another section,
require that an appeal be brought within one month. On general principles it is
clear that the Crown would be entitled to the right of appeal when it was a party
aggrieved by one of the tribunal’s decisions; the question is whether it could
exercise that right outside the time limit of one month on the ground that the
limitation provision did not bind it by express words or necessary implication. In
two Canadian cases it has been held that in these or similar circumstances the
Crown is free from the limitation provision.117 The better view, however, is that
where the Crown’s title to a right depends upon a statute, then it is bound by
statutory restrictions on that right. The two Canadian cases have been generally
criticised,118 and the other authorities all hold that when the Crown claims a
statutory right, the Crown must take it as the statute gives it, that is, subject to
114 Under sec. 15.17, “Reform”, below.

115 If Gordon, note 106, above, intends to deny that this is a logical possibility, then it seems that
he is plainly wrong; it is certainly misleading to describe this as a case of approbating and
reprobating as he does, 756. Aside from this small point, however, Gordon’s article is an
admirable analysis of the position. Also excellent is Street’s article, note 6, above, 375-378.
116 Street, previous note, at 378.
117 R. v. Rutherford (1927) 60 O.L.R. 654 (A.D.); The King v. Richardson [1948] S.C.R. 57.
118 Gordon, note 106, above, 758; Street, note 6, above, 377.
420
BENEFIT OF STATUTES 15.7(d)
any restrictions upon it.119 The restrictions are therefore binding on the Crown
even if there are no express words or necessary implication that the Crown is
bound.120
As explained, it is clear that when the Crown asserts a statutory right,121 it
becomes subject to restrictions on the right. But which statutory provisions count
as restrictions on the right (and therefore bind the Crown), and which statutory
provisions are part of the general statute law (from which the Crown is generally
immune)? Statutory provisions contained in the very statute that confers the right
may safely be treated as restrictions on the right, for the reasons given in the
previous paragraph. But what of the provisions of another statute? In that case, it
is not impossible that the Crown is bound, but the courts have usually held that
the Crown is not bound.122 The problem is, of course, that once one embarks on
a voyage through the statute book, there is no obvious stopping point: the Crown
is bound by everything and the presumption of immunity shrinks away to noth-
ing.123 The limiting principle is that there must be a “sufficient nexus” between
119 The numerous authorities are cited by Gordon, note 106, above; Street, note 6, above; McNairn,
note 6, above, 10-14; see also Toronto Transportation Commn. v. The King [1949] S.C.R. 510;
A.-G. Can. v. Dennis (1986) 29 D.L.R. (4th) 314 (Alta. C.A.); Royal Bank of Canada v. Black
and White Dvlpts. (1988) 52 D.L.R. (4th) 120 (Alta. C.A.), leave to appeal refused (1989) 60
D.L.R. (4th) vii (S.C.C.); Sparling v. Caisse de dépôt et placement du Québec [1988] 2 S.C.R.
1015.
120 It is sometimes said that when the Crown invokes a right it “waives” its immunity from the
restrictions on the right. It is true that the restrictions will actually operate on the Crown only
if the Crown chooses to invoke the right, but it seems to us to be misleading to describe this as
a case of waiver by the Crown. The Crown cannot waive an immunity from statute if the statute
does not on its true interpretation apply to the Crown. In these burden-linked-with-benefit cases,
the statute does apply to the Crown in the sense that the statute confers a benefit on the Crown;
and the benefit that the statute confers is limited by the provisions that impose restrictions on
the benefit. See College d’arts appliqués et de technologie La Cité collégiale v. Ottawa (City)
(1998) 37 O.R. (3d) 737 (C.A.) (the College, a Crown agent, not bound by the requirement to
pay development charges upon application for a building permit; the College did not need to
apply for a permit, obtained little or no benefit from applying, and had not waived its immunity
by applying).
121 Where the Crown relies on a common law cause of action, one would expect that the Crown
could assert immunity from statutory limitations of liability. However, in Gartland Steamship
Co. v. The Queen [1960] S.C.R. 516, it was held that the Crown as plaintiff in an action for
negligence was bound by provisions in the Canada Shipping Act limiting the amount of liability.
This case may turn on a narrow interpretation of the pre-1967 federal Interpretation Act (notes
52, 62, above). For criticism, see China Shipping Co. v. S.A. (1979) 145 C.L.R. 172, 189, 202,
218 (H.C., Aust.). See sec. 15.13, “Crown as plaintiff”, below.
122 Re Rowe and Man. [1942] 4 D.L.R. 754 (Man. K.B.); Deeks McBride v. Vancouver Associated
Contractors [1954] 4 D.L.R. 844 (B.C.C.A.); Re The Queen and Federal Business Dvlpt. Bank
(1984) 8 D.L.R. (4th) 143 (N.B.C.A.); Federal Business Dvlpt. Bank v. Workers’ Comp. Bd.
(1984) 11 D.L.R. (4th) 395 (N.S.A.D.); Re Workers’ Comp. Bd. and Federal Business Dvlpt.
Bank (1985) 21 D.L.R. (4th) 379 (N.B.C.A.), leave to appeal refused (1985) 21 D.L.R. (4th)
379n (S.C.C.).
123 See sec. 15.13, “Crown as plaintiff”, below.
421
15.7(d) STATUTES
the benefit and the burden.124 A sufficient nexus exists if “the two elements are
sufficiently related so that the benefit must have been intended to be conditional
on compliance with the restriction”.125 In that case, the restriction will bind the
Crown, even if it is contained in a statute different from the one offering the
benefit.126
Sometimes there is room for doubt as to whether or not the Crown is taking
advantage of a statutory right, so as to make the appurtenant restrictions binding
on the Crown. In Sparling v. Caisse de dépôt et placement du Québec (1988),127
the Caisse, a Crown agent, owned 22 per cent of the common shares of a corpo-
ration incorporated under the federal corporation statute. The statute defined any
shareholder with more than 10 per cent of the common shares as an “insider”,
and required the shareholder to file an insider report. The Caisse refused to file
the report, arguing that the filing obligation did not bind the Crown. Since the
corporation statute contained no express words or necessary implication that the
Crown was bound, the question was whether the Caisse, by purchasing the shares,
had taken the benefit of the statute, and had thereby become bound by the reporting
requirement. The Supreme Court of Canada answered the question yes. The act
of purchasing a share was “an implicit acceptance of the benefits of the statutory
regime”.128 The Caisse was therefore bound by the burdens of the statutory regime.
“It cannot pick and choose between the provisions it likes and those it does not”.129
The Caisse was accordingly held to be bound by the insider reporting requirement
of the statute.
In Sparling, the ownership of a share of stock was characterized as taking
advantage of the statute under which that share was issued. It is true, of course,
that a share is no more than a bundle of the rights and liabilities created by the
constituting statute. It was the entire bundle of interrelated rights and liabilities
that contributed to the safety and liquidity of the Caisse’s investment. But many
124 Sparling v. Caisse de dépôt et placement du Québec, note 119, above.

125 Id., quoting McNairn, note 6, above, 11.
126 Id., citing The Queen v. Murray [1967] S.C.R. 262. See also Neary v. A.-G. N.S. (1994) 119
D.L.R. (4th) 597 (N.S.C.A.) (Crown, seeking to defeat a claim against it by invoking a limitation
period contained in the Fatal Injuries Act, bound by a provision in the Limitation of Actions
Act which permits the court to disallow a defence based on limitation period).
128 Id., 1026.
129 Id. Accord, Director of Soldier Settlement v. King [1988] 6 W.W.R. 360 (Alta. C.A.) (Crown
agent, by registering title to land under Torrens statute, became bound by statute, which
destroyed Crown agent’s right to minerals); Que. v. Ont. Securities Commn. (1992) 10 O.R.
(3d) 577 (C.A.), leave to appeal refused (1993) 157 N.R. 239n (S.C.C.) (Quebec Crown agent
bound by Ontario Securities Act requiring take-over bidder to make follow-up offer to purchase
shares from minority shareholders). The Court of Appeal in the latter case refused to follow an
earlier Divisional Court case dealing with similar facts but reaching a different result (Re Caisse
de dépôt et placement du Quebec (1983) 42 O.R. (2d) 561 (Div. Ct.)), with the Court of Appeal
holding that the Divisional Court had failed to take proper account of the benefit/burden
exception.
422
BENEFIT OF STATUTES 15.7(d)
other statutes also contribute to those ends. Whenever the Crown acquires property
or engages in commercial transactions, it is taking advantage of the entire network
of laws that contribute to the security and transferability of property and the
efficacy of commercial transactions. A liberal definition of Crown advantage
leads to the conclusion that the Crown as commercial actor is bound by all the
same rules as private actors in the same marketplace. The courts have not so far
been willing to take this step, recognizing that it involves a massive limitation of
the presumption of Crown immunity.130
In the AGT case,131 the Supreme Court of Canada held that the benefit/burden
exception must be narrowly construed, precisely so as to avoid the exception
swallowing up the rule. In AGT, the issue was whether Alberta Government
Telephones (AGT), a provincial Crown agent providing telephone and telecom-
munications services in the province of Alberta, could be ordered by the federal
Canadian Radio-television and Telecommunications Commission (CRTC) to pro-
vide facilities for the interchange of telecommunications traffic with another
telecommunications company. The federal Railway Act, the legislation from
which the CRTC derived the relevant powers in issue, did not expressly bind the
provincial Crown. However, it was argued that AGT should be bound by the
Railway Act since it had derived benefits from its participation in an integrated
and federally regulated telecommunications network. In support of this argument,
it was pointed out that AGT had entered into certain agreements with other
telecommunications providers and many of these agreements were subject to
federal approval by the CRTC. However, the Supreme Court rejected this argu-
ment, holding that there must be a “fairly tight nexus” between the benefit derived
and the burden that was to be imposed on the Crown agent before the benefit/
burden exception applied. This approach to the exception, according to Chief
Justice Dickson, was “in keeping with the very nature of the Crown immunity
doctrine”. If the benefit/burden exception were to be broadened, such that when-
ever a Crown agent derived generalized benefits relating to participation in a
regulated industry it became bound by all aspects of the regulatory scheme, the
Crown immunity doctrine would be dramatically narrowed. This would be an
“overly legislative” approach, according to Dickson C.J., who concluded that
“the statutory Crown immunity doctrine does not lend itself to imaginative ex-
ceptions to the doctrine, however much such exceptions may conform to our
intuitive sense of fairness”.132 Applying this test to the facts before it, the Court
concluded that, while AGT had derived generalized benefits from its participation
in a federally-regulated industry, there was no direct connection between these
benefits and the requirement that AGT provide telecommunications interchange
facilities to another telecom company. The Court noted that the required nexus
between benefit and burden might have been satisfied had the issue of provision
130 See sec. 15.9, “Commercial activity”, below.

131 Alta. Govt. Telephones v. Can. [1989] 2 S.C.R. 225.
132 Id., at 290.
423
15.8 STATUTES
of such telecommunications facilities been dealt with through the agreements to

which AGT and the other service provider were parties.133 But in the absence of
such a direct connection, the required nexus was not present and AGT was immune
from the federal legislation.134
The AGT case requires a direct connection between the benefit obtained and
the burden that is to be imposed before the benefit/burden exception applies.
Subsequent cases that have applied this analysis have found that the exception
only applies in the “clearest of cases where there is a close and direct nexus
between the benefit. . .and burden. . .”.135
15.8 Implied term of contract

The Crown is bound by its contracts in the same way as a private individual.136
The Crown by contract may agree to be bound by a statute that does not apply to
the Crown of its own force. In that case, the statute would become one of the
terms of the contract. When a statute becomes applicable to the Crown through
the law of contract, it is of course enforceable only at the suit of the other party
to the contract: the Crown is not exposed to criminal liability or any form of
public enforcement.137 On the other hand, the law of contract is unaffected by
constitutional limitations on the power of legislative bodies.138 As the cases dis-
cussed below will illustrate, a provincial Crown may agree to be bound by a
federal statute,139 and the federal Crown may agree to be bound by a provincial
statute.140 Because the statutes are not applicable of their own force, no constitu-
tional issue is presented.
In Bank of Montreal v. Attorney General of Quebec (1978),141 the question
arose whether the Crown in right of Quebec was bound by a provision in the
federal Bills of Exchange Act, which required the drawer of a cheque to give
notice to the bank when the drawer discovered that the payee’s endorsement had
133 CNCP, the other company which was seeking the order against AGT, was not a party to the
telecom agreements which AGT had signed.
134 It was, of course, open to the federal Parliament to amend the legislation to expressly provide
that the provincial Crown was bound, and Parliament subsequently enacted such an amendment:
see Canada Transportation Act, S.C. 1996, c. 10, s. 2.
135 Re Collège d’arts appliqués, note 120, above, 80. Note, however, Que. v. O.S.C., note 129,
above, holding that a Quebec Crown agent was bound by Ontario securities legislation, on the
basis that the facts in the case were indistinguishable from those in Sparling v. Que.
136 See ch. 9, Contract, above.
137 Crown immunity cannot be “waived” so as to make the statute applicable to the Crown otherwise
than as a term of the Crown’s contract: see note 120, above. Compare Seddon, Government
Contracts (4th ed., 2009), 4.30, who uses the term “waiver”.
138 Note 1, above.
139 Note 141, below.
140 Note 142, below.
141 [1979] 1 S.C.R. 565.
424
COMMERCIAL ACTIVITY 15.9
been forged. The Bills of Exchange Act did not bind the Crown (federal or
provincial) by express words or necessary implication. The Crown argued there-
fore that it was not bound to comply with the notice requirement. This argument
was rejected by the Supreme Court of Canada. The Court held that the Crown, as
the customer of the bank, was bound by the notice provision as an implied term
of the contract between the bank and its customer. Although the Crown had not
agreed expressly to be bound by the Bills of Exchange Act, the Act regulated the
relationship between banker and customer and should be regarded as incorporated
into the contract between banker and customer.
The same doctrine of the implied term has been used to impose upon the
federal Crown a Quebec statute conferring on a lessee the right to purchase the
freehold of the leased land. The federal Crown was the lessor of land in Quebec,
and the statutory right to purchase was to be regarded as an implied term of the
lease.142 On the other hand, a loan of money by a federal Crown agent to a New
Brunswick borrower was not treated as implicitly incorporating a provincial
statute conferring priority on debts due to the New Brunswick Workers Compen-
sation Board.143 If broadly applied, the doctrine of the implied term has the
potential to expose the Crown to a considerable body of statute law. If it became
established that the Crown as contractor always implicitly agrees to be bound by
all statutes that would bind a private contractor in the same circumstances, this
would come close to removing the commercial activities of the Crown from the
presumption of immunity.
15.9 Commercial activity
In the last two sections of this chapter we noticed that the burden-linked-to-
benefit doctrine and the implied-term-of-contract doctrine each had the potential
to subject the commercial activity of the Crown to the same body of law as applies
to private firms engaged in the same activity. There is intuitive appeal to the idea
that when the state enters the marketplace, it puts aside its Crown and all Crown-
related privileges. This idea has led most jurisdictions to limit the formerly
absolute immunity of foreign states from proceedings before domestic courts: the
foreign state is no longer immune from judicial proceedings arising out of com-
mercial activity.144 The idea is also to be found in some dicta that would deny
142 The Queen v. R.L. Belleau [1986] 1 F.C. 393 (T.D.).

143 Re Workers’ Comp. Bd. and Federal Business Dvlpt. Bank, note 122, above.
144 E.g., Trendtex Trading Corp. v. Bank of Nigeria [1977] 1 Q.B. 529 (C.A.); Zodiak Int’l. Products
v. Polish People’s Republic (1977) 81 D.L.R. (3d) 656 (Que. C.A.); Reid v. Republic of Nauru
[1993] 1 V.R. 250 (Victoria S.C.). The exception to absolute immunity has been translated into
statute in some jurisdictions, e.g., State Immunity Act 1978 (U.K.), 1978, c. 33, s. 3; State
Immunity Act (Can.), R.S.C. 1985, c. S-18, s. 5. See ch. 17, Federal Questions, under heading
17.2, “State immunity in international law”, below.
425
15.9 STATUTES
Crown priority of payment of debts to debts incurred in commercial activity.145

The commercial activity exception has never taken hold in the context of the
Crown’s presumptive immunity from statute. The Supreme Court of Canada has
been invited to hold that when the Crown acquires an airline, it becomes subject
to the same licensing requirements as commercial airlines. The Court rejected the
view that “where the Crown engages in ordinary commercial activities it is equally
subject to the regime of control of those activities”.146 The Court has also been
invited to hold that when Crown agents engage in the production of uranium, they
become subject to the same prohibition of price-fixing as private producers. The
Court agreed that it was not easy to understand why Crown agents should be free
to engage in price-fixing when that practice was prohibited to private firms, but
held that the Court was not entitled “to question the basic concept of Crown
immunity”.147 Subsequently, in the AGT case, the Supreme Court of Canada
concluded that the creation of a “commercial activity” exception was a matter for
Parliament rather than the courts.148 In all of these cases, the Crown’s immunity
from statute prevailed, freeing the Crown’s activities from the legal rules, enacted
in the public interest, that applied to the Crown’s competitors.
Although the courts have refused to create a commercial activity exception
to the presumption of Crown immunity from statute,149 the Canadian, Australian,
United Kingdom and New Zealand legislatures have eliminated Crown immunity
from fair competition statutes. In Canada, the Combines Investigation Act,150
under which the Eldorado case was decided, was amended (and renamed the
Competition Act) to include a provision binding corporations that are agents of
the Crown in respect of commercial activities.151 This amendment followed leg-
islative debate on the circumstances leading to the Eldorado case and concern
with the Supreme Court ruling. In Australia, the federal Trade Practices Act 1974
binds the Crown in right of the Commonwealth when it is engaged in trade and
carrying on a business.152 All Australian states and territories have fair trading
and competition statutes that bind the Crown (many are expressed to bind not
only the Crown in right of the state or territory, but also the Crown in right of the
145 See ch. 14, Crown as Creditor, above.

146 The Queen (Alta.) v. Can. Transport Comm. [1978] 1 S.C.R. 61, 69.
147 R. v. Eldorado Nuclear, [1983] 2 S.C.R. 551, 558.
148 Alta. Govt. Telephones v. Can. [1989] 2 S.C.R. 225.
149 Note, however, that in Australia, the courts have noted, as part of the move to a more flexible
presumption of Crown immunity from statute, that the presumption is very weak where the
Crown engages in commercial activity: see Bropho v. W.A. (1990) 171 C.L.R. 1, 12, 23 (H.C.,
Aust.); Re Residential Tenancies Tribunal of N.S.W. and Henderson; Ex parte Defence Housing
Authority (1997) 190 C.L.R. 410, 427, 445 (H.C., Aust.).
150 R.S.C. 1970, c. C-23.
151 R.S.C. 1985, c. C-34, s. 2.1.
152 Part V of the Act does not bind the states or territories: Bradken Consolidated v. BHP (1979)
145 C.L.R. 107 (H.C., Aust.), aff’d in this respect in Bass v. Permanent Trustee Co. (1999) 198
C.L.R. 334 (H.C., Aust.). However, Part IV of the Act is now expressly stated to bind the states
and territories: s. 2B.
426
INCORPORATION BY REFERENCE 15.10(a)
Commonwealth to the extent that legislative power permits).153 In the United

Kingdom, the Competition Act 1998 expressly provides that it binds the Crown.154
And in New Zealand, the Fair Trading Act 1986 expressly provides that it applies
to the Crown when the Crown is engaged in trade.155 These legislative enactments,
while indicative of a long-anticipated move toward Crown liability, are nonethe-
less restricted to the very specific concern of fair competition.
Unless the legislature intervenes more widely, courts will continue to ex-
perience pressure to hold the Crown liable under statute when it engages in
commercial activities. But if the courts were to create a commercial activity
exception, it would be exceedingly difficult to apply because of the absence of
any principle that would enable an activity to be characterized as “commercial”
rather than “governmental”. Government rarely engages in any venture with the
same commercial (profit-making) objective as a private firm. A publicly-owned
airline, railroad, hotel, mine or liquor store may look like a purely commercial
venture – it may even show a profit – but the Crown is nearly always drawn into
such activities by regulatory and public policy objectives that are foreign to the
private sector. There is no principled basis for denying the same governmental
character to such activities that one would unhesitatingly apply to the more
traditional functions of government. It follows, in our view, that an exception for
commercial activity would be exceedingly difficult to apply. In general, the
creation of more and wider exceptions is not a satisfactory way to reform the
presumption that the Crown is not bound by statute. The presumption should be
reversed, a change that admittedly can only be accomplished by statute156 or
through reformulation in the manner suggested by the Australian High Court in
Bropho.157
15.10 Incorporation by reference
(a) Crown liability
If a statute binds the Crown, and if that statute incorporates by reference

(adopts) another statute, then the incorporated (or adopted) statute also binds the
Crown. It is not necessary that the incorporated statute include express words or
153 See R. Steinwall, “The Liability of the Crown and its Instrumentalities under the Trade Practices
Act 1974 (Cth)” (1994) 17 U.N.S.W.L.J. 314; N. Seddon, “Holes in Hilmer! How the Trade
Practices and Fair Trading Legislation Does Not Apply to Government Procurement” (1994)
2 Trade Practices Law Journal 207; J.C. McCorquodale, “Immunity of Commonwealth Gov-
ernment Business Enterprises from State Laws” (1992) 66 Australian L.J. 406; Seddon, note
137, above, ch. 6.
154 Competition Act 1998 (U.K.), s. 73.
155 Fair Trading Act 1986 (N.Z.), s. 4.
156 The case for reversal is argued later in sec. 15.17, “Reform”, below.
157 Bropho v. W.A. (1990) 171 C.L.R. 1 (H.C., Aust.).
427
15.10(b) STATUTES
a necessary implication that the Crown is bound. The incorporated statute becomes
part of the incorporating statute; and if the latter statute binds the Crown, then the
former does too.158
Incorporation by reference need not be express: it may be implied. For
example, the courts have held that a provision in many Crown proceedings
statutes, stipulating that in proceedings against the Crown the rights of the parties
shall be as nearly as possible the same as in a suit between subject and subject,
picks up and applies to the Crown those statutes that would be applicable to a
private litigant.159 The courts have also held that in the Canadian federal jurisdic-
tion (where there is no rights-of-the-parties provision), the statute that imposes
tortious (or delictual) liability on the federal Crown is an implicit adoption of the
law of the province in which the tort was committed.160 In these ways, statutes
that do not of their own force apply to the Crown, either because they do not
contain the requisite express words or necessary implication, or because as pro-
vincial statutes they are constitutionally incapable of binding the federal Crown,
are made applicable to the Crown. Indeed, an incorporation by reference may
cause a statute to apply to the Crown even though the incorporated statute ex-
pressly exempts the Crown from its provisions.161
(b) Ambulatory or static
Incorporation by reference normally involves the adoption of an existing

statute; but an anticipatory or ambulatory incorporation is possible, under which
all laws on a particular topic, future as well as existing, are adopted.162 It is settled
that the rights-of-the-parties provision, mentioned earlier, is an ambulatory in-
corporation, adopting statutes that were enacted later (as well as earlier) than the
rights-of-the-parties provision.163 In the case of the tort liability provision of the
federal Crown Liability and Proceedings Act, also mentioned earlier, the question
158 So held in Re Wood’s Estate (1886) 31 Ch. D. 607 (C.A.); Brophy v. N.S. (1985) 68 N.S.R.
(2d) 158 (S.C.T.D.); Investors Group Trust Co. v. Eckhoff [2008] 9 W.W.R. 306 (Sask. C.A.).
159 See sec. 15.11, “Provincial Crown as defendant”, below.
160 See sec. 15.12, “Federal Crown as defendant”, below.
161 Re Mar-Lise Industries [1969] 2 O.R. 404 (C.A.) (federal statute deeming Crown agent engaged
in lending money to have the rights of a private individual impliedly adopted provincial statute
regarding chattel mortgages, although provincial statute expressly exempted the Crown). In
Australia, however, the High Court has held that where a Commonwealth statute evidences a
specific intention that it not apply, that intention will prevail and the statute will not be
incorporated through the operation of s. 64 of the Judiciary Act: see Bass v. Permanent Trustee
Co. Ltd. (1999) 198 C.L.R. 334 (H.C., Aust.) (holding that certain provisions in the Common-
wealth Trade Practices Act which were not intended to apply to the states and which were
enacted subsequent to s. 64 of the Judiciary Act had, to that extent, impliedly repealed s. 64).
162 Cth. v. District Court (1954) 90 C.L.R. 13 (H.C., Aust.); A.-G. Ont. v. Scott [1956] S.C.R. 137;
Coughlin v. Ont. Highway Tpt. Bd. [1968] S.C.R. 569. These cases do not involve the Crown,
but each upheld the incorporation by reference of future laws of another jurisdiction.
163 Text accompanying notes 175-177, below.
428
PROVINCIAL CROWN AS DEFENDANT 15.11(a)
whether it is static or ambulatory is not yet settled. On the static view, the
provincial statutes that apply to the federal Crown are only those that were in
force when tort liability was first accepted by the federal Crown. On the ambu-
latory view, the incorporation reaches all the statutes in force at the time when
the cause of action accrued.164
(c) Interjurisdictional liability
As the example of federal tort liability shows, incorporation by reference

can apply across jurisdictions. If a federal statute that binds the federal Crown
incorporates by reference a provincial statute, then the provincial statute will bind
the Crown. It does not matter that the provincial statute does not purport to bind
the federal Crown, and probably could not constitutionally do so; the provincial
statute becomes part of the federal statute and derives its force from the federal
statute.165
15.11 Provincial Crown as defendant
(a) Rights-of-the-parties provision
The Crown proceedings statute of most Canadian provinces166 includes a

section that provides that:
164 Text accompanying note 190, below.

165 E.g., The King v. Murphy [1948] S.C.R. 357 (federal Crown bound by provincial contributory
negligence statute, imposing liability that did not exist at common law); Investor’s Group Trust
Co., note 158, above (Federal Crown bound by exemption from seizure provisions in three
provincial statutes).
166 B.C., s. 11; Alta., s. 16; Sask., s. 17; Man., s. 14; Ont., s. 13; N.B., s. 14; P.E.I., s. 13; Nfld., s.
14.
Nova Scotia’s provision, s. 16, also omits reference to the rights of the parties:
Subject to this Act, in proceedings against the Crown the court may make any order, including
an order as to costs, that it may make in proceedings between persons, and may otherwise give
the relief that the case requires.
Quebec’s provision, Code of Civil Procedure, s. 94 (amended in 1992), omits reference to the
rights of the parties:
Any person having a recourse to exercise against the government may exercise it in the same
manner as if it were a recourse against a person of full age and capacity, subject only to the
provisions of this chapter.
The Civil Code of Quebec now contains a provision that allows the rules contained in the Book
on Obligations to be applied to “the State and its bodies”, “subject to any other rules of law
which may be applicable to them”: see art. 1376. This provision might be taken to support an
argument that provisions not included in this Book do not apply to “the State”. However, the
429
15.11(b) STATUTES
. . . in proceedings against the Crown, the rights of the parties are as nearly as possible
the same as in a suit between person and person . . .
The only Canadian jurisdiction that lacks this provision is the federal jurisdiction.
The provision is an Australian invention, having existed for a long time in the
Australian federal jurisdiction and currently enacted in all Australian states and
territories.167 New Zealand’s Crown proceedings statute contains a provision to
the same effect, although there is no direct reference to the rights of the parties.168
The provision does not exist (in this form) in the United Kingdom.
(b) Procedural rights
The most obvious effect of these rights-of-the-parties provisions is to make

the procedure in proceedings against the Crown the same as in a suit between
person and person.169 Each rights-of-the-parties provision is expressly subject to
other provisions of the Crown proceedings statute, and it is in those other provi-
sions that we find the immunity from injunction and specific performance that
exists in all Canadian provinces. In the absence of any specific provision to the
contrary, the rights-of-the-parties provision would make the full range of remedies
available “in proceedings against the Crown”.
(c) Substantive rights
Do “the rights-of-the-parties” provisions extend beyond procedural rights to

substantive rights? The answer that has been given by the highest courts in Canada
and Australia is yes.
In Canadian Industrial Gas & Oil v. Government of Saskatchewan (1978)170
(hereafter the CIGOL case), the question was whether the Crown in right of
Saskatchewan was liable to pay an award of prejudgment interest that had been
added to damages awarded by the trial judge against the Crown. The Crown relied
on the “settled jurisprudence that interest may not be allowed against the Crown,
unless there is a contract or statute providing for it”.171 There was a statute
better view is that this provision was merely inserted out of an abundance of caution, and thus
should not be read to suggest that other provisions do not bind “the State”. See Côté, note 2,
above, 214.
(Full references to the Crown proceedings statutes of each jurisdiction are given in ch. 2,
“Remedies”, note 1, above.)
167 Cth., s. 64; N.S.W., s. 5(2); Qd., s. 9; S.A., s. 5; Tas., s. 5; Vic., s. 25; W.A., s. 5; A.C.T., s.
21(1); N.T., s. 5. (Full references to the Crown proceedings statutes of each jurisdiction are
given in ch. 2, Remedies, note 1, above.)
168 N.Z., s. 6. (Full reference to the statute is in ch. 2, Remedies, note 1, above.)
169 Jamieson v. Downie [1923] A.C. 691 (P.C., N.S.W.) (Crown subject to discovery).
170 [1979] 1 S.C.R. 37.
171 Id., 38, quoting from The King v. Carroll [1948] S.C.R. 126, 132.
430
PROVINCIAL CROWN AS DEFENDANT 15.11(c)
providing for the payment of prejudgment interest on damages awards, but the
statute did not bind the Crown by express words or necessary implication. Nev-
ertheless, the Supreme Court of Canada held that the interest statute was binding
on the Crown by virtue of the rights-of-the-parties section in the Saskatchewan
Crown proceedings statute. In the earlier proceedings against the Crown, the
rights of the parties were to be “as nearly as possible the same as in a suit between
person and person”. Since the successful plaintiff in a suit against a private
defendant would be entitled to interest, it followed that the successful plaintiff in
this case was entitled to interest from the Crown. The right to payment of interest
was of course a substantive and not a procedural right. The Court rejected the
Crown’s argument that the rights-of-the-parties provision was confined to pro-
cedural rights, holding that substantive rights were also included.172 The same
interpretation has been given to the Australian provisions by the Privy Council
and High Court of Australia.173
The effect of the CIGOL case and its Australian counterparts is to treat the
rights-of-the-parties provision as an incorporation by reference of all statutes that
would affect the rights of the parties in a suit between private litigants. It does
not matter whether such statutes contain express words or a necessary implication
that the Crown is bound: in proceedings against the Crown, all relevant statutes
bind the Crown by virtue of their adoption by the Crown proceedings statute.174
172 Accord, Brophy v. N.S., note 158, above (Crown liable to pay pre-judgment interest by virtue
of s. 16 of the Crown proceedings statute (set out, note 166, above)).
173 Farnell v. Bowman (1887) 12 App. Cas. 643, 650 (P.C., Aust.) (tort liability); Maguire v.
Simpson (1977) 139 C.L.R. 362, 373, 377, 392, 400, 405, 407 (H.C., Aust.) (limitation provision
extinguishing cause of action). Cth. v. Evans Deakin Industries (1986) 161 C.L.R. 254 (H.C.,
Aust.) (Commonwealth bound by Queensland’s Sub-Contractors’ Charges Act 1974); British
American Tobacco Aust. v. W.A. (2003) 217 C.L.R. 30, paras. 74, 169 (H.C., Aust.) (refusing
to grant leave to re-open Macquire and Evans Deakin insofar as they hold that the federal
rights-of-the-parties provision, s. 64, operates to apply both procedural and substantive laws).
Note, however, that where a Commonwealth statute enacted subsequent to s. 64 of the Judiciary
Act 1903 evinces a specific intention that the statute not apply to the Crown, that intention will
prevail and the statute will not be incorporated through the operation of s. 64: see Bass v.
Permanent Trustee Co. (1999) 198 C.L.R. 334, paras. 28-32 (H.C., Aust.). See generally
Seddon, note 137, above, 188-194, for further discussion of the Australian position.
174 The effect of incorporation by reference was discussed in the previous section of this chapter:
see sec. 15.10, “Incorporation by reference”, above. There is an argument that, in those juris-
dictions with an Interpretation Act that provides that Acts do not bind the Crown absent express
language, the specific language of the Interpretation Act overrides the general language of the
rights-of-the-parties provision: see Seddon, note 137, above, 198. This argument has met with
little success: see, e.g., CIGOL, note 170, above (rights-of-the-parties provision in the Saskatch-
ewan Crown proceedings Act qualifies the Saskatchewan Interpretation Act); and Mason v.
Ont. (1998) 39 O.R. (3d) 225, paras. 32-35 (C.A.), leave to appeal to S.C.C. denied (1999) 236
N.R. 397 (note) (S.C.C.) (Ontario provision opening the Crown to liability in tort and Ontario
rights-of-the-parties provision qualify the Ontario Interpretation Act). Note, however, that in
Queensland, South Australia, and Tasmania, there is a provision in the Crown proceedings Act
that may have the effect of nullifying the operation of the rights-of-the-parties provision, to the
extent that it may bind the Crown to otherwise inapplicable legislation: see Qd., s. 9(3) (pro-
431
15.11(d) STATUTES
As Aronson and Whitmore have commented, “a great inroad has been made upon
the shield of the Crown”.175
(d) Ambulatory effect
Does the “rights-of-the-parties” provision have a static effect, adopting only

those laws in force at the time when the Crown proceedings statute was first
viding that the section containing the rights-of-the-parties provision “does not require the Crown
to comply with a provision (other than a procedural provision) of an Act or law that does not
otherwise bind the Crown”); S.A., s. 6(2) (similar to Queensland); and Tas., s. 6(2) (providing
that “[t]his Act does not affect the application of [the relevant section of the Acts Interpretation
Act 1931 (Tas.)]”). If this is the case, the effect would be particularly pronounced in Queensland
and Tasmania, which have not, unlike South Australia, reversed the presumption. There are
similar provisions in Canada, Prince Edward Island and New Zealand: see Can., s. 33; P.E.I.,
s. 20; and N.Z., s. 5(1). However, as in South Australia, Prince Edward Island has reversed the
presumption; and in Canada and New Zealand, the provisions arguably preserve the operation
of the rights-of-the-parties provision, by including language that provides that the provision is
subject to the other provisions of the Act. There are no similar provisions in the other Canadian
jurisdictions, and indeed, a number of provincial Crown proceedings Acts explicitly override
the provincial Interpretation Act, in the section opening the Crown to liability in tort: see Alta.,
s. 5(1); Sask., s. 5(1); Nfld., s. 5(1); Man., s. 4(1); and Ont., s. 5(1). (Full references to the
Crown proceedings statutes of each jurisdiction are given in ch. 2, “Remedies”, note 1, above.)
175 Aronson and Whitmore, Public Torts and Contracts (1982), 16. Note, however, that Australian
courts have accepted various limitations on the operation of the federal rights-of-the-parties
provision (s. 64). First, it has been accepted that s. 64 can be displaced by subsequent Com-
monwealth legislation. Thus, s. 64 does not operate to apply subsequent Commonwealth
legislation, if that legislation manifests a specific intention that it does not apply: see Bass v.
Permanent Trustee, note 173, above, 351-352 (H.C., Aust.) (s. 64 did not apply the Trade
Practices Act (Cth.) to the state of New South Wales, because the Act manifested a specific
intent that it was to bind only the Commonwealth). Second, it has been accepted that s. 64 is
inapplicable, if conditions or restrictions placed on the operation of the legislation are not
satisfied: see Austral Pacific Group v. Airservices Aust. (2000) 203 C.L.R. 136, 148-149, 159,
170 (H.C., Aust.) (Airservices, a Cth. corporation, not liable for third party contributions under
Queensland legislation, because statutory restrictions placed on the award of third party con-
tributions under Commonwealth legislation had not been satisfied). Third, it has been accepted
that s. 64 is inapplicable, if there is no “suit between subject and subject”: see, e.g., Re Residential
Tenancies Tribunal of N.S.W. and Henderson; Ex parte Defence Housing Authority (1997) 190
C.L.R. 140 (H.C., Aust.) (action against the Commonwealth Defence Housing Authority in the
New South Wales residential tenancies tribunal not a “suit”, but Commonwealth could be
bound directly by state legislation); Cth. v. W.A. (1999) 196 C.L.R. 392 (H.C., Aust.) (state
mining legislation did not apply to the Commonwealth, either because an application for
exploration licences under Western Australia mining legislation was not a “suit” (paras. 48-49,
135-137), or because the issue to be decided had no parallel in a “suit between subject and
subject” (paras. 134, 248; see also para. 165)). See further G. Hill, “Private Law Actions Against
the Government – Part II” (2006) 29(3) U.N.S.W.L.J. 1, 11-16. The first two limitations may
be accepted by Canadian courts (although the first, taken to an extreme, would largely nullify
the rights-of-the-parties provisions in this respect); but the third limitation is informed by issues
of Australian constitutional law, and should, for that reason, be approached with significant
caution.
432
PROVINCIAL CROWN AS DEFENDANT 15.11(e)
enacted, or does the provision have an ambulatory effect applying to the state of
the law as it changes over time? The static interpretation would produce the
bizarre result that in proceedings against the Crown the rights of the parties would
be determined by a body of law frozen at the time when the Crown proceedings
statute was first enacted: statutes that had been repealed or amended would have
to be dusted off and applied to the proceedings. The inevitable result would be
that the rights of the parties would not be “the same as in a suit between person
and person”. The ambulatory interpretation is required in order to assimilate the
Crown to a private litigant, which is plainly the purpose of the rights-of-the-
parties provision.
In the CIGOL case176 there was no discussion of the choice between a static
and an ambulatory incorporation. However, it is quite clear that the Court assumed
that the incorporation was ambulatory, because there was no examination of the
chronological order of enactment of the incorporating (rights-of-the-parties) stat-
ute and the incorporated (interest) statute.177 The order of enactment would be
crucial on the static interpretation, but in most cases will be irrelevant on the
ambulatory interpretation. In Australia, the High Court of Australia has considered
the issue and has interpreted the rights-of-the-parties provision as having ambu-
latory effect.178 This is clearly correct.179
(e) “As nearly as possible”
The standard rights-of-the-parties provision stipulates that in proceedings

against the Crown, the rights of the parties are to be “as nearly as possible” the

