Canada: Untangling The Procedural Web In Litigation Against The Crown

"Suing the Crown," presentation to the Canadian Institute, Toronto, June 24, 2008

At common law, the Crown could not be sued because of the feudal principle that the Crown could not be sued in its own court.¹ Complaints could, however, be brought against the Crown using a petition of right but this procedure was cumbersome and time-consuming.² The use of a petition of right in this context was not abolished by the federal and provincial governments in Canada until the middle of the 20th century. The general rule in modern Canadian Crown proceeding statutes is that the Crown is sued by the same procedure that is used against other parties.³ However, some special procedural rules still exist that are necessary to consider when bringing a proceeding against the Crown. In addition to these special procedural rules, the Crown is still subject to residual common law immunities. This paper will examine some of the special procedural rules and residual immunities that are applicable in bringing a proceeding against the Crown. The paper will specifically focus on the rules that are applicable when bringing proceedings against the Crown in right of the Province of Ontario (Provincial Crown) in the Courts of Ontario and proceedings against the Crown in right of Canada (Federal Crown) in the Courts of Ontario and the Federal Courts.

The first part of the paper sets out the procedural rules that must be followed in commencing a proceeding against the Crown. The second part of the paper outlines some of the pretrial procedures that must be followed in bringing a proceeding against the Crown, including special notice and service requirements. The third part of the paper summarizes some of the restrictions on the relief that may be sought against the Crown. The final part of the paper discusses whether or not administrative proceedings must be exhausted before bringing an application for judicial review and whether or not an application for judicial review must be brought before commencing an action against the Crown relating to the impugned decision.

Commencing a Proceeding Against the Crown

Sources of procedural rules

Provincial Crown

Litigation commenced against the Provincial Crown is generally governed by the Proceedings Against the Crown Act⁴ (PACA). PACA sets out the special rules that are applicable in bringing proceedings against the Provincial Crown, such as notice, service and discovery provisions. PACA is not the only statute that governs proceedings against the Provincial Crown. For example, PACA expressly provides that it does not affect claims against the Provincial Crown under the Certification of Titles Act, the Corporations Tax Act, the Expropriations Act, the Public Transportation and Highway Improvement Act, the Income Tax Act, the Land Titles Act, the Mining Tax Act, the Motor Vehicle Accident Claims Act, the Motor Vehicle Fuel Tax Act, the Retail Sales Tax Act, the Workplace Safety and Insurance Act, 1997 and The Succession Duty Act.⁵

Federal Crown

Litigation commenced against the Federal Crown is generally governed by the Crown Liability and Proceedings Act ⁶ and its regulations⁷ CLPA sets out the special rules that are applicable in bringing a proceeding against the Federal Crown.

General

In addition to these Crown proceeding statutes, the rules of practice and procedure of the court in which the proceeding occurs will also apply.⁸ These rules may include the Federal Courts Act,⁹ Federal Courts Rules,¹⁰ Courts of Justice Act,¹¹ Rules of Civil Procedure¹² and the applicable evidence and interpretation acts.

In which court does the proceeding belong?

Provincial Crown

Proceedings against the Provincial Crown can be brought in any of the courts of Ontario. It is necessary to examine the rules and regulations of the specific court before commencing a proceeding against the Crown before that court. For example, an action against the Provincial Crown for $1 million cannot be brought in the Small Claims Court.¹³ The Federal Court does not have jurisdiction over matters relating to the Provincial Crown.¹⁴

Federal Crown

Prior to 1992, the Federal Court had exclusive jurisdiction over proceedings against the Federal Crown. As a result of amendments to CLPA and the Federal Courts Act in 1992, the provincial superior courts now share jurisdiction with the Federal Courts.¹⁵ Accordingly, a plaintiff may choose to bring a proceeding against the Federal Crown in the Federal Court or in a provincial court unless a statute provides otherwise. For example, proceedings against the Federal Crown under the Expropriation Act must be brought in the Federal Court.¹⁶ A claimant who has brought a claim in respect of a cause of action against the Federal Crown in the Federal Court may not bring a claim in respect of the same cause of action against the Federal Crown in the provincial court.¹⁷

The Federal Court has a limited ability to hear multiple-party proceedings involving the Federal Crown. The Federal Court only has jurisdiction to hear claims involving multiple parties where it would have jurisdiction to hear each of the claims on its own.¹⁸ As the Federal Court is a statutory court, it only has jurisdiction over matters that it has been statutorily granted jurisdiction.¹⁹ The Federal Court has jurisdiction over maritime, aeronautic and intellectual property matters.²⁰ As a result, the Federal Court can only hear multiple-party proceedings relating to these matters.

Prior to the 1992 amendments, a plaintiff who wished to bring a proceeding against a private party in addition to the Federal Crown usually had to bring a claim in the provincial superior courts against the non-Crown party and a claim in the Federal Court against the Federal Crown. However, as a result of the 1992 amendments, the plaintiff may now commence a single proceeding in the provincial court.²¹

General

When a proceeding is brought in the wrong court, the proceeding will be dismissed because the court will lack the jurisdiction needed to hear it. For example, a court will dismiss a proceeding brought against the Provincial Crown that is brought in the Federal Court.²² The proceeding may be recommenced in the correct court unless the limitation period has run out.

