This study is an exhaustive review of the law regarding Crown liability and immunity, with the exception of the problem of liability for costs in criminal cases where the Crown is shown to have acted improperly, rashly or generally without justification. The report points out that this particular matter should be taken up in a future work dealing with general criminal procedures.

Initially, the working paper provides a general review of the history of Crown Reform, and the definitions of the Crown, Crown activities, Crown corporations and Crown agents. It then deals more specifically with Crown immunity from action, and the requirement of a fiat for actions against the Crown. It also covers Crown immunity from injunctions, the necessity to review documents in civil cases, Crown privilege generally, costs and jury trials. Finally, there is an extensive study of Crown immunity in tort, the rationale behind the present law, the several different methods of reform, and a study of several areas where the Crown might retain some degree of immunity should its liability in tort be established.

Summary

The working paper is an almost exhaustive review of the law on Crown liability and immunity. It reviews the history of Crown reform, deals with Crown immunity generally (the requirement of a fiat), immunity from injunctions and in tort, and also covers certain procedural protections enjoyed by the Crown. The BCCLA is impressed with this work carried out by the Commission, but we would like to critically review four of the seventeen proposals:

1. Proposal 3: Legislation should contain positive provisions permitting injunctions against the Crown.
2. Proposal 4: Rules should be specifically designed to apply to discovery when the Crown is a party to an action.
3. Proposal 9: The Commission should do further research on the question of strict liability of the Crown for damages.
4. Proposal 12: Immunity for judicial acts should be expressly so restricted, but such immunity should not extend to the exercise of administrative and quasi-judicial functions.

The Association emphasizes item 3 above, and strongly urges the Commission to investigate further that alternative level of Crown liability.

As the Law Reform Commision’s study suggests obvious remedies and reforms and have been for some time, the only items that will be dealt with at any length in this report are those that appear to need modification. Nevertheless, I will deal with the other recommendations and indicate briefly the background on each. The seventeen specific proposals made are as follows:

1. the requirement of a fiat to sue the Crown be removed
2. the procedure for bringing a legal action against the Crown be the same as that which applies between ordinary citizens
3. injunctions against the Crown should not be interdicted as they are in the Uniform Model Act and other Crown reform legislation
4. the section of the Uniform Model Act dealing with discovery be adopted
5. when Crown privilege is claimed with respect to any document, the court may order production of the document to the court, examine the document and, if it finds that public interest in the administration of justice should prevail over the public interest in withholding the document, order production and discovery of the document to the parties subject to any conditions or restrictions it deems appropriate
6. the common law of Crown privilege apply in the same manner to suits against the Crown as in an action brought by one individual against another
7. the jury trial should not be excluded in actions against the Crown
8. the reform of Crown immunity in torts be accomplished through legislation
9. the legislation should provide that the government has the same liability in tort as a private citizen
10. the common law definition of Crown servants or agents should not be restricted as in the legislation in the United Kingdom, Nova Scotia and New Brunswick
11. Crown liability should not be predicated on vicarious liability. The Crown should be both vicariously and directly liable in tort
12. judicial acts should be immune from liability, but this immunity should not extend to the execution of the judicial process
13. no exemption be made relieving the Crown from liability when a statute exempts officers of the Crown from responsibility such as section 5(4) of the Uniform Model Act
14. no exemption should be given the Crown, its servants and agents, from actions based on strict liability, whether based on nuisance, the rule in Rylands v. Fletcher, or otherwise
15. no exception be made for Crown liability for wilful torts such as false arrest, libel, or assault
16. The Crown should not be specially exempt from liability for punitive damages in tort
17. B.C.’s Interpretation Act be amended to provide that the Crown is bound by every statute in the absence of express words to the contrary.

1. The necessity for a fiat has developed since medieval times through concepts that are a confused mixture of the notion of divine right of kings and secular royal authority. On the one hand, it was felt that since the king could do no wrong, he could not be sued. On the other hand, there was the view that it was somehow gauche to allow any subject to sue the very source of the authority to sue. In other words, any right or action one subject might have against another existed only through the good graces of the sovereign, and permission to sue him or her was therefore something that could be granted or refused at will.

No further comment is necessary on that point and it is obvious on any review of this subject that the requirement of a fiat is clearly anachronistic and unjust. It should be pointed out in passing that the Provinces of British Columbia, Prince Edward Island and Newfoundland are the only three jurisdictions remaining in all of the English common law world, including the United States that retain the necessity of a fiat for actions against the Crown.

2. This conclusion is a natural offshoot of number one above and requires no further elaboration.

3. This recommendation, in the writer’s opinion, does not go far enough. At the very outset of the review of the law in this regard, the Commissioners observe “it is uncertain whether at common law an injunction can issue against the Crown itself. It is generally held that it cannot”. The study then carefully reviews all of the legislative background and concludes with the recommendation that injunctions should not be prohibited as they are in the existing legislation in other jurisdictions. Removing the restriction would leave no direct legislation dealing with the subject whatsoever. This would retain the doubtful but still present possibility of common law immunity, if the arguments that immunity is unwarranted are valid, there seems to be no reason why specific legislation could not be enacted permitting injunctions against the Crown, either in general or in specified cases.