177 At the time of the litigation, both statutes were contained in the latest Saskatchewan consoli-
dation. Of course, under the static interpretation, it would be the dates of original enactment
that would be decisive. The interest provision was enacted earlier than the Crown Proceedings
Act, which was first enacted in 1952, so that the Court did not have to determine the issue.
178 Maguire v. Simpson, note 173, above (s. 64 of the Judiciary Act 1903 made later limitation
statute applicable to the Crown); Evans Deakin Industries, note 173, above (s. 64 of the Judiciary
Act 1903 made Queensland’s Sub-Contractors’ Charges Act 1974 applicable to the Crown in
right of the Commonwealth). Note, however, that the order of enactment is relevant if a
Commonwealth statute evinces an intention that it not apply. In such a situation, it becomes
relevant whether the statute was enacted after the Judiciary Act 1903 (in which case it will be
interpreted as impliedly repealing the latter), with the result that the statute will not apply: see
Bass v. Permanent Trustee, note 173, above.
179 Note, however, Crown Proceedings Act (S.A.), s. 6(2), which provides that the Act does not
make binding on the Crown any Act or statutory provision that would not, apart from this Act,
be binding on the Crown. This provision probably has the effect of preserving the operation of
s. 20 of the Acts Interpretation Act 1915 (S.A.). That provision reverses the common law
presumption, but restricts this change to legislation enacted after the provision.
433
15.11(e) STATUTES
same as in a suit between person and person.180 What is the effect of the phrase
“as nearly as possible”? It is probable that the phrase means no more than that
the rights of the parties must be modified to the extent necessary to make them
applicable to the Crown. In this view, the phrase “as nearly as possible” serves
the same function as the phrase mutatis mutandis (the necessary changes being
made).
Aronson and Whitmore have suggested that the phrase serves a second
function as well, enabling the courts to modify the law in its application to the
Crown where it is inappropriate to hold the Crown to the same law as private
parties.181 The trouble with this view, at least in its application to statute law, is
that it cedes a large discretion to the courts without providing any guidance as to
when the special position of the Crown demands special treatment, or how far
statutes can be modified to accommodate the special needs of the Crown. We
would expect a judicial power of this order to be more clearly conferred and to
be accompanied by guidelines of some kind as to its exercise. It seems more likely
that the little phrase “as nearly as possible” has only the limited effect suggested
in the previous paragraph. Certainly, no court has yet taken upon itself the radical
task of reconstructing applicable statute law so as to better suit the needs of the
Crown.182
180 Some provisions do not use the words “as nearly as possible”. One competing formulation uses
the word “same” in place of the words “as nearly as possible”: see, e.g., Que., s. 94; A.C.T., s.
21(1); N.T., s. 5(1); Tas., s. 5(1); S.A., s. 5(1); and W.A., s. 5(1). The jurisdictions that use this
formulation have arguably avoided any debate about the effect of the words “as nearly as
possible”, making it clear that the “same” procedural and substantive law is to apply in pro-
ceedings involving the Crown and private parties: see Seddon, note 137, above, 178-181, who
canvasses the possible effect of these different formulations. (Full references to the Crown
proceedings statutes of each jurisdiction are given in ch. 2, “Remedies”, note 1, above.)
181 Aronson and Whitmore, note 175, above, 9-12; see also Seddon, note 137, above, 185-188,
canvassing the different interpretations from an Australian perspective.
182 In Deputy Commr. of Taxation v. Moorebank (1988) 165 C.L.R. 55 (H.C., Aust.), the High
Court left open (647) the question whether the rights-of-the-parties provision would be “inef-
fective to apply the provisions of State laws in circumstances where their application would
interfere with the discharge of an essentially governmental function such as the collection of
taxes”. However, in Cth. v. W.A., note 175, above, Gummow J. appeared to embrace this line
of reasoning; the federal rights-of-the-parties provision (s. 64) did not, he said, apply state
mining legislation to land acquired by the Commonwealth for defence purposes, because the
Commonwealth was performing a “function peculiar to government” (para. 134). The other
members of the High Court did not go this far, but Hayne J. did say that the state Act could not
apply, because this would be to “create rights and obligations that . . . would not be recognised
or enforced in any proceeding between subject and subject” (para. 248; see also para. 165).
This seems to suggest that s. 64 does not apply to incorporate regulatory statutes (here, state
legislation establishing a regime for the granting of mining exploration licences), and will only
apply to incorporate statutes that would typically apply in civil disputes between private citizens
(e.g., in tort, contract, etc.). Compare British American Tobacco, note 173, above, rejecting an
argument that the words “as nearly as possible” took account of the peculiar government interest
in the protection of public revenue when it is sought to recover amounts paid on account of an
invalid tax (paras. 78-84, 172).
434
FEDERAL CROWN AS DEFENDANT 15.12(c)
15.12 Federal Crown as defendant
(a) Absence of rights-of-the-parties provision
The federal Crown Liability and Proceedings Act, unlike all of the Canadian
Crown proceedings statutes, does not contain the provision stipulating that in
proceedings against the Crown the rights of the parties are as nearly as possible
the same as in a suit between private parties. This is in contrast with Australia,
where the federal Judiciary Act 1903 does contain a rights-of-the-parties provi-
sion, which has the effect of subjecting the Commonwealth to state laws that
could not otherwise apply to the Commonwealth.183
(b) Proceedings in contract
The absence of a rights-of-the-parties provision in Canada’s federal Crown

Liability and Proceedings Act means that when the federal Crown is sued in
contract, the applicable law is the common law184 as modified by any federal
statutes that apply to the federal Crown by express words or necessary implica-
tion.185 (Provincial statutes would normally be inapplicable, because the provin-
cial Legislature probably has no power over the federal Crown.)186 In addition,
any statutes that are expressly or impliedly incorporated into the terms of the
contract will also be binding on the Crown.187
(c) Proceedings in tort
When the federal Crown is sued in tort, the absence of a rights-of-the-parties

provision is less significant. The federal Crown Liability and Proceedings Act
183 See Aronson and Whitmore, note 175, above, 13-20; Seddon, note 137, above, 188-193. There
is an unresolved issue about the extent to which s. 64 can operate in relation to the states, as
opposed to the Commonwealth: see Hill, note 175, above, 23-26; Seddon, note 137, above,
218-220.
184 The Civil Code and Code of Civil Procedure of Quebec play a role comparable to the common
law for this purpose: Exchange Bank v. The Queen (1886) 11 A.C. 157, 173 (P.C., Can.) (federal
Crown bound by Codes). In Palmer v. The King [1951] Ex. C.R. 348, 359, aff’d [1959] S.C.R.
401, Thorson P. said, in obiter, that the Civil Code of Quebec did not apply to the federal Crown
so as to define the federal Crown’s obligations as a landlord of property in Quebec. This must
surely be wrong. Some body of law must define the obligations of the Federal Crown when it
is a landlord, and in Quebec that law can only be the Civil Code: see text accompanying note
2, above. In Australia, the question of what law applies to “Commonwealth places” is addressed
by the Commonwealth Places (Application of Laws) Act 1970. That Act provides, with certain
exceptions, that state law applies: see sec. 4(1).
185 For a full account of the case law, see McNairn, note 6, above, 95-106.
186 Note 3, above.
187 See sec. 15.8, “Implied term of contract”, above.
435
15.12(c) STATUTES
and predecessor statutes imposing liability in tort on the federal Crown have been
interpreted as incorporating by reference the law of torts of the province in which
the cause of action arose.188 This incorporation makes applicable to the federal
Crown not only the common law in the common law provinces and the Civil
Code and Code of Civil Procedure in Quebec, but also provincial statutes creating
or modifying tortious or delictual liability. A provincial statute could not of its
own force regulate the tortious liability of the federal Crown (as opposed to the
provincial Crown). But this constitutional infirmity is cured by regarding the
provincial statute as incorporated by reference into the federal statute imposing
liability. In The King v. Murphy (1948),189 for example, it was held that the federal
Crown was subject to Ontario’s contributory negligence statute, which imposed
a liability for negligence that did not exist at common law (when the plaintiff was
contributorily negligent). The federal Crown was subject to this new liability
because the Ontario statute was impliedly incorporated into federal law.
Courts have generally assumed that a federal statute imposing liability in
tort on the federal Crown incorporates or adopts only those provincial statutes in
existence at the time that the federal statute was enacted.190 On this theory,
provincial statutes enacted later than the federal statute would not be incorporated.
This means that in proceedings against the federal Crown, the applicable provin-
cial law would be frozen as of the date when liability was first imposed on the
federal Crown.191 This static interpretation would be quite different from that
given to the rights-of-the-parties provisions, which have been given ambulatory
effect by the courts.192 The static interpretation also seems contrary to the language
of the Crown Liability and Proceedings Act, which, by section 3(1), expressly
seeks to assimilate the liability of the Crown to that of “a private person of full
age and capacity”. Surely, the better view is that this provision incorporates all
provincial laws in force at the time when the cause of action arose.193 This involves
treating the incorporation as ambulatory, picking up and applying to the federal
Crown the laws in force in a province as they change from time to time.
188 See D. Gibson, “Interjurisdictional Immunity in Canadian Federalism” (1969) 47 Can. Bar Rev.
40, 46-49; McNairn, note 6, above, 54-69.
189 [1948] S.C.R. 357.
190 The King v. Lapierrière [1946] S.C.R. 415, 447; The King v. Murphy, note 165, above, 361;
Lamoureux v. A.-G. Can. [1964] Ex. C.R. 641, 648. Compare, The Queen v. Nord-Deutsche
[1971] S.C.R. 849, 886; Stuart v. Can. [1989] 2 F.C. 3 (T.D.) (federal Crown bound by Alberta’s
Occupier’s Liability Act even though it was enacted after the Crown Liability Act).
191 The determination of that date is not necessarily easy, since the federal Crown became liable
in tort in three stages – in 1887, 1938 and 1951. See Gibson, note 188, above, 48-49.
192 See text accompanying notes 176-178, above.
193 This was the view of Pigeon J. in the Nord-Deutsche case, note 190, above; the other judges
did not need to address the issue. This was also the view of Reed J. in Stuart v. Can., note 190,
above, a view followed by Martin J. in Ball v. Can. (1989) 29 F.T.R. 182 (F.C.T.D.); and by
Rothstein J. (as he then was) in Hood v. Can. (1998) 162 F.T.R. 167 (F.C.T.D.). Both Gibson,
note 188, above, and McNairn, note 6, above, prefer this view.
436
CROWN AS PLAINTIFF 15.13
It could be argued that the federal Crown ought not to be exposed to the risk
of new tortious (or delictual) liabilities as the result of changes in provincial
statutes, which are outside the control of the federal Parliament. But any new
liabilities would be common to everyone in the province: a province cannot
legislate specially for the federal Crown. Moreover, it is always open to the federal
Parliament to act, either by defining the regime of liability that is to apply to the
federal Crown, or by stipulating which provincial laws are or are not to apply to
the federal Crown.194 As long as the matter is left at large, the liability in tort195
of the federal Crown should be determined by all the laws of the provinces,
whether common law or statute law, and in the case of statute law, whenever
enacted.196
15.13 Crown as plaintiff
An earlier section of this chapter197 examined the section of the Crown

proceedings statutes that provides that, in proceedings against the Crown, the
rights of the parties are to be as nearly as possible the same as in a suit between
person and person. We noticed that the effect of this section was to subject the
Crown to relevant statute law, thereby displacing the Crown’s immunity. This
section applies only to proceedings against the Crown.198 When the Crown is the
194 There is no doubt as to the authority of the federal Parliament to legislate rules of liability for
the federal Crown, although the precise source of the authority remains obscure: see Mundell,
“Remedies against the Crown” in Law Society of Upper Canada, Remedies, Special Lectures
1961, 149, 154.
195 The argument based on incorporation by reference works only for those cases caught by the
language of s. 3 (the tort liability section) of the Crown Liability and Proceedings Act. That
subsection is not a comprehensive imposition of liability in tort, and it has been interpreted
narrowly by the courts, who have excluded liability under provincial statutes that do not fit
squarely within the language of s. 3: The Queen v. Breton [1967] S.C.R. 503 (no liability for
failure to maintain sidewalk in front of Crown property); Domestic Converters v. Arctic Steam-
ship Line [1984] 1 F.C. 211 (C.A.) (no liability for injury caused by a person who was not a
servant of the Crown). These cases are criticized in ch. 6, Tort: General Principles, above.
196 The Australian Law Reform Commission recommended that the Judiciary Act 1903 be amended
to provide that the Commonwealth is bound by every state and territory Act, unless: (a) a
Commonwealth regulation (not statute) expressly provides otherwise; (b) the Act does not bind
the state or territory itself; or (c) the Act is expressly stated not to bind the Commonwealth: see
The Judicial Power of the Commonwealth, note 51, above, rec. 28-1–28-2. This recommen-
dation has not been implemented.
197 Section 15.11, “Provincial Crown as defendant”, above.
198 This is true in all provinces except British Columbia, where the provision applies whenever the
Crown is a party to proceedings. The British Columbia version follows the Australian models.
In Australia, only New South Wales confines its provision to proceedings against the Crown.
Note that an issue of Crown immunity from statute can arise in a proceeding to which the
Crown is not a party, where a private litigant claims to share the Crown’s immunity: see text
under sec. 15.15, “Crown agents and servants”, below. In such a proceeding, no rights-of-the-
parties provision would be applicable. Nor is the provision applicable in criminal proceedings.
437
15.13 STATUTES
plaintiff, to what extent is the Crown bound by the law of the province in which
the cause of action arose?
The obvious answer to the question would seem to be that the Crown is
bound by the common law,199 but is entitled to assert immunity from those statutes
that do not bind the Crown by express words or necessary implication.200 This is
the answer that has been given in some cases, for example, those in which the
Crown as plaintiff has been held to be exempt from statutes of limitation.201 But
the dominant line of authority has denied to the Crown as plaintiff the benefit of
the presumption of immunity from statute.202
In The Queen v. Murray (1967),203 the Supreme Court of Canada held that
the federal Crown, suing in the Exchequer Court for the loss of the services of a
member of the armed forces, was bound by the contributory negligence statute
of Manitoba (where the cause of action arose); the statute reduced the damages
recoverable by the Crown. The Court said that in a proceeding by the Crown the
rights of the parties “can only be determined by the law in force at the time and
the place when and where the injury to the servant occurred”.204
Murray could be treated as a burden-linked-with-benefit case, in that the
Crown’s right to sue depended upon provincial statute law abolishing contributory
negligence as a complete defence.205 Therefore, it could be argued, the Crown is
bound by the provincial statute law imposing restrictions on the new right of
action.206 But this explanation will not do for the earlier case of Gartland Steam-
199 Notes 1 and 2, above.

200 In British Columbia and Prince Edward Island, the presumption of Crown immunity has been
reversed: see notes 69-73, above; so no issue of immunity of the provincial Crown arises in
those provinces. The federal Crown would still be able to assert immunity, however.
201 R. v. Rutherford (1927) 60 O.L.R. 654 (A.D.) (Crown appellant); The King v. Richardson
[1948] S.C.R. 57 (Crown plaintiff); A.-G. Ont. v. Watkins (1975) 8 O.R. (2d) 513 (C.A.) (Crown
plaintiff); Alberta Home Mortgage Corp. v. Castleridge Apartments Ltd. (1994) 115 D.L.R.
(4th) 1 (Alta. C.A.), leave to appeal refused (1994) 116 D.L.R. (4th) vii (S.C.C.) (Crown as
plaintiff not bound by a regulation imposing a time limit for taking action); Hupe v. Man.
(2009) 307 D.L.R. (4th) 619 (Man. C.A.) (Director of Residential Tenancies Branch). Compare
Markevich v. Can. [2003] 1 S.C.R. 94 (Crown statute-barred from collecting federal and
provincial tax, by virtue of s. 32 of the Federal Crown Liability and Proceedings Act). Another
example is discovery: at common law, the Crown was entitled to resist discovery even when
the Crown was the plaintiff: see ch. 4, Procedure under heading 4.2, “Discovery”, above.
202 McNairn, note 6, above, 80-86; Laskin, The British Tradition in Canadian Law (1969), 126.
203 [1967] S.C.R. 262.
204 Id., 268.
205 The burden-linked-with-benefit explanation of the case was criticized by Katherine Swinton:
see “Federalism and Provincial Governmental Immunity” (1979) 29 U. Toronto L.J. 1, fn. 39.
206 Murray was explained as a burden-linked-with-benefit case on a different (and in our view a
less plausible) ground in Sparling v. Caisse de dépôt et placement du Québec [1988] 2 S.C.R.
1015; see also Alta. Govt. Telephones v. Can. [1989] 2 S.C.R. 225, 236-237. This led the Alberta
Law Reform Institute, in its criticism of various Alberta Court of Appeal decisions (see note
210, below), to suggest that the “Crown as litigant” exception “does not exist”: Alta. Law
Reform Institute, The Presumption of Crown Immunity (Report No. 71, 1994).
438
CROWN AS PLAINTIFF 15.13
ship Co. v. The Queen (1960),207 where the Supreme Court of Canada held that
the federal Crown was entitled to recover for damage done by a ship to a Crown-
owned bridge, but the Court applied limits on liability contained in the Canada
Shipping Act (which did not contain express words or a necessary implication
binding the Crown). It is important to note that the federal Crown was not invoking
any provision of the Canada Shipping Act in order to sue the defendant: the
Crown’s case rested on the common law of negligence. But the Canada Shipping
Act was still held to be effective to limit the Crown’s right of recovery. The Court
said that the presumption of Crown immunity from statute “does not mean that
the extent of the liability of a subject may be extended in a case of a claim by the
Crown beyond the limit of the liability effectively declared by law”.208 In a similar
case, where the plaintiff was the Crown in right of British Columbia (not the
Crown in right of Canada, as in Gartland), the Supreme Court of Canada followed
Gartland to apply the Canada Shipping Act to the provincial Crown.209
This line of cases in the Supreme Court of Canada subjects the Crown as
plaintiff to the same body of law, statutory as well as common law, as a private
plaintiff.210 The theory by which this is accomplished is not entirely clear. Incor-
poration by reference is not the answer, because there is no rights-of-the-parties
provision or other statute governing proceedings by the Crown that could be
regarded as adopting relevant statute law. Rather, the idea seems to be that the
Crown as plaintiff takes its cause of action as it finds it. This may be seen as an
extension of the burden-linked-with-benefit theory: by invoking the right to sue,
the Crown becomes bound by the same restrictions on that right as would apply
to any other plaintiff.211 As argued above, this explanation is not entirely satisfac-
207 [1960] S.C.R. 315.

208 Id., 345, per Locke J, dissenting on another point, but writing for the unanimous Court on this
point.
209 B.C. Telephone Co. v. Marpole Towing [1971] S.C.R. 321.
210 Alta. Mtge & Housing Corp. v. Ciereszko (1987) 36 D.L.R. (4th) 666 (Alta. C.A.), amended
on other grounds (1987) 43 D.L.R. (4th) 319 (Alta. C.A.), leave to appeal refused (1987) 51
Alta. L.R. (2d) xli (S.C.C.) (Crown as plaintiff bound by provincial law restricting enforcement
of mortgage); Farm Credit Corp. v. Holowach (Trustee of) (1988) 51 D.L.R. (4th) 501 (Alta.
C.A.), leave to appeal refused (1989) 60 D.L.R. (4th) vii (reaffirming Ciereszko decision);
Canadian Commercial Bank v. Belkin (1990) 73 D.L.R. (4th) 678, 685 (Alta. C.A.) (as any
litigant, the Crown “takes the forum with its practice and procedure”).
211 This was the explanation adopted by the Alberta Court of Appeal in Agriculture Financial
Services Corp. v. Redmond (1999) 174 D.L.R. (4th) 694 (Alta. C.A.) (questioning whether the
“Crown as litigant” exception has been subsumed in the benefit/burden exception, but noting
that “[i]n cases such as Murray, the very act of a lawsuit by the Crown engaged it in seeking
to take advantage of legislative provisions. It was therefore obliged to accept the limitations
imposed by that legislation” (para. 67)). Notably, however, the Court of Appeal applied the
nexus test applied by the Supreme Court in Sparling: see sec. 15.7(d), “Burden linked with
benefit”, above.
439
15.14 STATUTES
tory.212 But the decisions, taken at their face value, carve another broad exception
out of the presumption of Crown immunity from statute.
15.14 Criminal liability
(a) Strict liability offences
The question of the extent to which the Crown is liable under the criminal
law has not often arisen for decision. One reason of course is that the Crown can
act only through its servants and agents, and vicarious liability is rare in the
criminal law.213 Another reason no doubt is that the servants and agents of the
Crown seldom commit criminal offences in the course of their employment. For
these reasons, the Crown is unlikely ever to be indicted for the traditional type of
offence, such as murder, assault or theft.214 But the statute books now contain a
vast number of public welfare measures that are supported by penal sanctions. A
statute that regulates occupational health and safety, the cleanliness of the envi-
ronment, the purity of food and drugs, the quality of manufactured products,
building standards, rent control, or pursues any other public purpose, will make
the breach of its rules an offence. Liability for these “public welfare offences” (or
“regulatory offences”) is often strict, so that the factory owner, manufacturer,
builder or landlord may be criminally liable for the acts of a servant.215 The
expansion of governmental activity has made the Crown a factory owner, man-
ufacturer, builder, landlord and many other things besides. Has the Crown also
become liable to be convicted of a criminal offence216 when one of its servants
fails to comply with a statutory requirement?217 Of course, the answer must be no
if the statute imposing the requirement does not bind the Crown. But what if the
statute does bind the Crown?
There is a lonely Australian judicial opinion that denies the possibility that
the Crown could be guilty of a criminal offence. That is the opinion of Latham
212 This explanation of Gartland has been criticized by the High Court of Australia: note 121,
above.
213 But see the discussion of The Truculent, accompanying note 232, below.
214 Another reason is that the penalties for the more serious offences are inappropriate to the Crown.
215 For analysis of strict liability for public welfare offences, see The Queen v. Sault Ste. Marie
[1978] 2 S.C.R. 1299, 1309-1326.
216 In Canadian usage, the description “criminal” is often confined to offences created by the
federal Parliament, because in Canada (unlike Australia and the United States) the power to
enact “criminal law” is a federal responsibility. In the present context no such distinction need
be drawn, and the description “criminal” is apt to cover provincial penal measures as well as
federal.
217 See generally W. Friedmann, “Public Welfare Offences, Statutory Duties, and the Legal Status
of the Crown” (1950) 13 Mod. L. Rev. 24; McNairn, note 6, above, 87-91; M. Sunkin, “Crown
immunity from criminal law liability in English law” (2003) Public Law 716; D. Fairgrieve,
“Reforming Crown Immunity” (2003) Public Law 730.
440
CRIMINAL LIABILITY 15.14(a)
C.J. in Cain v. Doyle (1946),218 a case that will be more fully described later in
this section of the text. The reasons that Latham C.J. offers are not convincing.
His first point is that “the King can do no wrong”, and it would be incongruous
to hold the Crown liable for a criminal offence. But these ideas (which are in any
case dubious) are surely subject to legislative change. Tort liability has been
imposed on the Crown by legislation. Why not criminal liability? Latham C.J.
answers that, whereas the Crown can pay damages, the Crown cannot be impris-
oned. This is true, and if the only penalty for a criminal offence were imprison-
ment, it may make little sense to find the Crown guilty of the offence. But where
a fine is an alternative penalty, or the only penalty, then the provision could apply
to the Crown, just as it could apply to a corporation (which also cannot be
imprisoned). Latham C.J. anticipates this point by asserting that the Crown cannot
be fined because “there would be no reason in a provision that the Commonwealth
shall pay a fine to itself”.219 But there might be reason in the public condemnation
associated with the imposition of a fine.220 Nor is the exercise of payment nec-
essarily self-defeating. The reality of the Crown paying a fine to itself is that one
department of government, with its own appropriation of funds, accounts for the
fine to another government department. If the public accounts are to reflect the
costs and benefits of running each department, this seems an entirely proper
procedure.
Cain v. Doyle, in which Latham C.J. rendered his opinion, was a case in
which the manager of a federal government munitions factory was charged with
aiding or abetting the commission of an offence by the Commonwealth of Aus-
tralia. This raised the question whether the Crown in right of the Commonwealth
could commit an offence. There was no doubt that the Crown was bound by the
statute that created the offence (dismissing an employee without just cause),
because the statute bound the Crown by express words. Only Latham C.J. cate-
gorically rejected the possibility that the Crown could be guilty of a criminal
offence. The other four judges all acknowledged that apt language in a statute
could impose criminal liability on the Crown. Two of the judges held that this
statute had done so.221 But the other two held that, although the statute expressly
applied to the Crown, the language was not clear enough to indicate an intention
to impose criminal liability on the Crown; the penal provisions therefore should
be interpreted as “meant to apply to the subject and not to the Crown”.222 As
McNairn has commented, it seems “odd indeed that a single provision should
218 (1946) 72 C.L.R. 409 (H.C., Aust.). The reasoning on this point is at 417-418.
219 Id., 418.
220 Accord, CBC v. The Queen [1983] 1 S.C.R. 339, 354-355 (upholding the possibility of a fine
imposed on a Crown agent).
221 Note 218, above, 421 (Starke J.), 432 (Williams J.).
222 Id., 426 (Dixon J. with whom Rich J. agreed). These two judges combined with Latham C.J.
to create a majority for the position that this particular statute did not impose criminal liability
on the Crown.
441
15.14(a) STATUTES
apply in its directive aspect but not in its penal aspect to the Crown”.223 Not
surprisingly, this over-subtle distinction has not been employed in later cases.224
In Canadian Broadcasting Corporation v. Attorney General for Ontario
(1959),225 a Crown agent, the CBC, was prosecuted for an offence under the
Lord’s Day Act, namely, broadcasting on a Sunday. The Lord’s Day Act imposed
liability on any “person”. The Act adopted the definition of “person” in the
Criminal Code, and that definition expressly included the Crown. The Supreme
Court of Canada, comprising seven judges, held by a majority of four to three
that the CBC was not liable to be convicted under the Act. The four judges in the
majority reached this conclusion as a matter of statutory interpretation. The word
“person”, they held, included the Crown as the victim of a criminal offence, but
should not be read as including the Crown as the perpetrator of a criminal of-
fence.226 In order to render the Crown criminally liable, a more specific indication
than the incorporation by reference of a general definition of person was required.
But the majority judges clearly accepted that criminal liability could be imposed
by apt and specific words. The three judges in the minority held that this statute
had done so.
Neither Cain v. Doyle nor the CBC case resulted in a conviction, but the
cases do establish that the Crown may be made criminally liable by apt words in
a statute. This is now generally accepted as the position.227 Indeed, if a statute
223 McNairn, note 6, above, 89.

224 An exception is Southland Acclimatisation Society v. Anderson [1978] 1 N.Z.L.R. 838 (S.C.),
where the Crown was charged with an offence under the Soil Conservation Act, which bound
the Crown by express words. The Court, citing Cain v. Doyle, held that the express words were
not sufficient to make the Crown liable to a criminal penalty. The Court, at 843, in obiter,
suggested a further distinction as well: that the Crown, not being bound by the Summary
Proceedings Act, was not subject to the machinery of prosecution.
225 [1959] S.C.R. 188. The Court divided four to three. Rand and Locke JJ. delivered separate
concurring judgments; Cartwright and Fauteux JJ. agreed with Rand J. Taschereau J. delivered
the dissenting judgment; Abbott and Judson JJ. agreed with him.
226 Compare McGraw-Hinds v. Smith (1979) 144 C.L.R. 63 (H.C., Aust.); discussed in text accom-
panying note 111, above.
227 See CBC v. The Queen, note 220, above (Crown agent liable to prosecution when acting outside
its powers); R. v. Eldorado Nuclear [1983] 2 S.C.R. 551 (Crown agent immune from prosecution
only because statute did not bind Crown); Sask. v. Fenwick [1983] 3 W.W.R. 153 (Sask. Q.B.)
(Crown liable to prosecution); P.Q. Que. v. Nantel [1984] 9 Admin. L.R. 11 (Que. C.S.) (Crown
liable to prosecution); C.S.S.T. v. Que. (1985) 22 Admin. L.R. 147 (Que. C.S.) (Crown liable
to prosecution); Bropho v. W.A. (1990) 171 C.L.R. 1, 21 (H.C., Aust.) (general criminal statutes
applicable to Crown servants); R. v. Can. (Dept. of Nat. Def.) (1993) 125 N.S.R. (2d) 208
(N.S.C.A.) (“the state is not above the penal law nor immune from prosecution under it when
the binding intention of a statute is clear”). See also N.Z. Law Commn., To Bind Their King in
Chains (Study Paper 6, 2000), 10-12 (accepting that the Crown can be held criminally liable,
given sufficiently clear statutory language, but suggesting that it may be more appropriate to
adopt a civil process in which substantial pecuniary penalties could be imposed on the Crown,
as an alternative to criminal liability); and N.Z. Ministry of Justice, Report Required By Section
28 of the Interpretation Act 1999 (June 2001), para. 52 (noting that “[t]he position in New
442
CRIMINAL LIABILITY 15.14(b)
binds the Crown by express words, then it is safe to conclude that the Crown is
also subject to any penal sanctions (in the form of fines) in the statute.228 Very
few statutes bind the Crown by necessary implication, because of the narrow
definition of that concept in the Bombay case,229 and the presence of penal sanc-
tions would tell against any implication that the Crown was bound.230 But, given
an implication sufficiently strong to bind the Crown to a penal statute, then of
course the Crown would be criminally liable under the statute.231
(b) Mens rea offences
Accepting that a statute may by apt words make the Crown liable to be
convicted of a criminal offence, offences of strict liability raise no special diffi-
culty. If a statute makes a master criminally liable for the act of a servant, then
there is no reason why the Crown cannot be criminally liable for the act of one
of its servants (always assuming that the penal provision applies to the Crown).
But what about those offences in which mens rea on the part of the accused is an
essential ingredient?
Generally speaking, it is plain that an accused person cannot be criminally
liable for a mens rea offence unless the accused personally had the requisite state
of mind. But corporations have been held liable for such offences on the footing
that the state of mind of an official who is the “directing mind” of the corporation
Zealand is therefore, that the Crown may be criminally liable, but there must be very clear
words in legislation to that effect”).
228 Accord, McNairn, note 6, above, 90; but see note 224, above. See also Crown Organizations
(Criminal Liability) Act 2002 (N.Z.), enabling the prosecution of the Crown in New Zealand
for offences under three public welfare statutes.
229 See sec. 15.6, “Necessary implication”, above.
230 In Bropho v. W.A., note 227, above, at 23, the majority of the High Court noted that when
determining whether a statute should be construed in such a way as to render a state liable to
prosecution and conviction for a criminal offence, “the presumption against a legislative intent
to that effect would be extraordinarily strong”. See also Jacobsen v. Rogers (1995) 182 C.L.R.
572, 587 (H.C., Aust.) (possibility of Crown being criminally liable exists only in the most
exceptional circumstances); State Authorities Superannuation Bd. v. Commr. of State Taxation
for the State of W.A. (1996) 189 C.L.R. 253, 270, 277, 294 (H.C., Aust.) (Crown only criminally
liable in the most exceptional circumstances); Re Residential Tenancies Tribunal of N.S.W. and
Henderson; Ex parte Defence Housing Authority (1997) 190 C.L.R. 410, 427, 472 (H.C., Aust.)
(only the clearest language will be sufficient to subject the Crown to criminal liability); and
Telstra v. Worthing (1999) 197 C.L.R. 61, para. 22 (H.C., Aust.) (only the clearest language
will be sufficient to subject the Crown to criminal liability).
231 R. v. Can. (D.N.D.), note 227, above (allowing “the prosecution of Her Majesty in Right of
Canada by Her Majesty in right of Canada” for alleged violations of the Fisheries Act).
443
15.14(b) STATUTES
is attributable at law to the corporation itself. In The Truculent (1951),232 the Court
used the same doctrine to deny a claim by the Crown to limit its liability for the
loss of a merchant ship which had been sunk by a submarine. The limitation of
liability was allowed by the Merchant Shipping Act, 1894 only if the loss had
occurred without the “actual fault or privity” of the Crown. The Court held that
the loss had occurred with the “actual fault of privity” of the Third Sea Lord, that
he was the “directing mind” of the Admiralty, and that his fault was attributable
to the Crown itself.
The Truculent was a civil case, but it is obvious that the same reasoning
would be available in a criminal case where it was necessary to establish mens
rea on the part of the Crown. It would be necessary (1) to identify the government
department which is responsible for the activity in issue; (2) to identify a minister
or official of that department whose duties make it sensible to regard him or her
as the “directing mind” of the department with respect to the activity in issue; and
(3) to establish that the person who is the “directing mind” had the requisite state
of mind. The conclusion is that the criminal offences for which the Crown may
be liable include offences involving mens rea.233
232 [1952] P. 1. See also W.A. v. Watson [1990] W.A.R. 248 (W.A.S.C.) (the knowledge of any
minister of the Crown acquired as a minister constitutes knowledge of the State and, under the
directing mind doctrine, the State will have the knowledge of risk necessary for a finding of
negligence); and K.L.B. v. B.C. [2003] 2 S.C.R. 403 (British Columbia government directly
liable in negligence, although claim defeated by a limitations defence; direct negligence said
to turn “on the wrongful actions of those who can be treated as the principal organs” (para.
12)).
233 In Canada, the doctrine of identification has been used to impose criminal liability on corpo-
rations, where (for example) a fraud has been committed by a directing mind, as in Can. Dredge
& Dock Co. v. The Queen [1985] 1 S.C.R. 662; see also Rhône (The) v. Peter A.B. Widener
(The) [1993] 1 S.C.R. 497. For criminal-law purposes the doctrine of identification has been
expanded by the Criminal Code, ss. 22.1, 22.2, added in 2003, to attribute to an “organization”
the acts and mental states of a “senior officer”, a defined class much wider than the common-
law directing mind. It is not clear whether these provisions could be used to attribute criminal
liability to the Crown. The Crown is not explicitly included in the definition of “organization”,
although a “public body” (not defined) is included, and “Her Majesty” is included in the terms
“every one”, “person” and “owner.” Archibald, Jull and Roach, Regulatory and Corporate
Liability (2004, supplemented), sec. 5:40:20, tentatively suggest that the Crown would be
bound. In the United Kingdom, the position is significantly clearer, at least for certain offences.
The Corporate Manslaughter and Corporate Homicide Act 2007 (U.K.) establishes a criminal
offence of “corporate manslaughter” (for England and Wales and Northern Ireland) and “cor-
porate homicide” (for Scotland). The Act applies to various government departments and public
bodies listed in Schedule 1 to the Act (s. 1(2)(b)), as well as police forces (s. 1(2)(c)). The
effect, in essence, is to subject various government departments and public bodies to criminal
liability for causing death by gross negligence.
444
CROWN AGENTS AND SERVANTS 15.15(b)
15.15 Crown agents and servants