If a proceeding is brought correctly before a Court of Ontario but to the wrong subdivision of the court, section 110 of the Courts of Justice Act provides that the proceeding may be transferred or adjourned to the proper court. This provision protects a claimant from missing a limitation period as a result of recommencing the proceeding in the proper court.

It is necessary to examine the relevant rules of each court as well as the modern Crown proceeding statutes in order to determine the appropriate court before which the proceeding should be brought to avoid any unnecessary delays and to prevent missing a limitation period.

Which party should be named?

Provincial Crown

In general, the Provincial Crown must be named as "Her Majesty the Queen in right of Ontario" or "Sa Majesté du chef de l'Ontario" when it is identified as a defendant in a claim.²³ When a claim is brought under a specific statute and the statute specifies how the Provincial Crown should be named in the claim, the Provincial Crown should be identified according to that statute. For example, when a claim is brought against the Provincial Crown under the Public Transportation and Highway Improvement Act, the Provincial Crown should be identified as "Her Majesty the Queen in right of the Province of Ontario."²⁴ A special naming rule applies where a declaration that provincial legislation is invalid is sought; the proper respondent is the "Attorney General of Ontario."²⁵ There is no rule that stipulates how the Provincial Crown should be named as a plaintiff in a proceeding.

A ministry cannot be named as a party to the proceeding because it is not a person and therefore does not have the capacity to be a party to the proceeding.²⁶ A minister may be named as a defendant in a proceeding if the claim alleges that the minister acted incorrectly in his or her personal capacity.²⁷ Unless a tribunal or board is incorporated or statutorily designated as a person, it cannot be a named party of the litigation.

Section 2(2)(b) of PACA provides that the Provincial Crown is not liable for acts or omissions of Crown corporations and Crown agencies. Accordingly, the Provincial Crown should not be identified as a party in proceedings against these actors.

The Provincial Crown should not be named as a defendant in an action against a servant of the Provincial Crown unless the servant has been appointed by or is employed by the Provincial Crown.²⁸ Where the Provincial Crown is named as a defendant in an action involving a breach of duties or a tort committed by any of its servants or agents, the servant or agent must also be named for this proceeding to be valid.²⁹

Federal Crown

CLPA provides that the Federal Crown should be identified as the "Attorney General of Canada" in proceedings against the Crown. Accordingly, in proceedings against the Federal Crown brought in the provincial courts, the Federal Crown should be identified as the "Attorney General of Canada."³⁰ While CLPA is not limited to provincial courts, the specific naming provisions in the Federal Courts Act should be used when a proceeding is brought against the Federal Crown, and the Federal Crown should be identified as "Her Majesty the Queen."³¹

Government departments,³² ministries,³³ the prime minister³⁴ and ministers³⁵ should not be identified as parties in proceedings against the Federal Crown unless a minister is being sued as an individual for acting incorrectly in his or her personal capacity.³⁶

When and to whom must the plaintiff give notice?

Before bringing a proceeding against the Crown, a claimant must give written notice of the claim to the Crown.³⁷ The notice must contain written particulars of the claim and must communicate that the complaint could reasonably result in litigation.³⁸ The purposes of this requirement are to (i) provide the Crown with the opportunity to investigate the claim while the circumstances are still fresh; (ii) encourage settlement of the claim before the expense of litigation has been incurred; and (iii) provide the government with information about potential financial liabilities associated with litigation and potential damages.³⁹

In general, failure to give notice will be fatal to a proceeding⁴⁰ and will result in the invalidation of a decision made in its absence.⁴¹ It is usually possible to remedy this failure by serving proper notice and commencing a new proceeding. However, this is not possible if the limitation period has expired.

Provincial Crown

In general, no action for a claim can be commenced against the Provincial Crown unless the claimant has served notice on the Provincial Crown at least sixty days in advance of the claim.⁴² PACA provides that where a notice of claim is served on the Crown before the expiration date of the limitation period but the 60-day period ends after the limitation period, the claimant is granted a 7-day extension to the limitation period and can validly bring a claim within this time.⁴³

There are other notice periods that must be complied with that are specific to certain claims brought against the Provincial Crown. For example, where a claim against the Provincial Crown involves an allegation regarding the breach of duties relating to the ownership, occupation, possession or control of property, the plaintiff has 10 days after the claim arises to give notice to the Provincial Crown.⁴⁴ For claims arising under the Public Transportation and Highway Improvement Act, the plaintiff must give the Crown 10 days notice after the happening of the injury.⁴⁵ Notice must be given to the Provincial Crown at least 15 days before the day on which a constitutional question will be argued.⁴⁶

Notice may be sent to the Provincial Crown's office – Crown Law Office (Civil Law), Ministry of the Attorney General, 720 Bay Street, 8th Floor, Toronto, Ontario, M5G 2K1.

