FEDERAL COURT PRACTICE – 2003 UPDATE
paper is designed to provide an overview on a variety of topics that arise in
the context of Crown litigation. Hence,
the paper will not attempt to explore any topic exhaustively.
Although there are number of relatively obscure torts for which the Crown may be held liable such as interference with economic relations and malicious prosecution, this paper will be limited to a discussion of the torts of abuse of public office and negligence.
Since the jurisprudence on the distinction between policy decisions and operational decisions as set out in Just v. British Columbia,  2 S.C.R. 1228 has been well described elsewhere, this jurisprudence shall not be discussed other than to mention that actions against the Crown in negligence are generally restricted to operational matters involving the implementation of policy. On the other hand, actions against the Crown for abuse of public office can apply to policy decisions as well.
Court of Canada in National Harbours Board v. Langelier (1968) 2 D.L.R.
(3d) 81 summarized the liability of servants of the Crown at common law as
follows at page 91:
is the proposition that the Crown itself could not be sued in tort.
is the proposition that Crown assets could not reached, indirectly, by suing in
tort, a Department of Government, or an official of the Crown.
As to a Government Department, there was the added barrier that, not
being a legal entity, it could not be sued.
is the proposition that 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
which, itself, cannot be made liable.
is the proposition that a servant of the Crown, who commits a wrong, is
personally liable to the person injured…
absent legislation, the Crown could not be held liable for torts of its
servants. However, the servant
could be sued in his or her individual capacity, but not as a servant of the
Crown. Hence, the judgement could
only be enforced against the individual.
tort, at common law, claims for equitable relief could be pursued against the
Attorney General: Dyson v.
Attorney-General  1 K.B. 410 (C.A.).
In Canada, the Exchequer
Court Act, the predecessor to the Federal Court Act, granted
jurisdiction to the Exchequer Court to entertain claims against the Federal
Crown. The Exchequer Court Act as
early as 1887 gave that court jurisdiction over claims against the federal Crown
for the negligence of Crown servants if the negligence occurred on a “ public
work”; section 16(c). In 1938,
the “public work” limitation in section 16(c) of the Exchequer Court Act
was removed. See generally, the Exchequer
Court Act, R.S.C. 1927 c. 34, s. 19(c).
substantive reform of Federal Crown liability occurred.
On May 14, 1953 the Crown Liability Act was proclaimed in force.
That legislation was significant in that it imposed liability on the
Crown in respect of all torts committed by Crown servants. Hence, for the first time the Crown could be liable for the
intentional torts as well as the negligence of its officers and servants.
section 24(1) of the Crown Liability Act essentially specified that the
Crown was not liable for torts committed prior to passage of that statue.
The Crown Liability Act was subsequently renamed the Crown
Liability and Proceedings Act S.C. 1990 c. 8. (the “CLPA”).
Section 3 is the provision that creates the liability in tort.
background is more than just of historical interest. For example, in the Indian residential school context, issues
about pre May 14, 1953 liability still arise.
In some Indian Residential School cases actions involving events alleged
to have occurred prior to May 14, 1953 are filed. The case law has generally been uniform that a plaintiff
cannot pursue a claim against the Federal Crown in a provincial superior Court
for intentional torts that occurred prior to May 14, 1953.
However, a claim in negligence pre 1953 likely could still be pursued in
Federal Court based on the provisions of the Exchequer Court Act which of course
allowed claims based on the negligence of Crown servants while acting within the
scope of duty or employment.
Daniels v. Canada (A.G.) 2003 SKQB 58
M.C.C. v. Canada (A.G.) 2001 O.J. No. 4163 (Q.L.)
Kaiswatum c. Canada (A.G.) 2003 SKQB 46
provides as follows:
The Crown is liable for the damages for which, if it were a person, it
would be liable
in the Province of Quebec, in respect of
the damage caused by the fault of a servant of the Crown, or
damage resulting from the act of a thing in the custody of or owned by the Crown
or by the fault of the Crown as custodian or owner; and
in any other province, in respect of
a tort committed by a servant of the Crown, or
breach of duty attaching to the ownership, occupation, possession or control of
1985, c. C-50, s. 3; 2001, c. 4, s. 36.
proceedings lie against the Crown by virtue of subparagraph 3(a)(i) or (b)(i) in
respect of any act or omission of a servant of the Crown unless the act or
omission would, apart from the provisions of this Act, have given rise to a
cause of action for liability against that servant or the servant's personal
representative or succession.
