Simon's Megalomaniacal Legal Resources

Crown and Government Liability - Federal

. Bigeagle v. Canada

In Bigeagle v. Canada (Fed CA, 2023) the Federal Court of Appeal considered that crown liability (here under the federal Crown Liability and Proceedings Act) does not impose liability on the Crown directly, but only vicarious liability on agents of the Crown:

[31] I recognize that the CLPA does not require that a claimant name a specific department, ministry or bureaucratic division. However, under the CLPA, the Crown itself is immune to liability in tort and can only be held liable for the actions or omissions of its servants or agents (CLPA at s. 3; Hinse v. Canada (Attorney General), 2015 SCC 35 at para. 58). A certain level of particularity is necessary to identify the servants or agents against whom liability is alleged (Canada (Attorney General) v. Jodhan, 2012 FCA 161 at paras. 87-89). This is so in order to allow for the determination of whether the person or body named is really a servant or agent of the Crown, and to provide that person or body the opportunity to respond to the allegations directed against them (Merchant Law Group v. Canada Revenue Agency, 2010 FCA 184 at para. 38).

. Rebello v. Canada (Justice)

In Rebello v. Canada (Justice) (Fed CA, 2023) the Federal Court of Appeal comments on the liability status of some provincial and federal officials under the federal Crown Liability and Proceedings Act:

[20] I would add, as this Court has recently held, that provincial public officials as well as federally appointed provincial judges are not servants or agents of the Federal Crown within the meaning of the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50 (the CLPA). Therefore, they cannot engage, by their conduct, the liability of the Federal Crown (Feeney v. Canada, 2022 FCA 190 at paras. 10-19 (Feeney)). The allegation that somehow the liability of the respondents is engaged simply because the various provincial Crown actors that are referred to in the appellant’s Statement of Claim run their operations presumably using federal funds has very little, if any, traction in Federal Crown liability law. As stated in Feeney,

[14] […] the Federal Crown – which, until the enactment of the Crown Liability Act, S.C. 1952-53, c. 30 in 1953, could not be sued in tort as of right – can only be held liable for the fault of its servants, and not on its own account (Hinse v. Canada (Attorney General), 2015 SCC 35, [2015] 2 S.C.R. 621 at para. 58 ; Peter W. Hogg, Patrick J. Monahan and Wade K. Wright, Liability of the Crown, 4th ed (Toronto: Carswell, 2011)).

[21] The terms "“servants”" or "“agents”" of the Federal Crown within the meaning of the CLPA refer to someone working under the control or direction of the Crown (Feeney at para. 14, referring to Northern Pipeline Agency v. Perehinec, 1983 CanLII 167 (SCC), [1983] 2 S.C.R. 513 at 519-521; R. v. Eldorado Nuclear Ltd.; R. v. Uranium Canada Ltd., 1983 CanLII 34 (SCC), [1983] 2 S.C.R. 551 at 573-574). This simply can not be in the case of the Ontario Crown actors (the Premier of Ontario, the Ontario Minister of Transportation, Service Ontario, the Ontario Superior Court Services, the Ontario Minister of Government and Consumer Services, Ontario Provincial Police, the Toronto Police Services, Hydro One and Hydro One employees) and the members of the Ontario judiciary named in the Statement of Claim. Moreover, there are no allegations in the appellant’s Statement of Claim that the respondents exert any control over these actors, and, if so, how and to what degree.

[22] Furthermore, courts have held that funding and resource allocations do not establish a duty of care, as the relationship that they engage lacks sufficient proximity; in sum, they do not in their own right, provide the basis for a lawsuit (see, for example, Riddle v. Canada, 2018 FC 641 at para. 55; Ontario v. Phaneuf, 2010 ONCA 901 at paras. 12-13; Desautels v. Katimavik, 2003 CanLII 39372 (ONCA) at para. 23).

. Feeney v. Canada

In Feeney v. Canada (Fed CA, 2022) the Federal Court of Appeal, in the course upholding a dismissal of an action against the federal Crown for lack of jurisdiction, sets out the nature of the Federal Court system and it's judges. In this quote it explains basics of federal Crown tort liability:

[14] Indeed, the Federal Crown – which, until the enactment of the Crown Liability Act, S.C. 1952-53, c. 30 in 1953, could not be sued in tort as of right – can only be held liable for the fault of its servants, and not on its own account (Hinse v. Canada (Attorney General), 2015 SCC 35, [2015] 2 S.C.R. 621 at para. 58 ; Peter W. Hogg, Patrick J. Monahan and Wade K. Wright, Liability of the Crown, 4th ed (Toronto: Carswell, 2011)). Importantly, however, judges – including federally appointed judges – are not employees of the Federal Crown. They are also not "“servants”" or "“agents”" of the Crown within the meaning of the CLPA, as these terms refer to someone working under the control or direction of the Crown (Northern Pipeline Agency v. Perehinec, 1983 CanLII 167 (SCC), [1983] 2 S.C.R. 513 at 519-521 ; R. v. Eldorado Nuclear Ltd.; R. v. Uranium Canada Ltd., 1983 CanLII 34 (SCC), [1983] 2 S.C.R. 551 at 573-574).