(a) Requirement of prejudice
If the Crown is not bound by a particular statute, whether by virtue of an

express exemption in the statute or by virtue of the presumption of immunity,
does the immunity extend beyond the Crown itself to Crown agents, Crown
servants, Crown contractors or others? The answer to this question turns on the
question whether the application of the statute to the person in question would
prejudice the Crown.234
(b) Crown agents
A Crown agent refers to those bodies, usually incorporated, that are either
declared by statute to be agents of the Crown or are controlled by a minister of
the Crown.235 The test of Crown prejudice has been applied to Crown agents in a
straightforward way. If the Crown agent is acting within its statutory purposes,
then the Crown agent is entitled to the same immunity as the Crown itself.236 On
this basis, the CBC has been held to be immune from a statute prohibiting
commercial activity on Sundays;237 Crown corporations engaged in the production
of uranium have been held to be immune from a statute prohibiting price-fixing;238
a Crown corporation operating a telephone system has been held to be immune
from a statute regulating telecommunications;239 and a Crown corporation en-
gaged in electricity generation and supply has been held to be immune from the
Income Tax Act.240 However, if the Crown agent is acting outside its statutory
purposes, the shield of the Crown is removed. For example, the CBC has been
234 It should be recalled that the presumption of Crown immunity applies only to statutes that
would apply to the prejudice of the Crown: see sec. 15.7, “Benefit of statutes”, above.
235 See ch. 16, Crown Agents, below, where the cases referred to in this paragraph are more fully
discussed.
236 There is no additional requirement to establish actual prejudice to the Crown before a Crown
agent will be entitled to enjoy a Crown immunity; in essence, prejudice seems to be assumed
from the simple fact that the Crown agent is acting within its statutory purposes. For discussion
of a proposal that would require proof of actual prejudice as well, see ch. 16, “Crown Agents”,
under heading 16.5, “Conclusion”, below.
237 CBC v. A.-G. Ont. [1959] S.C.R. 188.
238 R. v. Eldorado Nuclear [1983] 2 S.C.R. 551.
239 Alta. Govt. Telephones v. Can. [1989] 2 S.C.R. 225. The Court noted that if it were to accept
the argument that a provincial Crown agent lost its immunity solely on the basis of participation
in an area of federal jurisdiction, s. 16 [now s. 17] of the federal Interpretation Act would never
be applicable to the Crown in right of province. That would mean that general wording in a
federal statute would bind a provincial Crown agent acting in a federally-regulated area. The
case is discussed more fully in sec. 15.7(d), “Burden linked to benefit”, above.
240 Nova Scotia Power v. Can. [2004] 3 S.C.R. 53.
445
15.15(c) STATUTES
held to be bound by a statute prohibiting the exhibition of obscene films.241 The

exhibition of obscene films was held to be outside the statutory mandate of the
CBC, a holding that exposed the CBC to the same law as a private television
network. Similarly, RCMP officers have been held to be bound by the provisions
of the Narcotic Control Act prohibiting the trafficking and sale of cannabis.242
The trafficking and sale of cannabis as part of a reverse sting operation was held
to be contrary to the statutory mandate of the RCMP to act in accordance with
the law.243
(c) Crown servants
The test of Crown prejudice determines the extent to which a Crown servant
is entitled to share the immunity from statutes of the Crown. In Bank voor Handel
v. Administrator of Hungarian Property (1954),244 the question was whether an
official called the Custodian of Enemy Property was liable to pay income tax –
from which the Crown was admittedly immune – on the income of property held
by him. The House of Lords held that the Custodian was a Crown servant, and
that he enjoyed Crown immunity from the payment of income tax. But they made
clear that, if (contrary to the actual fact) the Custodian’s sole duty had been to
receive the income from the property held by him for the duration of the war and
then pay the income over to a private person, then the Crown itself would have
no interest in the income accruing, and tax would be payable on it. “That would
be”, said Lord Reid, “because in such a case payment of tax could not possibly
prejudice any Crown interest or purpose”.245
The courts have been properly cautious in extending to individual Crown
servants the Crown’s immunity from statute law.246 The mere fact that a Crown
servant is acting in the course of employment will not entitle the servant to the
Crown’s immunity. The Crown servant will be entitled to immunity only if it can
be established that compliance with the statute would prejudice the Crown. This
is illustrated by R. v. Stradiotto (1973),247 where a member of the Canadian armed
241 CBC v. The Queen, note 220, above.

242 R. v. Campbell [1999] 1 S.C.R. 565.
243 This was an alternative argument; the RCMP officers were held not to be agents of the Crown
when engaged in investigating and preventing crime, but it was also held that, even if RCMP
officers were agents of the Crown, they stepped outside the scope of their agency when they
engaged in otherwise illegal activities in investigating and preventing crime (paras. 37-39). See
now Controlled Drugs and Substances Act (Police Enforcement) Regulations, S.O.R./97-234,
enacted pursuant to the Controlled Drugs and Substances Act, S.C. 1996, c. 19, which legalizes
reverse sting operations in specified circumstances.
244 [1954] A.C. 584 (H.L.).
245 Id., 618.
246 See McNairn, note 6, above, 91-95; Commission of Inquiry concerning R.C.M.P., Second
Report, vol. 1, Freedom and Security under the Law (Government of Canada, 1981), 380-395.
247 [1973] 2 O.R. 375 (C.A.).
446
CROWN AGENTS AND SERVANTS 15.15(c)
forces was charged with careless driving, which was an offence under Ontario’s
Highway Traffic Act. The accused was driving an army truck in the course of his
duties. The Ontario Court of Appeal held that there was no necessity for the
accused to drive negligently or unlawfully in order to perform his duties, and
therefore the accused was bound by the provincial statute like any other driver in
the province.248
In Stradiotto, the prosecution conceded that if the accused had been ordered
to do the very act that was alleged to constitute the offence, he would have been
immune from prosecution.249 This concession was based on the case of Cooper
v. Hawkins (1904),250 in which a civilian locomotive driver employed by the War
Department was under orders to deliver a load of coal by a stated time. In order
to meet the deadline, the driver was obliged to exceed the statutory speed limit
of three miles per hour. It was held that the statute did not bind the Crown, and
that the driver shared the Crown’s immunity. The Court did not consider at what
level in the department the driver’s orders had been issued; nor did the Court
inquire into the reason for the delivery deadline.
It is submitted that obedience to superior orders ought not to be enough to
demonstrate the existence of prejudice to the Crown. Obedience to superior orders
is in other contexts no defence to a criminal charge.251 In logic, it is difficult to
see why an act by a Crown servant that is not in fact essential to the pursuit of a
Crown purpose should change its character simply because it was decided upon
248 Compare R. v. McLeod [1930] 4 D.L.R. 226 (N.S.S.C. in banco) (serviceman guilty of reckless
driving). Query correctness of R. v. Anderson [1930] 2 W.W.R. 595 (Man. C.A.) and The King
v. Rhodes [1934] O.R. 44 (Ont. H.C.) in which it was held that a serviceman could not be
required by provincial law to hold a driver’s licence. Surely, there is no significant prejudice
to the Crown in the requirement that Crown vehicles be driven on public roads only by licensed
drivers. In Eldorado Nuclear, note 238, above, 568, Dickson C.J. indicated that he agreed with
the result in Stradiotto, but not the reasoning. He seemed to take issue with the necessity test,
suggesting that Crown immunity ought to be available for “those acts committed which are
designed to effect Crown purposes”, and unavailable for those acts which are “in no way
undertaken in order to effect Crown purposes”. In a later case, Scowby v. Glendinning [1986]
2 S.C.R. 226, Dickson C.J. concurred with the dissenting reasons of La Forest J., who cited
Stradiotto (and also McLeod, this note), without disagreeing with its reasoning, and said that
the case indicated that “a military or police officer acting in the course of his employment
is...subject to prosecution under provincial highway traffic Acts regarding safe driving unless
it can be established that breach of those Acts was necessary to the performance of his duties”
(para. 65, emphasis added). In our view, the Dickson C.J. in Scowby is to be preferred over the
Dickson C.J. in Eldorado Nuclear.
249 Note 247, above, 379.
250 [1904] 2 K.B. 164 (K.B. in banco).
251 Glanville Williams, Criminal Law: The General Part (2nd ed., 1961), 296 says: “It is an
established principle of constitutional law that official position and superior orders (whether of
the Crown or a private master) are not in themselves a justification for committing an act that
would otherwise be a legal wrong.” He acknowledges (at 298) the defence of superior orders
by members of the armed forces in (battle) situations where there is a need for discipline and
prompt obedience. See also Commission of Inquiry, note 246, above, 363-364.
447
15.15(d) STATUTES
by a servant superior to the actor. After all, if the superior servant had actually
committed the act, instead of ordering its commission, the superior servant would
have had no defence. In our view, a Crown servant ought to share the Crown’s
immunity from a statute only if the breach of the statute was an unavoidable
necessity in pursuit of an important Crown purpose. The existence of superior
orders would have no more than evidentiary value in establishing the force of the
necessity and the importance of the purpose. Obviously, this test is sufficiently
strict that Crown servants will rarely be able to claim the personal benefit of the
Crown’s immunity from statute. That is as it should be. Absent compelling reasons
to the contrary, Crown servants in the pursuit of their duties ought to be held to
the same standards of lawful conduct as private individuals.
(d) Crown contractors
The test of Crown prejudice will occasionally extend the Crown’s immunity
to persons who are neither Crown agents nor Crown servants. For example,
plumbers working as independent contractors on Crown land have been held
immune from statutory regulations requiring permits from a local authority for
plumbing work; if persons working on Crown land, even as independent contrac-
tors, were subject to this requirement, the property rights of the Crown would be
prejudiced.252 Firms contracting with the Crown have been held immune from
trade practices legislation; if Crown contractors were subject to the legislation,
the Crown’s freedom to enter into anti-competitive contracts would be preju-
diced.253 These cases all seem to us to be wrongly decided. This is not because
Crown immunity was extended to persons who were not Crown agents or Crown
servants, because that extension is justifiable when there is prejudice to the Crown.
Rather, the fault with the reasoning is the finding of prejudice to the Crown: in
our view, compliance with building standards or trade practices legislation was
not incompatible with the pursuit of the Crown’s purposes, and therefore there
was insufficient prejudice to the Crown to warrant the grant of immunity. Recent
252 Lower Hutt City v. A.-G. [1965] N.Z.L.R. 65 (C.A.); foll’d in Wellington City v. Victoria
University [1975] 2 N.Z.L.R. 301 (S.C.). Compare Re Northbuild Construction Pty. [2000] 2
Qd. R. 600 (C.A.).
253 Bradken Consolidated v. BHP (1979) 145 C.L.R. 107, 123-124 (H.C., Aust.). See also Re
Telephone Apparatus Manufacturers’ Appln. [1963] 1 W.L.R. 463 (C.A.) (agreement to which
Crown was not a party held exempt from trade practices legislation). Compare Eldorado
Nuclear, note 238, above (Crown agents held exempt from price-fixing prohibition; no sug-
gestion that private participants with the Crown agents were also immune). Note that the
Crown’s freedom to enter into anti-competitive contracts has now been limited by express
provisions in Uunited Kingdom and New Zealand legislation, Canadian federal legislation and
in Australian Commonwealth and state legislation. In Australia, however, the Commonwealth
Trade Practices Act binds the Crown in right of the Commonwealth, but only certain provisions
apply to the Crown in right of the states: Bass v. Permanent Trustee Co. Ltd. (1999) 198 C.L.R.
334 (H.C., Aust.).
448
CROWN AGENTS AND SERVANTS 15.15(e)
decisions of the High Court of Australia demonstrate what we think is a justified

reluctance to find that there was sufficient prejudice to the Crown to warrant the
grant of immunity to persons who are neither Crown agents nor Crown servants,
and have tended to distinguish, or narrow the scope of, earlier decisions granting
immunity.254
(e) Crown premises
In Jacobsen v. Rogers (1995),255 the issue was whether Commonwealth

(Australian federal) legislation authorizing issuance of a search warrant and sei-
zure of any materials which might have been used to commit an offence was
applicable to premises owned or occupied by the Crown. The High Court of
Australia noted that, while there was an “extraordinarily strong presumption” that
the Crown itself was not bound by criminal statutes, different considerations
applied to those who occupied Crown premises or held Crown property. The High
Court observed that there may exist on Crown premises things that would afford
evidence as to the commission of an offence, whether the offence was one com-
mitted by a servant or agent of the Crown or by someone else. In fact, there might
be things on Crown property – the contents of post office boxes was given as an
example – which have nothing to do with the conduct of the department or the
authority in question. It cannot have been intended, according to the High Court,
that search warrants should stop short of Crown premises, with the result that the
prosecution of criminal offences would be significantly impeded. As the High
Court pointed out, it is the Crown itself that is responsible for investigating crime.
Thus, permitting search warrants to apply to Crown premises should be regarded
as facilitative rather than prejudicial to the Crown, since it provides a means
whereby the Crown can perform its role more effectively. Accordingly, the High
Court came to what was clearly the correct result, namely, that legislation pro-
viding for the issuance of warrants applied to Crown premises, absent some
254 See N.T. Power Generation Pty. v. Power and Water Authority (2004) 219 C.L.R. 90, paras.
154-190 (H.C., Aust.) (Gasgo, a subsidiary of a Crown corporation, not immune from the Trade
Practices Act; “derivative Crown immunity” is available only if applying the Act would “di-
vest,” “impair,” or “adversely affect” some legally recognized right or interest of the Crown;
an adverse financial effect was insufficient); and Australian Competition and Consumer
Commn. v. Baxter Healthcare Pty. (2007) 232 C.L.R. 1 (H.C., Aust.) (Crown contractor not
immune from the Trade Practices Act; if a statute does not bind the Crown, “derivative Crown
immunity” is available, absent some contrary indication, only if the Act’s application would
“divest,” “impair,” or “adversely affect” some legally recognized right or interest of the Crown;
an adverse effect on the Crown’s freedom of contract was insufficient). Compare Baxter
Healthcare, this note, para. 153 per Callinan J., dissenting (contractual chose in action a property
right that would be adversely affected by the Act’s application to the Crown contractor). See
further Seddon, note 137, above, 163-173; and R. Wright, “Derivative Governmental Immunity”
(2008) Con. & Comm. L.J. 1.
449
15.16 STATUTES
countervailing consideration in relation to specific property or where a contrary

intention was evident from the terms of the statute.256
15.16 Federal complications

(a) Scope of presumption
The existence of a number of governments, each representing the Crown,

complicates the application of the rule (or presumption) that the Crown is not
bound by statutes except by express words or necessary implication. Within
Canada, the Crown is represented by a federal government and ten provincial
governments.257 Within Australia, the Crown is represented by a federal govern-
ment, six state governments and two territorial governments. In these federal
contexts, what is the scope of the presumption of Crown immunity? Suppose that
an Ontario statute imposed rent controls in general terms upon landlords. If the
statute contained neither express words nor a necessary implication binding the
Crown, then it would be clear that the Crown in right of Ontario in its capacity
as a landlord would be exempt from the controls. But the Crown in right of Canada
might also be a landlord in Ontario. Would the Crown in right of Canada also be
exempt?
There are two possible views as to the scope of the presumption of Crown
immunity. The first view, which might be termed the narrow view, is that the
presumption exempts only the Crown in right of the legislating government and
does not exempt the Crown in any other capacity; in this view, general words in
a statute which are prima facie apt to include the Crown will be interpreted as
excluding the Crown in right of the legislating government but as including the
Crown in other capacities. The wide view of the presumption is that it exempts
the Crown in right of every government which represents it; in this view, general
words in a statute which are prima facie apt to include the Crown will be inter-
preted as excluding not only the Crown in right of the legislating government but
also the Crown in other capacities.
There is some authority in favour of the narrow view.258 However, the weight
of modern authority in both Canada259 and Australia260 is now firmly in favour of
256 Id., 588.

257 On the status of the Northwest Territories, Nunavut and the Yukon Territory, see ch. 1,
Introduction, under heading 1.4(c), “Divisibility”, above.
258 Dominion Building Corp. v. The King [1933] A.C. 533 (P.C., Can.) (general words in Ontario
statute bound Crown in right of Canada). This view was argued at some length in an earlier
edition of this book (1971), 190-195.
259 Gauthier v. The King (1918) 56 S.C.R. 176; Martinello & Co. v. McCormick (1919) 59 S.C.R.
394; Re Silver Bros. [1932] A.C. 514, 524-525 (P.C., Can.); The Queen (Alta.) v. Can. Transport
Commn. [1978] 1 S.C.R. 61, 71-76; Re Caisse de depot de placement (1983) 42 O.R. (2d) 561
(Div. Ct.); Federal Business Dvlpt. Bank v. Workers’ Comp. Bd. (1984) 11 D.L.R. (4th) 395
(N.S.A.D.); Re Workers Comp. Bd. and Federal Business Dvlpt. Bank (1985) 21 D.L.R. (4th)
450
FEDERAL COMPLICATIONS 15.16(a)
the wide view of the presumption of immunity. According to this view, the
presumption, both in its statutory form261 and its common law form,262 benefits
an indivisible Crown, making no distinction between the Crown in right of the
legislating government and the Crown in right of other governments.263
The authoritative answer to the hypothetical rent control example is that the
Ontario statute would be interpreted as reaching neither the Crown in right of
Ontario nor the Crown in right of Canada. On this basis, no constitutional question
arises as to whether or not the Ontario Legislature could impose rent controls on
the Crown in right of Canada. It should not be overlooked, however, that a
constitutional question lurks in the background of the interpretative question. In
both Canada and Australia, there are constitutional limits on the power of each
level of government to enact laws binding on the other level of government.264
The precise nature of those limits is unclear in both countries, and raises issues
379 (N.B.C.A.); Alta. Govt. Telephones v. Can. [1989] 2 S.C.R. 225; Athabasca Chipewyan
First Nation v. B.C. (2001) 199 D.L.R. (4th) 452, para. 27 (Alta. C.A.); and Nova Scotia Power
v. Can. [2004] 3 S.C.R. 53. In each of the foregoing cases, the presumption of Crown immunity
from statute operated to exempt the Crown in right of some jurisdiction other than that of the
enacting legislative body.
260 Bradken Consolidated v. BHP (1979) 145 C.L.R. 107 (H.C., Aust.) (Crown in right of Queens-
land immune from Commonwealth statute); Hawthorn Pty Ltd. v. State Bank of South Australia
(1993) 112 A.L.R. 691 (N.T.G.D.) (Crown in right of State immune from Commonwealth
statute); Jacobsen v. Rogers (1995) 185 C.L.R. 572, 585 (H.C., Aust.) (“It must...be regarded
as settled that the application of the presumption that a statute is not intended to bind the Crown
extends beyond the Crown in right of the enacting legislature to the Crown in right of the other
polities forming the federation”); Re Residential Tenancies Tribunal of N.S.W. and Henderson;
Ex parte Defence Housing Authority (1997) 190 C.L.R. 410, 444 (H.C., Aust.) (noting that the
presumption that the Crown is not bound by statute “is a presumption that extends beyond the
Crown in right of the enacting legislature to the Crown in right of the other polities”).
261 The presumption that the Crown is immune has been codified in the Interpretation Acts of most
Canadian and some Australian jurisdictions, as well as in New Zealand: see sec. 15.4, “Effect
of Interpretation Acts”, above. The presumption that the Crown is bound has been codified in
two Canadian jurisdictions and two Australian jurisdictions. The Interpretation Acts generally
define “Her Majesty” in broad terms similar to the royal style and titles: Royal Style and Titles
Act, R.S.C. 1985, c. R-12, s. 2. The broad definition reinforces the case law that holds that the
wide view of the Crown is the correct one: note 260, above.
262 See ch. 15.3(a), “Rule of construction”, above.
263 McNairn, note 6, above, 23-29. Note, however, that the High Court of Australia has grown
increasingly wary of the term Crown, and notions of indivisibility, and has expressed a pref-
erence for a presumption that focuses on “the executive government” rather than the Crown
(see, e.g., Cth. v. W.A. (1999) 196 C.L.R. 392, 409-410 per Gleeson C.J. and Gaudron J. (H.C.,
Aust.) (relevant passage cited in full in note 7, above), and the other sources listed in note 7,
above); or that is framed in terms of a presumption that one order of government in a federation
does not intend to bind another order of government absent clear indications to the contrary
(see, e.g., Cth v. W.A., this note, 472-475 per Hayne J.). See further notes 3 and 50 above.
264 Note 3, above.
451
15.16(b) STATUTES
that are fundamental to each federal system.265 These constitutional issues are
outside the scope of this book.266
The scope of the presumption of Crown immunity is an issue that frequently
arises in a federal state. The issue could, however, arise in a unitary state, such as
the United Kingdom or New Zealand. In a unitary state, there is of course only
one government representing the Crown and only one Parliament enacting laws.
But in a unitary state (for example, New Zealand) the Crown in right of another
jurisdiction (for example, the Commonwealth of Australia) could own land or
engage in activities that are regulated by a local (New Zealand) statute. If the
New Zealand statute lacked the express words or necessary implication required
to bind the Crown, the question would arise whether the Crown’s immunity
extended to the Crown in right of Australia.267 No such case has yet been reported
in the United Kingdom or New Zealand. The Canadian and Australian precedents
could suggest that the immunity should extend to the Crown in right of jurisdic-
tions outside the enacting jurisdiction, but the High Court in Australia, when
affirming the principle that Crown immunity extended beyond the legislating
jurisdiction, seemed to restrict immunity to jurisdictions within the federation.268
(b) Meaning of “the Crown”
A related problem concerns the meaning of the term “the Crown” (or “Her
Majesty” or any other equivalent) when it is used in a statute. Does this mean the
Crown in right of the legislating government only, or does it include the Crown
in right of other governments as well? In some statutes, the context suggests an
answer.269 Where the context is not helpful, the rhetoric of an indivisible Crown
265 There are particularly difficult issues raised in both federal systems by taxing statutes. In Canada,
s. 125 of the Constitution Act, 1867 provides an intergovernmental immunity from taxation;
federal taxes cannot apply to the lands or property of a provincial Crown, and provincial taxes
cannot apply to the lands or property of the federal Crown or another provincial Crown. The
Constitution of Australia, s. 114, is similar to s. 125. For further discussion of the issues raised
by these provisions, see Hogg, note 3, above, sec. 31.13 (reviewing the law in Canada); and
Twoney, note 3, above (reviewing the position in Australia).
266 Note, however, that the constitutional question cannot be kept wholly separate from the inter-
pretative question. If it were decided that an Ontario statute could not bind the Crown in right
of Canada, this decision might react on the interpretation of the statute, causing the statute to
be “read down” so as to preserve it from invalidity. On reading down, see Hogg, note 3, above,
sec. 15.7 “Reading Down”.
267 Note that the A.C.T. Legislative Act, s. 121, provides that all A.C.T. Acts bind everyone,
including “all governments”, with government defined to include New Zealand (s. 121(6)).
268 Jacobsen v. Rogers, note 260, above, 585. See A.-G. Eng. v. Sorati [1969] V.R. 88, 99 (Vic.
S.C.) (Limitation of Actions Act 1958 (Vic.) applied to actions brought in Victoria by Crown
in right of the United Kingdom).
269 E.g., Essendon Corp. v. Criterion Theatres (1947) 74 C.L.R. 1 (reference to the Crown in a
Victorian statute meant the Crown in right of Victoria because of associated references to other
Victorian persons).
452
FEDERAL COMPLICATIONS 15.16(b)
suggests a broad meaning, while the reality of a divisible Crown suggests a narrow
meaning.
We have already noticed that in most Canadian jurisdictions (and in New
Zealand, Queensland and Tasmania) the presumption of Crown immunity has
been given statutory form by a section in each jurisdiction’s Interpretation Act.270
In these jurisdictions, the scope of the presumption technically turns on the
meaning of “the Crown” or “Her Majesty” in the section that provides that no
statute is binding on the Crown or Her Majesty unless express words are used for
the purpose. In that context, the courts have unhesitatingly opted for an indivisible
Crown: the statutory provision exempts the Crown in all its capacities.271
Statutes often provide that: “This Act shall bind the Crown”. This provision
is inserted to overcome the presumption of Crown immunity, and it is arguable
that it ought to be given the same scope as the presumption. Since the presumption
benefits the Crown in all its capacities, express words binding the Crown ought
to bind the Crown in all its capacities. On the other hand, it could be argued that,
in a federal system, an intention to bind the Crown in right of another jurisdiction
should be clearly indicated.272 The weight of authority supports the latter view:
in the absence of indications to the contrary,273 a provision expressly binding the
Crown refers only to the Crown in right of the legislating government.274
270 See text under earlier heading 15.4, “Effect of Interpretation Acts”, above.
271 Notes 259, 261, above.
272 This view appears to have the support of the Supreme Court of Canada: in Alta. Govt. Telephones
v. Can., note 259, above, it cited favourably Colin McNairn’s “Comment” (1978) 56 Can. Bar
Rev. 145, 150 that “[i]n a federal system it makes some sense to put the onus on a legislature
to specially include the other level of government within its enactments if they are to so extend
in a restrictive way”. This view also appears to have the support of (at least part of) the High
Court of Australia (see the discussion of Cth. v. W.A. in notes 50 and 263, above); several
academic commentators (see, e.g., Taylor, note 50, above, and McNairn, this note, above); and
the Australian Law Reform Commission (see The Judicial Power of the Commonwealth, note
51, above (recommending that the Commonwealth presumptive immunity from Common-
wealth legislation (ch. 26) and state and territory legislation (ch. 28) be legislatively reversed;
but also recommending that the states and territories continue to enjoy presumptive immunity
from Commonwealth legislation (ch. 27)).
273 Note, however, that in Australia even a statutory provision that expressly provides that the
Crown is bound “in all its capacities” has been held to be insufficient to bind the Crown in right
of a non-legislating government on certain facts: see Telstra Corp. v. Worthing (1999) 197
C.L.R. 61 (H.C., Aust.) (Crown in right of the Commonwealth not bound by the New South
Wales Workers Compensation Act 1987, even though it provided that it bound “the Crown,
not only in right of New South Wales but also, so far as the legislative power of Parliament
permits, in all its other capacities”; the Act did not to apply to the Commonwealth, because the
regulatory scheme set out in the Act was backed up by penal sanctions, and particularly clear
statutory language was required to subject the Commonwealth to penal sanction). In our view,
this language should generally be interpreted to bind the Crown in all its capacities, and Telstra
should be read narrowly, to support the reading down of bound-in-all-capacities provisions
only where penal sanctions are truly integral to the actual functioning of a regulatory scheme.
453
15.16(b) STATUTES
The apparent contradiction involved in interpreting the Crown as indivisible

when a statute exempts the Crown but as divisible when a statute binds the Crown
is explained by the reluctance on the part of courts to bind the Crown unless such
an intention is clear. A new problem is posed by the Interpretation Acts of those
jurisdictions that have reversed the presumption.275 If the provision states that an
Act binds the Crown unless that Act specifically exempts the Crown, should the
Crown in right of another jurisdiction be caught by the term ‘Crown’, or should
the non-legislating Crown benefit from the common law presumption against
Crown liability? If courts follow the precedent established by cases where an
individual statute was expressed to bind the Crown, the Crown in right of the
non-legislating jurisdiction will be exempt. The better view, however, is that
where a legislature has decided to statutorily reverse the common law presump-
tion, that statute should be given a wide interpretation and “Crown” should be
interpreted broadly. In British Columbia, this is not an issue, for the province has
restricted the reversal of the presumption of Crown liability to “the government”,
with “government” defined in that Act as restricted to “Her Majesty in right of
British Columbia”. The earlier version of the provision bound “Her Majesty”
rather than “the government”, and “Her Majesty” was given a wide definition in
the Interpretation Act.276 The provision in Prince Edward Island refers to “Her
Absent such a finding, it would be wrong, in our view, to conclude that the use of penal
sanctions is indicative of an intention not to bind the Crown.
274 Gauthier v. The King, note 259, above; Montreal Trust Co. v. The King [1924] 1 D.L.R. 1030
(B.C.C.A.); Uther v. Federal Commr. of Taxation (1947) 74 C.L.R. 508 (H.C., Aust.); Federal
Business Dvlpt. Bank v. Hillcrest Motor Inn, note 259 above; McNairn, note 6, above, 29-33.
Note, however, that the Supreme Court has rejected a theory of “constitutional inter-govern-
mental immunity”. The Court has stated that if Parliament wishes to bind the provincial Crown
in an area over which it has constitutional jurisdiction, it may do so if it chooses: Alta. Govt.
Telephones v. Can., note 259, above, 275; see also Ontario Hydro. v. Ont. [1993] 3 S.C.R. 327,
para. 38. The weight of authority supports the view that provincial legislation may not bind the
federal Crown: see Hogg, note 3, above. For the Australian position on intergovernmental
immunity, see the sources cited in note 3, above.
276 What is the effect of these changes? It is clear that the common law immunity no longer applies
to the British Columbia government – the British Columbia government is now presumptively
bound by statute. But does the subsequent amendment to the definition of government revive
the common law immunity of the Crown in right of other jurisdictions? There is authority
suggesting that the answer is yes, although the issue was not considered in any detail: see
Knight v. Imperial Tobacco Can. (2009) 313 D.L.R. (4th) 695, para. 29 (B.C.C.A.), leave to
appeal to S.C.C. granted [2010] 1 S.C.R. xiv (“Canada continues to enjoy the common law
immunity from the operation of statutes enacted by the British Columbia legislature”).The
better view, however, is no, that the common law immunity of the Crown in other capacities is
not revived. The B.C. Interpretation Act, like most Interpretation Acts, provides that common
law rules are not revived by the repeal of a statute, in whole or in part (s. 35(1)(a)); see also ch.
1, Introduction, under heading 1.5(b), “Crown prerogative,” above (discussing revival of the
Crown prerogative); and Côté, note 2, above, 101-102. Thus, there should be no presumption
one way or another in British Columbia on the question whether British Columbia legislation
454
FEDERAL COMPLICATIONS 15.16(c)
Majesty”, with “Her Majesty” defined in broad terms. Statutory interpretation

based on specific words would then suggest that the Crown in right of another
jurisdiction ought to be bound to the extent that it is constitutionally within that
jurisdiction’s power to bind a province or Parliament.
Another common provision in a statute is a section that expressly exempts
the Crown from the statute. Such a provision reinforces the presumption of Crown
immunity by eliminating any possible necessary implication that the Crown is
bound. Once again, if the presumption applies to the Crown in all its capacities,
it would seem reasonable to give an express exemption the same broad scope.
The case law is scant and inconclusive.277
References to the Crown in statutory provisions that are neither binding
clauses nor exempting clauses have occasionally come before the courts for
interpretation. In this situation, the reference to the Crown appears in a context
that may exert some influence on the outcome, so that generalizations are dan-
gerous. However, Canadian courts have preferred the wide meaning (the indivis-
ible Crown), holding that references to the Crown include the Crown in all
capacities.278 Australian courts have leaned in the other direction, holding that
references to the Crown do not extend beyond the Crown in right of the legislating
government.279
(c) Crown bound by necessary implication
Where a court has decided that a statute binds the Crown despite the lack of
express words, is the Crown in right of a non-legislating jurisdiction also bound?
In State Authorities Superannuation Board v. Commissioner of State Taxation
for the State of Western Australia (1996),280 the High Court of Australia held that,
because it could find a legislative intention that the Stamp Act of Western Aus-
tralia bound the Crown, the Crown in right of New South Wales would be bound,
binds other orders of government; the question should be determined by the language of the
provision in its context, without consideration of any presumption of Crown immunity.
277 In the Australian cases, the results are diverse, but in each case the context was influential:
Criterion Theatres v. Melbourne and Metro. Bd. of Works [1945] V.L.R. 267 (S.C.) (wide
view); Essendon Corp. v. Criterion Theatres, note 269, above (narrow view); Johnson v.
Lavender [1952] S.A.S.R. 267 (S.C.) (narrow view).
278 A.-G. B.C. v. C.P.R. [1906] A.C. 204 (P.C.); A.-G. Que. v. Nippissing Central Ry. Co. [1926]
A.C. 715 (P.C.); Nickel Rim Mines v. A.-G. Ont. [1967] S.C.R. 672. This is consistent with the
cases giving a broad interpretation of the Crown or Her Majesty in the Interpretation Act
provisions: notes 259, 261, above. Compare Mitchell v. Peguis Indian Band [1990] 2 S.C.R.
85, where the specific context of the Indian Act led six justices to conclude that the reference
to the Crown did not include the Crown in right of the province. Dickson C.J. disagreed, finding
that the reference to Her Majesty applied to the Crown in right of the provinces and the Crown
in right of Canada.
279 R. v. Registrar of Titles (1915) 20 C.L.R. 379, 391, 397, 405 (H.C., Aust.); Essendon Corp. v.
Criterion Theatres, note 269, above, 10, 25, 29.
280 (1996) 189 C.L.R. 253 (H.C., Aust.).
455
15.17(a) STATUTES
even though it was not the legislating jurisdiction. The Court explained that there
was no constitutional bar to the imposition of tax by one state on another state
and that the legislative power of the state could extend to imposition of tax on a
conveyance or transfer on the sale of property, even where the Crown of another
jurisdiction was a party to such an instrument.281
15.17 Reform
(a) Criticism of presumption
What is the justification for the presumption that the Crown is not bound by
general words in a statute? In what seems to have been its original form – namely,
that the Crown’s prerogative is presumed not to be impaired by general words –
the rule could be justified: general words are usually construed as not affecting
special rights. But the modern rule is not limited in this way,282 and Street has
shown that the extension of the rule has proceeded without either proper under-
standing of the old cases or discussion of the reasons behind them.283 In particular,
no answer has ever been given to the point which was made in 1561: when the
King in Parliament ordains a remedy for a mischief, “it is not to be presumed that
he intended to be at liberty to do the mischief”.284 This was surely an answer to
the submission made by the unsuccessful counsel in that case that “prima facie a
law made by the Crown with the assent of Lords and Commons is made for
subjects and not for the Crown”.285 And yet it is counsel’s statement that has been
uncritically adopted and cited by the courts. In any case the statement is really
only an assertion of what is now the common law presumption; it does not offer
any reason for the presumption.
Even in the leading case, Bombay (1946),286 their lordships of the Privy
Council did not rely on anything other than authority for their decision that the
presumption should apply to all kinds of statutes without exception. They did,
however, point out that “if it be the intention of the legislature that the Crown
shall be bound, nothing is easier than to say so in plain words”.287 It is perhaps
reasonable to assume that their lordships, if they had elected to give a justification
of the rule, would have reasoned along the following lines. It is open to Parliament,
when enacting a statute, either to bind the Crown or to exempt the Crown. Since
281 Id., 136. See also Re Commissioner of Water Resources (1990) 1 Qd. R. 549 (S.C.) (Crown in
right of Commonwealth bound by Queensland statute in which Crown was bound by necessary
implication); Jacobsen v. Rogers (1995) 182 C.L.R. 572 (H.C., Aust.) (Commonwealth statute
authorizing search warrants applies to states).
282 Text accompanying note 16, above.
283 Street (1948), note 6, above.
284 Willion v. Berkley (1561) 1 Plowden 223, 244; 75 E.R. 339, 380 (K.B.).
285 Id., 240; 366.
286 Province of Bombay v. Municipal Corp. of Bombay [1947] A.C. 58 (P.C., India).
287 Id., 63.
456
REFORM 15.17(a)
Parliament has this power, it is a mere matter of drafting technique how it accom-
plishes the desired result. Under the presumption that the Crown is not bound,
which still holds in the majority of jurisdictions, the drafter must deliberately bind
the Crown when that is the desired result; if there were no presumption, then the
drafter would need deliberately to exempt the Crown when that was the desired
result. Provided the drafter knows the law, it is of little practical consequence
whether or not there is a presumption against the Crown being bound; therefore
the courts should confine themselves to ensuring that the law is as clear as possible.
The first answer which can be made to this argument is that, while the
Bombay case undoubtedly clarified the law by making clear that the presumption
applied to all kinds of statutes, the current state of the law is exceedingly complex,
as the inordinate length of this chapter demonstrates. The reason for the com-
plexity of the law is that the courts, resisting the conclusion that the Crown is not
bound by statutes, have engrafted many exceptions onto the basic rule of immu-
nity. Thus, a statute will bind the Crown if there is a “necessary implication” to
that effect.288 A statute will bind the Crown if it is beneficial to the Crown or
neutral to the Crown, and even if it is burdensome to the Crown, so long as the
burden is linked to a benefit.289 A statute will bind the Crown if it is incorporated
by reference into a contract entered into by the Crown; the incorporation may be
implied as well as express.290 A statute will bind the Crown if it is incorporated
by reference into another statute that binds the Crown; the incorporation may be
implied as well as express, and may even be ambulatory (incorporating future
statutes as well as existing ones).291 When the Crown is a defendant in civil
proceedings, cases of high authority have held that the Crown proceedings statute
implicitly subjects the Crown to all statutes, substantive as well as procedural,
that would be applicable to a private party.292 Similar results have been reached
in cases when the Crown is a plaintiff in civil proceedings.293
Most of the techniques used by the courts to make statutes apply to the
Crown are uncertain in their scope, and therefore unpredictable in many of their
applications. There is also the question of whether Crown agents, Crown servants,
Crown contractors and others are entitled to share in the Crown’s immunity,
which is another area of uncertainty.294 It cannot be doubted that the law would
be vastly simplified if there were a presumption that the Crown was bound by
statute. Such a rule would make redundant most of the doctrines that are now
called in aid to make the Crown bound by statute in the face of the contrary
presumption.
288 See sec. 15.6, “Necessary implication”, above.

