Crown Liability 2023

9:00 a.m.
Chairs’ Welcome & Introductory Remarks

9:10 a.m.
Key Legal Developments in Crown Liability Law

Akosua Matthews, Kastner Lam LLP

To open the day, we will get an overview of recent legal highlights and developments in the area of Crown Liability.

10:00 a.m.
Update on Crown Liability in Negligence

Sarah Bird, Legal Counsel, Department of Justice (Canada)
Erika Chamberlain, Professor and Dean, Faculty of Law, Western University
Jonathan Lisus, Lax O’Sullivan Lisus Gottlieb LLP
Christopher P. Thompson, Counsel, Crown Law Office – Civil, Ministry of the Attorney General (Ontario)

Recent case law on Crown liability in negligence raises a host of challenging issues, including:
• To what extent might a government be liable in negligence for its response to the COVID pandemic?
• What about the exercise of regulatory powers to address a public safety risk – could the government be liable in negligence to the business that created the risk?
• Some Crown liability statutes provide that the Crown can only be “vicariously liable” in tort – what does that mean, exactly?
• What is the legal effect of Ontario’s new Crown Liability and Proceedings Act, 2019 in the wake of the Ontario Court of Appeal’s decision in Francis?

This panel will consider these issues and others arising from recent case law.
NOTE: A 15-minute break will be taken during this session

12:00 p.m.
Lunch

1:00 p.m.
Issues to Consider When Pursuing Crown Liability as a Class

Ann Christian-Brown, Senior Counsel, Crown Law Office – Civil, Ministry of the Attorney General (Ontario)
Celeste Poltak, Koskie Minsky LLP
Gregory Tzemenakis, General Counsel, Civil Litigation Section, National Litigation Sector, Department of Justice (Canada)

This session will focus on noteworthy class action proceedings involving the federal and provincial (Ontario) governments. This includes a discussion on the recently certified long-term care homes class action (Robertson v Ontario), the effects of the CLPA on litigating certain causes of action as common ones, and other key procedural and substantive updates.

2:00 p.m.
Honour of the Crown, Fiduciary Duty, and Equitable Compensation: Claims brought by Indigenous Communities and Claimants

Darian Baskatawang, OKT Law
Julie Blackhawk, General Counsel, Department of Justice (Canada)
Kevin Hille, OKT Law
Richard Ogden, Senior Counsel, Crown Law Office – Civil, Ministry of the Attorney General (Ontario)

The nature of Crown liability in claims brought by Indigenous communities and claimants engage unique responsibilities of the Crown. Panelists will discuss the rapidly evolving state of the law, evidence and procedure in relation to these claims. This will include a discussion on the Supreme Court of Canada’s 2021 decision in Southwind v Canada, 2021 SCC 28 addressing equitable compensation models for breach of fiduciary duty in relation to the flooding of reserved lands.

3:30 p.m.
Break

3:45 p.m.
The Law of Takings after Annapolis Group

Dayna Anderson, General Counsel, National Litigation Sector, Department of Justice (Canada)
Sharon W. Au, MLT Aikins LLP
Vanessa Glasser, Counsel (Litigation) Crown Law Office – Civil, Ministry of the Attorney General (Ontario)

A government may be liable where there has been a “constructive taking” of property, but what constitutes a “constructive taking”? The Supreme Court of Canada split on this issue in the 2022 decision Annapolis Group Inc. v. Halifax Regional Municipality. Did Annapolis Group merely “clarify” the law of takings (as the majority decision states) or did it “significantly expand” the potential liability of public authorities (as the minority decision warns)?  What should public authorities consider when contemplating legislative or regulatory actions that might amount to a “constructive taking”? This panel will address these issues and provide practical guidance on this difficult area of the law.

4:45 p.m.
Program Ends