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231Liability
of the Crown in Times of Pandemic
decision includes not only the manner in which a program, project,
or other initiatives are carried out, but also changes to their scope and
their termination. The Ontario CLPA provides more specifically that
where programs, projects, or other initiatives are carried out on behalf
of the Ontario government by “another person or entity”—includ-
ing a Crown agency, Crown corporation, public body funded by the
Ontario government, or an independent contractor—the government
itself cannot be sued.30
By contrast, in Quebec, all public corporations—government
departments, local authorities, and Crown corporations—are sub-
ject to the Civil Code and can be sued by individuals,31 subject to the
various procedural and statutory advantages and immunities they
can claim. Public entities that are not directly or sufficiently over-
seen by ministers and that otherwise fail the control test, as well as
local authorities such as municipalities, which are creatures of stat-
ute and are therefore not part of the “Crown,” can be sued individu-
ally. Generally, the government will not be held accountable for their
actions or omissions. This is likely to also be true of independent con-
tractors if their contractual relationship with the government is such
that the degree of governmental oversight does not reach the thresh-
old of the control test.
Conclusion
The immunities benefiting the Crown when it is sued in tort is not
negligible. Although it is possible to sue individual civil servants,
suing the Crown is not straightforward. Since the Crown is immune
from suit at common law, the only possible recourse against it are
those provided for by statute. Statutes creating such recourse against
the Crown have been interpreted narrowly. The difficulty in suing
the Crown is compounded by the courts’ jurisprudence on the policy/
operational distinction, which has lately moved to cover a broader
range of governmental actions.
The difficulty in suing the Crown raises the issue of the non-
applicability of the rule of law to the Crown from the standpoint of
legal theory. In the context of the COVID-19 pandemic, it also raises
the issue of accountability. As claims in tort against the Crown involve
30. Ontario CLPA, supra note 4, s 11(5)(c).
31. Civil Code of Quebec, supra note 6, art 1376. For a recent example, see Kosoian v
Société de transport de Montréal, 2019 SCC 59.
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