Federal Crown

There are no provisions in CLPA or the Federal Courts Act that require notice to be given in advance of bringing a general claim against the Federal Crown. However, notice must be given to the Federal Crown in advance of bringing certain claims. For example, notice of an intention to challenge the constitutional validity, applicability or operability of legislation must be served on the Attorney General at least 15 days before the day on which the constitutional question is to be argued^.47 Notice of "fourteen clear days"⁴⁸ must be given with respect to a default judgment against the Federal Crown. Notice may also be served on the Attorney General of Canada where a question of general importance is raised in any proceeding.⁴⁹

Notice may be sent to the Attorney General's office in Ottawa or the appropriate regional office of the Department of Justice.

Effecting proper service of the claim

Provincial Crown

Claims that are brought before the Courts of Ontario must be served personally pursuant to the Rules of Civil Procedure.⁵⁰ Section 10 of PACA provides that documents that have to be served personally on the Provincial Crown must be served by leaving a copy of the document with a solicitor in the Crown Law Office (Civil Liability) of the Ministry of the Attorney General. This office will only accept service of documents for the Provincial Crown and will not admit service for private citizens or ministers.

Federal Crown

As noted above, claims being brought before the Courts of Ontario must be served personally under the Rules of Civil Procedure. CLPA provides that where a proceeding is brought against the Federal Crown in the Courts of Ontario, the Deputy Attorney General of Canada, the director of the appropriate regional Department of Justice, or the chief executive office of the agency in whose name the proceedings are taken may be served with these claims.⁵¹

Claims being brought against the Federal Crown in the Federal Court must also be personally served.⁵² The Registry of the Federal Court will admit service on behalf of the Federal Crown.⁵³

Pretrial Procedures

Must the Crown produce civil servants for discovery?

Provincial Crown

At common law, the Crown was immune from discovery.⁵⁴ The general rule regarding discovery under PACA is that, when the Provincial Crown is named as a defendant in a proceeding, the rules of court as to the discovery, inspection of documents and examination apply in the same manner as if the Provincial Crown were a corporation.⁵⁵ There are three exceptions to this general rule, one being that the Provincial Crown retains the right to select the official who will be examined for discovery.⁵⁶ The Deputy Attorney General of Ontario has the exclusive right to select this representative.⁵⁷ The courts do not have the power to interfere with the Crown's discretion in choosing a representative.⁵⁸ However, where the Crown fails to adequately provide disclosure in respect of a claim and where the designee of the Crown is not reasonably well-informed as to the matters in issue, the court may substitute a representative of its choosing.⁵⁹

PACA has not removed the Provincial Crown's prerogative to refuse to produce a representative for discovery where the Crown is a plaintiff. If the Crown offers to produce a representative for discovery, the Crown has the right to choose who that representative will be.⁶⁰

Federal Crown

There are no specific statutory provisions in CLPA that set out the rules that govern discovery in Federal Crown proceedings. CLPA provides that the rules of practice and procedure in the court in which the proceeding are to take place will apply to the proceedings.⁶¹

The Federal Crown is subject to discovery when it is a party to the proceedings. These rules differ from the rules governing the Provincial Crown; the Provincial Crown is subject to discovery only as a defendant.⁶²

Section 7 of CLPA Regulations specifically provides that where a proceeding is brought in a provincial court and the provincial rules of practice and procedure provide that an officer of a corporation may be examined for discovery, the Deputy Attorney General may designate a representative of the Crown to fulfill the same function. This provision also states that this choice is subject to review by the court. Generally, the court will intervene with the Federal Crown's choice of representative only where the examiner can show that the designee is unsuitable.⁶³ The Alberta Court of Appeal has held that this rule requires the Crown to put forth "designated officers or servants of the Crown" for the purposes of examination but this rule does not remove the Crown's prerogative right to refuse to designate the minister as an examinee.⁶⁴

The Attorney General of Canada appoints the representative to be questioned at examination in proceedings against the Federal Crown in the Federal Court.⁶⁵ Similar to proceedings against the Federal Crown in provincial courts, the Federal Court may substitute the examinee with another person. However, the court will not intervene with the selection unless it is shown that representative is not informed of the essential facts at issue.⁶⁶ Only in special circumstances, will the courts require a minister to be examined, and the party seeking to examine the minister must establish that the minister is the person best informed to answer the questions relating to the matters at issue.⁶⁷

Quashing summonses and subpoenas against public officials

The federal and provincial Crown proceeding statutes do not contain special rules that govern how to summon or subpoena public officials as witnesses nor do they provide the procedure to quash such summons or subpoenas. The Crown has some residual prerogative rights that may limit the ability for certain public officials to be called as witnesses at a discovery or trial. For example, a member of parliament can refuse to attend court as a witness during a parliamentary session and during the 40 days preceding and following a parliamentary session.⁶⁸

