Most Canadian provinces have specific legislation dealing with
procedural requirements that must be followed when bringing
lawsuits against the Crown. In Nova Scotia, that legislation is the
Proceedings Against the Crown Act ("PACA").
Exactly what constitutes a "proceeding against the Crown"
is broad, and includes claims made by set-off or counterclaim. Even
where the Crown initiates a lawsuit, PACA will apply if the
defendant countersues or defends on the basis that it owes the
Crown less due to a set-off (i.e. because the Crown owes the
defendant something as well).
One of the restrictions under PACA is that a proceeding against
the Crown cannot be conducted by way of a jury trial. Recently, in
Attorney General of Nova Scotia v. Scott Mattatall (2013),
the Supreme Court of Nova Scotia was asked to determine whether a
jury election can be made where the Crown brings a lawsuit against
a defendant, and no counterclaim or set-off claim is made.
The Mattatall case involved a motor vehicle accident
that occurred in 2002. The Defendant, Scott Mattatall, collided
with the Murdock Bridge, causing damage so significant that the
structure had to be replaced. As the owner of the bridge, the
Province of Nova Scotia sought to recover the full cost of its
replacement from the defendant.
The Province assumed that the case would be heard by a judge
alone, but the Defendant elected to have a trial by jury under the
Civil Procedure Rules ("Rules"). In Nova Scotia, the
Rules are written by the Judges of the Supreme Court and Court of
Appeal, who are given authority to do so under the Judicature
Act. PACA states that the Rules apply, subject to certain
exceptions, in proceedings against the Province, but there is no
rule stating that the Rules apply when the Province is the
The Province brought a motion to strike the jury notice, making
two central arguments. First, the Province argued that PACA applies
in the circumstances, thereby prohibiting a jury trial. Second, the
Province stated that because the Judicature Act does not
explicitly apply to the Province as plaintiff, the Province is not
bound by the jury provisions of the Rules. The Province made the
same argument regarding the Juries Act. Based on ancient
rights of the Crown and the Interpretation Act, the
general rule is that the Province is not bound by any legislation
unless the legislation specifically states that it applies to the
Crown. The Province also referred to other ancient rights of the
Crown, including the theory that the Crown has no peers. The
suggestion was that jurors would be inclined to decide against the
Province because of the Province's institutional status.
Justice Murphy of the Supreme Court of Nova Scotia disagreed
with the Province, and dismissed its motion to strike the jury
election. The Court held that PACA is very clear, and does not
apply to cases that only involve a lawsuit by the Crown against a
With respect to the Judicature Act, the Rules, and the
Juries Act, the Court held that two exceptions apply to
the general rule that the Province is not bound by statutes that do
not clearly bind the Province. The "necessary
implication" exception applies because the purpose of those
acts and the Rules would be frustrated if the Rules did not apply
to all parties. Alternatively, the Rules apply under the
"Crown as litigant" exception. Under that exception,
whenever the Crown takes the benefit of a piece of legislation, it
is bound by all the related provisions. In the context of
litigation, that means that when the Province commences litigation
under the Rules as a plaintiff, it is obliged to follow all of the
rules that would ordinarily apply.
In coming to its conclusion, the Court rejected the notion that
the Province should be immune from a jury trial because the Crown
has no peers. The Court noted that there is no exemption for other
large institutions, where jurors might take deep pockets into
account in their decision-making. The Court pointed to cases in
other provinces where the province had commenced litigation as a
plaintiff and was subject to a jury trial.
The immediate consequence of the Court's decision is that
defendants are entitled to a jury trial in defending claims by the
Province. The broader implication from the Court's reasons is
that the Province will now be precluded from making any argument
that it should be afforded special procedural treatment, or that
the Rules do not apply when the Province is the plaintiff. As
noted, PACA still applies where the Province is defendant, or a
counterclaim or set-off argument is made in a proceeding by the
The Province commenced an appeal of Justice Murphy's
decision, but has now abandoned that appeal. As a result, this
decision cannot be overturned, and sets a valuable precedent in
claims by the Province.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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