1985, c. C-50, s. 10; 2001, c. 4, s. 40.
liability is vicarious, not direct, in order for the Crown to be liable, the
plaintiff must establish that the servant would be personally liable, i.e. the
servant owed a duty of care to the plaintiff, and breached that duty and caused
Air Canada v. Canada (Minister of Transport)  165 F.T.R. 60
It should be
noted that in British Columbia, the Crown’s liability is direct; Crown
Proceeding Act, R.S.B.C. 1979, c. 86.
That said, in
Swinamer v. Nova Scotia (A.G.)  1 S.C.R. 445 the Supreme Court of
Canada in comparing the B.C. statute, to legislation in Nova Scotia which has a
provision similar to s.10 of the CLPA, concluded that the foregoing
difference is without substance since the Crown can only act through its
servants and agents.
Section 23 of
the CLPA specifies who is the proper defendant before the Superior Courts
of the Province. Section 23
provides that an action must be taken against the Attorney General of Canada and
not Her Majesty the Queen in Right of Canada.
Munro v. Canada (1992), 11 O.R. (3d) 1
in the Federal Court, the proper party is Her Majesty the Queen by virtue of s.
48(1) of the Federal Court Act, and the Schedule to that Act.
24 of the CLPA provides the Crown with all of the
defences available to a natural person. However,
if the Crown relies on a defence provided by statute, it must take the burdens
of the statute.
Canada Trust Co. v. The Queen  2 F.C.
25 of the CLPA prohibits obtaining default judgment against the Crown
without leave of the Court being obtained on an application with 14 days clear
notice being given to the A.G.
29 of the CLPA provides no execution shall issue on a judgment against
the Crown. However, execution
against the Crown is unnecessary as the Crown is bound pursuant to s. 30(1) of
the CLPA to pay any judgment against it.
defence of statutory authority essentially provides that absent negligence, no
cause of action is available for actions that would otherwise be a nuisance, if
the body so acting is acting within its statutory authority. Some noteworthy aspects of this defence include:
For the defence to apply the statute need not
explicitly refer to liability for nuisance, rather it is sufficient that it
authorizes certain activities to be carried out and the inevitable result of the
carrying out those authorized activities is the damage the subject of the
For the defence to apply it is not necessary
for the statute to require that the activities be carried out, it is sufficient
if the statute authorizes the activities;
It is sufficient if the activities authorized
are authorized by subordinate legislation such as regulations, orders in
council, or licenses, permits issued under statute; and
The defence applies to persons other than the
Crown. The key is whether the
activity is statutorily authorized.
v. Victoria  1 S.C.R. 201
v. St. John’s Metropolitan Area Board  2
et al. v. The Vancouver International Airport Authority 2002 BCCA 416
Sutherland, case, supra, the airport noise case, is a recent decision
where that defence was raised successfully.
The subject of
the tort of abuse of public office was exhaustively covered in the paper by
Professor Lewis Klar, entitled Torts, found in the CLE entitled “Civil
Professor Klar at page 6.1.03 of his paper stated:
The requirements of the tort are as follows:
Rather than attempt to repeat Professor Klar’s work, I commend his paper to you. However, I do want to deal with one aspect of this tort, which is currently being considered by the Supreme Court of Canada.
In the Odhavji
Estate v. Metropolitan Police Force (2000), 194 D.LR. (4th) 577
(Ont. C.A.) an action was commenced by the estate of the deceased who was
fatally shot by police following his pursuit as a suspected bank robber.
The shooting engaged the Special Investigation Unit (S.I.U.) an
independent body created by statute to investigate cases of death or serious
injury that may result from criminal offences by police officers in Ontario.