As noted above, the general rule established by the modern Crown proceeding statutes is that the procedure used in proceedings against the Crown should be similar to the procedure used against private parties. Therefore, in determining whether to quash a summons or subpoena against a public official, the court will generally look at whether the proposed witness has relevant and significant evidence and whether the evidence of the witness is privileged.⁶⁹ It is important to note that the Crown has privileges beyond the litigation and solicitor–client privileges that are available to all private parties. Certain Crown evidence that is otherwise relevant and admissible may be subject to "public interest immunity" if its admission would harm the public interest. Accordingly, a witness would not be required to disclose this information.⁷⁰ For example, information about cabinet records that would reveal the substance of deliberations of the Executive Council,⁷¹ and information obtained in confidence from a foreign government, international organization, provincial, municipal or regional government is subject to "public interest immunity."⁷²

Before subpoenaing or summoning a public official, it is necessary to review the statute that governs the actions of the public official as such statutes may limit the compellability of the public official. For example, the Police Services Act provides that no member of the Ontario Civilian Commission on Police Services is required to give testimony in any civil suit or proceeding with regard to information obtained in the course of his or her duties.⁷³ The Railways Safety Act provides that no railway safety inspector is required to give testimony in a civil suit with regard to information obtained by the inspector in the discharge of his or her duties.⁷⁴

Interveners

Neither the provincial nor the federal Crown proceeding statutes outline the procedures that must be used in lining up or arguing for or against the standing of Crown interveners or interveners in Crown proceedings. Therefore, it is necessary to defer to the rules of the court where the proceeding will be brought.

When a proceeding is brought against the Provincial Crown or the Federal Crown in the Courts of Ontario, Rule 13 of the Rules of Civil Procedure permits the court to grant leave to two distinct forms of intervention. Rule 13.01 permits a person, including an organization, who is not a party to the litigation to be added as a party if the person (i) has an interest in the subject matter; (ii) may be adversely affected by the judgment; or (iii) has a question of law or fact common with a party to the proceeding. In deciding whether the person should be added as a party, the courts will consider whether the intervention will unduly delay or prejudice the determination of rights of the parties to the proceeding.⁷⁵ The intervener must be able to make a useful, unique contribution to specific issues raised.⁷⁶ As a party, the intervener has the same rights as the other parties in the litigation and is involved throughout the entire fact-finding process.

Rule 13.02 of the Rules of Civil Procedure allows a person to intervene without becoming a party to the proceeding by becoming a friend of the court. As a friend of the court, the intervener's role is limited to rendering assistance to the court by way of argument. Friends of the court are not permitted to submit evidence.

Where a proceeding is brought against the Federal Crown in the Federal Court and intervention is sought, Rule 109 of the Federal Courts Rules applies. The central issue in determining whether a person will be granted intervener status is whether the proposed intervention will assist the court in determining factual or legal issues related to the proceeding; an interest in the development of the jurisprudence is not sufficient.⁷⁷ The court will not add an intervener to the litigation if the intervener will only repeat in its own words the arguments that a party is already making.⁷⁸

How does access to information and privacy legislation affect litigation against the Crown?

Historically, access to government information has been limited. Federal and provincial statutes now exist to permit and moderate access to government information in order to increase government accountability.⁷⁹ These statutes include the Ontario Freedom of Information and Protection of Privacy Act⁸⁰ and the federal Access to Information Act.⁸¹ In general, these statutes provide a citizen with the right to access information under government control, but set out exemptions to those rights.⁸² Potential plaintiffs may requests documents under government control pursuant to these statutes prior to commencing litigation and, to some extent, after the litigation has begun. The government may deny access to documents if they are subject to solicitor–client privilege or if they were created or prepared by or for Crown counsel for use in giving legal advice or in contemplation of or for use in litigation.⁸³ Therefore, it may be advantageous for a potential litigant to request information in advance of bringing a proceeding against the Crown.⁸⁴

The Crown still retains the ability to limit access to certain types of information. As discussed above, government information that is subject to "public interest immunity" will not be disclosed to the public and therefore will not be available to persons involved in litigation against the Crown.

Other statutes may also limit the information that is available to the public. For example, the Mental Health Act⁸⁵ provides that mental health records cannot be disclosed without a court order and the Youth Criminal Justice Act⁸⁶ provides that criminal records of young offenders cannot be disclosed.

Relief Against the Crown

When are injunctions against the Crown available?

At common law, injunctions were not available against the Crown because of the inability of the Crown's court to issue an order against the Crown and to punish the Crown for contempt of court.⁸⁷ PACA and CLPA both expressly provide that an injunction cannot be brought against the Crown.⁸⁸ However, both statutes provide that the courts "in lieu thereof may make an order declaratory of the rights of the parties."⁸⁹ Generally, a declaration may be just as effective as an injunction since the Crown will not likely disobey a court order.⁹⁰

There is one exception to the general rule that an injunction is not available against the Crown. Where the Crown breaches a duty imposed by the Canadian Charter of Rights and Freedoms or violates a constitutional division of power, an injunction is available as relief because the government cannot enact legislation to protect itself from the remedies imposed on it for acting unconstitutionally.⁹¹ In order to receive relief by way of an injunction, the moving party must show that (i) irreparable harm will result if the relief is not granted; (ii) there is a serious issue to be tried; and (iii) the balance of convenience favours the injunction.⁹² However, it should be noted that the court will only grant injunctions against the government on the grounds of alleged unconstitutionality in clear cases.⁹³

PACA and CLPA provide that injunctions are not generally available against servants of the Crown.⁹⁴ Injunctions against these government actors are available only where they are acting beyond their statutory authority⁹⁵ or where these actors are sued in their personal capacity.⁹⁶ The Crown's immunity from injunction does not apply to Crown agents and corporations.⁹⁷

Can the plaintiff execute on a judgment?