289 See sec. 15.7, “Benefit of statutes”, above.
290 See see 15.8, “Implied term of contract”, above.
291 See sec. 15.10, “Incorporation by reference”, above.
292 See sec. 15.11, “Provincial Crown as defendant”, 15.12, “Federal Crown as defendant”, above.
293 See sec. 15.13, “Crown as plaintiff”, above.
294 See sec. 15.15, “Crown agents and servants”, above.
457
15.17(a) STATUTES
In a sense, it is true that the presumption of Crown immunity is a matter of

drafting technique. If every statute routinely included a provision stating whether
or not the Crown was bound, many of the problems discussed in this chapter
would disappear. But for reasons that are obscure, such provisions are relatively
unusual. The great majority of statutes are silent on the point.295 There is good
reason to suppose that silence does not indicate a deliberate decision to exempt
the Crown, but only indicates that the point was never considered.296 But the
effect of silence is to make the presumption of Crown immunity applicable so
that the Crown is immune - unless there is a necessary implication to the contrary
or one of the other exceptions to the rule is applicable. The reversal of the
presumption would mean that those statutes that did not make express provision
to exempt the Crown would apply to the Crown. The inadvertence of the drafter
would yield the straightforward result that the Crown was bound.
In the last century there has been a great increase in both the scope of
governmental activity and in the scope of legislative regulation. In general, where
the Crown engages in an activity that is controlled by statute, it should surely be
subject to the statutory controls; and where legislation is passed to benefit a class
of the community, the benefits should not be denied to some members of that
class merely because of their relationship with the Crown. There is no good
reason, for example, why the Crown should be exempt from planning laws
designed to order our environment, or building codes designed to promote health
and safety, or speed limits designed to reduce accidents.
In R. v. Eldorado Nuclear (1983),297 the Supreme Court of Canada applied
the presumption of Crown immunity to hold that two Crown corporations engaged
in the production of uranium were not bound by the Combines Investigation Act.
They therefore could not be prosecuted for entering into a cartel, which, it was
alleged, had illegally conspired to fix the price of uranium. Dickson J. com-
mented:298
Why that presumption [the presumption of Crown immunity] should be made is not
clear. It seems to conflict with basic notions of equality before the law. The more
active government becomes in activities that had once been the preserve of private
persons, the less easy it is to understand why the Crown need be, or ought to be, in
a position different from the subject.
Dickson J.’s concern is well illustrated by that case. The private participants in
the cartel remained exposed to criminal liability. Yet it would have been unfair
to prosecute only them, especially since a minister of the Crown had been a prime
mover in the formation of the cartel. The government therefore dropped the
charges against all the cartel members. The result was that an important public
policy went unvindicated. It seems obvious that Crown corporations engaged in
295 Note 65, above, and accompanying text.

296 Id.
297 [1983] 2 S.C.R. 551.
298 Id., 558.
458
REFORM 15.17(b)
the production of uranium (or any other activity) ought to play by the same rules
as their private counterparts.299 Otherwise, the public policies pursued by those
rules are defeated.
It cannot be denied that the Crown does require many special powers and
some immunities in order to govern effectively. But when special powers or
immunities are needed, the Parliament or Legislature can and does provide them
expressly. In a system of responsible government, the executive branch of gov-
ernment is rarely denied the legislation it wants. When powers and immunities
are specifically granted by statute, a powerful tradition insists that their scope be
carefully defined. The immunity which is granted by the traditional presumption
against the Crown being bound by statute is far broader than is needed by an
executive which controls the legislative branch, and because it is not needed it
conflicts with the basic constitutional assumption that the Crown should be under
the law.
(b) Reversal of presumption
We noticed earlier that British Columbia,300 Prince Edward Island,301 South

Australia,302 and the Australian Capital Territory303 have amended their Interpre-
tation Acts so that they now provide that any Act will be binding on the Crown
or government unless the Act provides otherwise. These provisions do not merely
abolish the presumption of Crown immunity, they reverse it. In these jurisdictions,
the presumption now is that the Crown is bound by statutes. If it is desired to
exempt the Crown, a specific provision is required.
The reversal of the presumption is a desirable reform. The general rule ought
to be that the Crown is bound by statutes.304 Exceptions to the rule ought to be
299 The Combines Investigation Act (renamed the Competition Act) has since been amended to
apply to Crown corporations: S.C. 1986, c. 26, Part II, adding new s. 2.1.
300 Note 70, above.
301 Note 73, above.
302 Note 74, above.
303 Id.
304 Accord, Williams, note 6, above, 53; McNairn, note 6, above, 22; Craig, Administrative Law
(6th ed., 2008), 945-947; S. Churches, “The Trouble with Humphrey in Western Australia:
Icons of the Crown or Impediments to the Public?” (1990) 20 W.A.L.R. 688. The British
Columbia, reform followed the recommendation of the Law Reform Commn. of British Co-
lumbia, note 69, above, 67. The Law Reform Committee of South Australia recommended that
the presumption be reversed in 1987 (Law Reform Committee (S.A.), Proceedings By or Against
the Crown (1987), 22-23); that recommendation was eventually adopted in 1990, following the
decision of the High Court of Australia in Bropho in 1990. In 1976, the Law Reform Commission
of New South Wales suggested a reversal of the presumption in most circumstances (Law
Reform Commn. (N.S.W.), Proceedings By or Against the Crown (Report No. 24, 1976), 76);
in 1989, the Ontario Law Reform Commission recommended that the presumption be reversed
(Law Reform Commn. (Ont.), The Liability of the Crown (1989), 113); in 1992, a report by the
Australian Senate Standing Committee on Legal and Constitutional Affairs suggested a reversal
459
15.17(b) STATUTES
specifically enacted.305 The change is not as radical as it might appear, because

the numerous exceptions to the rule of immunity have eaten away so much of it.
A further important merit of the reformed law is that it clarifies and simplifies a
body of law that is now intolerably complex. It is to be hoped that other jurisdic-
tions will follow the lead of British Columbia, Prince Edward Island, the Austra-
lian Capital Territory and South Australia.306
of the presumption, at least under certain circumstances (see The Doctrine of the Shield of the
Crown, 10.3); in 1994, the Alberta Law Reform Institute suggested a reversal of the presumption
(note 206, above); and in 2001, the Australian Law Reform Commn. recommended a reversal
of the presumption in the Commonwealth for Commonwealth statutes (note 51, above, ch. 26).
Regrettably, despite widespread agreement, and with the exception of British Columbia, these
reforms have not been implemented.
305 The Australian Law Reform Commn. recommended that the Commonwealth’s presumptive
immunity from Commonwealth legislation (ch. 26) and state and territory legislation (ch. 28)
be legislatively reversed, with exceptions; but it also recommended that the states and territories
continue to enjoy presumptive immunity from Cth. legislation (ch. 27)): note 51, above, chs.
26-28; see also Taylor, note 50, above (arguing for a similar approach). These recommendations
engage difficult constitutional issues that are simply beyond the scope of this book, and
accordingly, we do not attempt to address them here. The issue of intergovernmental immunity
is considered in Hogg, note 3, above, sec. 10.9(c)-(f).
306 In 1990, the New Zealand Law Commission suggested a reversal of the presumption as part of
a major reform of the Acts Interpretation Act (see N.Z. Law Commn., A New Interpretation
Act to Avoid ‘Prolixity and Tautology’ (Report No. 17, 1990), 52). New Zealand enacted a new
Interpretation Act in 1999, but that Act confirms the traditional common law presumption (s.
27); however, the Act did include a provision requiring the Ministry of Justice to prepare a
report on whether the law ought to be reformed (s. 28). In 2000, the New Zealand Law
Commission reversed its position, recommending instead that the Cabinet Office Manual be
amended to require that every proposed bill should expressly state whether and to what extent
the Crown is to be bound by the bill, and to the extent that it is not, the reasons: see To Bind
Their King in Chains (Study Paper 6, 2000). The Ministry of Justice, in the report required by
s. 28, largely adopted the Commission’s recommendation: see Report Required by Section 28
of the Interpretation Act 1999 (2001). We agree with the New Zealand proposal, in part;
legislators should be required, as a matter of legislative practice, to consider whether, and to
what extent, legislation will bind the Crown, and to make that clear in legislation. However,
we reject the idea that the presumption should not be reversed as well. We note that the New
Zealand proposal would not seem to catch private member’s bills (see, e.g., para. 44 of the
Ministry of Justice Report, referring to “government bills”). We simply do not accept the claim
that a reversal of the presumption would not significantly simplify the law; even a cursory
review of the position in British Columbia shows that the reversal of the presumption in that
jurisdiction has dramatically simplified the law. But perhaps above all, a reversal of the pre-
sumption would send the message that any proposed departure from the general principle that
the same law applies to citizens and governments must be scrutinized and justified. By leaving
in place the presumption of Crown immunity, the New Zealand proposal sends quite the opposite
message – that it is exceptional to bind the Crown to the same statutory law as citizens. The
New Zealand proposal was clearly motivated by a concern about the result of any retrospective
change, and questions of Crown criminal liability; in our view, these questions could be
addressed by delaying the implementation of reform, to provide the government the opportunity
to review the statute books. Neither provides a sufficient reason to resist reform altogether – as
the experience in British Columbia amply demonstrates.
460
16
Crown Agents
16.1 Agent of the Crown 461

16.2 Crown agent at common law 463
(a) Functions test 463
(b) Control test 465
16.3 Crown agent by statute 468
(b) Ultra vires activity 470
16.4 Liability of Crown agent 472
(a) Introduction 472
(b) Liability to be sued 472
(c) Liability under substantive law 474
(d) Tort 475
(e) Contract 478
(f) Crown immunities 479
16.5 Conclusion 481
16.1 Agent of the Crown
A government department (or ministry) is headed by a minister and staffed

by Crown servants. It possesses the attributes of the Crown. But many other public
bodies exist whose status or relationship to the Crown is much less clear.1 When
Parliament or a Legislature creates a public corporation or an unincorporated
1 For example, Ontario alone recognizes approximately 630 agencies, including boards, com-
missions, councils, authorities and foundations. These agencies are created by statute and act
for either the Legislature directly or a ministry of the Crown. The agencies fall into eight
categories: (1) advisory bodies without decision-making authority; (2) regulatory agencies
which make independent decisions; (3) adjudicative agencies that make quasi-judicial deci-
sions; (4) operational service agencies that provide goods or services with no, or minimal, fees;
(5) operational enterprise agencies which provide goods or services in a commercial manner;
(6) Crown foundations which solicit, distribute, and manage donations; (7) trust agencies that
administer assets on behalf of beneficiaries; and (8) nonscheduled agencies, such as university
and hospital boards, which do not fall into any other category. See Public Appointments
Secretariat (Ontario) homepage, ⬍http://www.pas.gov.on.ca⬎ (date accessed: October 19,
2010).
16.1 CROWN AGENTS
agency or an office outside the departments of government, does the body so

created possess the attributes of the Crown? That is the question addressed in this
chapter. The question arises not only with respect to corporations, but also unin-
corporated bodies and natural persons (officers), but for ease of exposition we
will usually hereafter refer to corporations – the most common cases. Except
where the text makes a distinction,2 it may be assumed that the same rules are
applicable to unincorporated public bodies and public officers as to public cor-
porations.
The question whether a public corporation possesses the attributes of the
Crown has most frequently arisen when the corporation has claimed immunity
from a statute that does not bind the Crown. But the question can arise in any
situation where the Crown is entitled to be treated differently from other persons.
This question is usually resolved by asking whether the corporation is an “agent
of the Crown”. If the answer is yes, the corporation is entitled to the Crown’s
immunity.3 If the answer is no, the corporation is not entitled to the immunity.
The term “agent of the Crown” has become the common usage for a public
corporation that enjoys the attributes of the Crown.4 Agent of the Crown in this
context is a synonym for “servant of the Crown”, and the latter phrase is sometimes
used. Occasionally, the question is said to be whether the corporation is “within
the shield of the Crown” or is an “instrumentality of the Crown” or an “emanation
of the Crown”. These graphic phrases falsely suggest that the issue is whether the
corporation is the Crown or a part of the Crown. It is more accurate to accept that
the corporation is a separate entity from the Crown itself.5
2 In the case of an unincorporated body, there may be an initial question as to whether it is a

separate legal entity. This question is discussed later in this chapter, in sec. 16.4, “Liability of
Crown agent”, below.
3 An exception, discussed later in this chapter, in sec. 16.4, “Liability of Crown agent”, below,
is where the law deems the Crown agent to be liable in its own right, in which case the Crown
agent loses the protection of the Crown’s immunities.
4 Nicholas Seddon has criticized our use and defence of the term Crown agent: see Seddon,
Government Contracts: Federal, State and Local (4th ed., 2009), sec. 4.5. The term is, he
argues, misleading and confusing, because it is commonly used to describe government de-
partments, which are not agents of the Crown, but are the Crown, and it distracts from the
operative question, which is whether the entity can claim a Crown privilege or immunity. We
do not understand Seddon to be suggesting that a Crown corporation cannot be an agent of the
Crown, in the private law sense that it can bind the Crown. His concern, rather, is with whether
or not Crown corporations ought to be permitted to enjoy Crown privileges or immunities.
Seddon does not suggest an alternate term in that context, but Crown agent is the generally-
accepted term, at least in Canada. For example, it is common for a statute to provide that a
public corporation is or is not “an agent of the Crown”. The term Crown agent is not ideal, we
admit, but it does have its merits. The word “agent” captures the fact that the Crown corporation
has a legal personality separate from the Crown, and that the corporation has the power to bind
the Crown by contract; and the word “Crown” captures the fact that a Crown corporation has
a public mandate, raising the question whether it ought to be entitled to claim a Crown privilege
or immunity.
5 But see note 2, above.
462
CROWN AGENT AT COMMON LAW 16.2(a)
A public corporation will be treated as an agent of the Crown if it satisfies

the common law test of control or if it is expressly designated by statute to be an
agent of the Crown. These two ways of acquiring Crown agent status are discussed
next.
16.2 Crown agent at common law
(a) Functions test
In the nineteenth century, the test that developed to determine whether a

public corporation was an agent of the Crown was a “functions” test.6 The question
was whether the functions of the public corporation properly belonged within the
“province of government”. If they did, then the corporation was an agent of the
Crown. On this basis, bodies or officers performing traditional governmental
functions, such as the administration of the courts or the police, were accorded
Crown immunity from rates or taxes on land. It did not matter that the bodies or
officials were independent of the Crown and therefore could not be regarded as
Crown servants (or agents): if their functions were within the province of gov-
ernment, they were said to be in consimili casu (in a like case) with Crown
servants (or agents) and were entitled to Crown immunities.7
The functions test developed in the United Kingdom in the middle of the
nineteenth century. At that time, the functions of government were considered to
include little more than the preservation of law and order. Therefore, it was not
unreasonable for judges to assume the task of identifying which functions fell
within the province of government. However, even in the nineteenth century, the
range of governmental activity in the colonies was acknowledged to be much
wider, as only the state could assemble the resources needed to build the canals,
railways and other public works needed for the economic development of pioneer
communities. And, in the twentieth century, collectivist political ideas have eve-
rywhere turned the state into a regulator of much economic and social activity
and a supplier of many goods and services. The province of government is no
longer clearly bounded but is, on the contrary, capable of indefinite expansion.
The courts have accordingly generally abandoned the impossible task of defining
the functions that properly fall within the province of government. The scope of
6 For the history of the functions test, see J.A.G. Griffith, “Public Corporations as Crown
Servants” (1952) 9 U. Toronto L.J. 169.
7 See Mersey Docks and Harbour Bd. v. Cameron (1865) 11 H.L.C. 443, 465, 11 E.R. 1405,
1413; Greig v. Univ. of Edinburgh (1868) L.R. 1 H.L. Sc. & Div. 348, 354; Coomber v. Berks
Justices (1883) 9 App. Cas. 61 (H.L.); Middlesex County Council v. St. George’s Union [1897]
1 Q.B. 64 (C.A.). It is possible to argue that these cases are still good law, because they have
never been overruled and have occasionally been referred to in modern cases; but the better
view is that the replacement of the functions test by the control test, which is documented later
in this chapter, has abrogated the doctrine of the in consimili casu cases.
463
16.2(a) CROWN AGENTS
the province of government is rightly seen as a matter to be determined by the

Parliament or Legislature, not by the courts.
The courts no longer classify the functions of a public body that claims a
Crown immunity. Instead, the courts examine the relationship between that body
and the Crown, as represented by the ministers of the Crown. If that relationship
is one of control by a minister, then the controlled body is an agent of the Crown.
A “control” test has thus supplanted the functions test as the touchstone of Crown
agent status. The cases establishing and elaborating the control test are discussed
in the next section of this chapter.
Curiously, vestiges of the discredited functions test continue to surface in
judicial dicta in modern times. Sometimes a court will say that the functions of a
public corporation are a relevant “factor” in determining whether the corporation
is an agent of the Crown.8 On this basis, a body exercising a commercial function
with a private analogue (for example, the operation of a railway) would be less
likely to be held to be an agent of the Crown than a body exercising a peculiarly
governmental function (for example, administering workers’ compensation). But
this approach makes assumptions about the proper spheres of government that
are impossible to justify in any principled way. When government embarks on a
commercial enterprise, it is not motivated simply by the profit-making potential
that drives a private firm. There is invariably a public policy objective which the
government has chosen to pursue through the instrument of public ownership of
the enterprise, rather than through the more conservative instruments of compe-
tition policy or direct regulation. Whether the enterprise should be treated as
within the province of government has been decided by the competent legislative
8 E.g., Tamlin v. Hannaford [1950] 1 K.B. 18, 25 (C.A.), relying in part on the “commercial”
character of the British Transport Commission; Electricity Commn. N.S.W. v. Australian United
Press (1955) 55 S.R. (N.S.W.) 118, 137 (S.C. in banco), holding that the supply of electricity
was within the province of government; R. v. Ont. Labour Relations Bd.; Ex parte Ont. Food
Terminal Bd. [1963] 2 O.R. 91, 95 (C.A.), asserting that the issue “depends in part on the nature
of the functions performed”, although “it depends mainly upon the nature and degree of control
exercisable or retained by the Crown”; Goodfellow v. Commr. of Taxation (1977) 51 A.L.J.R.
437, 442 (H.C., Aust.), relying in part on the “governmental function” of the Defence Forces
Retirement Benefits Board; Superannuation Fund Investment Trust v. Commr. of Stamps (S.A.)
(1979) 145 C.L.R. 330, 349 (H.C., Aust.) relying in part on the governmental functions of the
Trust; Commr. of Inland Revenue v. Medical Council of N.Z. [1997] 2 N.Z.L.R. 297, 327 (C.A.)
(noting that although the functions test “can cause difficulty and...is now not as prominent as
it once was”, it nevertheless remains relevant to the determination of Crown agency status);
B.C. v. Lafarge Can. [2007] 2 S.C.R. 86, citing R. v. Ont. Labour Relations Bd., this note, and
suggesting that “control is, of course, a leading indicator of Crown agency status, but it is only
part of the test” (para. 58), but later referring to it as the “key element” (para. 61) (compare
Nova Scotia Power v. Can. [2004] 3 S.C.R. 53, para. 12, suggesting that an entity will become
a Crown agent “when the Crown exercises sufficient control over it so that it can be said to be
in de jure control, which requires a careful examination of the relationship between the parties”).
See also Seddon, Government Contracts, note 4, above, sec. 4.8, (citing recent Australian cases
which, although relying on the control test, also made reference to certain functions as being
of a governmental nature).
464
CROWN AGENT AT COMMON LAW 16.2(b)
body. For the courts, the only safe criterion to determine whether a particular
function is governmental or not is whether the government has chosen to assume
control of it. That, at bottom, is the rationale for the control test.
(b) Control test
The control test stipulates that the question whether a public corporation is
an agent of the Crown depends upon “the nature and degree of control which the
Crown exercises over it”.9 If the corporation is controlled by a minister (or cabinet)
in much the same way as a government department is controlled, then the cor-
poration is an agent of the Crown. If, on the other hand, the corporation is largely
free of ministerial control, then it is not an agent of the Crown.10
The control test was firmly established by the turn of the century. The
decisive authority was Fox v. Government of Newfoundland (1898),11 in which
the Privy Council used the control test to deny Crown priority to the debts of an
education board. The board was not a Crown agent because, within the limit of
general educational purposes, the board had an independent discretion as to the
application of its resources. Another leading case is Metropolitan Meat Industry
Board v. Sheedy (1927).12 In that case, the members of the board were appointed
by the New South Wales Governor in Council, and both the Governor in Council
and an individual minister possessed powers over the board. Nevertheless, the
Privy Council held that the board possessed so much discretionary power uncon-
trolled by the government that it was not an agent of the Crown.
The Sheedy case demonstrates that a public corporation need not be wholly
free from ministerial control in order to be held not to be a Crown agent. It is not
possible to specify precisely what degree of control is required to make a public
corporation an agent of the Crown. Between the extremes of full control and no
control lies a continuum in which the courts have ranged without clear rules, often
simply repeating that it is the “nature and degree of control” that has to be assessed.
9 This is the formulation that has become standard in the modern Canadian cases: Westeel-Rosco
v. Bd. of Governors of South Sask. Hospital Centre [1977] 2 S.C.R. 238, 249-250; Fidelity
Insurance Co. v. Cronkhite Supply [1979] 2 S.C.R. 27, 29; Northern Pipeline Agency v.
Perehinec [1983] 2 S.C.R. 513, 519; Yukon (Medical Council) v. Yukon (Information and
Privacy Commr.) (2002) 217 D.L.R. (4th) 278, para. 21 (Y.T.C.A.). See generally R. Flannigan,
“Crown Agent Status” (1988) 67 Can. Bar Rev. 229.
10 See, e.g., R. v. Campbell [1999] 1 S.C.R. 565, holding that the police are not Crown agents
while carrying out criminal investigations, because they operate independently from the exec-
utive. The decision relies in part on Enever v. The King (1906) 3 C.L.R. 969, 977 (H.C., Aust.),
in which the High Court of Australia held that “the powers of a constable, quâ peace officer,
whether conferred by common or statute law, are exercised by him by virtue of his office, and
cannot be exercised on the responsibility of any person but himself. . . [He] is not exercising a
delegated authority, but an original authority, and the general law of agency has no application”.
11 [1898] A.C. 667 (P.C., Can.).
12 [1927] A.C. 899 (P.C., Aust.).
465
16.2(b) CROWN AGENTS
As Dickson J. has said: “the greater the control, the more likely it is that the
person will be recognized as a Crown agent”.13 However, the tendency of the
decisions is to require a high degree of control; in other words, the tendency of
the decisions is against the finding of Crown agent status.14 The reason, without
doubt, is a justified reluctance on the part of the courts to extend the special
privileges of the Crown any further than necessary. The prevalent judicial attitude
was well captured by Gibbs C.J. in the High Court of Australia:15
All persons should prima facie be regarded as equal before the law, and no statutory
body should be accorded special privileges and immunities unless it clearly appears
that it was the intention of the legislature to confer them.
The result is that the status of Crown agent (at common law)16 will only be
extended to public bodies that are fairly closely controlled by the executive. Any
substantial measure of independent discretion will suffice to deny the status of
Crown agent to a public body that is subject to some degree of direct control.17
For the purpose of the control test, control means de jure control, not de
facto control. It is the degree of control that the minister is legally entitled to
13 R. v. Eldorado Nuclear [1983] 2 S.C.R. 551, 573.

14 E.g., Tamlin v. Hannaford, note 8, above, holding that the British Transport Commission was
not an agent of the Crown despite the power of the responsible minister to give to the Com-
mission “directions of a general nature in matters which appear to [the minister] to affect the
national interest”; Townsville Hospitals Bd. v. City of Townsville (1982) 149 C.L.R. 282 (H.C.,
Aust.), holding that the Townsville Hospitals Board was not an agent of the Crown when
constructing a building, despite requirements of ministerial approvals for borrowing or raising
money and for various aspects of construction. In the latter case, the tendency against a finding
of common-law Crown agency was explicitly acknowledged (at 291) by Gibbs C.J. for a
unanimous Court. In the former case there is a (less explicit) acknowledgement (at 25) by
Denning L.J.
15 Townsville Hospitals case, previous note, 291. See also note 94 and accompanying text, below.
16 The express statutory designation of a public corporation as a Crown agent will, of course, be
respected by the courts, regardless of the degree to which the corporation is controlled by the
executive: see Nova Scotia Power, note 8, above, paras. 12-13. This is a second method by
which the status of Crown agent may be acquired, and it is discussed in the next section of this
chapter.
17 Generally, it will be the overall nature of the control by the Crown that will determine whether
an entity is a Crown agent: see Registrar of the Accident Compensation Tribunal v. Federal
Commr. of Taxation (1992) 178 C.L.R. 145 (H.C., Aust.). However, it is also possible that a
public corporation may be a Crown agent at common law in the exercise of one function
(because the corporation is subject to control in the exercise of that function) and not be a
Crown agent in the exercise of another function (because the corporation is not subject to
control in the exercise of that function). This possibility has often been recognized, e.g., in
Townsville Hospitals Bd. v. City of Townsville, note 14, above, 288 (giving further Australian
references); Northern Pipeline Agency v. Perehinic, note 9, above, 520-521. This possibility
also exists in the case of a public corporation that is designated by statute to be a Crown agent.
The designation could be limited to only some of the corporation’s functions. Even if the
designation applies to all of the corporation’s functions, Crown agency status will still be lost
when the corporation acts outside its statutory powers, as occurred in CBC v. The Queen [1983]
1 S.C.R. 339, discussed in text accompanying note 37, below.
466
CROWN AGENT AT COMMON LAW 16.2(b)
exercise that is relevant, not the degree of control that is in fact exercised.18 The
question is therefore resolved by an examination of the corporation’s empowering
statute, and does not involve an assessment of the actual relationship between the
corporation and the government.19 The clearest example of de jure control is the
case where a minister actually heads the corporation.20 Another clear example is
the case where there is a statutory requirement of the approval of a minister or of
the cabinet for important transactions.21 Such matters as the power to appoint
directors22 and to supply funding,23 although they may provide opportunities for
de facto control of the corporation’s activities, are not sufficient by themselves
to establish de jure control.24
Crown agency status may be conferred through contract, but mere designa-
tion of an entity as a Crown agent in a contract will not necessarily be determi-
native. In Montreal v. Montreal Locomotive Works Ltd. (1947),25 a company had
contracted with the Crown to construct and operate a factory to produce tanks
and gun carriages. The contract stated that the company undertook the work “for
and on behalf of the Government and as its agent”. Despite this contractual
language, the Privy Council applied the control test in order to determine whether
the company was a Crown agent.26
18 Bank voor Handel en Scheepvaart N.V. v. Administrator of Hungarian Property [1954] A.C.
584, 617 (H.L.); Eldorado Nuclear, note 13, above, 573; Nova Scotia Power, note 8, above.
19 The statement in Nova Scotia Power, note 8, above, para. 12, that an entity will become a
Crown agent “when the Crown exercises sufficient control over it so that it can be said to be in
de jure control, which requires a careful examination of the relationship between the parties”
is confusing, because it seems to conflate de jure control and de facto control.
20 Northern Pipeline Agency v. Perehinec, note 9, above.
21 Halifax v. Halifax Harbour Commrs. [1935] S.C.R. 215, 226; Eldorado Nuclear, note 13,
above, 571.
22 Metropolitan Meat Industry Bd. v. Sheedy, note 12, above, 905; Westeel-Rosco v. Bd. of
Governors of South Sask. Hospital Centre, note 9, above, 249; Townsville Hospitals Bd. v. City
of Townsville, note 14, above, 289.
23 Fox v. Govt. of Nfld., note 11, above, 671; Westeel-Rosco v. Bd. of Governors of South Sask.
Hospital Centre, previous note, 252.
24 A statutory provision may deem the actions of a minister to be done by a public corporation in
its own name, in which case no issue of Crown agency will arise, regardless of whether or not
there was de jure control: see Toronto District School Bd. v. Can. 2009 FCA 324 (F.C.A.).
25 [1947] 1 D.L.R. 161 (P.C.).
26 Lord Wright developed what has been termed an “enterprise control” test, focusing not merely
on the extent of control by the government but also on whether the government owned the
property used in the enterprise and bore the risk of loss. In this case, Montreal Locomotive
Works managed the undertaking, but was subject to the supervision and control of the minister;
further, the private company had not supplied any financing for the undertaking, took no risk
of loss or liability, and received a fee only for management services. Accordingly, the company
was held to be a Crown agent rather than an independent contractor. For a discussion of the
“enterprise control” test used in this case, see R. Flannigan, “Enterprise Control: The Servant-
Independent Contractor Distinction” (1987) 37 U. Toronto L.J. 25.
467
16.3 CROWN AGENTS
16.3 Crown agent by statute

(a) General rule
If (as is common) a statute expressly provides that a public corporation is to

be “an agent of the Crown”, then the corporation will be an agent of the Crown.27
A Parliament or Legislature, acting within its competence, is free to confer on a
public corporation any privileges or immunities that it chooses. If it chooses to
confer on the corporation the privileges and immunities of the Crown, that is a
matter of legislative policy that is unreviewable by the courts. The express stip-
ulation that a public corporation is to be an agent of the Crown is accordingly
conclusive, even if the public corporation is not subject to the control of a minister
of the Crown, and would for that reason not be treated as an agent of the Crown
at common law.28
The express stipulation that a public corporation is a Crown agent is conclu-
sive, but the courts are reluctant to permit public corporations to claim Crown
privileges or immunities. One way that the courts have found to get around an
express stipulation that a public corporation is a Crown agent is to interpret the
statutory designation as being for a limited or specific purpose only.29 This ap-
proach is evident in British Columbia Power Corporation Limited v. Attorney
General (1962).30 In that case, a provincial statute declared that the British Co-
27 An express provision that a public corporation is an agent of the Crown is usually found in the
statute establishing the particular corporation. In principle, there is no reason why an entire
class of public corporations could not be stipulated to be agents of the Crown. This seems to
be the intent of Ontario’s Crown Agency Act, R.S.O. 1990, c. C-48, which defines a “Crown
agency” and then provides that a Crown agency is an agent of the Crown. In practice, however,
Ontario courts have ignored the broad language of the definition of Crown agency and have
held that only bodies controlled by the Crown come within the definition, so that the Act has
not changed the common law rule: see, e.g., Mason v. Ont. (1998) 39 O.R. (3d) 225 (C.A.); see
further C.H. McNairn, “The Ontario Crown Agency Act” (1973) 6 Ottawa L. Rev. 1, which
discusses the origin and interpretation of the Act. The Government Corporations Operation
Act, R.S.C. 1985, c. G-4, s. 3, provides that certain Crown-owned companies are agents of the
Crown. See also Government Organization Act, R.S.A. 2000, c. G-10; Crown Corporations
Act, 1993, S.S. 1993, c. C-50.101, s. 17; Crown Entities Act 2004 (N.Z.); and the Australian
statutes listed in Seddon, note 4, above, 151-152 – all of which speak to the status of various
public entities.
28 R. v. Eldorado Nuclear [1983] 2 S.C.R. 551, 576 (Eldorado Nuclear entitled to Crown immunity
by virtue of express statutory designation as agent, although not controlled by Crown); Nova
Scotia Power v. Can. [2004] 3 S.C.R. 53, paras. 12-13 (Nova Scotia Power a Crown agent by
virtue of express statutory designation as agent). Conversely, if a statute expressly states that
an entity is not a Crown agent, such a statement will be regarded as conclusive: see The Queen
v. Kearney (1984) 158 C.L.R. 395 (H.C., Aust.).
29 This enquiry overlaps with the enquiry as to whether a Crown agent has acted outside its
statutory mandate, thereby losing its status as a Crown agent: see further sec. 16.3(b), “Ultra
vires activity”, below.
30 (1962) 34 D.L.R. (2d) 25 (B.C.C.A.).
468
CROWN AGENT BY STATUTE 16.3(a)
lumbia Electric Company Ltd. was “an agent of Her Majesty the Queen in right
of the Province”. Another company commenced an action against the Electric
Company, and the Electric Company claimed that it was immune from discovery
on the ground that it was an agent of the Crown. The British Columbia Court of
Appeal held that, despite the statutory designation, the Electric Company was
only a Crown agent when it “performs a duty for or carries out a direction, or acts
for on behalf of Her Majesty, or deals with or otherwise acts in respect of or holds
public funds or property of Her Majesty”.31 It was also pointed out by one member
of the Court that the statutory designation did not include language designating
the Electric Company as a Crown agent “for all purposes”.32 In this case, since
the Electric Company was not acting pursuant to the instructions of the govern-
ment, it was held that it was not entitled to the status of a Crown agent and,
accordingly, was not immune from discovery. Thus, where a statute does not
designate an entity as an agent of the Crown “for all purposes”,33 a court may
wish to ensure that the entity is acting within the terms of its designation before
concluding that it is entitled to claim the status of Crown agent.34 This illustrates
the general reluctance of the courts to extend Crown privileges and immunities
to public corporations, even, as here, in the face of explicit statutory language.35
31 Id., 28-29 per Des Brisay C.J.B.C.