The action alleged inter alia, that the police officers who shot the
deceased committed the tort of misfeasance of public office because of their
failure to properly cooperate with the S.I.U. investigation, despite a legal
duty under the Police Services Act to fully cooperate. The defendants applied to strike out that part of the claim.
The case raises the issue as to whether breach of statutory duty can ever be a basis for the tort of abuse of public office. The traditional view was that the public official must have exercised a power. In the case at bar, what was involved was a statutory duty.
The Motions Judge struck out the claim and the Ontario Court of Appeal in a 2-1 decision upheld the motions judge’s decision. The Majority affirmed that a breach of statutory duty does not give rise to the tort Rather, the majority concluded that in order for the tort to arise the defendant must be in a position of exercising a power. However, the dissent concluded that the distinction between improper exercise of a power and a failure to carry out a duty was one merely of semantics.
Supreme Court of Canada heard the appeal on February 17, 2003. It should be noted that this is the first occasion since Roncarelli
v. Duplessis,  S.C.R. 121 that the Supreme Court of Canada has
considered the scope of this tort.
The test set out in Anns v. Merton London Borough Council was revisited by the Supreme Court of Canada in 2001 in the case of Cooper v. Hobart,  3 S.C.R. 537. In this case the court said as follows:
compass, we suggest that at this stage in the evolution of the law, both in
Canada and abroad, the Anns analysis is best understood as follows. At the first
stage of the Anns test, two questions arise: (1) was the harm that occurred the
reasonably foreseeable consequence of the defendant's act? and (2) are there
reasons, notwithstanding the proximity between the parties established in the
first part of this test, that tort liability should not be recognized here? The
proximity analysis involved at the first stage of the Anns test focuses on
factors arising from the relationship between the plaintiff and the
defendant. These factors include questions of policy, in the broad sense of that
word. If foreseeability and proximity are established at the first stage, a
prima facie duty of care arises. At the second stage of the Anns test, the
question still remains whether there are residual policy considerations outside
the relationship of the parties that may negative the imposition of a duty of
care. (para. 30)
stated that the second step of the Anns test generally arises only in
cases where the duty of care asserted does not fall within a recognized category
of recovery. This is the stage
where the exclusion of liability for government policy (as opposed to
operational) decisions arises (para. 38).
The court also
noted that at this stage one of the factors to be considered by the court is
“[d]oes the law already provide a remedy?” (para. 37). This is of particular significance to the Federal Court
where the issue of whether or not the existence of an administrative law remedy
bars an action in damages was left open by a divided Court of Appeal in the
decision of Comeau’s Seafoods Limited v. Canada (Minister of Fisheries and
Oceans), Supra, note 1.  While
the Supreme Court did not say the existence of an alternative remedy is
determinative, it clearly said that it is one of the factors that should be
considered. This is consistent with the pragmatic approach adopted by the
Federal Court of appeal in Zarzour v. Canada (2000) 268 N.R. 235,
 F.C.J. 2070. In this
case, Letourneau J.A., said as follows:
trial judge said he was concerned by a serious procedural problem that the
parties had not addressed. Could the respondent proceed by an action in damages
as he did, citing the unlawfulness of the Board's decisions? Or should he
instead have filed an application for judicial review under section 18.1 of the
Federal Court Act, to attack these decisions within the allotted time? He
concluded that the respondent should have proceeded by way of an application for
judicial review and consequently that a large part of his action was
is not a new one in litigation emanating from the prison environment and has
given rise judicially to some differences of opinion: see Zubi v. Canada (1994) 71
F.T.R. 168 (F.C.T.D.); Shaw v. Canada (1997) 134
F.T.R. 128 (F.C. Protho.); Creed v. Canada (Solicitor General) 
F.C.J. No. 199 (F.C.T.D.); and Shaw v. Canada (2000) 167
F.T.R. 233 (F.C.T.D.).
necessary, I think, to adopt an utilitarian approach to this, and favour the
proceeding that can be used to eliminate or repair the harm resulting from the
decision that was rendered. For example, there is no use in requiring that an
inmate who has already served his 15-day segregation period seek to have the
decision that forced this on him set aside by way of judicial review. However,
when a decision is still operative, as is the Board decision in this case
imposing a prohibition on contact as a condition of release, it is not only
useful but necessary to proceed by judicial review in order to have it quashed.