4. As is properly pointed out in the working paper, the section in the Uniform Model Actdealing with discovery specifies that the Crown should be dealt with as if it were a corporation. Order 31a rr. 2 and 3, M.R. 370 cc and 703 cc of the B.C. Supreme Court Rules read as follows:

2. Where a corporation is party to an action or issue, any person who is or has been an officer or servant of a corporation (other than the external auditor of the corporation) may, without order, and the external auditor of corporation may, by order of a judge, be orally examined before trial touching the matters in question by any party adverse in interest to the corporation.

3. No party after so examining an officer or servant, or past officer or servant, of a corporation shall be at liberty to examine any other officer or servant of the corporation, past or present, without an order.

While it is true that government is perhaps the ultimate corporation in terms of the scope of its activities and the breadth of its interests, this both speaks for and against treating it like a corporation for purposes of discovery. The corporate structure has a clearly definable hierarchy within which it is easy for counsel to pinpoint the appropriate party to be examined. For that reason, the requirement that any officer may be examined–but only once–works no real hardship. The structure of government, at least for the purpose of any court action against one of its many branches, is far less clearly defined. It is conceivable that a plaintiff might find him or herself at a complete loss when it came time to select the best government agent or another party to examine for discovery. This type of situation can and should be avoided, particularly if the fundamental aim of Crown reform legislation is to remove procedural hindrances to actions by citizens against the Crown.

Obviously, the Crown could not be equated to an individual in such proceedings but it would certainly not appear to be too troublesome to formulate a set of procedural rules for discovery that would apply specifically to actions against the Crown.

5. and 6. Both conclusions appear to be the only workable solutions to a very complex problem and therefore no further comment is required.

7. This proposal seems self-evident and requires no further comment.

8. and 9. These proposals arise out of a consideration of several alternative levels of Crown liability. Basically, these alternatives are:

• that the Crown be placed in the same position at law as any ordinary citizen
• that the Crown be made liable with certain exceptions
• that the Crown retain its immunity, but with certain exceptions where liability would be acknowledged
• that the Crown be strictly liable with some certain exceptions.

The Commission has chosen the first alternative, but there is considerable argument to be made in favour of strict liability. If that alternative were adopted, it would mean that once it was established that the cause of the damage rested with the Crown, it would be liable to compensate the injured citizen, even in the absence of any proof of negligence on the part of itself, its agents or its servants. The single point to consider in support of this position is the government’s superior ability to pay. It is indeed the most efficient loss spreader because of its size and could be more so if its taxes were geared to its ability to pay. This argument is raised in the paper but is not commented upon. The fact remains that the law of negligence is quite complex and it is arguable that considering the scope of activities carried on by the government and the resulting potential damage to citizens (whether it is through negligence or not) seems to point very strongly towards the establishment of strict liability. This alternative should be considered further, most particularly with a view to establishing certain exceptions, and to considering economic consequences.

1O. and 11. Both of these require no further comment.

12. While the warding of this propo8al appears quite clear, the body of the Paper dealing with this topic is not so clear. Principally, the Commissioners suggest that judges should be immune from liability for the simple reason that there should be an end to litigation and judges should be able to make decisions without fear of any consequences. The study later goes on to deal with execution of the judicial process (e.g. the seizure of property under judgment), but it also deals with liability of those exercising an administrative or quasi-judicial function. On this point, the Commissioners make no findings. It is felt that it would be in the interests of clarity to specify that “judicial acts” would not include such functions and that those exercising them would not be immune on the same policy grounds that are cited regarding the role of judges.

13. The section referred to in this proposal reads as follows:

An enactment that negatives or limits the amount of the liability of an officer of the Crown in respect of any tort committed by that officer, in the case of proceedings against the Crown under this section in respect of a tort committed by that officer, applies in relation to the Crown as it would have applied in relation to that officer if the proceedings against the Crown had been proceedings against that officer.

Noted under this subsection is a comment that this may be regarded as optional and each Province should consider whether it is desirable to retain it or remove it from the Uniform Model Act. The suggestion made by the Commission is that, should the Uniform Model Act be adopted in British Columbia, section 5, subsection (4) be removed.

14. This proposal need only be considered if proposal 9 above is adopted. If, on the other hand, the Crown were to be placed in a strict liability position for all damage caused, proposal 14 would be superfluous. The rule in Rylands v. Fletcher simply provides that the owner of property is liable without proof of negligence for any damaged caused by any dangerous thing he or she keeps upon this property that escapes to an adjoining property and causes damage there. Considering the scope of government activity, it is imperative to retain this rule and make it apply in all cases.

15., 16, and 17. Each of these proposals is well within the general policy demonstrated by the working paper and requires no further comment.

The study appears to strike somewhat more than a middle ground between immunity and total responsibility. In the writer’s view, because government is by definition and in practice a totally public institution, its responsibilities to the ordinary citizen and its responsiveness to claims brought against it by the ordinary citizen–must be considerably greater than that or the citizen him or herself and still greater than that of any corporation within the jurisdiction of that government. The BCCLA should therefore emphasize this point in any comment it may provide to the Commission.