32 Id., 31 per Sheppard J.A.
33 However, even where a statutory designation as Crown agent is stated to be “for all purposes”,
this does not mean that the status of Crown agent cannot be lost. It is clear that the Crown
immunity that is possessed by a public corporation by virtue of an express designation as Crown
agent is lost if the corporation acts outside its statutory purposes: see Eldorado Nuclear, note
28, above, 565; and see further sec. 16.3(b), “Ultra vires activity”, below.
34 Compare Nova Scotia Power, note 28, above (Nova Scotia Power a Crown agent by virtue of
statutory designation, even though the designation did not include the words “for all purposes”).
In the Court of Appeal decision (2003 FCA 33 (C.A.)), Pelletier J.A., writing for the Court,
criticized the decision in B.C. Power Corp., and suggested that it had been implicitly overruled,
at least in part, in Eldorado Nuclear, note 28, above, to the extent that it did not treat the
language of the statutory designation as conclusive of the issue of Crown agency. The Supreme
Court of Canada did not address this aspect of the Court of Appeal’s reasons.
35 A similar impulse is evident in Australia, in cases dealing with statutory language designating
an entity an “instrumentality of the Crown” or a “statutory body representing the Crown”. In
Launceston Corp. v. Hydro Electric Commn. (1959) 100 C.L.R. 654 (H.C., Aust.), and Re Anti-
Cancer Council of Vic.; Ex Parte State Public Services Federation (1992) 175 C.L.R. 442
(H.C., Aust.), the High Court of Australia held that statutory language designating an entity an
“instrumentality of the Crown” did not, in itself, indicate that the entity was a Crown agent.
The cases proceeded on the basis that the term “instrumentality” was wider than that of “servant”
or “agent”, and thus that a state instrumentality was not necessarily a Crown agent. The common
law control test was relied upon to determine Crown agency status. Similarly, in McNamara
(McGrath) v. Consumer Trade and Tenancy Tribunal (2005) 221 C.L.R. 646 (H.C., Aust.), the
High Court of Australia held that statutory language designating an entity a “statutory body
representing the Crown” was not sufficient to confer Crown immunity. This result was unex-
pected, because the High Court had previously held otherwise in Wynyard Investments Pty v.
Commr. for Railways (N.S.W.) (1955) 93 C.L.R. 376 (H.C., Aust.), and s. 3 of the New South
Wales Crown Proceedings Act defined “Crown” to include “a statutory corporation, or other
469
16.3(b) CROWN AGENTS
(b) Ultra vires activity
The Crown immunity that is possessed by a public corporation by virtue of

an express designation as agent of the Crown is lost if the corporation acts outside
its statutory mandate.36 In Canadian Broadcasting Corporation v. The Queen
(1983),37 the question arose whether the CBC was bound by the Criminal Code
provision prohibiting the exhibition of obscene films. The Criminal Code provi-
sion did not bind the Crown. The federal statute that established the CBC provided
that the corporation was “an agent of Her Majesty”. Nevertheless, the Supreme
Court of Canada held that the CBC was bound by the Criminal Code provision,
and was liable to prosecution for exhibiting an obscene film. The CBC was subject
to regulations which, among other things, expressly prohibited it from broad-
casting obscene material. Therefore, the CBC, when broadcasting the obscene
film, was acting outside its powers. This caused it to lose its Crown immunity.
It might be thought that compliance with the general law would always be
a limitation on the powers of a public corporation. But the position is not so
simple. In a 1959 case, also involving the CBC, Canadian Broadcasting Corpo-
ration v. A.-G. Ont. (1959),38 the corporation was held to be entitled to Crown
immunity from the provisions of the Lord’s Day Act, so that the corporation was
free to broadcast on Sundays. The Supreme Court of Canada held that it was
sufficient to retain the Crown agent protection that the CBC’s statutory mandate
authorized the provision of a broadcasting service without any limitation as to
time.
In R. v. Eldorado Nuclear (1983),39 two public corporations engaged in the
production of uranium, which had allegedly participated with other uranium
producers in a price-fixing cartel, were held to be immune from the anti-trust
provisions of the Combines Investigation Act (which did not bind the Crown).
Each corporation was expressly designated an “agent of Her Majesty”. Dickson
J., for the majority of the Supreme Court of Canada, held that this designation
conferred immunity, because the purposes of each corporation were broad enough
to authorize the “marketing arrangements” that were the subject of the anti-trust
charge.
Wilson J. (with McIntyre J.) dissented in Eldorado Nuclear, on the basis
that the general purposes of a Crown agent should not be regarded as including
body, representing the Crown in right of New South Wales”. As Seddon notes, this case “can
be seen as a signal...that Crown immunity should be kept to a minimum and should not, so far
as possible, extend to bodies that are not the executive government”: see note 4, above, 150-
151. See further D. Barnett, “Statutory Bodies and ‘The Crown’” (2005) 28 U.N.S.W.L.J. 186,
205-218.
36 The agent is deemed to be acting personally and not on behalf of the Crown in such instances.
See Eldorado Nuclear, note 28, above, 565-566, 568.
37 [1983] 1 S.C.R. 339.
38 [1959] S.C.R. 188.
39 Note 28, above.
470
CROWN AGENT BY STATUTE 16.3(b)
illegal activity, unless the Crown agent could “show that he could not carry out
his mandate without the commission of such [illegal] acts”.40 In her view, that
test was satisfied in the 1959 CBC case, where the prohibition on Sunday broad-
casting could be regarded as frustrating the CBC’s statutory mandate. But she
found nothing in the uranium corporations’ statutes that required the corporations
to engage in an illegal price-fixing cartel with private firms.41 The result of the
majority’s decision, she pointed out, was to confer on a Crown corporation “carte
blanche to engage in illegal activities”.42 Wilson J.’s view does seem preferable
in confining the protection of Crown agent status to those activities which comply
with the general law, except where breach of the general law is explicitly author-
ized or is impliedly authorized in that it is necessary43 to carry out the Crown
agent’s statutory purposes.44
There is evidence of a turn to Wilson J.’s approach in Eldorado Nuclear in
R. v. Campbell (1999).45 In that case, the RCMP, as part of a “reverse sting
operation”, sold a large quantity of cannabis resin (hashish) to two members of a
drug trafficking organization, both of whom were then charged and convicted
under the Narcotic Control Act. The two accused sought a stay of proceedings,
before sentencing, on the basis that the RCMP violated the Narcotic Control Act
by selling them the hashish. The Supreme Court of Canada overturned the deci-
sions of the lower courts, which denied the stay, and ordered a new trial. The
Crown argued that the RCMP officers did not violate the Narcotic Control Act,
because the officers were agents of the Crown, and thus immune from statute.
Binnie J., writing for the Court, held that the RCMP officers were not entitled to
claim Crown immunity from statute, because they were not acting as agents of
the Crown while investigating crime. However, he also said, in obiter, that even
if the RCMP officers were Crown agents in that context, they were not entitled
to claim Crown immunity from statute in this case, because the officers in question
had stepped outside the ambit of their statutory mandate. Echoing Wilson J.’s
dissent in Eldorado Nuclear (but referencing the majority decision of Dickson
J.), Binnie J. said that “[w]hile it may be convenient and expeditious for the police
to enforce the Narcotic Control Act by breaking it themselves under ‘controlled
40 Id., 585.
41 Id., 592.
42 Ibid. Wilson J. held nevertheless that one of the two public corporations, namely, Uranium
Canada, was immune, because its participation in the cartel had been directly approved by the
Governor in Council.
43 A necessity test has been used to determine whether an individual Crown servant is entitled to
share the Crown’s immunity from statutes: R. v. Stradiotto [1973] 2 O.R. 375 (C.A.); discussed
in ch. 15, Statutes, under heading 15.15, “Crown agents and servants”, above.
44 In each of the four cases discussed in this section of the text, it is assumed that there is no
problem in principle in a Crown agent being held criminally liable, and of course in the 1983
CBC case a prosecution was permitted to proceed. The criminal liability of the Crown is
discussed in ch. 15, Statutes, under heading 15.14, “Criminal liability”, above.
45 [1999] 1 S.C.R. 565. Binnie J. wrote for the Court.
471
16.4 CROWN AGENTS
circumstances’, such a strategy in the present case was not necessary to accom-
plish the RCMP’s statutory mandate”.46 Parliament had stipulated that the RCMP
must act “in accordance with the law”,47 and this made it clear that “illegality by
the RCMP is neither part of any valid public purpose nor necessarily ‘incidental’
to its achievement”.48 It is possible to distinguish Campbell from Eldorado Nu-
clear, because, unlike in Eldorado Nuclear, the RCMP in Campbell were explic-
itly required to act “in accordance with the law”. However, the suggestion that
the alleged illegality (violating the Narcotic Control Act by engaging in a reverse
sting operation) was not impliedly authorized, because it was not necessary to
accomplish the RCMP’s statutory mandate, does appear to suggest a move to-
wards Wilson J.’s approach in Eldorado Nuclear.49
16.4 Liability of Crown agent

(a) Introduction
Is a Crown agent liable to be sued directly in its own name, or must the
Crown itself be sued for the acts or omissions of the agent? This question breaks
down into two sub-questions. The first question is one of procedure, namely: is
the Crown agent an entity that can be sued in its own name? If the procedural
question is answered yes, a second question, one of substantive law, arises,
namely: to what extent is the Crown agent, rather than the Crown itself, respon-
sible for the Crown agent’s acts or omissions?
(b) Liability to be sued
With respect to the procedural question, if the Crown agent is incorporated,

the general rule is that it is an entity that can sue or be sued in its own name.
Capacity to sue or be sued is one of the attributes of legal personality that is

47 Royal Canadian Mounted Police Act, R.S.C., 1985, c. R-10, s. 37.
48 Campbell, note 45, above, para. 39. See now Controlled Drugs and Substances Act (Police
Enforcement) Regulations S.O.R./97-234, which authorizes reverse sting operations in specific
circumstances.
49 See also Athabasca Chipewyan First Nation v. B.C. (2001) 199 D.L.R. (4th) 452 (Alta. C.A.)
(British Columbia Hydro and Power Authority not entitled to benefit from the Court’s conclu-
sion that the Alberta Rules of Court did not apply to the province of British Columbia; the
Authority’s incorporating statute required compliance with the British Columbia Water Act;
not only was the Authority alleged to have breached that Act, but it had also purportedly affected
property outside the province and breached federal laws, neither of which had been authorized).
472
LIABILITY OF CROWN AGENT 16.4(b)
possessed by a corporation.50 The general rule may be reinforced by an express

declaration in the constituting statute that the corporation is suable, but an express
declaration is not necessary. The general rule may be abrogated for a particular
corporation by a denial in the constituting statute that the corporation is suable;
in that case, of course, the corporation cannot be sued.
If the Crown agent is unincorporated, the general rule is that it lacks a distinct
legal personality and is for that reason not an entity that can sue or be sued in its
own name.51 If the constituting statute contains an express provision making the
entity suable, then, of course, the entity can be sued. If the constituting statute
does not contain an express provision making the entity suable, the statute may
still be interpreted as implicitly making the entity suable. If the constituting statute
endows the entity with the capacity to hold property or to enter into contracts,
then the entity will be held to be suable by necessary implication. For example,
in Northern Pipeline Agency v. Perehinec (1983),52 the Supreme Court of Canada
had to decide whether a suit could be brought against the Northern Pipeline
Agency, an unincorporated body that was an agent of the federal Crown. The
Court held that, because the Agency had the statutory power to enter into contracts
of employment in its own name, the Agency was by implication liable to be sued
for wrongful dismissal in its own name.53
If, on the other hand, the constituting statute confers upon the unincorporated
body only powers of regulation, administration or adjudication, then the general
rule that the body cannot be sued will apply. For example, the Ontario Labour
Relations Board, the Ontario Securities Commission, the Royal Canadian
Mounted Police Public Complaints Commission, and Ontario’s Building Mate-
rials Evaluation Commission, all unincorporated bodies, have been held to be
50 This rule is explicit in the Interpretation Act of most jurisdictions, e.g., Legislation Act, 2006,
S.O. 2006, c. 21, Sched. F, s. 92(1), but, in the absence of indications to the contrary, it would
follow in any event from the fact of incorporation: compare Rattenbury v. Land Settlement Bd.
[1929] S.C.R. 52, holding that the Board could be sued despite silence of the incorporating
statute.
51 Mackenzie-Kennedy v. Air Council [1927] 2 K.B. 517 (C.A.), holding that the Air Council, an
unincorporated body, could not be sued in tort.
52 [1983] 2 S.C.R. 513.
53 Compare, Bank of Montreal v. Bole [1931] 1 W.W.R. 203 (Sask. K.B.), holding unincorporated
Liquor Board engaged in the sale of liquor liable to be sued. Contrast MacLean v. Liquor
Licensing Bd. of Ont. (1975) 9 O.R. (2d) 597 (Ont. Div. Ct.), holding unincorporated Liquor
Licensing Board engaged in the licensing of liquor outlets, not the sale of liquor, not liable to
be sued; and Whalley v. R.C.M.P. (2009) 314 D.L.R. (4th) 498 (N.S.C.A), holding the RCMP
Public Complaints Commission could not be sued for damages in tort, because the Royal
Canadian Mounted Police Act, R.S.C. 1985, c. R-10, expressly provided that the Commission’s
employees were appointed pursuant to the Public Service Employment Act, S.C. 2003, c. 22,
and temporary appointments required the approval of the Treasury Board, but also noting that
“being able to enter into contracts whether for employment or other purposes does not, by
necessary implication, make the Commission liable to be sued for damages in tort” (para. 17).
The cited text is difficult to reconcile with the Supreme Court’s decision in Perehinec, previous
note.
473
16.4(c) CROWN AGENTS
immune from actions for damages.54 However, the nature of each tribunal’s
functions made the tribunal amenable to judicial review by way of the prerogative
writs or other administrative law remedies; to that extent, the constituting statute
conferred legal personality by implication on the unincorporated body. But the
absence of any indication that the body was to hold property, enter into contracts
or engage in commercial activity left the body otherwise free from lawsuits.
(c) Liability under substantive law
Assuming that a Crown agent is a suable entity, the next question is whether
the rules of substantive law operate to impose liability on the Crown agent.
Generally speaking, the case law assimilates a Crown agent to an individual
Crown servant, and holds the Crown agent directly liable in those circumstances
where a Crown servant would be personally liable. On this basis, a public cor-
poration may be liable in tort or contract (or other head of liability) despite its
status as an agent of the Crown.
In 1948, Glanville Williams55 advanced the theory that a corporation that
was an agent of the Crown could not be assimilated to an individual Crown
servant. He argued that a corporate Crown agent56 differed from an individual
Crown servant in that a public corporation could have no private property, as a
human being would have. The status of a corporation as a Crown agent meant
that all its property was Crown property, and, he pointed out, Crown property is
never available to satisfy a judgment against a servant personally.57 Williams
concluded that “the general rule is that no action in tort can be brought against
such a corporation - not even an action for an empty judgment”.58 The effect of
this theory would be to render those public corporations that are agents of the
Crown immune from all actions, whether founded in tort or contract or any other
branch of the law.
54 Hollinger Bus Lines v. Ont. Labour Relations Bd. [1952] O.R. 366 (C.A.), dismissing action
for damages against the Ontario Labour Relations Board; Westlake v. The Queen [1971] 3 O.R.
533 (H.C.), aff’d [1972] 2 O.R. 605 (C.A.), aff’d [1973] S.C.R. vii, dismissing action for
damages against the Ontario Securities Commission; Whalley, previous note, dismissing action
for damages against the RCMP Public Complaints Commission; and Gratton-Masuy Environ-
mental Technologies v. Ont. (2010) 101 O.R. (3d) 321 (C.A.), holding Building Materials
Evaluation Commission not liable to suit for damages. The judgment of Houlden J. in the High
Court of Ontario in Westlake contains a useful classification of statutory bodies from the
standpoint of liability to suit. Houlden J.’s classification was relied upon by Estey J. for the
Supreme Court of Canada in Northern Pipeline Agency v. Perehinec, note 52, above, 527 in
the course of his examination of the liability to suit of the Northern Pipeline Agency. The
accompanying text essentially follows this classification.
55 Williams, Crown Proceedings (1948), 21.
56 He treated “agent” as a synonym for “servant” in this context: Id., 24.
57 As a matter of grace, the Crown might choose to satisfy the judgment, as used to be its practice
in tort cases before the Crown was itself liable.
474
LIABILITY OF CROWN AGENT 16.4(d)
The Courts have not accepted Williams’ theory. While Williams’ objections
have never been explicitly considered, and are not easy to answer, the assumption
is that the assets of a public corporation that are used for its activities are also
available to satisfy any judgment arising out of those activities. The possession
of the legal capacity to sue or be sued carries the implication that a public
corporation can be entitled to rights and subject to obligations in its own right.59
In any event, as succeeding paragraphs will show, public corporations that are
agents of the Crown have been held directly liable in both tort and contract. The
governing principle, as noted earlier, is that a corporate Crown agent will be liable
in its own right in those circumstances where an individual Crown servant would
be personally liable.
(d) Tort
In tort, the leading case is Conseil des Ports Nationaux v. Langelier (1969),60
in which property owners sued the National Harbours Board for an injunction
restraining the Board from construction works that constituted the tort of nuisance.
The Board was a corporation that was expressly designated by its statute to be
“the agent of Her Majesty in right of Canada”. The Board defended the action on
the basis that the Crown itself was the only proper defendant to such an action.
However, the Crown itself was immune from injunctive relief,61 which is no doubt
the reason why only the Board was sued. The Supreme Court of Canada held that
the action was properly brought against the Board. Martland J. for the Court
pointed out that individual Crown servants were personally liable for torts com-
mitted in the service of the Crown, and he held that a corporation that was an
agent of the Crown was in the same situation.62 Just as an individual Crown
servant could be enjoined from committing a tort, so a corporate Crown agent
could also be enjoined.
Damages were not sought by the plaintiffs in Langelier, but the Court’s
reasoning makes clear that a Crown agent could be sued directly for damages if
it committed a tort.63 However, the corporation’s liability would arise only if the
59 Williams acknowledged that public corporations that were not agents of the Crown were fully
liable in tort or contract: Id., 21-23.
60 [1969] S.C.R. 60.
61 See ch. 2, Remedies, under the heading 2.4, “Injunction”, above.
62 Note 60, above, 72, approving obiter dictum of Atkin L.J. in Mackenzie-Kennedy v. Air Council,
note 51, above, 532-533.
63 Tort actions for damages have often been permitted to proceed against the Canadian Broad-
casting Corporation, which is an agent of the Crown, e.g., United Assn. of Journeymen v. CBC
(1979) 97 D.L.R. (3d) 56, 59 (Alta. S.C.), explicitly following the Langelier case. See also
Farm Adjustment Bd. v. Fundy Lamb Producers (1982) 135 D.L.R. (3d) 731 (N.B.C.A.),
allowing tort action to proceed against Crown agent; Can. Saltfish Corp. v. Rasmussen [1986]
2 F.C. 500, 511-512 (C.A.), acknowledging Crown agent’s liability in tort, but denying Federal
Court jurisdiction.
475
16.4(d) CROWN AGENTS
corporation committed the tort directly. This would occur, for example, if the
board of directors passed a resolution ordering the commission of the tortious act,
or if an officer who was the “directing mind” of the corporation ordered (or
committed) the tortious act.64 The corporation would not be liable for a tort
committed by its employees in the course of their employment. This is because a
corporate Crown agent is assimilated to an individual Crown servant. An individ-
ual Crown servant is not vicariously liable for the torts of subordinate Crown
servants, because the superior servant is not the employer of the subordinate
servant: the superior and the subordinate are both fellow servants of the Crown,
and only the Crown itself is vicariously liable for the torts of its servants.65 Like
an individual Crown servant, a corporate Crown agent enjoys the same immunity
from vicarious liability for the torts of its employees.66
The immunity of a Crown agent from vicarious liability for the torts of its
employees may be abrogated by statute. A provision expressly making the Crown
agent liable would obviously be effective.67 Any provision that makes clear that
the persons working for a Crown agent are the employees of the Crown agent
(rather than the Crown) would also be effective to make the Crown agent vicar-
iously liable for the torts of those employees. In Brière v. Canada Mortgage and
Housing Corporation (1986),68 it was held that CMHC, although designated by
statute as a Crown agent, could be vicariously liable for the torts of its employees.
The Federal Court of Canada acknowledged the general rule that a Crown agent
is not the employer of its personnel and is therefore not vicariously liable for their
torts.69 But the Court held that the general rule was displaced in this case by
statutory provisions authorizing CMHC to employ officers and employees “on
its own behalf” and declaring that “such officers and employees are not officers
64 Mackenzie-Kennedy v. Air Council, note 51, above, 533, affirming, in obiter, the liability of a
corporate Crown agent for a tort committed by the corporation’s board of directors; K.L.B. v.
B.C. [2003] 2 S.C.R. 403, para. 12, suggesting that “[d]irect negligence, when applied to legal
persons such as bodies created by statute, turns on the wrongful actions of those who can be
treated as the principal organs of that legal person”.
65 Bainbridge v. Postmaster-General [1906] 1 K.B. 178 (C.A.), holding Postmaster-General not
liable for torts committed by subordinates.
66 Que. Liquor Commrs. v. Moore [1924] S.C.R. 540, holding Commission not liable for negli-
gence of servant; Peccin v. Lonegan [1934] O.R. 701 (C.A.), holding Railway Commission not
liable for negligence of servants. Broader statements of immunity in the latter case were
disapproved in Langelier, note 60, above, 70. The immunity from vicarious liability of a
corporate Crown agent was recognized, in obiter, in the last case (at 73). Accord, D. Mundell,
in Law Society of Upper Canada, Remedies, Special Lectures, 1967, 149, 176; Goldenberg, in
Law Society of Upper Canada, New Developments in the Law of Torts, Special Lectures, 1973,
341, 362.
67 The National Harbours Act contained a provision expressly making the Board vicariously liable
for the torts of its employees. This was pointed out by Martland J. in Langelier, note 60, above,
73, but it was not relevant to the litigation because it was direct liability, not vicarious liability,
that was alleged in the action for the injunction.
68 [1986] 2 F.C. 484 (C.A.).
69 Id., 493.
476
LIABILITY OF CROWN AGENT 16.4(d)
or servants of her Majesty”. These provisions made CMHC the employer, which
had the effect of rendering CMHC vicariously liable in tort.70
Where a corporate Crown agent is directly liable in tort (because the gov-
erning body or directing mind of the corporation committed the tort), this obvi-
ously means that the injured plaintiff may sue the corporation for damages or
other relief. Can the plaintiff also sue the Crown itself? The answer to this question
should be yes. The corporate Crown agent is equivalent in law to an individual
Crown servant, and the Crown is vicariously liable for the tort of an individual
Crown servant. This is the position in the United Kingdom, New Zealand, all but
one Australian jurisdiction (Victoria) and the Canadian federal jurisdiction, but
not in the Canadian provinces.
In Canada, the model Crown Proceedings Act of 1950, which was enacted
in substance by all Canadian provinces except Quebec,71 included a provision
that exempts the Crown from liability “in respect of a cause of action that is
enforceable against a corporation or other agency of the Crown”.72 Although
Quebec did not enact the Model Act, this particular provision has also been
enacted in Quebec.73 It is also in the Crown Proceedings Act of Victoria.74 While
the purpose and scope of this provision is not entirely clear, it does seem to
preclude an action against the Crown that is premised on vicarious liability for
the tort75 of a corporate Crown agent.76 This provision does not exist in the federal
70 Compare Washer v. B.C. Toll Highways and Bridges Authority (1965) 53 D.L.R. (2d) 620
(B.C.C.A.) (Crown agent’s employees were not Crown servants and were therefore not dis-
missible at pleasure); Northern Pipeline Agency v. Perehinec, note 52, above, 513 (Crown
agent’s employees could sue Crown agent for wrongful dismissal). Neither of these cases
involved vicarious liability in tort, but if they had, it is likely that the Crown agent would have
been held to be liable.
72 B.C., s. 3(2)(d); Alta., s. 3(c); Sask., s. 3(2)(d); Man., s. 2(2)(d); Ont., s. 2(2)(b); N.B., s. 2(2)(d);
N.S., s. 3(2)(d); P.E.I., s. 2(2)(c); Nfld., s. 3(2)(d). (Full references to the Crown proceedings
statutes are to be found in ch. 2, Remedies, note 1, above).
73 Code of Civil Procedure, R.S.Q. 1977, c. C-25, s. 94.1.
74 Crown Proceedings Act 1958 (Vic.), s. 23(3).
75 With the (likely) exception of Victoria, this provision does not immunize the Crown from
liability for breach of contract where both the Crown and the Crown agent are liable for the
breach. (This situation, which is common, is explained in the text that follows dealing with the
liability in contract of a Crown agent.) Since the Crown was liable in contract at common law,
the Crown Proceedings Acts did not need to, and did not in fact, subject the Crown to liability
in contract; the exempting provision would therefore have no application to causes of action in
contract.
76 Goldenberg, note 66, above, 359-364. In Athabasca, note 49, above, the Alberta Court of
Appeal, at para. 21, cited this text for the proposition that s. 3(2)(d) of the British Columbia
Crown Proceeding Act may exempt British Columbia from vicarious liability in an action for
tort against one of its corporate Crown agents. However, the Court declined to determine the
issue on this basis, deciding instead to base its decision on s. 4(1) of the Act, which was
interpreted to require British Columbia to be sued only in the British Columbia Supreme Court.
In Dumoulin v. Ont. (2004) 71 O.R. (3d) 556 (S.C.J.), Cullity J. suggested, although with some
477
16.4(e) CROWN AGENTS
jurisdiction, or in the United Kingdom, New Zealand or Australia (except for

Victoria). In those jurisdictions, the rules of vicarious liability would render the
Crown liable for the tort of a corporation that was an agent (servant) of the Crown.
(e) Contract
The liability in contract of an agent of the Crown77 is at first blush puzzling.

The general rule is that an agent is not personally liable under a contract made on
behalf of the agent’s principal.78 If there were no exceptions to the general rule,
an agent of the Crown would be immune from liability in contract: any contract
entered into as an agent of the Crown would be binding on the Crown itself, and
not on the agent. However, if the agent contracts personally, as well as on behalf
of the principal, then the agent is liable as well as the principal. This exception to
the general rule of agent’s immunity has proved important in cases involving
Crown agents.
In International Railway Co. v. Niagara Parks Commission (1941),79 the
Privy Council held that the Niagara Parks Commission could be sued in its own
right for breach of contract, even though the Commission was an agent of the
Crown. Luxmoore L.J. for the Privy Council said that “there is nothing to prevent
an agent from entering into a contract on the basis that he is himself liable to
perform it as well as his principal”.80 In this case, the terms of the contract made
clear that the Commission was to be bound as well as the Crown itself: the contract
was expressly made “on their behalf”, that is, on behalf of the Commissioners, as
well as on behalf of the Crown. It followed that the Commission was bound by
the contract, and could be sued for its breach. The position would have been the
same if the contract had been entered into for the Crown by an individual Crown
servant who had agreed to be personally liable along with the principal, the Crown.
In the Niagara Parks Commission case, the express terms of the contract
imposed liability on the Crown agent. The contribution of later cases has been to
show that the liability of a Crown agent may be implicit in a contract that is silent
on the point. In Yeats v. Central Mortgage and Housing Corporation (1950),81
the Central Mortgage and Housing Corporation, which was expressly designated
by its statute as an agent of the Crown “for all purposes”, was given the power
by its statute to enter into contracts either “in the name of His Majesty or in the
name of the Corporation”. Having entered into a contract in its own name, the
hesitation, that the Ontario provision (s. 2(2)(b)) may extend beyond claims for vicarious
liability, to cases of concurrent liability arising from the existence of identical causes of action.
77 S.L. Arrowsmith, “The Contractual Liability of the Crown and its Agents” (1990) 28 Osgoode
Hall L.J. 571.
78 See ch. 9, Contract, under heading 9.7, “Liability of Crown servants”, below.
79 [1941] A.C. 328 (P.C., Can.).
80 Id., 342.
81 [1950] S.C.R. 513.
478
LIABILITY OF CROWN AGENT 16.4(f)
Corporation was held to be bound by the contract and to be liable to suit for its
breach. In this case, the liability of the agent was not explicit in the contract, but
was held to be implicit when the contract was read in the light of the Corporation’s
empowering statute.82
In Northern Pipeline Agency v. Perehinec (1983),83 the question arose
whether a contract of employment could be enforced against the Northern Pipeline
Agency in its own right, or whether the Crown itself was the proper defendant.
The Agency was an agent of the Crown. Unlike the Corporation in Yeats, however,
the Agency was not incorporated, and had no explicit power to sue or be sued.
The Agency did have the power to “employ” officers and employees, but the
statute said nothing about whether this could be done in the name of the Agency.
Nevertheless, the Supreme Court of Canada, in an opinion written by Estey J.,84
decided that the Agency was a suable entity (an issue discussed earlier in this
chapter),85 and that on “a fair construction of the enabling statute” the Agency
had the power to enter into contracts “on its own behalf”.86 The Court concluded
that, since the Agency had entered into the contract of employment in its own
name, it could be sued in its own right for breach of contract. The Northern
Pipeline case is the manifestation of a trend, especially evident in the Supreme
Court of Canada, to hold public bodies responsible in their own right for their
contractual obligations. A result which in 1941 in the Niagara Parks Commission
case87 had required an express term in the Crown agent’s contract was in the
Northern Pipeline case reached readily, with little assistance from the contract or
the enabling statute. Estey J. plainly wanted to avoid the artificial result of holding
that the Crown itself was the only employer in the various and complex public
sector. He said that “in the world of realities” the Agency was a separate entity
within the public sector, and should be treated as the employer of its staff.88
(f) Crown immunities
When a Crown agent is sued in its own right, no defence of Crown immunity
is available to the Crown agent. Remember that the analogy upon which the
Crown agent’s liability is based is the personal liability of the individual Crown
82 To the same effect is Langlois v. Can. Commercial Corp. [1956] S.C.R. 954, holding corporate
Crown agent liable in its own right for breach of contract.
83 [1983] 2 S.C.R. 513.
84 The seven-judge bench was unanimous, but Dickson J. did not concur in Estey J.’s opinion,
simply saying (at 540) that he concurred in “the result reached by Mr. Justice Estey”.
85 Text accompanying note 52, above.
86 Note 83, above, 539.
87 Note 79, above.
88 Note 83, above, 537. See also Cloutier v. Science Council of Can. (1995) 23 O.R. (3d) 713
(Div. Ct.) (individual was held to be employed by Crown agent rather than Crown itself, on
basis that Crown agent was a separate legal entity that could sue and be sued, and enter into
contracts in its own name).
479
16.4(f) CROWN AGENTS
servant. In the days when the Crown was immune from liability in tort, the
individual Crown servant who committed the tort was still personally liable to
suit: he did not share the Crown’s immunity. This was the analogy invoked by
Martland J. in Conseil des Ports Nationaux v. Langelier,89 when he held that an
injunction would lie against the National Harbours Board to restrain the Board
from committing a tort. The National Harbours Board was the agent of the Crown
in right of Canada, and the Crown in right of Canada was not (and still is not)
liable to the remedy of injunction. Thus, by suing the Crown agent in its own
right, the plaintiffs were able to avoid a Crown immunity.
In both Yeats v. Central Mortgage and Housing Corporation90 and Northern
Pipeline Agency v. Perehinec,91 the actions for breach of contract were brought
in the superior court of the province. The defendant in each case was an agent of
the Crown in right of Canada, and the Crown in right of Canada was not liable to
suit for breach of contract in the superior court of the province: the Federal Court
(the Exchequer Court before 1971) was the proper forum.92 The Supreme Court
of Canada held that both actions were properly brought in the superior court of
the province. By suing the Crown agent in its own right, the plaintiffs were able
to avoid a Crown immunity.93
These cases illustrate that the general proposition that a Crown agent is
entitled to share the immunities of the Crown is subject to an important qualifi-
cation. Whenever the law deems the Crown agent to be liable in its own right, the
Crown agent loses the protection of the Crown’s immunities. By affirming that a
Crown agent may be liable in its own right in tort and contract, the courts have
carved out an important exception to the Crown’s immunities. It is without doubt
judicial hostility to these immunities that is the primary reason for the readiness
of the courts to extend the sphere of the Crown agent’s personal liability. Dickson
J. has suggested that the residual Crown immunities conflict with “basic notions
of equality before the law”, and he has pointed out that “the more active govern-
ment becomes in activities that had once been considered the preserve of private
89 [1969] 2 S.C.R. 60.