The Crown is immune from execution on a judgment at common law for the same reasons that it is immune from injunctions.⁹⁸ Furthermore, it has been suggested that this immunity is justified because seizing Crown property could cause interruptions to the public service.⁹⁹ This immunity is now encapsulated in provisions in CLPA and PACA.¹⁰⁰

Although execution is not available against the Crown, the Minister of Finance is statutorily obligated to pay money awarded in a judgment against the Crown out of the Consolidated Revenue Fund.¹⁰¹ This obligation extends to sums of money agreed to in out-of-court settlements by the Provincial Crown.¹⁰² An out-of-court settlement agreed to by the Federal Crown is not statutorily protected.¹⁰³

Administrative Remedies, Judicial Review and Action for Damages

Does the plaintiff need to exhaust administrative remedies before applying for judicial review?

The Judicial Review and Procedure Act¹⁰⁴ and the Rules of Civil Procedure set out the procedural rules that govern applications for judicial review brought before the Courts of Ontario. The Judicial Review and Procedure Act provides that an application for judicial review must be made to the Divisional Court unless the matter is of an urgent nature, in which case leave may be granted to apply to the superior court.¹⁰⁵

Section 18(1) of the Federal Courts Act grants to the Federal Court exclusive jurisdiction to hear judicial reviews of decisions of federal boards, commissions and other federal tribunals.¹⁰⁶ The Federal Courts Rules provide that an application for judicial review can be made by the Attorney General of Canada or "by anyone directly affected by the matter in respect of which relief is sought."¹⁰⁷ This phrase has been interpreted broadly to authorize the grant of standing to a party that has a public interest in the decision but was not involved in the prior proceedings.¹⁰⁸ Generally, judicial review applications will be brought before the Federal Court. Where there is statutory authority, an application may be brought to the Federal Court of Appeal.¹⁰⁹

The Federal Courts Rules, the Judicial Review Procedure Act and the Rules of Civil Procedure do not impose requirements that must be met by a party before an application can be brought for judicial review. However, it is a general rule in both the Federal Court and the courts of Ontario that it is necessary to exhaust all administrative remedies prior to bringing an application for judicial review because administrative remedies tend to involve less delay and expense.¹¹⁰ These administrative remedies may include review or reconsideration by the decision maker, an appeal of the decision to another tribunal and/or a petition to another body.¹¹¹

A party may bring an application for judicial review before exhausting administrative remedies in a limited number of circumstances. In exercising their discretion to hear judicial reviews at this point in the process, the courts will consider whether the available administrative remedy is adequate.¹¹² In making this decision, the courts will consider, among other factors, whether an individual applicant's rights have been hindered; whether it is economical to proceed with judicial resources; the integrity of the administrative remedy; and delays associated with the administrative remedy.¹¹³ For example, even where there has been a breach of the duty of fairness in a proceeding resulting in an administrative decision, the court will not hear the review if there is a right of appeal to an administrative tribunal.¹¹⁴ However, where there has been an allegation of a reasonable apprehension of bias by a decision maker and the only administrative remedy is the rehearing by that same decision-making body, the court may make an exception.¹¹⁵

Does the plaintiff need to bring an application for judicial review before commencing an action relating to the impugned decision?

The Federal Court of Appeal has held that an application for judicial review must precede an action relating to an impugned decision in the Federal Courts.¹¹⁶ The Federal Court of Appeal held that permitting an action relating to an impugned decision before the decision has been judicially reviewed would (i) deny the clear intention of Parliament that certain remedies may be exercised only by way of an application for judicial review; (ii) infringe the principle of finality of administrative decisions; (iii) decrease the legal security of these decisions; and (iv) permit prothonotaries to essentially hear applications for judicial review contrary to legislative intention.¹¹⁷

It is uncertain whether a plaintiff must bring an application for judicial review before commencing an action relating to the impugned decision before the courts of Ontario. The 1983 Court of Appeal decision Seaway Trust Co. v. Ontario is the leading decision in this area of law in Ontario. The case supports the view that that an application for judicial review may not be necessary before an action can be brought.¹¹⁸ In that case, the Court of Appeal held that judicial review is not necessary because of the need to avoid multiple proceedings and the importance of a full trial to examine the important factual issues in light of all the evidence. Recent case law suggests that the Federal Court approach may take hold in Ontario. For example, in G-Civil Inc. v. Her Majesty in Right of Canada, the Ontario Superior Court of Justice held that judicial review is required before the party could bring an action against the Crown.¹¹⁹ This case will be heard by the Ontario Court of Appeal within the next year, along with a number of other cases that raise a similar issue.¹²⁰

 

Footnotes

1 Peter W. Hogg and Patrick J. Monahan, Liability of the Crown, 3rd ed. (Scarborough, ON: Carswell, 2000) at 4.

2 Ibid. at 5.

3 Ibid. at 64.

4 R.S.O. 1990, c. P.27. PACA authorizes the commencement of court proceedings against the Provincial Crown only for events that occurred after 1963; a petition of right must be brought against the Provincial Crown for events that occurred before 1963.