Otherwise, both the decision and its effects will drag on, with possible
aggravation of the harm during the period in which the action in damages follows
It was this
pragmatic approach that was rightly adopted by Prothonotary Hargrave in Shaw v.
Canada (1997), 134
F.T.R. 128. At paragraph 23 of his decision, he writes:
do not see that a plaintiff must, in all circumstances, first bring an
application for judicial review and only then, if successful, bring an
action for damages. All the more so when a declaration would
serve no current purpose. Further, this is not a situation in
which the procedures the plaintiff employs are alternatives leading to one
end: the remedies are very different. Finally, where
there are several approaches or procedures a court should impose the least
intrusive remedy capable of providing a cure. In summary, I can
see no utility in forcing the plaintiff to try to obtain declaratory
relief, concerning something that happened over a year ago, in order to
then begin a second piece of litigation by which to claim damages.
Unfortunately, there is no magic formula applicable to all situations to which there is more than one remedy. Each case is sui generis, and must be assessed on its merits in order to determine the appropriate procedure. (paragraphs 46-50)
See also Radil Bros. Fishing Co. Ltd. v. Her Majesty the Queen et al. (2001) 207 D.L.R. (4th) 82, 2001 FCA 317 (F.C.A) varying (2000) 197 F.T.R. 169 (T.D.) which varied (1999) 175 F.T.R. 182 and the dissenting opinion of Linden J. in Comeau, supra where he suggests that the failure to pursue an administrative law remedy could be relevant to the issue of mitigation. A recent case that deals with this issue in some detail is the decision of Prothonotary Hargrave in the case of Budisukma Puncak Sendirian Berhad, Maritime Consortium Management Sendirian Berhad v. Queen B.S. Warna and D.A. Hall 2003 FC 992 at pargraphs 50-4.
At common law, the Crown has the power of a natural person to enter into contracts. Generally, a contract will be valid so long as it is within the power of the particular government and it was made by a servant or agent within the scope of his or her authority. For examples of cases successfully imposing liability on the Crown for breach of contract see:
does exist a line of cases that say that statutory powers may not be fettered by
In the municipal context, see also Pacific National Investments v.
Victoria (City) 2000 SCC 64,  2 S.C.R. 919 where the majority decision
of a deeply divided Supreme Court of Canada ruled that in the absence of express
legislative authority, a municipality cannot contractually bind itself to fetter
its future legislative powers. It further ruled that an implied agreement to
compensate in the event of breach of the agreement is also ultra virus.
22 of the CLPA provides as follows:
in proceedings against the Crown any relief is sought that might, in proceedings
between persons, be granted by way of injunction or specific performance, a
court shall not, as against the Crown, grant an injunction or make an order for
specific performance, but in lieu thereof may make an order declaratory of the
rights of the parties.
A court shall not in any proceedings grant relief or make an order
against a servant of the Crown that it is not competent to grant or make against
1985, c. C-50, s. 22; 1990, c. 8, s. 28; 2001, c. 4, s. 46(F).
Grand Council of Crees v. The Queen  1 F.C. 599 (F.C.A.) and
Blanco v. Canada  F.C.J. No. 344 (T.D.)
18 and 18.1 of the Federal Court Act, authorize the Federal Court to
issue injunctive relief against Federal Boards.
However s. 18 does not authorize the granting of injunctions against
Ministers of the Crown, except in cases where the Minister clearly acts beyond
the scope of his statutory authority or is in arriving at his or her decision
was motivated by irrelevant considerations or the he or she acted arbitrarily or
in bad faith.
A recent case
that illustrates some of the hurdles one must overcome to obtain an injunction
against the Crown is North of Smokey Fisherman’s Assn. v. Canada (Attorney
General), 2003 FCT 33,  F.C.J. No. 40 (T.D.).
This case involved a judicial review proceeding against the Minister
of Fisheries challenging his decision to open a winter cod fishery in the Sydney
Bight area east of Cape Breton. While
the hearing of the proceeding was pending, the applicant, an association of
fishermen, brought on a motion for an interlocutory injunction enjoining the
Minister from opening the fishery. The
court dismissed the application for an injunction on the primary ground that S.