90 Note 81, above.
91 Note 83, above.
92 Note, however, that amendments to the Federal Courts Act enacted in 1990 have made the
Federal Court’s formerly exclusive jurisdiction over claims against the Crown concurrent with
that of the appropriate provincial or territorial court. See S.C. 1990, c. 8, s. 3; see also discussion
in ch. 17, Federal Questions, under heading 17.3(c), “Suits against Crown in right of Canada”,
below.
93 See also Athabasca Chipewyan First Nation v. B.C. (2001) 199 D.L.R. (4th) 452, para. 75
(Alta. C.A.), where the enabling statute provided that the British Columbia Hydro and Power
Authority could be sued in its own right for any obligation acquired or incurred by it on behalf
of the government, effectively placing the body “in the same position as if it were not an agent
for the Crown” — that is, outside of the Crown’s immunity.
480
CONCLUSION 16.5
persons, the less easy it is to understand why the Crown need be, or ought to be,
in a position different from the subject”.94
16.5 Conclusion
The question whether a public corporation (or agent or official) is an agent

of the Crown usually arises when the public corporation claims an immunity or
privilege to which only the Crown is entitled. The most common modern claim
is to share in the Crown’s immunity from statutes. As long as the Crown’s special
immunities or privileges continue to exist, the Crown agent question will continue
to generate litigation. Because the courts have been hostile to any extension of
the Crown’s special rights, they have struggled to find ways of denying those
rights to public corporations. They have applied the common law control test very
strictly, so that only those corporations closely integrated into a governmental
hierarchy will qualify as Crown agents. Where a body is expressly designated a
Crown agent, the courts have held that the designation is effective only so long
as the corporation acts within its statutory powers. And, even when a body is
undeniably a Crown agent, it still may be held liable in its own right in tort or
contract, according to the doctrine established by the cases. In these various ways,
the courts have contrived to reduce the significance of Crown agent status. The
result, however, is a rather complex body of law.
This body of law would be much less important if the Crown’s immunities
from statute and from some remedies were removed by reforming legislation.
However, this reform would not entirely eliminate the issue of whether a public
body is an agent of the Crown, because a person injured by a public body would
still need to know whether the public body or the Crown was the proper defendant.
Sometimes the answer to this question would also determine the forum in which
proceedings were to be brought. As well, there would obviously continue to be
some statutes that would not apply to the Crown, or that made special provision
for the Crown, and the application of these statutes to a public body would require
an answer to the Crown agent question.
There seems to be no way to make the Crown agent issue go away altogether,
and the question is whether the present law is satisfactory. So far as the common
law is concerned, it has been argued that the control test should be abandoned, so
only an express statutory designation would be sufficient to confer Crown agent
status.95 We sympathize with this argument, which is aimed at restricting the
94 R. v. Eldorado Nuclear [1983] 2 S.C.R. 551, 558, deploring the immunity from combines law
of Crown-agent uranium producers. Compare the statement by Gibbs C.J. in the High Court of
Australia: note 15 and accompanying text, above.
95 See, e.g., Parliament of Australia, Standing Senate Committee on Legal and Constitutional
Affairs, The Doctrine of the Shield of the Crown (1992), 55-65; Australian Law Reform
Commn., The Judicial Power of the Commonwealth (2001), ch. 26; and Seddon, note 4, above,
4.8.
481
16.5 CROWN AGENTS
Crown’s privileges and immunities, by restricting the circumstances in which a

public body will be permitted to take advantage of them. It is a theme of this book
that many of these privileges and immunities are unjustified. However, if the
control test was abandoned altogether, there is a risk that the scope of the Crown’s
vicarious liability would also be impacted. This would be unacceptable. Where
the Crown controls a public body, it should be responsible for the acts (and
omissions) of that body. There appears to be no principled reason to distinguish
between a controlled public corporation and a government department or ministry;
a person injured by an employee of either should be entitled to seek recovery
from the government that had the legal power to control the act or omission that
resulted in injury. Thus, in our view, any reform of the control test would need to
take account of the vicarious liability of the Crown.96
So far as statutory designation of uncontrolled bodies is concerned, it seems
likely that Crown agent status is usually unnecessary to the effective performance
of the public body’s function, and the statutory designation is used far too often.
It would be much better if the Parliament or Legislature expressly specified in a
corporation’s constituting statute any statutes from which the corporation required
immunity, and any other Crown immunities or privileges that the corporation also
required. The list of immunities and privileges should be exhaustive. If it were
compiled in each case strictly on the basis of the requirements of the corporation
for its effective functioning, it would include few items. The public corporation
would be largely assimilated to a private legal person, which is as it should be.97
96 One option would be to retain the control test in determining the Crown’s vicarious liability,
but to require express statutory designation in determining whether the public body ought to
be permitted to avail itself of a Crown privilege or immunity. The merit of this approach is that
it would simplify the law, and legislatures would be required to indicate the Crown privileges
and immunities that a public body would enjoy in its constituting statute. However, this option
would arguably require legislation, given its scope. Another option would be to retain the
control test, in determining the Crown’s vicarious liability, but to require Crown prejudice, in
determining the privileges and immunities issue. Crown immunity would not be accorded
unless the refusal to accord the immunity would prejudice the Crown’s “right, interest, power,
authority, privilege, immunity or purpose”: N.T. Power General Pty. v. Water Authority (2004)
219 C.L.R. 90, para. 170 (H.C., Aust.); see also Australian Competition and Consumer Commn.
v. Baxter Healthcare Pty. (2007) 232 C.L.R. 1 (H.C., Aust.). The merit of this approach is that
it already has support in the cases, and it could probably be accomplished by judicial action,
rather than legislation. It is the test that is applied in some of the cases in determining whether
a Crown servant or contractor ought to be permitted to claim Crown immunity from statute;
and it is also possible to read the cases extending Crown immunity from statute to Crown agents
as reflecting this test, in the sense that immunity is extended to avoid prejudicing a Crown
“purpose”: see ch. 15, Statutes, under heading 15.15, “Crown agents and servants”, above.
97 See note 94. Compare W. Friedmann, “Legal Status of Incorporated Public Authorities” (1948)
22 A.L.J. 7; Sawer, in Friedmann, The Public Corporation (1954), 44; G. Sawer, “Shield of
the Crown Revisited” (1957) 1 Melbourne U.L. Rev. 137.
482
17
Federal Questions
17.1 Federalism 483

17.2 State immunity in international law 484
17.3 Jurisdiction of courts 485
(a) Crown immunity 485
(b) Suits against Crown in right of provinces 485
(c) Suits against Crown in right of Canada 488
(d) Suits by Crown 493
(e) Suits between governments 494
17.4 Choice of law 496
(a) Which law applies? 496
(b) Liability of Crown in right of Canada 497
(c) Crown in right of Canada as plaintiff 498
17.5 Federal common law 498
(a) Federal common law in the United States 498
(b) Federal common law in Canada 499
17.1 Federalism
Federalism is nothing if not complicated, and its complications impinge on
the liability of the Crown at various points. Most of these points have been
identified interstitially at the appropriate places in the preceding chapters. The
problems start with the paradox that there is one person who is the Queen (or
King) of Canada, who is often described as an “indivisible” Crown, but in law
and practice the federal government (the Crown in right of Canada) is a separate
legal entity from each of the provinces (the Crown in right of the province), and
each of the provinces is a separate legal entity from the other provinces.1 Each
province has its own court system and its own body of statute law, as does the
federal government. This leads to the questions of which courts have jurisdiction
over suits by and against the various governments and which laws apply to those
suits. The purpose of this chapter is to discuss these uniquely federal questions.
1 Chapter 1, Introduction, under heading 1.4(c), “Divisibility”, above.

17.2 FEDERAL QUESTIONS
17.2 State immunity in international law

It should be noted at the outset that we are not here concerned with cases to
which a foreign country is a party. Under customary international law, the rule of
state (sovereign) immunity prevails: sovereign states are immune from the juris-
diction of one another’s courts. This means that, in the courts of a state, while a
foreign state is permitted to sue (with some exceptions), or be sued with its
consent, the foreign state cannot be forced against its will to submit to the juris-
diction of the court. The rule of state immunity was recognized by United King-
dom and Canadian courts as part of the common law, but in 1982 it was formally
incorporated into Canada’s domestic law by the enactment of the federal State
Immunity Act.2 The countries of the Commonwealth that recognize the same
Queen, are (despite the rhetoric of an indivisible Crown) foreign states to each
other for the purpose of international state immunity. For example, when the
Crown in right of New Zealand appears in a United Kingdom court, New Zealand
is a foreign state.3 Even a subdivision of a Commonwealth state, namely, the
province of New Brunswick, has been held to be entitled to state immunity in the
courts of another Commonwealth state, namely, the United Kingdom.4
This book is not concerned with the nature, extent and statutory modification
of the rule of international state immunity.5 This chapter of the book is concerned
with the jurisdiction of courts (and choice of law) in litigation in Canada involving
federal and provincial governments. Among the several governments of a single
federal state no issues of international law are presented.6 The uniquely federal
issues of the administration of justice in Canada are governed by domestic law,
namely, the Constitution of Canada, federal and provincial statutes and the com-
mon law. They are the sources upon which this chapter draws.
2 R.S.C. 1985, c. S-18. The Act, mirroring developments in customary international law, makes
exceptions for commercial activity by the foreign state in Canada and tortious activity by
officials of the foreign state in Canada. See M.N. Ruby and S. Popovic, “Sovereign Immunity:
Trends and Developments” (2009) Osgoode Hall Law School 6th Annual Conference on Crown
Liability, November 20, 2009; Kuwait Airways Corp. v. Iraq [2010] 2 S.C.R. 571 (commercial
exception applied in respect of Iraq’s retention of illegally seized commercial aircraft).
3 A.G. N.Z. v. Ortiz [1984] A.C. 1, 20 (C.A.) per Lord Denning M.R. (“I hope our New Zealand
friends will forgive me for calling them a ‘foreign state’. I only use the term so as to bring
home the fact that we are concerned with an independent foreign government...”); the Court of
Appeal’s decision was affirmed, [1984] A.C. 1, 41 (H.L.), without reference to this dictum.
4 Mellenger v. New Brunswick Dvlpt. Corp. [1971] 1 W.L.R. 604 (C.A.).
5 C.J. Lewis, State and Diplomatic Immunity (Lloyd’s of London Press, 3rd ed., 1990). Shorter
accounts may be found in the texts on public international law.
6 Athabasca Chipewyan First Nation v. B.C. (2001) 199 D.L.R. (4th) 452 paras. 49-56 (Alta.
C.A.) (rejecting the argument that B.C. Hydro was protected from suit in Alberta by international
state immunity).
484
JURISDICTION OF COURTS 17.3(b)
17.3 Jurisdiction of courts
(a) Crown immunity
The common law rule is that the Crown cannot be sued in any court.7 (The
rule was essentially the same as the old international-law rule of state immunity.)
The common law can be changed by the constitution or by statute. The Crown
can therefore be sued in any court that has been granted jurisdiction by the
constitution8 or by statute. As related in chapter 1 of this book,9 the enactment of
Crown proceedings statutes, granting jurisdiction to the courts to entertain ordi-
nary lawsuits against the Crown, did not occur in Canada until after the United
Kingdom led the way in 1947. Before then, the Crown could be sued by petition
of right, a procedure that overcame the Crown’s immunity because the petition
of right could proceed only with the consent of the Crown (the royal fiat). Now
there are Crown proceedings statutes in every Canadian jurisdiction10 granting
jurisdiction to the courts of that jurisdiction to hear and determine claims against
the Crown. Nonetheless, as we shall see, the common law rule retains its relevance
as a bar to proceedings against the Crown in a court other than the one stipulated
in the applicable Crown proceedings statute.11
(b) Suits against Crown in right of provinces
The Crown proceedings statute of each province grants jurisdiction to the

courts of that province to hear and determine claims against the Crown in right
of that province. As explained in previous chapters, generally speaking, the claims
are brought in accordance with the same rules of practice that apply to private
defendants. It follows that the Crown in right of Ontario (for example) can be
sued in the courts of Ontario. But can the Crown in right of Ontario be sued in
the courts of another province? The conventional answer to that question is no:
the Crown in right of one province cannot be sued in the courts of another province.
The reasoning that leads to that answer is that the Crown proceedings statute of
each province renders the Crown in right of that province liable to be sued in the
7 Young v. S.S. “Scotia” [1903] A.C. 505 (P.C., Nfld.); Can. Javelin v. The Queen Nfld. [1978]
1 F.C. 408, 409 (C.A.).
8 The Constitution of Canada contains nothing explicit about the jurisdiction of courts over the
Crown, although it has been argued that the Constitution does make implicit provision for suits
against the Crown: text accompanying note 14, below.
10 The statutes are listed in chapter 2, Remedies, in footnote 2. As is explained in that chapter, the
three territories lack Crown proceedings statutes, but proceedings may be brought against the
government of each territory on the basis of an informal understanding that the government is
subject to the same procedures as private defendants.
11 Athabasca Chipewyan First Nation v. B.C. (2001) 199 D.L.R. (4th) 452 (Alta. C.A.); discussed
in text accompanying note 17, below.
485
17.3(b) FEDERAL QUESTIONS
courts of that province, but not in the courts of the other provinces. Nor does the
Crown proceedings statute of any province purport to confer jurisdiction on the
province’s courts over the Crown in right of any province other than the enacting
province. Indeed, there is even a basis for suggesting that such a grant of juris-
diction would be unconstitutional: “no province can compel another to submit to
a particular forum”.12 These premises lead to the conclusion that the common law
of Crown immunity from suit survives when (for example) the Crown in right of
Ontario is sued in the province of British Columbia. The traditional view accord-
ingly holds that a person with a claim against the Crown in right of Ontario must
go to the courts of Ontario to proceed with the claim, unless Ontario voluntarily
submits to jurisdiction elsewhere.13
The logic of the traditional view is hard to overcome, but the result is
counterintuitive in a legal system where the rule of law prevails, and other residual
Crown immunities (from injunction or specific performance, for example) are
exceptional and narrowly focused. Janet Walker14 has argued that the Constitution
should be interpreted as forbidding a province from restricting proceedings against
the province to the courts of only that province. That restriction, in the Crown
proceedings statute of each province, is unconstitutional, she argues, because the
Constitution implicitly insists that proceedings against a province can be brought
in the superior court of any province that has a real and substantial connection to
the cause of action. Her basis for this argument is the Supreme Court’s decisions
in Morguard15 and Hunt,16 which held that there was an implicit constitutional
obligation on each provincial superior court to recognize (as a prelude to enforce-
ment) the judgments and orders of the courts of sister provinces when those courts
had acted in a matter with a real and substantial connection to the province.
Neither of these cases dealt with Crown immunity, but they did emphasize that
the provinces were not foreign jurisdictions from each other: they were all part
of Canada, and there were constitutional limits to the extent that a province could
insulate its residents from the judgments of other provinces.
12 Laskin, The British Tradition in Canadian Law (1969), 115 (adding “and certainly a province
cannot compel submission of the federal Crown to judicial process”).
13 Ibid.; D. Gibson, “Interjurisdictional Immunity in Canadian Federalism” (1960) 47 Can. Bar
Rev. 40, 59; Central Can. Potash Co. v. A.G. Sask. (1974) 50 D.L.R. (3d) 560 (Sask. C.A.)
(federal Crown immune from discovery in Saskatchewan); Union Oil Co. v. The Queen [1976]
1 F.C. 74 (C.A.), affirmed (1976) 72 D.L.R. (3d) 82 (S.C.C.) (British Columbia immune from
suit in Federal Court); Western Surety Co. v. Elk Valley Logging (1985) 23 D.L.R. (4th) 464
(B.C.S.C.) (Alberta immune from suit in British Columbia); Avant v. The Queen [1986] 2 F.C.
91 (T.D.) (Ontario immune from suit in Federal Court). The immunity has been extended to
provincial Crown corporations: Dableh v. Ont. Hydro (1990) 33 C.P.R. (3d) 544 (F.C.T.D.)
(Ontario Crown corporation cannot be sued in Federal Court); Godin v. N.B. Power Commn.
(1993) 16 C.P.C. (3d) 388 (Ont. Ct. Gen. Div.) (New Brunswick Crown corporation cannot be
sued in Ontario).
14 J. Walker, “Interprovincial Sovereign Immunity Revisited” (1997) 35 Osgoode Hall L.J. 379.
15 Morguard Investments v. De Savoye [1990] 3 S.C.R. 1077.
16 Hunt v. T & N [1993] 4 S.C.R. 289.
486
JURISDICTION OF COURTS 17.3(b)
In Athabasca Chipewyan First Nation v. British Columbia (2001),17 British

Columbia Hydro, a Crown corporation, had constructed a hydro-electric dam on
the Peace River in British Columbia. The Peace River flows from British Colum-
bia into northern Alberta, where the members of the Athabasca Chippewyan First
Nation possess treaty rights to hunt and fish. They brought an action in Alberta
against the Crown in right of British Columbia, alleging that the dam had caused
lakes and wetlands on their land to dry up, impairing their treaty rights to hunt
and fish. British Columbia objected to the jurisdiction of the Alberta court on the
ground that the Crown proceedings statute of British Columbia provided that
actions against the Crown in right of British Columbia must be instituted in the
British Columbia courts. The Alberta Court of Queen’s Bench permitted the action
to proceed, ruling that, since the action had a real and substantial connection to
Alberta, proceedings could be brought in Alberta. The restrictive provision of the
Crown proceedings statute should be read down on constitutional grounds (Mor-
guard and Hunt) as inapplicable to an action commenced in Alberta. The Alberta
Court of Appeal reversed this decision, holding that British Columbia was pro-
tected by Crown immunity from the jurisdiction of the Alberta courts.18 Hunt J.A.,
who wrote the opinion of the Court, pointed out that in each of Morguard and
Hunt the court of one province had properly assumed jurisdiction over the pro-
ceedings, and the issue was whether the resulting judgment or order was effective
in another province. In this case, however, the issue was whether the Alberta court
had jurisdiction in the first place. The extent to which the Crown in right of a
province could be sued was an element of provincial autonomy that could only
be determined by the Legislature of that province. The fact that a provincial
Crown had “waived its procedural immunity” in its own province did not expose
the Crown to suit in the courts of another province.19 The result was not unjust
because the Crown in right of British Columbia could be sued in British Columbia
– as authorized by that province’s Crown proceedings statute.
The decision in Athabasca Chippewyan is a careful affirmation of the tra-
ditional view that a province remains immune from suit in the courts of another
province. The decision has since been followed by other courts.20 It is indeed a
stretch to apply Morguard and Hunt to subject the Crown in right of a province
to the jurisdiction of another province’s court, and it is unrealistic to expect any
court below the Supreme Court of Canada to make the move. However, there is
17 (2001) 199 D.L.R. (4th) 452 (Alta. C.A.). The opinion of the Court was written by Hunt J.A.
18 The action had also been brought against British Columbia Hydro, which was a corporation
that was an agent of the Crown in right of British Columbia. The Court held that the action
could proceed against British Columbia Hydro on the basis that the corporation was acting
outside its statutory mandate in damaging property rights outside British Columbia, and it was
not protected by Crown immunity: Id., paras. 57-79.
19 Id., para. 41.
20 Liability Solutions v. N.B. (2007) 88 O.R. (3d) 101 (S.C.J.) (Ontario court has no jurisdiction
over Crown in right of New Brunswick); Medvid v. Sask. [2010] 4 W.W.R. 643 (Sask. Q.B.)
(Saskatchewan court has no jurisdiction over Crown in right of Alberta.).
487
17.3(c) FEDERAL QUESTIONS
much to be said for Walker’s view. The extent to which one provincial Crown
can be impleaded in the courts of another province should be governed by the
considerations of fairness, comity and interdependence that drove the Supreme
Court in Morguard and Hunt to require provincial courts to give full faith and
credit to the judgments of courts in other provinces. In a Canadian court, whether
federal or provincial, the sovereign immunity of the provinces should be aban-
doned as outdated and inappropriate. While Hunt J.A. is right to point out that
each province can be sued in its own court system, that is not always the most
convenient forum, and that is especially the case where the provincial Crown is
just one of several defendants or where several provincial Crowns are sued in the
same proceeding.21 In those cases, multiple proceedings, with their costs, delays
and risks of inconsistent verdicts, may well be needed in order to obtain redress
against all defendants.
(c) Suits against Crown in right of Canada
What is the forum for suits against the federal Crown (the Crown in right of
Canada) — the federal government? The Constitution of Canada is silent on the
point. The answer has to depend upon federal legislation, because no province
has the authority to confer jurisdiction on its courts over the federal Crown.22 The
applicable federal legislation is the Crown Liability and Proceedings Act23 and
the Federal Courts Act.24 Before 1992, with one minor exception,25 these Acts
stipulated that the jurisdiction of the Federal Court over suits against the Federal
Crown was exclusive. In 1992, amendments to these Acts came into force which
made the jurisdiction of the Federal Court concurrent with the superior courts of
the provinces.26 The result is that proceedings may be brought against the federal
Crown in either the Federal Court or the superior court of the province in which
the claim arises. The Federal Courts Act carves out an important exception to the
general rule of concurrency by retaining exclusive Federal-Court jurisdiction over
a proceeding for judicial review of the decision of a “federal board, commission
or other tribunal”.27 The Federal Courts Act is also explicit that the general rule
of concurrency is subject to contrary provisions in other Acts of Parliament,28 and
21 E.g., Parsons v. Can. Red Cross Society (1999) 40 C.P.C. (4th) 151 (Ont. S.C.J.) (settlement
of class proceedings approved against several provinces — but with their consent).
22 Laskin, note 12, above.
23 R.S.C. 1985, c. C-50, s. 21, as am. by S.C. 1990, c. 8, s. 28.
24 R.S.C. 1985, c. F-7, s. 17, as am. by S.C. 1990, c. 8, s. 3.
25 The Crown Liability and Proceedings Act, by s. 21(2), used to confer concurrent jurisdiction
on the provincial courts for claims not exceeding $1,000. This provision was repealed by S.C.
1990, c. 8, s. 28, which made concurrent jurisdiction of provincial courts the rule rather than
the exception.
26 S.C. 1990, c. 8, ss. 3, 28.
27 Section 18.
28 Section 17(1).
488
JURISDICTION OF COURTS 17.3(c)
Parliament has in fact created some further exceptions to the general rule of
concurrency by express statutory language conferring exclusive Federal-Court
jurisdiction over some types of proceedings against the federal Crown.29
The Federal Court30 is not a court of general jurisdiction like the superior
court of a province,31 but a court that is subject to both statutory and constitutional
restrictions on its jurisdiction. The Federal Court will have jurisdiction over a
matter only if Parliament has given it a statutory grant of power over the cause
of action. In addition, as a matter of constitutional law, the cause of action must
be one over which Parliament has the power to grant jurisdiction to a federal
court. Parliament’s power is limited by s. 101 of the Constitution Act, 1867, which
authorizes the creation of federal courts “for the better administration of the laws
of Canada”. The quoted phrase has been interpreted by the Supreme Court of
Canada as restricting the jurisdiction of federal courts to cases governed by the
“laws of Canada”, and, according to the Supreme Court, laws of Canada means
only federal laws. By this reasoning, the Supreme Court has barred the Federal
Court from determining questions of provincial law.32 The result is that a plaintiff
seeking to proceed in the Federal Court must be able to point to, not only a
statutory grant of jurisdiction over the cause of action, but also to a body of federal
law that governs the cause of action.
The laws-of-Canada restriction on the jurisdiction of the Federal Court has
significant implications for suits against the federal Crown and the related pro-
ceedings that often arise out of the same facts. The Federal Court has (as explained)
express statutory jurisdiction over actions against the federal Crown, and this
grant of jurisdiction has been assumed to fulfil the laws-of-Canada requirement,
29 E.g., Crown Liability and Proceedings Act, s. 5(2) (claims for salvage services rendered to a
Crown ship or aircraft); Expropriation Act, R.S.C. 1985, c. E-21, ss. 1, 31 (claims for compen-
sation for expropriation by federal Crown); Canadian Environmental Protection Act, R.S.C.
1985, c. 16 (4th Supp.), s. 84 (claims for property forfeited).
30 Until 2003, the Federal Court of Canada had two divisions, the Trial Division and the Court of
Appeal. In 2003, the two divisions were formed into separate courts, the Federal Court and the
Federal Court of Appeal: Federal Courts Act, ss. 3, 4.
31 The superior court of each province is established or continued under the provincial power over
the administration of justice in s. 92(14) of the Constitution Act, 1867. Each court is “provincial”
in that sense, but the judges are appointed by the federal government under s. 96 of the
Constitution Act, 1867; the court has authority to determine disputes arising under federal and
constitutional law, as well as provincial law; and the court is subject to appeals that culminate
in the Supreme Court of Canada, which is established under s. 101 of the Constitution Act,
1867 as a “general court of appeal for Canada”. Taken together, these provisions give a decidedly
“unitary” stamp to what is technically a “federal” system with ten hierarchies of provincial
courts: Hogg, Constitutional Law of Canada (5th ed., 2007, annually supplemented), chs. 7, 8.
32 This restrictive rule was established by Quebec North Shore Paper Co. v. Canadian Pacific
[1977] 2 S.C.R. 1054, which also decided that the common law, even in fields of federal
legislative jurisdiction, did not qualify as federal law for this purpose: sec. 17.5(b), “Federal
common law in Canada”, below. For a more detailed account of the law, see Hogg, previous
note, sec. 7.2(b); Horsman and Morley (eds.), Governmental Liability (2006, annually supple-
mented), sec. 12.10.
489
presumably because the liability of the federal Crown is governed by federal

law.33 The Federal Court also has express statutory jurisdiction over actions
against federal Crown officers, servants or agents,34 but these actions are usually
for torts or breaches of contract that are governed by the general common law or
(in Quebec) civil law, and if so there is no applicable law of Canada to provide
the constitutional basis for Federal-Court jurisdiction over the action.35 The grant
of statutory jurisdiction is constitutionally ineffective except in those unusual
cases where there is a federal statute that is an important part of the cause of
action.36 What the laws-of-Canada restriction means is that, when proceedings
are brought in the Federal Court against the federal Crown, the Court normally
has no jurisdiction over co-defendants,37 third parties38 or even counterclaims by
the Crown39 because these causes of action would not be governed by a law of
Canada. Before the 1992 amendments to the Federal Courts Act these restrictions
on the jurisdiction of the Federal Court made multi-party suits involving the
federal Crown exceedingly complex.40 Because the Federal Court had exclusive
jurisdiction over claims against the federal Crown, plaintiffs had no choice but to
bring those claims in that Court. But, if the claim against the Crown involved
other parties or issues over which the Federal Court lacked jurisdiction, additional
proceedings were required in the courts of the province where the cause of action
arose.
The 1992 amendments to the Federal Courts Act and the Crown Liability
and Proceedings Act have gone a long way to resolving the jurisdictional diffi-
33 This is (fortunately) uncontroversial, but is not in fact perfectly clear since federal legislation
was only needed to make the federal Crown liable in tort. Liability in contract and most other
branches of the law existed at common law before the enactment of federal Crown proceedings
statutes.
34 Federal Courts Act, s. 17(5)(b).
35 Pacific Western Airlines v. The Queen [1980] 1 F.C. 86 (C.A.); Stephens’ Estate v. M.N.R.
(1982) 40 N.R. 620; 26 C.P.C. 1 (F.C.A.); Can. Saltfish Corp. v. Rasmussen [1986] 2 F.C. 500
(C.A.). Actions against federal Crown officers, servants and agents can be brought in the
superior courts of the provinces. With respect to federal Crown agents, see ch. 16, Crown
Agents, under heading 16.4, “Liability of Crown agent”, above.
36 E.g, Oag v. Can. [1987] 2 F.C. 511 (C.A.) (Penitentiary Act and Parole Act relevant to action
against members of National Parole Board for false arrest and imprisonment); Smith v. Can.
(2002) 220 D.L.R. (4th) 342 (F.C.A.) (Witness Protection Program Act relevant to action
against RCMP officers for negligence and breach of statutory and contractual duties); Peter G.
White Management v. Can. (2006) 271 D.L.R. (4th) 361 (F.C.A.) (National Parks Act relevant
to cause of action against minister and Crown servants for breach of covenant in a lease of park
land).
37 Pacific Western Airlines, note 35, above.
38 R. v. Thomas Fuller Construction [1980] 1 S.C.R. 695.
39 Compare McNamara Construction v. The Queen [1977] 2 S.C.R. 655 (proceedings by Crown
outside jurisdiction of Federal Court); A.G. Can. v. Boeing Co. (1983) 41 O.R. (2d) 777 (C.A.)
(proceedings by Crown in provincial superior court; defendant cannot counterclaim).
40 B.A. Crane, “Constitutional Restraints on the Federal Court in relation to Crown Litigation”
(1992) 2 Nat. J. Con. Law 1, provides an account of the pre-1992 case law.
490
JURISDICTION OF COURTS 17.3(c)
culties posed by the laws-of-Canada restriction on the Federal Court’s jurisdiction