5 Ibid. s. 2 (1).

6 R.S.C. 1985, c. C-50 [CLPA].

7 Crown Liability and Proceedings (Provincial Court) Regulations, SOR/91-604. These regulations apply only to proceedings in the provincial court [CLPA Regulations].

8 See CLPA, supra note 6, s. 27; PACA, supra note 4, s. 13.

9 R.S.C. 1985, c. F-7.

10 SOR/98-106.

11 R.S.O. 1990, c. C.43.

12 R.R.O. 1990, Reg. 194.

13 Rules of the Small Claims Court, O. Reg. 626/00.

14 Greeley v. "Tami Joan" (The) (1996), 113 F.T.R. 66 (T.D.) [Tami Joan].

15 Hogg and Monahan, supra note 1 at 360.

16 R.S.C. 1985, c. E-21

17 CLPA, supra note 6, s. 21(2).

18 Prudential Assurance Co. v. Canada, [1993] 2 F.C. 293 (C.A.).

19 See Anglophoto Ltd. v. "Ikaros" (The), [1974] 1 F.C. 327 (C.A.); Varnam v. Canada (Min. of National Health & Welfare), [1988] 2 F.C. 454 (C.A).

20 See Federal Courts Act, supra note 9, ss. 20-22. The Supreme Court of Canada set out a three-part test to be used in determining if the Federal Court has jurisdiction of a claim in ITO-International Terminal Operators Ltd. v. Miida Electronics, [1986] 1 S.C.R. 752.

21 Unless a statute requires a proceeding against the Federal Crown to be brought in the Federal Court.

22 Tami Joan, supra note 14.

23 PACA, supra note 4, s. 9.

24 R.S.O. 1990, c. P.50, s. 33(7).

25 Galati v. McGuinty, [1999] O.J. No. 2171 (Sup. Ct.); B.C.T.F. v. British Columbia (A.G.), [1986] 2 W.W.R. 469 (B.C. Sup. Ct.).

26 Deep v. Ontario, [2004] O.J. No. 2734 (Sup. Ct.) at para. 82, aff'd [2005] O.J. No. 1294 (C.A.).

27 Ibid. at para. 83; Sinclair v. Ontario, [1996] O.J. No. 3192 (Ct. J. (Gen. Div.)) at para. 5; Canada (National Harbours Board) v. Langelier, [1969] S.C.R. 60, at 71-72.; Air India, Re (1987), 62 O.R. (2d) 130 (H.C.) at para. 136.

28 PACA, supra note 4, s. 2(2)(c). In these claims, the minister should still not be named since a minister is a servant of the Crown and cannot be vicariously liable for other servants of the Crown.

29 PACA, supra note 4, s. 5(2).

30 CLPA, supra note 6, s. 23(1); See Munro v. Canada (1992), 11 O.R. (3d) 1, 98 D.L.R. (4th) 662 (Ct. J. (Gen. Div.)).

31 Federal Courts Act, supra note 31, s. 48 & Schedule; see Liebemann v. Canada (Min. of National Defence), [1994] 2 F.C. 3, 69 F.T.R. 81 (T.D.).

32 Canada (National Harbours Board) v. Langelier, [1969] S.C.R. 60.

33 For example, see Air India Flight 182 Disaster Claimants v. Air India (1987) 62 O.R. (2d) 130 (H.C.); Peter G. White Management Ltd. v. Canada (Min. of Canadian Heritage), 2004 FC 346 (T.D).

34 Vancouver Island Peace Society v. Canada, [1994] 1 F.C. 102, aff'd (1995), 16 C.E.L.R. (N.S.) 24 (C.A.), leave to appeal to S.C.C. refused, (1995) 17 C.E.L.R. (N.S.) 298 (S.C.C.).

35 Mandate Erectors & Welding Ltd. v. Canada, [1996] 118 F.T.R. 290 (T.D.) at para. 19.

36 Canada (Ministry of Industry, Trade & Commerce) v. Allis-Chalmers Canada Ltd. (1977), 77 D.L.R. (3rd) 633 (Q.C.A.).

37 Notice is not required to be given to a minister or Crown employee who is being sued in his or her personal capacity.

38 Mattick Estate v. Ontario (2001), 195 D.L.R. (4th) 540, 52 O.R. (3d) 221 (C.A.). In that case, the notice was sufficient even though the plaintiff failed to state that he intended to bring legal action because it was reasonable for the Crown to realize that a legal claim would result.