22 of the Crown Liability and Proceedings Act prohibits injunctions
against the Crown when acting within the powers granted to it by law (although
allowing declarations). Since the applicant was not able to show any statutory
provision contravened by the Minister or any evidence that his decision was
motivated by irrelevant considerations or that he acted arbitrarily or in bad
faith, s. 22 applied. Alternatively,
the court ruled that the applicant did not satisfy the three-part test for an
injunction set out in RJR MacDonald Inc. v. Canada (AG),  1 S.C.R.
311. With respect to whether or not there existed a “serious issue to
be tried”, the court noted that when the result of the interlocutory motion
will, in effect, amount to a final determination of the application, the
threshold for satisfying the test is raised and the applicant must make out a
prima facie case. With respect to “irreparable harm”, the court noted that
it was necessary to show irreparable harm to the applicant itself. With respect
to “balance of convenience”, the court noted that “an action taken by the
Crown is prima facie deemed to be in the public interest . . .”
(para. 24). When a public authority is prevented from exercising its
statutory powers, “it can be said that the public interest, of which the
authority is the guardian, suffers irreparable harm . . . A court should not, as
a general rule, attempt to ascertain whether actual harm would result
(para. 26) . . . Here, NOSFA, in effect, seeks to have the court manage
or police the fishery. That is not a function of the court.” (para. 27).
jurisprudence that suggests that the availability of an administrative law
remedy may have some impact on whether or not a court will impose a duty of care
(as discussed above), it is often more practical to pursue both judicial review
and damages at the same time. Since
an application for judicial review can only be made by way of originating
application under sections 18 and 18.1 to 18.4 of the Federal Court Act this
can be problematic. Although a
judicial review proceeding can later be converted to an action with leave of the
court under section 18.4(2), up until recently one could not add a damage claim
to such an action when converting it.
Accordingly, in order to avoid this problem parties have in the past
commenced separate actions for damages and applied to have them heard at the
same time as the converted judicial review proceeding.
However, this may no longer be necessary as in the case of Shubenacadia
Indian Band v. Canada (Minister of Fisheries and Oceans) 2001 FCT 181,
Hugessen J. rejected such an argument made by the Crown in a application to
strike and allowed an application for judicial review and a claim for damages to
stand in the same action.
18 (3) and 18.1(3b) of the Federal Court Act provide that declarations
can only be obtained on applications for judicial review, this can similarly be
problematic for litigants seeking both declarations and damages.
While some courts have allowed pleadings seeking declarations of right to
remain in actions,
others have endorsed a procedure whereby the action would somehow be transformed
in a judicial review proceeding and then transferred back into an action by way
of order under section 18.4(2).
Presumably the best approach to take for a litigant seeking both damages
and a declaration would be to commence an action for judicial review within the
applicable time limit
and then apply to both convert it to an action and amend the pleadings to
include a claim for damages.
Federal Court has exclusive jurisdiction over matters of judicial review and
only concurrent jurisdiction over damage actions against the Crown, a body of
jurisprudence has developed on the categorization of such claims. In most cases,
this jurisprudence arises in the context of a challenge to the jurisdiction of a
provincial superior court on the grounds that an action is really a matter of
judicial review dressed up as a tort action.
 Fridman, G.H.L., Law of Torts in Canada (2d) ( Toronto: Carswell, 2002) pp. 332-6; Hogg, Peter W. and Monahan, Patrick J., Liability of the Crown (3d) (Toronto: Carswell 2000) pp. 163- 70; dissenting reasons for judgement of Linden J. in Comeau’s Seafoods Limited v. Canada (Minister of Fisheries and Oceans) 1997] 1 S.C.R. 12 (S.C.C.) upholding for different reasons  2 F.C. 467 (F.C.A.) reversing  3 F.C. 54 (T.D.) (Strayer J.) paragraphs 77 – 94.