over claims against the federal Crown. Now the jurisdiction of the Federal Court
over claims against the federal Crown is no longer exclusive, but is “concurrent”
with the courts of the province in which the claim arose.41 A plaintiff with a claim
against the federal Crown has a choice of forum: the action can be brought either
in the Federal Court or in the superior court of the province in which the claim
arose (but not both).42 A plaintiff who has claims against Crown officers, servants
or agents, or against private parties or a provincial government — as well as the
federal Crown — can bring the action in the proper provincial court and that court
will normally have jurisdiction over all the parties.43 Where the plaintiff has
chosen to sue the federal Crown in the Federal Court, but the Crown wishes to
make a counter-claim or third-party claim over which the Federal Court lacks
jurisdiction, the Federal Courts Act provides that the Attorney General of Canada
is entitled to a stay of proceedings in the Federal Court, and the plaintiff is entitled
to recommence the action in the appropriate provincial court (even if a limitation
period expired after the commencement of the Federal-Court proceeding).44
The Federal Court jurisdiction over claims against the Federal Crown is
concurrent with the jurisdiction of the courts of the province in which the claim
“arises”. Where material facts took place in more than one province, it may be
difficult to determine in which province (or provinces) the claim arose.45 Where
the material facts took place outside any province, the Federal Court will be the
only forum for the claim; in that case, the jurisdiction of the Federal Court
continues to be exclusive.46 There are also some special kinds of claims against
the federal Crown over which Federal Court jurisdiction is still exclusive.47
The most important of the provisions that continue to confer exclusive
Federal Court jurisdiction over claims against the Crown is s. 18 of the Federal
Courts Act, which applies to an application for a judicial-review remedy against
41 Federal Courts Act, s. 17(1); Crown Liability and Proceedings Act, s. 21.
42 Crown Liability and Proceedings Act, s. 21(2) (where proceedings are pending in Federal Court,
no provincial court has jurisdiction).
43 There are, of course, also limits on the territorial jurisdiction of the provincial court: Morguard
Investments v. De Savoye, note 15, above (requiring a “real and substantial connection” to the
province); but see J. Walker, “Are National Class Actions Constitutional — A Reply to Hogg
and McKee” (2010) 48 Osgoode Hall L.J. 95 (arguing that there are no territorial limits on the
jurisdiction of provincial courts). Moreover, the courts of each province have no jurisdiction
over the Crown in right of other provinces: sec. 17.3(b), “Suits against Crown in right of
provinces”, above.
44 Federal Court Act, s. 50.1. Note however that only the Crown is covered by this provision; a
non-Crown defendant who wished to make a counter-claim or third-party claim would have to
commence a separate proceeding.
45 Rowe v. Can. (2004) 186 O.A.C. 106 (C.A.) (claim against federal Crown in Ontario dismissed
because the substance of the claim arose in Saskatchewan).
46 Djukic v. Can. (2000) 52 O.R. (3d) 348 (C.A.) (claim against federal Crown in Ontario dismissed
because it was based on facts that took place in Europe).
491
“any federal board, commission or other tribunal”.48 The quoted phrase is defined
as including any person exercising a power under a federal statute or “under an
order made pursuant to a prerogative of the Crown”. In Black v. Chrétien (2001),49
the plaintiff brought an action in the superior court of Ontario against the federal
Crown and the Prime Minister for a declaration that the Prime Minister acted
without legal authority when he advised the Queen not to grant a peerage to the
plaintiff (Conrad Black, then a Canadian citizen). The Ontario Court of Appeal
ultimately held that the Prime Minister had authority under the prerogative to
give the challenged advice and accordingly denied the declaration. However, the
Court had to deal with a threshold objection by the federal Crown, based on s.
18, to the jurisdiction of the superior court of Ontario to entertain the action. The
Court rejected this argument on “the principle that clear and explicit statutory
language is required to oust the jurisdiction of provincial superior courts, which,
unlike the Federal Court, are courts of inherent general jurisdiction.”50 This prin-
ciple justified the Court in holding that s. 18 was not “clear and explicit” enough
to deny provincial superior-court jurisdiction over the claim. Section 18 referred
to an exercise of power made under an order made pursuant to a prerogative of
the Crown, but the Prime Minister had not acted under an order, but directly
pursuant to a prerogative of the Crown. According to this narrow reading of the
Act,51 the Prime Minister’s action fell into a “gap” in s. 18’s grant of exclusive
jurisdiction, and the gap was filled by the “residual jurisdiction” of the province’s
superior court. This case illustrates the reluctance of the provincial courts to cede
jurisdiction to the Federal Court except under the compulsion of very clear stat-
utory language.52
48 Section 18 has been held to be ineffective to oust the jurisdiction of the provincial superior
courts where the application for relief is based on a constitutional ground; in that case, the
jurisdiction is concurrent: A.G. Can. v. Law Society of B.C. [1982] 2 S.C.R. 307 (provincial
superior court has jurisdiction to issue declaration against federal Crown on constitutional
grounds); Can. Labour Relations Bd. v. Paul L’Anglais [1983] 1 S.C.R. 147 (provincial superior
court has jurisdiction to review decision of federal administrative tribunal on constitutional
grounds); Can. v. McArthur [2010] 3 S.C.R. 626 (same decision); and see Hogg, note 31, above,
sec. 7.3(f), “Privative clauses”.
49 (2001) 54 O.R. (3d) 215 (C.A.), discussed in more detail in ch. 1, Introduction, under heading
1.5(c), “Judicial review of Crown powers”, above.
50 Id., para. 75.
51 The Crown’s argument that the Act should be interpreted purposefully as not leaving the gap
was acknowledged (para. 75) as “plausible”.
52 But compare Can. v. Can. Liberty Net [1998] 1 S.C.R. 626, upholding by a three-two majority
the power of the Federal Court to grant an injunction to enforce the Human Rights Act.
Bastarache J. for the majority said (para. 34) that federal statutes granting jurisdiction to the
Federal Court should be given a “fair and liberal” interpretation, and that “the doctrine of
inherent jurisdiction [of provincial superior courts] raises no valid reasons, constitutional or
otherwise, for jealously protecting the jurisdiction of provincial superior courts as against the
Federal Court of Canada”. McLachlin and Major JJ., dissenting, said (para. 63) that: “Interpre-
tations that result in concurrent jurisdiction are undesirable as they not only detract from our
unitary court system, but inevitably result in forum shopping.” (Of course, the interpretation in
492
JURISDICTION OF COURTS 17.3(d)
In Black v. Chrétien, the only remedy sought in the provincial court was a
declaration, which is one of the judicial-review remedies named in s. 18 of the
Federal Courts Act. This provided a plausible (albeit unsuccessful) argument by
the federal Crown that the proceeding was covered by s. 18. A more common
form of proceeding in provincial court is an action against the federal Crown for
damages for tort or breach of contract (or other common-law or civil-law cause
of action). Damages is not one of the remedies that can be obtained in an appli-
cation for judicial review under s. 18. But, if an element of the cause of action for
damages is a decision of a minister or other official coming within the Act’s broad
definition of “federal board, commission or other tribunal”, does s. 18 require
that an application for judicial review be first brought in the Federal Court to
establish the invalidity of the decision? If the answer is yes, then the action for
damages could not proceed until that initial ruling of invalidity had been obtained
on an application for judicial review in the Federal Court. In Canada v. TeleZone
(2010),53 the Supreme Court held that an action for damages against the federal
Crown in the superior court of a province (or in the Federal Court) did not have
to be preceded by a separate Federal-Court application for judicial review. The
court with jurisdiction over the action for damages had the power to determine
all factual and legal issues relevant to the granting or withholding of damages,
including a “collateral attack” on the validity of any decision taken by a federal
official. This ruling enabled the trial court to completely dispose of the action for
damages, and spared the plaintiff from the need to bring two proceedings for the
purpose.
(d) Suits by Crown
When the Crown is the plaintiff, the common law rule is that “the Crown
may sue in any court having jurisdiction in the particular matter”.54 Thus, the
Crown in right of Ontario (for example) is not confined to the Ontario courts, but
like any other person may sue a defendant in whatever court has jurisdiction over
the cause of action.
The Federal Court of Canada is a special case in that it is subject to the
constitutional requirement that a cause of action must be founded in federal law
(the laws-of-Canada restriction).55 This will often preclude a suit by even the
federal Crown. In McNamara Construction v. The Queen (1977),56 the Crown in
right of Canada brought an action in the Federal Court against a builder and an
architect for breach of a contract to build a federal penitentiary in Alberta. The
Chrétien v. Black resulted not in concurrent jurisdiction but in the exclusive jurisdiction of the
provincial superior court.)
53 [2010] 3 S.C.R. 585 decided at the same time as five companion cases raising the same issue.
For discussion of the cases, see ch. 2, Remedies, under heading 2.10, “Collateral attack”, above.
54 McNamara Construction v. The Queen [1977] 2 S.C.R. 655, 660.
55 Note 32, above, and accompanying text.
56 [1977] 2 S.C.R. 655.
493
17.3(e) FEDERAL QUESTIONS
Supreme Court of Canada held that the Federal Court had no jurisdiction to
entertain such an action because the liability of the defendants would be deter-
mined by the law of contract, which did not qualify as federal law. The only
correct forum for the action was the superior court of Alberta. The Supreme Court
acknowledged that, if the parties had been reversed so that the action for breach
of contract had been brought by the builder and architect against the federal
Crown, then the Federal Court would have had jurisdiction (indeed at that time
exclusive jurisdiction) over the claim.57 These distinctions are both puzzling and
inconvenient.58
(e) Suits between governments
Within Canada, the foregoing rules provide the forum for suits between
governments. It follows that the Crown in right of Canada can be sued by the
Crown in right of a province either in the Federal Court or in the superior court
of the province in which the claim arose. And the Crown in right of a province
can be sued by the Crown in right of Canada59 or by the Crown in right of another
province60 in the superior court of the province of the defendant Crown.61 As well
as these traditional lawsuits, the reference procedure (which is available only to
governments)62 can be used by a government to obtain a judicial resolution of a
dispute with another government.63 Governments are also free to agree to arbitrate
their differences.64
57 Id., 662.
58 The puzzle is why the federal Crown’s liability in contract is a matter of federal law while a
private person’s liability to the federal Crown to build a penitentiary (a federal responsibility
under s. 91(28) of the Constitution Act, 1867) is not. The inconvenience flows from the need
for separate proceedings to resolve a single controversy. For example, if an action is properly
brought against the federal Crown in the Federal Court, no counterclaim by the Crown could
be brought in that court, and nor could a third-party claim be brought by the Crown. Since
1992, the federal Crown has been entitled to a stay of the Federal Court proceedings in these
situations, putting the onus on the plaintiff to recommence the proceedings in the appropriate
provincial court: Federal Courts Act, s. 50.1.
59 E.g., A.G. Can. v. Higbie [1945] S.C.R. 385 (Canada sued British Columbia in British Columbia
court).
60 Laskin, The British Tradition in Canadian Law (1969), 122.
61 Note as well the argument that, on constitutional grounds, the Crown in right of a province can
be sued in the court of any province with a real and substantial connection to the cause of
action: note 14, above and accompanying text.
62 Hogg, Constitutional Law of Canada (5th ed., 2007, annually supplemented), sec. 8.6, “Ref-
erence jurisdiction”.
63 An intergovernmental dispute, like any other question, can be referred to a court by a government
for an advisory opinion, and this is commonly done, especially (but not only) in constitutional
disputes, e.g., Re Troops in Cape Breton [1930] S.C.R. 554; Re Transfer of Natural Resources
to Sask. [1932] A.C. 28 (P.C., Sask.); Re Offshore Mineral Rights of B.C. [1967] S.C.R. 792;
494
JURISDICTION OF COURTS 17.3(e)
In addition, s. 19 of the Federal Courts Act provides:
If the legislature of a province has passed an Act agreeing that the Federal Court ...
has jurisdiction in cases or controversies between Canada and that province, or
between that province and any other province or provinces that have passed a like
Act, the Federal Court has jurisdiction to determine the controversies.
Nine of the ten provinces have passed the Act contemplated by s. 19 (or its
predecessor in the Exchequer Court Act), granting jurisdiction to the Federal
Court to determine controversies between Canada and that province or between
that province and the other agreeing provinces.65 Neither s. 19 nor the provincial
Acts authorize a private person to bring proceedings against a provincial Crown
in the Federal Court.66 The s. 19 jurisdiction has occasionally been used.67 How-
ever, the decisions of the Supreme Court of Canada restricting the jurisdiction of
the Federal Court to matters of federal law68 must be regarded as casting a shadow
over the efficacy of s. 19. There is no problem if the defendant is the Crown in
right of Canada (federal governmental liability having been certified as federal
law) or where the controversy is governed by federal statute law, but where the
controversy is governed by provincial law the Supreme Court is likely to hold
that s. 19 by itself cannot constitutionally confer the jurisdiction on the Federal
Court.69 However, s. 19 does not exist by itself. Each agreeing province has also
Re Anti-Inflation Act [1976] 2 S.C.R. 373; Re Nfld. Continental Shelf [1984] 1 S.C.R. 86; Re
Goods and Services Tax [1992] 2 S.C.R. 445.
64 A.G. Can. v. A.G. Ont. (Indian Annuities) [1897] A.C. 199 (P.C., Can.) (upholding and varying
an arbitration award between Canada, Ontario and Quebec settling a dispute over payment of
Indian annuities).
65 B.C.: Federal Courts Jurisdiction Act, R.S.B.C. 1996, c. 135, s. 1. Alta.: Judicature Act, R.S.A.
2000, c. J-2, s. 27. Sask.: Federal Courts Act, R.S.S., c. F-12, s. 2. Man.: Federal Courts
Jurisdiction Act, C.C.S.M., c. C270, s. 1. Ont.: Courts of Justice Act, R.S.O. 1990, c. C.43, s.
148. Que.: Act respecting Supreme Court of Canada and Exchequer Court of Canada, S.Q.
1906, c. 6, s. 1. N.B.: Federal Courts Jurisdiction Act, R.S.N.B. 1973, c. F-8, s. 1. N.S.: Supreme
Court of Canada and Exchequer Court of Canada, R.S.N.S. 1900, c. 154 (reprinted in R.S.N.S.
1989, vol. 12). P.E.I.: lacks any current statute: Supreme Court Act, S.P.E.I. 1987, c. 66, s. 69
(repealing Judicature Act). Nfld. & L: Federal Courts Jurisdiction Act, R.S.N. 1990, c. F-7, s.
2.
66 Blood Band v. Can. (2001) 211 F.T.R. 288 (Fed. T.D.).
67 E.g., A.G. B.C. v. A.G. Can. (1888) 14 App. Cas. 295 (P.C., Can.); A.G. Can. v. A.G. Ont.
[1910] A.C. 637 (P.C., Can.); The King v. A.G. B.C. [1924] A.C. 213 (P.C., Can.); A.G. B.C.
v. A.G. Can. [1924] A.C. 222 (P.C., Can.); The Queen (Can.) v. The Queen (P.E.I.) (1977) 83
D.L.R. (3d) 492 (F.C.A.); Fairford First Nation v. Can. (1996) 205 N.R. 380 (F.C.A.). For
commentary, see D.W. Mundell, “Legal Nature of Federal and Provincial Executive Govern-
ments” (1960) 2 Osgoode Hall L.J. 56, 72.
69 The issue is raised in The Queen (Can.) v. The Queen (P.E.I.), note 67, above, 515-516, 533.
495
17.4(a) FEDERAL QUESTIONS
enacted a statute conferring the s. 19 jurisdiction on the Federal Court.70 When s.

19 is complemented in this way, the Court’s restriction to federal law is over-
come.71 It would be provincial rather than federal law that would give binding
effect to an order of the Federal Court made under s. 19 in the agreeing provinces.
17.4 Choice of law
(a) Which law applies?
When proceedings are brought against the Crown in right of Canada, a

uniquely federal problem of choice-of-law (conflict of laws) arises. What body
of law applies? The liability of the Crown in a particular case may depend upon
a federal statute. If so, the statute governs. But, if there is no federal statute
governing liability, what then? Does the law of a province govern liability, and,
if so, the law of which province?
Once the applicable system of law has been identified, a second question
arises. To what extent is the federal Crown immune from the statute law of the
governing jurisdiction? Immunity could flow from the general rule that the Crown
is not bound by statutes except by express words or necessary implication. Or,
where the applicable system of law is that of a province, immunity could flow
from the constitutional incapacity of the province to enact statutes binding on the
federal Crown. These immunity issues were explored in some detail in chapter
70 Section 96 of the Constitution Act, 1867, which stipulates that the Governor General (the
federal government) shall appoint the judges of the superior courts of the provinces, has been
interpreted as limiting the power of the provincial Legislatures to delegate traditional superior-
court functions to administrative tribunals whose members are not appointed by the federal
government: Hogg, note 62, above, sec. 7.3, “Implications of Constitution’s judicature sec-
tions”. A delegation to the Federal Court avoids this problem, because the judges of the Federal
Court are also appointed by the Governor General. (Like the judges of the superior courts of
the provinces, the Federal-Court judges are drawn from members of the bar, and their salaries
are fixed and provided by Parliament.)
71 Provincial Legislatures have the power to delegate regulatory and administrative powers to
bodies created by Parliament, and Parliament has a comparable power of delegation over
provincially-created bodies; and the conferral on administrative tribunals of both federal and
provincial powers has been upheld: P.E.I. Potato Marketing Bd. v. Willis [1952] 2 S.C.R. 392;
Coughlin v. Ontario Highway Transport Bd. [1968] S.C.R. 569; Re Agricultural Products
Marketing Act [1978] 2 S.C.R. 1198; for discussion, see Hogg, note 62, above, sec. 14.3,
“Federal inter-delegation”. While there are no precedents on judicial power, the same powers
of delegation ought to be available. Perhaps it could be argued that the laws-of-Canada restric-
tion on the Federal Court makes the Court incapable of receiving a delegation of judicial power
over disputes involving provincial law, but in the foregoing cases administrative tribunals
created by one level of government were held to possess the capacity to receive a delegation
of power from the other level of government that the creator could not have conferred, and the
better view is that the laws-of-Canada restriction on the Federal Court applies only to jurisdiction
conferred by Parliament without supporting provincial legislation.
496
CHOICE OF LAW 17.4(b)
15, Statutes, above, but this part of this chapter will briefly recapitulate the main
points.
(b) Liability of Crown in right of Canada
The liability in tort of the federal Crown was imposed by federal statute,
which was necessary because the Crown was immune from liability at common
law. The Crown Liability and Proceedings Act is the current statute. This Act and
its predecessors have been interpreted as directing the application of the law of
the province where the cause of action arose.72 Not only is the common law
applicable, but also provincial statutes on the theory that the federal statute
imposing liability in tort is an implicit incorporation into federal law of all pro-
vincial statutes that would apply if the defendant were a private person. There is
some doubt as to whether the incorporation is frozen in time, capturing only those
provincial statutes that were in existence at the time when the federal Crown
became liable, or whether the incorporation is ambulatory, capturing provincial
statute law as it changes over time. But the Crown Liability and Proceedings Act
seeks to assimilate the liability of the Crown in tort to that of a private person,
and, as time passes and statute law changes, only the ambulatory alternative
would make the law that is applicable to the Crown the same as that which applies
to a private person. The ambulatory alternative is plainly the better view of the
law.73
The liability in contract of the federal Crown was imposed by the common
law; no statute was necessary and none was enacted to impose the liability. The
common law is that of the province in which the cause of action arose. But the
absence of a federal statute imposing liability means that there is no incorporation
into federal law of the provincial statutes that would apply if the defendant were
a private person. And, unlike the provincial Crown proceedings statutes, the
federal Crown Liability and Proceedings Act does not include a rights-of-the-
parties provision, which stipulates that in proceedings against the Crown the
rights of the parties are as nearly as possible the same as in a suit between person
and person. The absence of this rights-of-the-parties provision is another reason
why, in proceedings against the federal Crown for breach of contract (or any other
cause of action except tort), there is no incorporation into federal law of provincial
statute law. Therefore, when the federal Crown is sued for breach of contract, the
applicable law is the common law (or the civil law in Quebec), as modified only
by those federal statutes that bind the federal Crown by express words or necessary
implication. Provincial statutes will be inapplicable because the provincial Leg-
islatures probably have no power to bind the federal Crown. In some cases, the
contract with the federal Crown will expressly or impliedly incorporate a federal
or provincial statute that would otherwise be inapplicable; in that case, the incor-
72 Chapter 15, Statutes, under heading 15.12, “Federal Crown as defendant”, above.
73 Ibid.
497
porated statute will be binding on the Crown, not of its own force, but as a matter
of contract law.74
(c) Crown in right of Canada as plaintiff
The Crown as plaintiff in a provincial court is deemed to take the provincial

law as it finds it, and is bound by the same body of law, including statute law, as
would apply to a private plaintiff. The Crown cannot invoke any immunity from
statute law in proceedings that the Crown itself has initiated in a provincial court.75
17.5 Federal common law
(a) Federal common law in the United States
The courts of the United States have accepted the existence of a body of
federal common law applicable to proceedings to vindicate rights that owe their
origin to federal power.76 Proceedings arising out of federal government contracts
are of this character; where there is no governing federal statute, the applicable
law is common law fashioned by the federal courts according to their own stan-
dards.77 This would also be true of proceedings arising out federal government
torts if it were not for the fact that the Federal Tort Claims Act, which imposes
liability in tort on the United States, specifically directs that the liability be
determined “in accordance with the law of the place where the act or omission
occurred”. In tort cases, therefore, the governing law is state law.78
In the United States, the idea of a single monolithic body of common law
has been abandoned. There are 50 state systems of common law, and the rules
have evolved differently from one state to another. These differences cannot be
eliminated by the Supreme Court of the United States because issues of state law
are finally resolved in the highest court of the state.79 It is therefore natural for
Americans to think of the common law as divided up into separate systems
corresponding to the jurisdictions of the federal country. The 51st of those juris-
dictions is the federal jurisdiction — with its own system of common law.
74 Ibid.
75 Chapter 15, Statutes, under heading 15.13, “Crown as plaintiff”, above.
76 Clearfield Trust Co. v. U.S. (1943) 318 U.S. 363.
77 Ibid.; U.S. v. County of Allegheny (1944) 322 U.S. 174.
78 U.S. v. Muniz (1963) 374 U.S. 150.
79 The Supreme Court of the United States is confined by the Constitution (art. III, s. 1) to cases
and controversies coming within the “judicial power of the United States”, a defined term
which excludes most state-law cases, for example, most tort, contract and property cases. When
an issue of state law does arise in a case properly before the Court, on that issue the Court
defers to the highest court of the state: Erie Railroad Co. v. Tompkins (1938) 304 U.S. 64. For
more discussion and comparison with Canada, see Hogg, note 62, above, sec. 8.5(a).
498
FEDERAL COMMON LAW 17.5(b)
In Canada, by contrast, issues of provincial law are appealable to the Supreme

Court of Canada, and they are finally resolved in that Court because it is “a general
court of appeal for Canada”. The Supreme Court has (without explicit discussion)
always assumed the power and duty to keep the common law uniform throughout
the country; the Court has never permitted any variation in the common law from
one province to another. Provincial courts also assume that there is one national
body of common law (co-existing with civil law in Quebec) and it never occurs
to them to develop doctrine that is intended to be distinctive to the forum province.
The result is that the common law does not differ markedly from province to
province. Of course, each province has its own distinctive body of statute law,
and Quebec also has its distinctive body of civil law (instead of the common law).
Where statute law (or the civil law) is potentially applicable, one must identify
the jurisdiction whose laws are controlling. But, where all the potentially appli-
cable rules are those of the common law, it is not usually necessary to worry
about which jurisdiction’s law is controlling. That is probably why Canadians
have tended not to think in terms of a distinct federal common law.
(b) Federal common law in Canada
In Canada, there is one context in which the existence of a federal common

law has to be at least contemplated, and that is the constitutional restrictions on
the jurisdiction of the Federal Court. It will be recalled that s. 101 of the Consti-
tution Act, 1867 restricts federal courts to cases governed by “the laws of Canada”,
and that the Supreme Court has held that “laws of Canada” does not mean all the
laws in force in Canada, but identifies a distinct body of “federal” law.80 Federal
statute law obviously qualifies. It seems obvious that the common law in fields
of unexercised federal legislative competence should also be characterized as
federal law; after all, the common law in those fields exists by the grace of the
federal Parliament and can be replaced by (or adopted as) federal statute law
whenever Parliament so chooses. But that is not what the Supreme Court of
Canada has decided. The Court has denied the status of federal law to the common
law, with the result that a contract for the interprovincial transportation of goods,81
a contract to build a federal penitentiary82 and a contract to build a federal gov-
ernment office building83 (all matters within federal legislative competence) are
all, as a matter of constitutional law, beyond the jurisdiction of the Federal Court.
These rulings evidence a reluctance on the part of the Supreme Court84 to the

81 Quebec North Shore Paper Co. v. Canadian Pacific [1977] 2 S.C.R. 1054.
82 McNamara Construction v. The Queen [1977] 2 S.C.R. 665.
83 R. v. Thomas Fuller Construction [1980] 1 S.C.R. 695.
84 The decisions all came at a time when the Supreme Court seemed determined to restrict the
jurisdiction of the Federal Court by all means possible, and this inexplicable attitude may have
contributed to the reluctance to classify the common law in fields of unexercised federal
legislative competence as federal law.
499
17.5(b) FEDERAL QUESTIONS
notion, so readily accepted in the United States, that in a federal state the common
law must for some purposes be carved up into federal pieces.85
While the Supreme Court has refused to accept the proposition that the
common law in fields of unexercised federal legislative competence is federal,
the Court has never forthrightly denied the existence of a federal common law.
Indeed, there have been several acknowledgments that there are some parts of the
common law that for unexplained reasons do qualify as federal law.86 One of
these is the contractual liability of the federal Crown, which has the curious
consequence (noted earlier) that a federal government contract is within Federal
Court jurisdiction if the federal Crown is the defendant (contractual liability of
the Crown), but not if the federal Crown is the plaintiff (contractual right of the
Crown)!87 Although the Court has never offered any criteria for the identification
of these little enclaves of federal common law, it may be that the Court has in
mind those few common law doctrines that cannot be altered by the provincial
Legislatures.88
85 Despite the uniformity of the common law in Canada, choice-of-law problems can arise when
the alternative systems of law are Quebec’s civil law and a common law province, or a province
that has supplanted the common law by statute and a province that has not. In these cases, a
body of common law would have to be identified with a particular province. Such issues could
not arise within a unitary state.
86 E.g., Roberts v. Can. [1989] 1 S.C.R. 322 (common law of aboriginal title is federal). Compare
Bisaillon v. Keable [1983] 2 S.C.R. 60 (police informer rule is a common-law rule of criminal
law that cannot be altered by the province). For other dicta recognizing a federal common law,
see Hogg, note 62, above, sec. 7.2(b), “Federal Court of Canada”.
87 McNamara Construction v. The Queen [1977] 2 S.C.R. 655, 662 (proceedings by Crown outside
Federal Court jurisdiction; proceedings against Crown within jurisdiction).
88 Note 86, above. The common law in fields of unexercised federal jurisdiction is mainly subject
to provincial alteration as well — so long as the provincial law is a law of general application,
not focused on a federal subject matter. The last qualification means that it is very difficult to
distinguish those common law doctrines that can be altered by the provinces from those that
cannot be altered. The answer will normally depend on the level of generality at which the
question is posed. Another complication with respect to the federal Crown is the incapacity of
the provinces to pass laws binding on the federal Crown. The only principled definition of
federal common law is the common law in fields of unexercised federal legislative competence
— the definition that the Court has rejected.
500
18
Conclusion
The first edition of this book was published in 1971, and it propounded the
thesis (the book had originated as a Ph.D. thesis) that the liability of the Crown
(and other public bodies) for loss or damage to private persons caused by the acts
or omissions of government should not be governed by special rules of “public
law”, but should be governed, as far as possible, by the private law of tort, contract,
property, restitution or trust — the same body of law that governs liability for
loss or damage caused by the acts or omissions of private persons. The qualifi-
cation “as far as possible” is very important, because government has responsi-
bilities that have no analogue in the private sector, and which call for adaptation
of the private law to the special position of the Crown. As well, the private law
(of tort, for example) would deny liability for an act or omission that is authorized
by statute. That is true of private persons who act under a statutory power or duty,1
but of course private persons rarely act under a statutory power or duty. The
Crown, however, often does. And so the private law has to be accommodated to
the Crown and other public authorities by developing rules to define the occasions
when the Crown is freed from liability by the defence of statutory authority. The
idea that it is the private law that determines the liability of the Crown still remains
of paramount importance, because, although the Crown cannot be held liable for
an act that was authorized by statute, the converse is not true. An act that is
unauthorized by statute (or invalid) will not give rise to liability unless the act is
a tort or breach of contract or other wrong recognized by the private law.2
Academic writers who have put their minds to this issue have often come to
the opposite conclusion, namely, that the liability of the Crown and other public
authorities should be governed by special rules of public law that recognize the
1 E.g., Allen v. Gulf Oil Refining [1981] A.C. 1001 (H.L.) (establishment of oil refinery under
statutory authority immunized oil company from liability in tort).
2 One tort that moves in this direction is misfeasance in a public office, which is a cause of action
in tort based on invalidity that is coupled with the deliberate or reckless infliction of harm by
a public official: ch. 6, Tort: General Principles, under heading 6.5(c), “Misfeasance in a public
office”, above.
CONCLUSION
distinctive role of government in society.3 Many different rules have been sug-
gested, but they have certain features in common. One is that the statutory au-
thority for a governmental act should not necessarily free the Crown from an
obligation to pay compensation for damage caused by that act. The idea here is
that, at least in some circumstances, loss or damage caused by action taken for
the public good should be compensated by the Crown so as to spread the cost
among taxpayers at large rather than leaving it to fall on an innocent victim.
Another feature of a hypothetical public law would be that an unauthorized
(invalid) act that caused damage would give rise to liability on the part of the
Crown without the need to establish a private-law cause of action, for example,
a tort. Here too a loss distribution idea is often invoked to justify the special
liability of the Crown. In this book, we have criticized these various theories on
a number of grounds.4 The theories raise difficult issues of definition, both as to
the class of invalid decisions that would found Crown liability and the kinds of
loss that would justify a damages award. Even if these questions of definition
could be satisfactorily resolved, it is far from clear that the resulting new public
law of tort would yield results that would be preferable to the existing law of tort
when judged by standards such as the just compensation of victims, the protection
of government budgets from overwhelming liabilities — and above all the appro-
priate division of powers between the political (executive and legislative) and
judicial branches of government. These are the concerns that have influenced the
judicial decisions that apply the private law of torts to the realm of government.
While there are practical and theoretical problems with the development of
a public law of governmental liability, it is noteworthy that the development of
the law, both by the courts and by statute, has usually been in the direction of
assimilating the Crown to the position of a private person rather than creating a
special legal position for the Crown. The history of Crown liability goes back to
medieval concepts of monarchy which did not permit the monarch to be sued by
his or her subjects. To modern eyes that is not an attractive law of Crown liability.
The reforms that have generally been adopted have been to subject the Crown to
the same legal processes as private persons.5 Of course, the procedure of suit does
not settle the question of what should be the governing law, but it seems always
to have been assumed by legislative bodies and courts that the governing law
should generally be that which governs relations between private persons.
The assumption that it is the private law that ought to govern governmental
liability was given expression by Dicey, who proffered an “idea of equality”,
under which government officials should be held to the same rules as private
individuals.6 The appeal of this idea has to do with the control of government.
3 For a recent example, see Cornford, Towards a Public Law of Tort (2008).
4 Chapter 6, Tort: General Principles, under heading 6.6, “Reform”, above, has extended discus-
sion and full references.
502
CONCLUSION
Government should be under the law (as everyone agrees), but the idea is that the
law that government is under is not just any law: it is the same law that applies
to private citizens. Moreover, the law should be applied to government by the
ordinary courts which decide issues between private persons and which are un-
questionably independent of government. Modern scholars have concluded that
the experience of European legal systems shows that government can be well
controlled by a special regime of public law administered by special administra-
tive courts. Dicey went too far in his abhorrence of these systems. But one is
entitled to doubt whether the European model can be transplanted to the common
law jurisdictions (including the province of Quebec) in the face of deeply held
British-derived conceptions of the “rule of law” and “constitutionalism”. The
legal culture in Canada, mirroring the political culture, has never accepted a
special regime of law for the Crown, and has always pushed, steadily and effec-
tively, for the subjection of governmental liability for injury or loss to the same
private law as governs everyone else.
We understand, of course, that the many advocates of a special regime of
governmental liability do not wish to revive the network of Crown immunities
and privileges that have steadily been eroded under the influence of the idea of
equality. Indeed, they often want to enhance the liability of the Crown, so that its
obligations exceed those of private persons. But any special regime of govern-
mental liability carries a huge burden of persuasion for courts or legislators whose
institutional memory is one of special privileges and immunities for government,
and whose legal system does not now accept any radical distinction between the
liabilities of private persons and public authorities. The construction from scratch
of a whole new body of doctrinal and remedial law for government liability is not
a realistic option, which is no doubt why it has not occurred in Canada — or in
the United Kingdom, Australia and New Zealand.
In this edition, we continue to support the thesis that the liability of the
Crown (and other public bodies) should be governed as far as possible by the
same body of law as applies to private persons. The thesis — or bias, if you like
— informs every chapter of the book. In the early chapters, dealing with remedies
against the Crown, we relate with approval the gradual assimilation of the Crown
to private defendants and criticize the few immunities of the Crown that persist.
An interesting recent development in the Federal Court was the prohibition on
“collateral attack”, which insisted that a plaintiff who sued the Crown for damages
in tort (or contract or any other private-law cause of action) could not in the action
attack the validity of any decision by a federal agency or official even if that was
necessary to succeed in the action. To overcome this prohibition the plaintiff had
to first make an application for judicial review to the Federal Court in order to
strike down the official decision, and only if that application was successful could
the action for damages proceed. This requirement was not without a rationale,
since the Federal Courts Act conferred on the Federal Court exclusive jurisdiction
to award judicial-review remedies against federal agencies and officials. But it
had the unfortunate effect of requiring two proceedings to dispose of the claim
503
CONCLUSION
for damages against the Crown, and, since the limitation period for an application
for judicial review was 30 days, it often defeated the claim entirely. In our draft
manuscript, we took the view that the court trying the action for damages ought
to be able to determine all elements of the cause of action, including, where
necessary, the validity of any decision by a federal agency or official. Just days
before we finalized the manuscript, the Supreme Court decided the TeleZone
cases (2010),7 rejecting the Federal Court’s prohibition on “collateral attack”, and
holding that a plaintiff suing the Crown for damages in tort was entitled to have
the claim disposed of in a single proceeding — as would be the case if the
defendant were a private person. The issue, said the Court, was one of access to
justice. We agree.
In the chapters on liability in tort and contract, we support the general idea
that the private law should govern the liability of the Crown, although admittedly
much adaptation is needed to make the general law of negligence apply to gov-
ernment decision-making which has no simple analogy to private decision-mak-
ing. In contract, our thesis was challenged very directly by the decision of the
Supreme Court in the Pacific National case (2000),8 which held that a municipality
that had entered into a contract with a developer to change the zoning of land
owned by the developer was free to escape from its contract, even after the
developer had built the roads, sea wall and parks that were its side of the bargain.
The Court held that the contract was invalid because the municipality could not
“fetter” its by-law-making power. In our view, that was an unjust decision.
Moreover, the benefit to governments of enabling them to escape from contracts
is illusory. The decision will impair the credit of public bodies, forcing them to
pay higher prices (risk premiums) for everything obtained by contracts that could
be regarded as fettering legislative power. Bastarache J., in his dissenting opinion,
quoted from the previous edition of this book to point out that “the Crown benefits
no less than private persons from the principle that contractual undertakings
should be reliable.” We continue to hold this view.
The chapter on restitution reports the Kingstreet decision (2007),9 which
decides that if the Crown is unjustly enriched by a tax that is subsequently found
to be unconstitutional, the taxpayer is entitled to a remedy in restitution to recover
the money paid for the illegal taxes. This was described by the Court as a “public
law remedy”, but it assimilated the law respecting recovery of taxes to the private
law of restitution. This put an end to a long period of uncertainty, which started
in 1989, when three judges of the Supreme Court (but not a majority) announced
that there was a special rule of public law respecting the recovery of an uncon-
7 Can. v. TeleZone [2010] 3 S.C.R. 585 is the lead decision; the case and its five companion
cases are discussed in ch. 2, Remedies, under heading 2.10, “Collateral attack”, above.
8 Pacific National Investments v. Victoria [2000] 2 S.C.R. 919; discussed in ch. 9, Contract,
under heading 9.6, “Fettering legislative power”, above.
9 Kingstreet Investments v. N.B. [2007] 1 S.C.R. 3; discussed in ch. 10, Restitution, under heading
10.6, “Recovery of unconstitutional taxes”, above.
504
CONCLUSION
stitutional tax. The special rule was that the tax was irrecoverable because of the
potential disruption of government finances. In the previous decision of this book,
we criticized the special rule, arguing that the best law to govern the recovery of
an unconstitutional tax was the ordinary law of restitution. The Crown has been
unjustly enriched without any legal justification at the expense of the taxpayer,
and the Crown should be obliged to return the money. In Kingstreet, the Court
accepted our criticism of the rule of irrecoverability, and the Crown is now liable
to make restitution for unconstitutional taxes. We say that is the right result.
In the chapter on statutes, we report with regret that the special rule that the
Crown is not bound by a statute except by express words or necessary implication
continues as the law of Canada, except in two provinces, despite our vigorous
criticism of the rule in all three previous editions. This may be the only field
where those who argue for a separate body of law for the Crown can accurately
claim the ascendency. But we would argue that our chapter on statutes is an object
lesson in the folly of a special rule for the Crown. It is by far the longest chapter
in the book — as it was in previous editions — and the law that it describes is
breathtaking in its complexity. What causes all the complication is the resistance
of modern judges to the notion that the Crown should be permitted to escape from
the statutory obligations that apply to private persons. They do not believe in the
desirability of special privileges for the Crown! That view — bias if you will —
has led the courts to carve out manifold exceptions to the general rule, turning
the law into a patchwork of exceptions that nearly — but not quite — eat up the
general rule.10 How much simpler it all would be if Canada and eight of the
provinces had followed the lead of British Columbia and Prince Edward Island
in reversing the presumption so that statutes would apply to the Crown in the
same way as they apply to other legal persons, namely, when the statutory lan-
guage is apt for the purpose. That would eliminate the complexity, but is it not
obvious that it is also the right result?
Much more could be said, but we rest our case, affirming the same thesis as
the previous editions of the book. The liability of the Crown for damage or loss
caused to private persons should be governed, as far as possible, by the same
body of law that governs the liability of private persons. Reform is needed, not
to impose a radical new public law on the Crown, but to eliminate those patches
of Crown immunity and privilege (whether old or new) that cannot be justified
by the Crown’s admittedly unique responsibility of governance.
10 The story is told (at inordinate length) in ch. 15, Statutes, above.
505
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515
INDEX
All references are to headings.
The letter n means that a reference is only in a footnote.
Act of state, 7.3(d)(ii), 8.1, 8.2(b) Bill of Rights, 1689 (Eng.), 10.6(a), 15.2
Administrative courts, 1.2, 6.6(d) British overseas territories, see Colonies
Agency, see Contract Cabinet confidences, see Public Interest

Immunity
Anns/Cooper test, see Negligence
Canada
Anns/Kamloops test, see Negligence proceedings against, 2.1, 6.1(e), 13.3(c)-
(d), 16.4(f), 17.3(b), 17.3(c)
Application for judicial review, 2.9 proceedings by, 17.3(d), 17.3(e)
provinces, see Provinces
Appropriation of funds, see Parliamentary territories, see Territories
appropriation
Certiorari, see Prohibition and certiorari,
Application for judicial review
Armed forces, see also Crown servant
dismissal at pleasure, 9.8(a)
Charter of Rights
loss of services, action for, 9.8(b)
Crown privileges and, 1.4(f)
pay, right to recover, 9.8(a)
damages for breach, 2.2(c), 6.5(d), 8.5(a)
prerogative powers over, 9.8(a)
injunction for breach, 2.4(g), 2.6(e)
statute law applicable to, 15.15(c)
mandamus for breach, 2.6(e), 2.6(d)-(e)
superior orders, 15.15(c)
property, protection of, 3.1(d), 9.6(d), 11.1,
tortious liability, see Tort
11.3
war, operations of, 7.3(d)(ii), 8.2
retroactive laws, see Retroactive statute
Aronson, M.
Choice of law, see Federal jurisdiction
statutes binding the Crown, on, 15.11(e)
Civil law
Attachment, see Contempt of court, Crown, application to, 6.1(e), 15.1,
Garnishment 15.2(b), 15.11(a), 15.12(c), 15.13
Attorney-General Cohen, David
injunction, application for, 2.4(b) entitlements, on, 6.6(c)
proceedings against, 2.3(b), 2.3(d)
tortious liability, 8.6 Collateral attack, 2.10, 7.4, 18
Australia Colonies
Commonwealth, 1.4(c) legal status, 1.4(c)
states,1.4(c) prerogative power over, 1.5(b)n
territories, 1.4(c)
tort, liability in, 6.1(d) Commercial activity, 10.4(c), 15.7(d), 15.8,
unconstitutional taxes, recovery, 10.6(b) 15.9, 16.2
Bad faith
Crown liability for, 12.5(c)n
517
INDEX
Common law quasi-contract, see Restitution