39 Hogg and Monahan, supra note 1 at 77.

40 Beardsley v. Ontario (2001), 57 O.R. (3d) 1 (C.A.); Yule v. Mamakwa, [1998] O.J. No. 4900, 83 A.C.W.S. (3d) 942, 81 O.T.C. 278 (Ct. J. (Gen. Div.)); Misquadis v. Canada (Attorney General) (2004), 315 N.R. 76 (F.C.A.).

41 Misquadis v. Canada (A.G.) (2004), 315 N.R. 76 (F.C.A.).

42 PACA, supra note 4, s. 7(1). Court of Justice Act, supra note 11, s. 109(2.2).

43 PACA, supra note 4, s. 7(2).

44 Ibid., s. 7(3).

45 R.S.O. 1990, c. P.50 , s. 33(4).

46 Courts of Justice Act, supra note 11, s. 109(2.2).

47 Ibid.; Federal Courts Act, supra note 9, s. 57. Form 69 (Federal Courts Rules) should be used where the proceeding will be commenced in the Federal Courts.

48 CLPA, supra note 6, s. 25.

49 Federal Courts Rules, supra note 10, R. 110.

50 Rules of Civil Procedure, supra note 12, R. 16.01.

51 CLPA, supra note 6, s. 23(2); CLPA Regulations, supra note 6, s. 4.

52 Federal Courts Rules, supra note 10, R. 127.

53 Ibid. R. 133(1).

54 Hogg and Monahan, supra note 1 at 65.

55 PACA, supra note 4, s. 8. However, where PACA is precluded in a piece of legislation governing a claim, the Crown cannot be compelled to produce civil servants for discovery; see Wren v. Ontario (Superintendent of Insurance) (1976), 1 C.P.C. 145 (Ont. Sup. Ct.).

56 Ibid. s. 8(b).

57 Ibid.

58 Harrison Rock & Tunnel Co. v. R. (1980), 31 O.R. (2d) 573 (Ont. Master).

59 Proctor v. Canada [2000] O.J. No. 658 (Ont. Master).

60 Ontario (Attorney General) v. Ballard Estate (1995), 38 C.P.C. (3d) 81 (Ont. Ct. J. (Gen. Div.)).

61 CLPA s. 27; see I.L.W.U. v. Canada (1987), 14 F.T.R. 289 (T.D.).

62 Hogg and Monahan, supra note 1 at 67.

63 Northern Goose Processors Ltd. v. Canadian Food Inspection Agency (2000) 145 Man. R. (2d) 63, 218 W.A.C. 63, 47 C.P.C. (4th) 37 (C.A.);Lord v. Royal Columbian Hospital (1981), 43 B.C.L.R. 147 (C.A.).

64 Canadian Deposit Insurance Corp. v. Oland (1997), 12 C.P.C. (4th) 50 (Alta. C.A.).

65 Federal Courts Rules, R. 237(2); see I.L.W.U. v. Canada (1987), 14 F.T.R. 289 (T.D.).

66 Canada (Min. of National Defence & Immigration) v. Dueck (1998), 147 F.T.R. 157 (T.D.).

67 United Terminals Ltd. v. M.N.R., [1992] 3 F.C. 302 (C.A).

68 Telezone Inc. v. Canada (A.G.) (2007), 180 O.A.C. 360, 235 D.L.R. (4th) 719, 69 O.R. (3d) 161 (C.A.).

69 Zundel (Re), 2004 FC 798; Laboratoires Servier v. Apotex Inc. 2008 CarswellNat 672; 2008 FC 321; Samson Indian Nation and Band v. Canada (Minister of Indian Affairs and Northern Development), [2003] F.C.J. No. 1238.

70 Babcock v. Canada (Attorney General), [2002] B.C.W.L.D. 635, 214 D.L.R. (4th) 193 (S.C.C.).

71 R.S.O. 1990, c. F.31 [FOIPPA], s. 12(1).

72 R.S.C. 1986 c. A-1. [Access to Information Act], s. 13.

73 R.S.O. 1990, c. P. 15, s. 21(12).

74 R.S.O. 1985, c. 32 (4th Supp.), s. 27(3).

75 Rules of Civil Procedure, supra note 12, R. 13.01(2); see Pinet v. Penetanguishene Mental Health Centre (2006), 80 O.R. (3d) 139, [2006] O.J. No. 687 (Ont. Sup. Ct.), for a long list of principles that the court will examine in deciding whether to permit intervention.

