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prosecuted by reason of an act performed in good faith in or in rela-
tion to the exercise of [the] powers [provided for in the Act].”8
Second, the Crown—federal or provincial—continue to benefit
from important procedural advantages and immunities, which range
from the exclusion of certain types of evidence to immunity against
the enforcement of judgments, thus making it impossible to take
action to force the Crown to execute the judgment.9 “Public” common
law immunities—notably the Crown’s immunity from suit for policy
decisions it has made—remain and can be invoked by the govern-
ment, including in Quebec.10
Third, statutes partly abolishing the Crown’s immunity from
suit can be repealed or their scope modified by Parliament. This has
led courts to interpret statutory provisions subjecting the Crown
to various proceedings narrowly, on the basis that upon repeal the
Crown would regain its full common law immunity, the Crown’s
blanket immunity being perceived as the default position.11
Fourth, the CLPA created vicarious liability only for the fault
of Crown servants. Indeed, under section 3, the Crown is liable for
the fault of its servant.12 However, the Crown is not liable if the tort
committed by the servant is not included in the definition of the act.13
In addition, if the act or omission of the servant herself cannot give
rise to a cause of action for liability because the servant benefits from
immunity, then the Crown cannot be sued for the servant’s tortious
8. CQLR c S-2.2, s 123.
9. CanadaÂ
(AttorneyÂ
General)Â
vÂ
Thouin, 2017 SCC 46 at para 23. See Hogg, Monahan &
Wright, supra note 7. On the immunity from execution of judgments, see Daniel
Mockle & HR Eddy, ImmunityÂ
fromÂ
Execution (Ottawa: Law Reform Commission
of Canada, 1987). The Ontario CLPA maintains many of the Crown’s immuni-
ties, see e.g. Ontario CLPA, supra note 4, ss 3, 5, 10.
10. Prud’hommeÂ
v Prud’homme, 2002 SCC 85.
11. See Thouin, supra note 9 at para 23. See also, in the Australian context, Commonwealth
vÂ
Mewett (1997), 191 CLR 471 at 502, Dawson J, concurring; GeorgiadisÂ
vÂ
AustralianÂ
and Overseas Telecommunications Corporation (1994), 179 CLR 297 at 305-06; Mason
CJ, Deane and Gaudron JJ [Georgiadis]; Georgiadis, supra note 11 at 325-26, McHugh
J, dissenting.
12. CLPA, supra note 3, s 3: The Crown is liable for the damages for which, if it
were a person, it would be liable: (a) in the Province of Quebec, in respect of:
(i) the damage caused by the fault of a servant of the Crown, or (ii) the 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 (b) in any other province, in
respect of (i) a tort committed by a servant of the Crown, or (ii) a breach of duty
attaching to the ownership, occupation, possession or control of property.
13. See Morgan v MinistryÂ
of Justice, [2010] EWHC 2248 (QB).
VULNERABLE
The Law, Policy and Ethics of COVID-19
- Titel
- VULNERABLE
- Untertitel
- The Law, Policy and Ethics of COVID-19
- Autoren
- Vanessa MacDonnell
- Jane Philpott
- Sophie Thériault
- Sridhar Venkatapuram
- Verlag
- Ottawa Press
- Datum
- 2020
- Sprache
- englisch
- Lizenz
- CC BY-NC-ND 4.0
- ISBN
- 9780776636429
- Abmessungen
- 15.2 x 22.8 cm
- Seiten
- 648
- Kategorien
- Coronavirus
- International