Crown, application to, 15.1, 15.12(b), special rules, need for, 9.2
15.12(c), 15.13 specific performance for breach, 9.2
federal, 15.3(c), 17.5 statute applicable to Crown through, 15.8,
uniformity of, 17.5 15.12(c), 15.17(a)
statutory authority to make, 9.4(c), 9.4(d),
Compensation, see Damages, Set-off, Tort 9.4(e), 9.5
tendering contracts, 9.3(e)
Conflict of Laws, see Federal jurisdiction termination clause, 9.2, 9.6(d)
warranty of authority, 9.7
Consolidated Revenue Fund, 3.1(c), 3.1(e),
10.1(c), 10.6(a), 12.4, 13.4 Cornford, T.
on damages for invalidity, 6.6(a)
Constitutional questions
limitation of actions, 4.5(f) Costs
notice of, 4.6(d) advance costs, 4.3(d)
Crown liability, 4.3, 15.6(c)
Constitutional tort, see Damages
Courts
contempt, see Contempt of court
Constitutionalism, 1.2 defamation in, 8.7(a), 8.7(c)
Federal Court of Canada, see Federal Court
Contempt of court of Canada
Crown, against, 2.4(i), 2.6(b), 2.7(b), 3.3 judgment, see Judgment
Crown servant, against, 3.3(b), 3.3(c) jurisdiction over Crown, 17.3
order, see Judgment
Contract
administrative, 9.2 Crime
choice of law, 17.4 Crown agent’s liability, 15.14, 15.15(a),
constitutional authority to make, 9.4(d) 15.15(b), 16.4(a), 16.4(b)
Crown agent’s liability, 9.7(c), 16.4(c), Crown contractor’s liability, 15.16(a)
16.4(e) Crown’s liability, 3.3(c), 6.2(d)(iii), 15.14
Crown servant, with, see Crown servant Crown servant’s liability, 15.15
Crown servant’s liability, 3.3(c), 9.7,
16.4(e), 16.4(f) Crown
Crown servant’s power to make, 9.4(a), agent, see also Public corporation
9.4(e), 9.5(a), 9.5(b) contempt of court against, see Contempt of
Crown’s liability, 1.3, 9.1 court
Crown’s power to make, 9.4 corporation, analogy with, 1.4(d), 3.3(c),
discretion, fettering, 9.6, 9.8(a), 18 9.4(a)
election promises, 9.3(c) creditor, as, see Crown debt
executive necessity, 9.6(a)n “Crown”, meaning of, 1.4, 15.16(a),
extinguishment of right, 9.4(d), 9.4(e), 15.16(b)
9.6(b), 9.6(c), 9.8(a), 11.6 debt, see Crown debt
injunction for breach, 9.2 directing mind, 1.4(d), 6.3(e), 15.14(b)
intention to create contractual relations, 9.3 divisible, 1.4(c), 9.4(a), 15.16(a), 15.16(b),
legislative appropriation, necessity for, 17.2
9.4(c) fault of, 1.4(d), 15.14(b)
legislative nullification, 9.6(b), 9.6(d), federation, in, 1.4(c), 15.16(a), 17.3
9.6(e) government, and, 1.4(a)-(b)
parliamentary appropriation, 9.4(c) legal person, as, 1.4(a), 1.4(d), 9.4(a)
petition of right, 1.3(c) natural person, as, 1.4(a), 9.4(a)
policy promises, 9.3(d)
518
INDEX
order against, 2.3(d), 2.4(b), 2.4(i), 2.6(b), mandamus, see Mandamus

2.7(b), 2.8(b), 3.1(b), 3.2(c), 3.3 notice requirements, 4.6
“person”, as, 15.7(b), 15.14(a) petition of right, see Petition of right
plaintiff, as, see Proceedings by Crown prohibition, see Prohibition and certiorari
prerogative, see Prerogative proper court, 4.1
proceedings against, see Crown proper defendant, 4.1
proceedings rights of parties, 15.10, 15.13, 15.17(a)
proceedings by, see Proceedings by Crown set-off, see Set-off
public corporation, and, see Public specific performance, see Specific
corporation performance
Crown agent, see also Public corporation Crown property, see Execution
contract, 16.2(b), 16.4(e) immunity from actions in rem, 2.12(b)
control test, 16.2(b)
Crown immunity inapplicable, 16.4(f) Crown representative, see Governor
functions test, 16.2(a)
liability to be sued, 16.4 Crown servant
statute, by, 15.15(b), 16.3(a) armed forces, see Armed forces
ultra vires activity, 16.3(b) Attorney General, see Attorney-General
certiorari against, see Prohibition and
Crown corporation, see Public corporation certiorari
compellable witness, see Subpoena
Crown debt contempt of court by, 3.3
common law priority, 14.2 contract, power to make, see Contract
competing Crown debts, 14.4 contractual liability, see Contract
enforcement, 14.1-14.2 course of employment, 6.2(e)
garnishment, 3.2, 14.4(f) criminal liability, see Crime
priority, 14.2-14.5, 15.9 de facto authority, 6.2(e)(i), 6.2(e)(ii),
6.4(e)
Crown privilege, see Public interest definition of, 6.2(c)(ii)
immunity directing mind, as, 1.4(d), 15.14(b)
discovery against, 4.2(d)
Crown proceedings dismissal-at-pleasure rule, 9.7(b), 9.8(a)
application for judicial review, see estoppel, 13.1-13.2
Application for judicial review executive necessity, see Executive
Attorney-General, see Attorney-General necessity
costs, see Costs garnishment of, 3.2(c)
Crown, by, see Proceedings by Crown good faith, 6.2(d)(ii), 8.3
Crown servant, against, see Crown servant governor, see Governor
damages, see Damages habeas corpus against, 2.8
declaration, see Declaration identification of, 6.2(c)(iii)
discovery, see Discovery immunity from suit, 16.2(a)
enforcement of judgment, see Judgment independent discretion rule, see Tort
equitable relief, 1.3(b) injunction against, see Injunction
federal jurisdiction over, 2.4(f), 17.3(c) judges, see Judicial immunity
habeas corpus, see Habeas corpus legal authority, 8.3, 9.5
history, 1.3 loss of services, action for, 9.8(b)
injunction, see Injunction mandamus against, 2.6(c), 3.1(e), 3.3(c)
intergovernmental litigation, 1.4(c), 17.3(e) minister, see Minister of the Crown
interlocutory relief, see Interlocutory relief pay, action to recover, 3.2(c), 9.8(a)
interrogatories, see Discovery persona designata, as, 2.6(c), 3.2(c), 3.3(c)
limitation of actions, see Limitation of personal liability, 8.1
actions
519
INDEX
police, see Police Dicey, A.V.

power to make contracts, see Contract idea of equality, on, 1.1, 1.2, 1.3(a), 3.3(b),
prohibition and certiorari against, see 6.6(d), 8.1, 18
Prohibition and certiorari prerogative, on, 1.5(b)
public corporation, see Public corporation rule of law, on, 1.2, 6.6(d), 7.5
public service statutes, 9.8
statutes, application to, see Statutes Direct liability, see Tort
statutory immunity clauses, 6.2(d)(ii), 8.4,
8.6 Directory requirement, 9.4(e), 9.5(b)
subpoena against, 5.3(c)
tortious liability of Crown, see Tort Discovery
tortious liability, see Tort Crown, against, 3.3(a), 15.13, 17.3(b)
wrongful dismissal, action for, 9.8 Crown brief, of, 5.4(f)
Crown, by, 4.2(b)
Damages Crown privilege, 3.3(c), 5.3(c), 5.3(d)
compensation compared, 6.4(a)-(d)
constitution, for breach of, 6.5(d), 8.5(a)
Discretion, see Statutory authority
contract, breach of, 1.3(c), 9.1, 9.6(d)
Crown, against, 1.3(c), 2.2
interest on, 2.2(e) Dispensing power, 10.3(c), 15.2
judgment, see Judgment
prerogative compensation, 6.4(a)-(d) Distress, 3.3(b)
punitive, 2.2(d)
statutory compensation, 6.4(a), 6.4(b), Documents, see Discovery, Subpoena, Public
6.6(b) interest immunity
undertaking to pay, 2.4(f)
Duty of care, see Negligence
De facto officer, 6.2(e)(i), 6.2(e)(ii), 6.4(e)
Economic loss, see Negligence
Debt, see Crown debt
Edwards, J. Ll. J.
Declaration on prosecutorial immunity, 8.6
Attorney-General, against, 1.3(b), 2.3(d)
coercive relief, absence of, 2.3(b)
Emergency, see also Executive necessity
constitutional, 2.3(a), 2.3(f), 2.3(g)
prerogative power over, 1.5(b)
Crown, against, 1.3(b), 2.3, 9.1
governor, against, 2.7(b)
Equality between Crown and subject, 1.1-1.2,
injunction, in lieu, 2.3(e), 2.4(a)-(c), 2.4(i)
1.3(a), 1.4(f), 3.3(c), 6.6(d), 15.17(a),
interlocutory, 2.3(e), 2.4(f), 2.4(i)
15.17(b), 16.2(b), 16.4(f), 18
procedure, 2.3(d)
specific performance, in lieu, 2.5(b)
suspended, 2.3(f), 2.3(g) Equitable execution, 3.2(c)
trust, breach of, 12.1-12.2
ultra vires act, 2.3(a) Estoppel
unconstitutional statute, 2.3(a) Crown’s liability, 13.2
discretion, fettering, 10.4
Declaratory judgment, see Declaration ostensible authority, 9.5(a)
parliamentary appropriation, absence of,
Defamation 13.3
communications within executive, 8.7(b)
statements in judicial proceedings, 8.7(a) European Community
damages for breach of, 6.5(a)
Delict, see Tort supremacy over U.K. law, 2.4(g)
520
INDEX
Evidence, see Public interest immunity Fiduciary duty

Crown liability, 12.5
Ex gratia payment, 6.6(b)
Fine, see Crime
Examination for discovery, see Discovery
Foreign affairs
Execution, see Judgment act of state, 8.2(b)
Executive necessity
act of state, 7.6(b), 8.2(b) Freedom of information law, 5.2, 5.12
constitutional crisis, 8.2(b)
contract law, 8.2(b), 9.6, 9.8(a) Garnishment, 3.2
discretion, fettering, 8.2(b), 9.6, 13.4
injunction, defence to, 2.4(d), 2.4(i) Government, see Crown
tort law, 6.4(c), 8.2(a)
Governor
Executive privilege, see Public interest certiorari against, 2.7(b)
immunity declaration against, 2.7(b)
mandamus against, 2.6(c), 2.7(b)
Expropriation, see Property prohibition against, 2.7(b)
royal fiat, grant of, 2.6(d)
Federal Court of Canada
federal common law, see Common law Governor General, see Governor
Federal Crown, suits against, 7.4, 13.3(c),
13.13(d), 16.4(f), 17.3(c)
Habeas corpus
Federal Crown, suits by, 17.3(d), 17.3(e)
constitutional guarantee, 2.8(c)
intergovernmental suits, 17.3(e)
Crown liability, 2.8(b)
jurisdictional limits, 17.3(c), 17.3(d)
prisoner to release, 2.8(a)
Provincial Crown, suits against, 2.1,
17.3(b)
Honours
prerogative power over, 1.5(b)-(c)
Federal jurisdiction
choice of law, 6.1(e), 15.10, 17.4
contractual liability in, 15.12 Immunity clause, see Privative clause
federal common law, 17.3(c), 17.5
Federal Court of Canada, see Federal Court Independent contractor
of Canada Crown liability in tort for, 6.2(c)(iv)
restitution liability in, 10.2 immunity from statute, 15.15(d)
tortious liability in, 6.1(e), 6.2(c)(i), 6.3(a)
trust liability in, 12.2 Indian reserves
Federalism
Crown and, 1.4(c) Injunction
implications for application of statute, Attorney-General as plaintiff, 1.3(b), 2.4,
15.2, 15.3(e), 15.16, 15.17(b) 3.3(c), 15.11(b)
intergovernmental litigation, 1.4(c), 17.3(e) Crown, against, 1.3(b), 2.4, 3.3(c), 9.2,
suits against provinces in other provinces’ 9.6(a), 9.6(d), 15.11(b)
courts, 17.3(b) Crown agent, against, 2.4(c), 3.3(b),
10.2(b), 16.4(d), 16.4(f)
Fiat, see Royal fiat Crown servant, against, 2.4(c), 2.4(e), 3.3
declaration in lieu, 2.3(e), 2.4(b), 2.4(i)
interim, 2.4(f)
interlocutory, 2.3(e), 2.4(f), 2.4(i)
521
INDEX
mandamus, in lieu, 2.4(e) Limitation of actions

mandatory, 2.4(b), 2.4(e) constitutional claims, and, 4.5(f)
necessity, defence to, 2.4(c), 2.4(i) Crown, application to, 4.5, 8.4, 15.7(c),
prerogative, defence of, 2.4(c) 15.7(d), 15.13
prohibitory, 2.4(a) Crown servant, application to, 8.4
statutory authority, defence of, 2.4(d) notice requirement, 4.6
statutory duty, to enforce, 2.4(b), 2.4(e)
supervisory, 2.4(g) Loss of services, action for, 9.8(b)
ultra vires act, 2.4(c), 2.4(d), 2.4(g), 2.6(d)
undertaking to pay damages, 2.4(f) Malicious prosecution, see Tort
Interest Mandamus
Crown liability, 4.4 Charter of Rights, to enforce, 2.6(d)
postjudgment, 3.1(d), 4.4(b), 15.11(c) Crown, against, 2.4(e), 2.6, 3.3
prejudgment, 2.2(d), 4.4(a) Crown servant, against, 2.6(c), 3.3
governor, against, 2.6(c), 2.7(b)
Interlocutory relief, 2.3(e), 2.4(f) injunction in lieu, 2.4(e)
persona designata, 2.6(c), 2.7(b), 3.3
International law, see State immunity
ultra vires act, 2.4(g), 2.6(d)
Interrogatories, see Discovery
Mandatory requirement, 9.4(e), 9.5(b)
Invalidity, see Legal authority
Mercy
Judge prerogative power to grant, 1.5(b)
liability, 6.2(d)(iv), 8.5, 8.7(a), 8.7(c)
Military activity, see Armed forces
Judgment
contempt of court, see Contempt of court Milton, John
Crown, enforcement against, 3.1-3.3 on necessity, 8.2(a)
Crown’s duty to pay, 3.1(c), 9.4(c)
equitable execution, 3.2(c) Minister of the Crown, see also Crown
execution, 1.3(f), 3.1, 3.2(c), 3.3(a), (b), servant
13.5 compellable witness, see Subpoena
garnishment, 3.2 vicarious liability for, 6.2(c)(ii)
interest on, 3.1(d), 4.4(b), 15.11(c)
parliamentary appropriation, 3.1(c) Misfeasance in a public office, see Tort
Judicial immunity
classes of judges, distinctions between, 8.5
Monstrans de droit, 1.3(a)n
scope of, 6.2(d)(iv), 8.5, 8.7(a), 8.7(c)
statutory protection, 8.5(d)
National security, 5.1, 5.3(a), 5.7
King, see Crown, Governor
Necessity, see Executive necessity
Laches, 4.5(b)
Negligence
Legal authority, absence of, see also Statutory Anns/Cooper test, 7.2(c)
authority Anns/Kamloops test, 7.2(b)
Crown servant, relevance to liability, 8.3 duty of care, 7.2
negligence, relevance to liability, 7.4 economic loss, 7.3(b)
tort, relevance to liability, 6.4 elements of tort, 7.1
immunity for policy decisions, 6.6(a),
Lieutenant Governor, see Governor 6.6(c), 7.2(b)(i)-(iii), 7.2(c)(iii)
522
INDEX
indeterminate liability, concern to avoid, Police informer privilege, see Public interest
7.1, 7.3(b), 7.3(c) immunity
invalidity, 7.4
legal authority, absence of, 7.4 Police, see also Crown servant
liability at operational level, 7.2(b)(i)-(iii), independent discretion rule, see Tort
7.2(c)(iii) informer privilege, see Public interest
military activity, 7.3(d)(ii) immunity
misfeasance/nonfeasance distinction, liability of Crown for, 16.2(b), 16.3(b)
7.3(c) loss of services, action for, 9.8(b)
misrepresentation, 7.3(b)(iii) tortious liability, see Tort
nonfeasance, 7.3(c)
omissions, 7.3(c) Prerogative
peculiarly governmental activity, 7.3(d) armed forces, 9.8(a)
policy considerations, 7.1, 7.2(c)(iii) compensation under, 6.4(b), 6.4(c), 11.1n,
policy-operational distinction, 7.2(b)(i)- defined, 1.5(b)
(iii), 7.2(c)(iii) emergency, see Executive necessity
proximity, 7.2(c)(ii) foreign affairs, 1.5(b)
statute, relevance to duty of care, 7.2(c)(ii) honours, 1.5(b), 1.5(c)
statutory duty, breach of, see Statutory judicial review, and, 1.5(c)
duty no power to legislate, 1.5(b)
priority of Crown debts, 14.2, 15.6(d)
Non-delegable duties, see Tort property, power to take, 11.1
statutes affecting, see Statutes
North American Free Trade Agreement statutes, to override, 1.5(b), 15.3(a)
compensation for expropriation, under, tort action, defence to, 6.4(a), 6.4(c),
11.3(a) 6.4(d), 8.3
war, 1.5(b), 6.4(c), 7.3(d)(ii), 8.2
Official, see Crown servant
Prisoner, see Habeas corpus, Tort
Omissions, see Negligence
Privative clause, 6.2(d)(ii), 6.2(f), 8.4, 8.5(c),
8.5(d)
Parliamentary appropriation
contract, effect on, 9.4(c)
Proceedings against Crown, see Crown
judgment, effect on, see Judgment
proceedings
recovery of unappropriated payment,
10.6(a), 10.6(c)
Proceedings by Crown, see also Crown
proceedings
Penal statute, see Crime, Statutory duty
choice of law, 17.4
courts, jurisdiction over, 17.3(d)
Per quod servitium amisit, 9.8(b) discovery in, 15.13
limitation of actions in, 15.7(d), 15.13
Persona designata, 2.6(c), 2.7(b), 3.1(e), 3.3 ordinary remedies, 2.13, 10.4(a), 10.4(b)
prerogative remedies, 2.13
Petition of right statutes, application to Crown, 15.7, 15.13,
contract, 9.1 15.17(a), 17.4(b), 17.4(c)
declaration, 2.3
equitable relief, 1.3(b) Proceedings in rem
history, 1.3, 2.1 Crown against, 2.12
restitution, 10.2 defined, 2.12(a)
scope, 1.3(c)
tort, 1.3(c)-(f), 6.1(a), 6.1(b), 6.1(e)
trust, breach of, 12.2
523
INDEX
Prohibition and certiorari Public interest immunity

application for judicial review, see balancing of interests, need for 5.4(b),
Application for judicial review 5.4(c)
Crown, against, 2.7(b) cabinet confidences, 5.3(b), 5.4(b), 5.5(b)-
Crown servant, against, 2.7(b) (c), 5.6
governor, against, 2.7(b) class claims, 5.3(e), 5.5
confidentiality laws, 5.11
Property criminal cases, 5.4(c)
compensation for taking, 11.1n, 11.3, 11.5 Crown brief, disclosure, 5.4(c), 5.4(f)
constitutional protection, 3.1(e), 11.1-11.6 Crown privilege, objection to term, 5.2
expropriation, 11.1 defamation proceedings, 8.7(c)
NAFTA protection, 11.3(a) defined, 5.1-5.2
prerogative power to take, 11.1 discovery, 3.3(c), 5.3(c)
regulation, 11.4 fraud, 5.2
statutory power to take, 11.1 freedom of information laws, 5.2, 5.12
zoning, 11.4 income tax returns, 5.2, 5.4(a), 5.11
judicial review of claim, 5.4
Prosecutor national security, 5.1-5.2, 5.3(b), 5.6, 5.7
malicious prosecution, 6.2(d)(iv), 8.6 oral evidence, 5.8
officially induced error, 13.1n police informer privilege, 5.2, 5.3(c), 5.10,
tortious liability, 6.2(d)(iii)-(iv), 8.6 17.5(b)
previous publication, 5.2
Provinces private documents, 5.1, 5.3(b)
legal status, 1.4(c) procedure for claim, 5.3
proceedings against, 2.1, 17.3(b) public interest, 3.3(c), 5.1
real evidence, 5.9
Proximity, see Negligence subpoena, 5.3(c)-(e), 5.4-5.6
U.S.A., executive privilege in, 5.4(a)
Public corporation waiver, 5.2, 5.10(e)
commercial activity, see Commercial
activity Public law
contractual liability of Crown for, 16.4(e) contract, 9.2
contractual liability, see Contract European systems, 1.2, 6.6(d), 18
control by Crown, 16.2 tort, 6.5(a), 6.5(d), 6.6(d), 7.5
Crown agent, as, 1.4(b), 16.1-16.5
Crown servant, as, 16.1, 16.4(c), 16.4(d) Queen, see Crown, Governor
discretion, fettering, see Executive
necessity Reference procedure, 17.3(e)
federal jurisdiction over, 16.4(f), 17.3(c)
governmental functions, 16.2(a) Rem, see Proceedings in rem
in consimili casu, 16.2(a)
injunction against, see Injunction
Remedies, see Crown proceedings
reform of law, 16.5
servant, status of, 6.2(d), 6.2(d)(i), 16.4(d),
16.4(e) Representations
statute, application of, 15.9 contractual, see Contract
sue and be sued, power to, 16.1, 16.4 estoppel, raising, see Estoppel
tortious liability of Crown for, 16.4(d) negligent, see Negligence, Tort
tortious liability, see Tort
ultra vires act by, 16.2(b), 16.3 Res judicata, 13.5
unincorporated public body, 16.1, 16.4(b),
16.4(e) Responsible government
conventions of, 1.5(b)
524
INDEX
development of, 1.5(b) Statutes, see also Statutory authority,

Statutory duty
Restitution adoption, see incorporation by reference
Crown, action by, 13.3 benefit of, 14.4, 15.7, 15.13, 15.17(a)
Crown’s liability, 10.2 commercial activity, 15.7(d), 15.8-15.9
illegal tax, recovery, 10.6, 18 compensation under, 6.4(b)
payment made without appropriation, contract binding Crown, 15.8, 15.12(b),
10.6(a), 10.6(c), 13.3 15.17(a)
criminal statute, see Crime
Retroactive statute, 3.1(d), 3.3(c), 6.1(e), Crown agent, application to, 15.9, 15.13-
6.4(c), 9.6(d), 10.6(b) 15.14, 15.15(a), 15.15(d), 15.17(a), 16.3
Crown contractor, application to, 15.13,
Royal fiat, 1.3(d), 1.3(e), 2.3(d), 2.6(d), 15.15(d), 15.17(a)
6.1(e), 10.6(b) Crown in right of another government,
effect on, 5.6, 14.4, 15.2, 15.4(b), 15.8,
15.10(c), 15.12(b), 15.12(c), 15.16, 17.4
Rule of law
“Crown”, meaning of, see Crown
Crown, application to, 3.3(c), 6.6(d),
Crown servant, application to, 15.14(b),
10.6(c)
15.15, 15.17(a), 16.4(a), 16.4(b)
Dicey’s idea of equality, See Dicey, A.V.
evaluation of law, 15.17
executive necessity, see Executive
exempting clause, 15.17(a)
necessity
express words binding Crown, 15.3(a),
15.3(d), 15.3(e), 15.4-15.5, 15.16(b)
Salvage, 10.2n
federal complications, 5.6, 14.3, 15.2,
15.4(b), 15.8, 15.10(c), 15.12, 15.16,
Secrecy, see Public interest immunity 17.4
incorporation by reference, 15.10, 15.17(a)
Servants, see Crown servants interpretation statute, effect on common
law, 15.4, 15.6(c), 15.16
Set-off, 2.11 limitation, statute of, see Limitation of
actions
Shield of the Crown, see Public corporation logical implication binding Crown, 15.6(c)
necessary implication binding Crown,
Smith, J.C. 15.3(a), 15.3(d), 15.3(e), 15.4, 15.6,
on entitlements, 6.6(c) 15.17(a)
penal statute, see Crime, Statutory duty
Sovereign immunity, see State immunity prejudice to Crown, need for, 10.4(d),
15.7, 15.15, 15.17(a), 16.5
Specific performance prerogative, statute affecting, 14.4, 15.3(a),
Crown, against, 1.3(b), 2.5, 3.3, 9.2, 9.6(a), 15.3(b), 15.3(c), 15.6(b), 15.6(d),
9.6(d), 12.2 15.17(a)
damages in lieu, 2.5(b) public corporation, application to, see
declaration in lieu, 2.5(b) Public corporation
public service statutes, see Crown servant
retroactive, see Retroactive statute
State immunity, 5.9, 17.2
revival of immunity in B.C., 15.16(b)
rights peculiar to Crown, see Prerogative
State necessity, see Executive necessity
role in establishing non-delegable duty,
6.2(c)(iv)
State, see Crown role in establishing proximity, 7.2(c)(ii)
role in satisfying standard of care in
Statutes of limitation, see Limitation of negligence, 6.3(d)
actions
525
INDEX
tax statute, see Tax statutory authority to levy, 10.6(a)

trustee statute, 12.2
unconstitutional, remedy for, 2.3(f), 2.3(g), Territories
6.5(d) legal status, 1.4(c)
waiver of immunity, 15.8 proceedings against, 2.1
Statutory authority Tort

contract, to make, 9.4(b), 9.4(e), 9.5 abuse of office, 6.5(c), 6.6(a)
discretion, fettering, see Executive act of state, 7.3(d)(ii), 8.2(b)
necessity airport administration, 7.3(d)(i)
due care in exercise of, see Tort armed forces, 6.2(e)(i), 6.3(a), 7.3(d)(i)-
expenditure of public funds, 3.1(c), 9.4(c), (ii), 8.2(b)
10.2, 10.6(c) Attorney General’s liability, 8.6
injunction, defence to, 2.4(c)-(f) choice of law, see Federal jurisdiction
lack of, effect of, 6.4 commercial activity, see Commercial
mandamus, defence to, 2.6(e) activity
strict interpretation, 6.4(e), 7.4 compensation, 6.4(b), 6.4(c), 6.6
tax, levy, 10.6(c) constitutional tort, 6.5(d), 8.5(a)
tort, defence to, see Tort Crown agent’s liability, 6.2(c)(iv), 8.1,
unconstitutional statute, see 16.4(c)-(f)
Unconstitutional statute Crown servant’s liability, 1.3(c), 3.3(b),
3.3(c), 6.1(b), 6.1(c), 6.2(c)(i)-(iii),
Statutory duty 6.2(d)-(f), 6.5(a), 8, 16.4(d), 16.4(f)
Crown, imposed on, 6.2(b), 6.3(d) Crown’s liability, 2.2, 6, 7
Crown servant, imposed on, 6.2(e)(ii), customs, 7.3(d)(i)
6.3(d) de facto officer, 6.2(c)(ii)
injunction to enforce, 2.4(b), 2.4(e) defamation, 8.7
liability for breach, 6.2(b), 6.3(d), 7.2(c)(ii) direct liability, 6.2(b), 6.3
mandamus to enforce, see Mandamus economic loss, 7.3(b)
penal statute, see Crime employer’s duties, 6.2(b), 6.3(b), 6.3(e)
entitlement theory, 6.6(c), 7.5
Street, H. federal jurisdiction, see Federal jurisdiction
on statutes binding Crown, 15.7(d), governmental functions, 7.3(d)
15.17(a) harbour administration, 7.3(d)(i)
highway authority, 6.2(c)(iv), 7.2(b)(ii),
Subpoena 7.3(d)(i)
Crown privilege, see Public interest history of Crown’s liability, 1.3, 6.1, 6.6(d)
immunity independent discretion rule, 6.2(e)(iii),
Crown servants, against, 5.3(c), 5.3(d), 5.6 6.3(d), 9.8(b)
minister, against, 5.6 inevitable result rule, 6.4(e), 7.4
quash, application to, 5.3(c), 5.6 invalidity, see legal authority, absence of,
judge, liability, see Judicial immunity
Superior orders, 15.14(c) legal authority, absence of, 6.2(e)(ii),
6.4(e), 6.5(a)-(c), 6.6(a), 7.4, 8.3
Supply, see Parliamentary appropriation loss of services, action for, 9.8(b)
malicious prosecution, 6.2(d)(iv), 8.6
Suspending power, 15.2 misfeasance in a public office, 6.5(c),
6.6(a)
Taxation misrepresentation, 7.3(b)(iii)
Crown priority, 14.2-14.5 motor vehicle accidents, 6.3(a), 7.2(b)(ii)
estoppel, 13.3 navigation, 7.3(d)(i)
illegal, recovery of by taxpayer, 4.5(e), negligence, see Negligence
4.5(f), 10.6, 18
526
INDEX
non-delegable duties, 6.2(c)(iv) Ultra vires, see also Prerogative, Statutory

nonfeasance, 7.3(c) authority, Unconstitutional statute
occupier’s duties, 6.2(b), 6.3(a), 6.3(c), Crown agents, 16.3(b)
6.3(e) declaration as remedy, 2.3(a)
operational decision, 6.6(a), 6.6(c), injunction as remedy, 2.4(c)-(e), 2.6(e)
7.2(b)(i)-(iii), 7.2(c)(iii) tort action, see Tort
petition of right, 1.3, 6.1(a), 6.1(b), 6.1(e)
planning decision, see policy decision Unconstitutional statute
police, 6.2(d)(iii), 6.2(e)(i), 6.2(e)(iii) damages for, 6.5(d)
policy decision, 6.6(a), 6.6(c), 7.2(b)(i)- declaration as remedy, 2.3(a)
(iii), 7.2(c)(iii) injunction as remedy, 2.4(g)
prerogative authority, 6.4(a), 6.4(c), 6.4(d) mandamus as remedy, 2.4(g), 2.6(d)
prison administration, 6.3(e), 7.3(c), tortious liability for, 6.6(a)
7.3(d)(i) tortious liability under, 6.2(e)(ii), 6.4(e),
privative clause, 6.2(d)(ii), 6.2(f), 8.5(c), 6.5(a), 6.6(a), 8.3,10.6
8.5(d)
prosecutor, liability of, 6.2(d)(iv), 6.2(e)(i), Unincorporated public body
8.6 legal status, 16.1, 16.4(b), 16.4(e)
retroactivity of liability in tort, 6.1(e)
risk principle, 6.6(b), 7.5 United Kingdom
school administration, 6.3(e), 7.3(d)(i) European Community law in, 2.4(g)
statutory authority, 6.2(e)(ii)-(iii), 7.4, 8.3 unconstitutional taxes, recovery, 10.6(b)
statutory duty, see Statutory duty
ultra vires act, see legal authority, absence United States of America
of, Bill of Rights, damages for breach, 6.5(d)
unconstitutional statute, see executive privilege, 5.4(a)
Unconstitutional statute unconstitutional taxes, recovery, 10.6(b)
vicarious liability, 6.2, 8.1, 8.4, 16.4(d)
war, operations of, 7.3(d)(ii), 8.2(a) Waiver of immunity, 15.7(d), 15.8
Traverse of office, 1.3(a)n War, see Armed forces
Treaty, 8.2(a) Whitmore, H.

statutes binding the Crown, on, 15.11(e)
Trust
Crown as beneficiary, 12.3n, 14.5 Witness, see Public interest immunity,
Crown as trustee, 12.1-12.4 Subpoena
Fiduciary duty, see Fiduciary duty
Writ of liberate, 1.3(a)n
527

Liability of The Crown 4th Edition Hogg-Monahan

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LIABILITY

and Wade K. Wright

A cataloguing record for this publication is available from Library and

Composition: Computer Composition of Canada Inc.

CARSWELL, A DIVISION OF THOMSON REUTERS CANADA LIMITED

Preface ............................................................................................. iii

2.3 Declaration ................................................................................ 37

2.12 Proceedings in rem....................................................................... 72

Chapter 3 Enforcement of Judgments

4.6 Notice requirements ..................................................................... 107

Chapter 6 Tort: General Principles

6.2 Vicarious liability ........................................................................ 159

Chapter 7 Tort: Negligence

(i) Description of the Anns/Kamloops test .................................. 224

Chapter 8 Tort: Liability of Servants

(e) Tendering contracts ................................................................ 311

Chapter 14 Crown as Creditor

15.7 Benefit of statutes ........................................................................ 417

Chapter 16 Crown agents

16.4 Liability of Crown agent ................................................................ 472

Chapter 17 Federal Questions

Selected Bibliography ........................................................................... 507

144096 Canada v. Can. ..................................................................... 167, 179

A.-G. Can. v. Law Society of B.C. ........................................................ 93, 492

Alta. Mortgage and Housing Corp. v. Klapstein ............................................. 408

Baird v. The Queen ............................................................................... 174

Breckenridge Speedway v. The Queen ........................................................ 349

Chaput v. Romain ................................................................................. 281

Couette v. The King .............................................................................. 342

Design Services v. Can. ................................................. 231, 249, 250, 251, 311

Erie Railroad Co. v. Tompkins ................................................................. 498

Hamer, Re .......................................................................................... 408

Hunt v. T & N ...................................................................................... 486

Kent v. Griffiths ................................................................................... 263

Loomis v. Ont. ....................................................................................... 40

Martel Building v. Can. ............................................................. 249, 251, 311

Mitchell v. Peguis Indian Band ................................................................. 455

Peerless Bakery v. Watts ......................................................................... 300

R. v. Campbell .................................................................. 173, 446, 465, 471

R. v. Williams ...................................................................................... 183

Royal Bank v. Sparrow Electric Corp. ........................................................ 392

Sisters of Charity of Rockingham v. The King .............................................. 362

Tasman Fruit-packing Assn. v. The King ..................................................... 388

Uni-Jet Industrial Pipe v. Can. .................................................................. 198

Whiten v. Pilot Insurance Co. ..................................................................... 33

1.1 Scope of work 1

1.1 Scope of work

1.2 Dicey’s idea of equality

1 Dicey, The Law of the Constitution (10th ed., 1959), 193.

characteristics of government.5 Our view is that Dicey captured a fundamental

1.3 History of Crown proceedings

(a) Origin of petition of right

(b) Equitable relief

(c) Contract and tort

the statutory imposition of tortious liability is given in chapter 6, Tort: General

(d) Royal fiat

As a procedural vehicle, the petition of right was unsatisfactory. Although

(e) Statutory reform

33 Chapter 6, Tort: General Principles, under heading 6.1, “History”, below.

35 10 & 11 Geo. 6, c. 44.

immunities with respect to procedure,43 evidence44 and substantive law.45 Some

(f) Judicial reform