76 Halpern v. Toronto (City) (2000), 51 O.R. (3d) 742 (Sup. Ct.).

77 C.U.P.E. v. Cdn Airlines Int. Ltd. (2000), 37 C.H.R.R. D/325 (F.C.A.).

78 Li v. Canada (Min. of Citizenship & Immigration) (2004), 40 Imm. L.R. (3d) 161 (F.C.A.).

79 H.J. Heinz Co. of Canada v. Canada (Attorney General), [2006] 1 S.C.R. 441.

80 Supra.

81 Supra.

82 Ibid. s. 2; FOIPPA, supra note 71, s. 1 (a) & 10.

83 Access to Information Act, supra note 72, s. 23; FOIPPA, supra note 71, s. 19.

84 FOIPPA, supra note 71, s. 64, expressly states that it does not impose any limitation on information otherwise available by law to a party to litigation or any limitation on the power of a court or tribunal to compel a witness to testify or compel the production of documents. This provision suggests that the litigation process should operate independently from the access to information outlined under FOIPPA.

85 R.S.O. 1990, c. M.7, s. 35.

86 R.S.C. 2002, c. 1, s. 123.

87 Hogg and Monahan, supra note 1 at 31. See Centre d'information et d'animation communautaire v. The Queen, [1984] 2 F.C. 866 (C.A.).

88 PACA, supra note 4, s. 14; CLPA, supra note 6, s. 22.

89 Ibid.

90 Patrick J. Monahan, Constitutional Law, 3rd ed. (Toronto: Irwin Law, 2006) at 151.

91 Société Asbestos v. Société Nationale de l'amiante, [1979] C.A. 342 (C.A.); Van Mulligan v. Sask. Housing Corp. (1982) 23 Sask. E. 66 (Q.B.); Levesque v. Canada (A.G.), [1986] 2 F.C. 287 (T.D.).

92 RJR-McDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311.

93 Harper v. Canada (Attorney General), [2000] 2 S.C.R. 764.

94 PACA , supra note 4, s. 14(2); CLPA, supra note 6, s. 22(2).

95 Lac Seul First Nation v. Canada (Min. of Indian Affairs & Northern Development), [2004] 4 C.N.L.R. 99 (F.C.T.D.).

96 Livent Inc. v. Heritage Foundation, [1996] O.J. No. 2016 (Ct. J. (Gen. Div.)).

97 Ibid.

98 Hogg and Monahan, supra note 1 at 51.

99 Ibid. at 52.

100 CLPA, supra note 6, s. 29; PACA, supra note 4, s. 21.

101 PACA, supra note 4, s. 22; CLPA supra note 6, s. 30.

102 PACA, supra note 4, s. 22(c).

103 Hogg and Monahan, supra note 1 at 54.

104 R.S.O. 1990, c. J.1.

105 Ibid. at ss. 6(1) & (2).

106 The constitutionality of referring this power to the Federal Courts was approved by the Supreme Court of Canada in Pringle v. Fraser, [1972] S.C.R. 821. However, provincial courts retain the authority to determine the validity and applicability of federal jurisdiction and retain exclusive authority to issue habeas corpus for and subjiciendum outside of issuing this remedy to members of the Canadian Forces serving outside of Canada. See Canada (Attorney General) v. Law Society of British Columbia, [1982] 2 S.C.R. 307.

107 Federal Courts Act, supra note 9, s. 18.1(1).

108 Kwicksutaineuk/Ah-kwa-mish Tribes v. Canada (Min. of Fisheries & Oceans) (2003), 227 F.T.R 96, aff'd 2003 FCA 484.

109 For example, see Federal Courts Act, supra note 9, s. 28; the Federal Court of Appeal has the jurisdiction to hear applications relating to judicial review under the Canada Agricultural Products Act, the Parliament of Canada Act, the Canadian Radio-television and Telecommunications Commission Act and the Canada Pension Plan.

110 Brown & Evans, Judicial Review of Administrative Action in Canada, looseleaf (Toronto: Cavasback Publishing, 1998). For example, see Harlekin v. University of Regina, [1979] 2 S.C.R. 561 (S.C.C.).

111 Ibid. at 3-6.

112 Froom v. Canada (Min. of Justice), [2005] 2 F.C.R. 195 (C.A.).

113 Brown & Evans, supra note 110 at 3-7.

114 Harelkin, supra note 110.

115 Penton v. Metis Nation of Alberta Assn., [1995] 8 W.W.R. 39 (Alta. Q.B.).

116 Canada v. Grenier, [2006] 2 F.C. 287 (C.A.); Canada v. Tremblay, [2004] 4 F.C.R. 165 (C.A.).

117 Ibid. [Grenier].

118 Seaway Trust Co. v. Ontario (1993), 41 O.R. (2d) 532 (C.A.); First Real Properties Ltd. v. Hamilton (City) (2002), 59 O.R. (3d) 477 (Div. Ct.); Keewatin v. Ontario (Minister of Natural Resources) (2003), 66 O.R.(3d) 370 (Div. Ct.).

119 (2006) 154 A.C.W.S.(3d) 106 (Ont. Sup. Ct.).

120 Telezone Inc. v. Canada (A.G.), [2007] O.J. No. 4766 (Sup. Ct.); Fielding Chemical Technologies Inc. v. The Attorney General of Canada (2007), 30 C.E.L.R. (3d) 281 (Ont. Sup. Ct.).

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