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is not easy to decide whether the degree of âpolicyâ involved suffices
for protection from negligence liability.â25 However, the Court added
that âmost government decisions that represent a course or principle
of action based on a balancing of economic, social and political consid-
erations will be readily identifiable.â26 Unless governmentsâ decisions
in Canada were taken in bad faith or can be proven to be irrational,27
it appears unlikely that they will attract liability.
Courts conduct a control test to determine if a Crown corpora-
tion is part of the Crown and therefore can benefit or not from the
various immunities the Crown can claim.28 The status of each indi-
vidual Crown corporation, Crown agent, or other public entities will
depend on its enabling statute and the relevant legislative framework
and regulatory scheme. In the case of lawsuits against long-term care
homes themselves, the issue of whether they can rely on public law
immunitiesâbecause they are part of the âCrownââwill depend on
that test. Whether claimants will be able to sue provincial or local gov-
ernments for actions that were taken or not taken at long-term care
homes, for example, will also depend on that care homeâs status and
the degree of control exercised by the government over it.
In Ontario, the Crown Liability and Proceedings Act maintains the
Crownâs immunity for torts committed by Crown agencies, Crown
corporations, municipalities, hospitals, universities, colleges, boards
of education, community health facilities, long-term care homes,
along with independent contractors providing services to the Crown
for any purpose.29
Crown agencies and other Crown corporations, as well as
all other entities funded by the Ontario government listed above,
must therefore be sued individually. Under the Ontario CLPA, the
Government of Ontario cannot be sued for the tort they committed, or
for their regulatory or policy decisions taken in good faithâor their
failure to make such a decision. Under the Ontario CLPA, a policy
25. Imperial, supra note 17 at para 90.
26. Ibid.
27. Ibid.
28. Hogg, Monahan & Wright, supra note 7 at 465.
29. Ontario CLPA, supra note 4, ss 1, 9(1)(a)â(b). Crown corporations are defined
broadly as âa corporation having 50 per cent or more of its issued and outstand-
ing shares vested in the Crown or having the appointment of a majority of its
board of directors made or approved by the Lieutenant Governor in Council or
by one or more members of the Executive Councilâ and âa wholly-owned sub-
sidiaryâ of such a corporation.
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