 In most decisions this is not specifically referred to a as the tort of abuse of public office, see for example the dissenting reasons of Linden J. at paragraph 91 of Comeau, supra note 1 where he says, “In the event a court decides that conduct in question involves a “policy decision and exempts the government agency from ordinary negligence principles, liability may still be imposed, but on another more complex and narrower basis. It is open to a claimant to prove that a policy decision was made in bad faith or that it was so irrational or unreasonable that it did not constitute a proper exercise of discretion.” See also: Fridman, Canadian Tort Law, supra note 1 p. 335 and the cases referred to at his footnote 125. For cases specifically articulating the tort of abuse of process as a means for imposing liability for policy decisions see: Voratich v. Law Society of Upper Canada (1975) 20 O.R. (2d) 214 (Ont. High Ct.) at page 216 and the trial level decision of Keeping v. Canada (A.G.)  N.J. No. 9 (Nfld. & Labrador S.C.) para. 56 as upheld on appeal at 2003 NLCA 21,  N.J. NO. 116 (Nfld. & Labrador C.A.).
 See also: Fridman, supra note 1 at pp. 875-84, Hogg and Monahan, supra note 1 at pp. 144-6, Professor Irvine, “Misfeasance in Public Office: Reflections on some Recent Developments” (2002), 9 C.C.L.T. (3d) 26, Nancy E. Brown, “Abuse of Public Office” in C.L.E. of B.C., “Suing and Defending the Government” Feb. 2002.
 See Vern W. DaRe, Case Comment on Government Actions: Tort Flaw: Comeau’s Sea Foods (1997) 76 Can. Bar. Rev. 253
 Para. 101.
 Hogg, supra note 1 at p. 219.
 See Hogg, supra note 1 at 227 and the discussion of The King v. Dominion of Canada Post Stamp Vending Company (1930)  S.C.R. 500 (cannot grant licence to sell postage stamps that was renewable in perpetuity).
 Radil Bros. Fishing Co. Ltd. 2000 F.C.J. 1885 referring to the unreported decision of Rouleau J. in the same proceeding (para. 13); Durant v. Canada 2002 F.C.T. 327 (para. 37); Tench v. Canada  F.C.J. No. 1716.
 This was done in Jada Fishing Co. v. Canada (Minister of Fisheries and Oceans) 2002 FCA 103 (F.C.A.), para. 77.
 Upheld on appeal at 2002 FCA 255, although this particular issue was not specifically addressed by the court.
 He did, however, say that if the joinder turns out to be too cumbersome or otherwise inappropriate the court retains a discretionary power under Rule 107 to order separate trials.
 For a strict application of this rule see: Radil Bros. Fishing Co. Ltd. v. Queen 2000 F.C.J. 1885; Khaper v. Canada (1999) 178 F.T.R. 68 upheld by the F.C.A. at (2001) 268 N.R. 370.
 Minority concurring decision of the former Chief Justice Issac in Ward v. Samson Cree Nation No. 444 (1999) 247 N.R. 254 (F.C.A.) (relying upon Rule 64) and the decision of MacKay J. in Federation of Saskatchewan Indian Nations v. Canada  F.C.J. 429, 2003 FCT 306 (T.D.) following that decision.
 This was the remedy endorsed by the majority of the Federal Court of Appeal in Ward v. Samson Cree, supra note 12 based upon its power under section 52(a)(i) of the Federal Court Act to give the judgement that the trial division could have given. In doing so it also seemed to endorse having the action for judicial review and damages proceed in one action (see para. 49). See also Maroney v. Canada [2002 FCT 801 where this approach was followed by Prothonotary Hargrave (although he was a bit vague as to just how Rule 18.4(2) was to be applied).
 Under Rule 18.1(2) the time limit is thirty days, although there are exceptions to this rule and the court can grant extensions of time.
 See for example: Oak Island International Group Ltd. v. Canda (Attorney General) 2003 NSSC 47 (damage claim against Minister of Fisheries not judicial review); Horseman v. Horse Lake First Nation (2002 ABQB 765 (damage claim related to membership in Indian Band not judicial review); Day Star First Nation v. Canada 2003 SKQB 261 (challenge to the manner in which government funding is administered is in the nature of judicial review).