Crown Liability 2025

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

This session will consider recent federal and provincial jurisprudence on class proceedings against the Crown, with a particular focus on the following issues:

• How Crown immunity for “core” policy decisions, as articulated by the SCC in Nelson (City) v. Marchi, applies at the certification stage;
• In light of Robertson v. Ontario, what must be pleaded to properly allege that the Crown acted in bad faith; and
• Are pleadings of “systemic negligence” becoming standardized in the wake of Nasogaluak v. Canada (A.G.)?

Alexandra Clark, Senior Counsel, Crown Law Office – Civil, Ministry of the Attorney General (Ontario)
Louis Century, Goldblatt Partners LLP
Christine A. Ashcroft, General Counsel, Department of Justice Canada

Across Canada, Crown proceedings are governed by distinct laws containing special procedural rules and immunity provisions (e.g., proceedings against the federal Crown are governed by the federal Crown Liability and Proceedings Act (CLPA)). This session will consider recent jurisprudence on such legislation, including the following issues:

• The scope and effect of the “pension or compensation payable” immunity provision contained in s. 9 of the federal CLPA in light of the Ontario Court of Appeal’s recent decision in Flying E Ranche Ltd. V. Canada (Agriculture); and
• The scope and effect of the automatic stay respecting claims of misfeasance or “bad faith” torts imposed by s. 17 of the Ontario CLPA in light of the Ontario Divisional Court’s recent decision in HMK v. Dell, among other cases.

Victor J. Paolone, General Counsel, Department of Justice Canada
Jeffrey Claydon, Deputy Director, Crown Law Office – Civil, Ministry of the Attorney General (Ontario)
Jamie Shilton, Koskie Minsky LLP

This session will spotlight the SCC’s latest decision governing the availability of Charter remedies for unconstitutional legislative action and explore some of the remaining unresolved issues.

Panelists will explore these questions and more:

• What did the Court decide?
• What questions remain unresolved?
  • As the clearly unconstitutional standard will “resolve most cases”, what does “clearly unconstitutional” mean? What is the threshold?
  • How detailed must the particulars be to satisfy threshold at the pleadings stage?
  • How do we resolve the evidentiary issues? How could a claimant prove a claim without violating parliamentary privilege? Can the views of individual members of Parliament be attributed to Parliament as a whole?
  • What does this all mean for Parliamentary process?

Ravi Amarnath, Counsel, Constitutional Law Branch, Ministry of the Attorney General (Ontario)
Lex Gill, Trudel Johnston & Lespérance
Sharlene Telles-Langdon, Senior General Counsel, Department of Justice Canada
Alyssa Tomkins, Gowling WLG

Panelists will discuss remedies for treaty and other honour of the Crown-related duties. In particular, the panel will focus on the recent SCC decisions in Shot Both Sides and Restoule that clarified several important points of law for remedies in Indigenous litigation, including:

• the range of remedies available for breaches of honour of the Crown-based duties, including potential monetary remedies, as a form of constitutional damages;
• the role of declaratory relief in respect of breach of honour of the Crown-based duties and can be uniquely constructed to address those duties; and
• the nature of fiduciary duties and equitable remedies.

Panelists will also discuss the recent SCC appeal of Quebec (A.G.) v. Pekuakamiulnuatsh Takuhikan, with a focus on the honour of the Crown discussion.
Marc Gibson, Pape Salter Teillet LLP
Richard Ogden, Senior Counsel, Crown Law Office – Civil, Ministry of the Attorney General (Ontario)

This session will consider the implications of recent jurisprudence concerning the contractual liability of the Crown, including the following issues:

• How the operation of government programs can (sometimes unexpectedly) give rise to contractual obligations for the Crown; and
• How the contractual duty of good faith applies to the Crown in light of the SCC’s decision in Quebec (A.G.) v. Pekuakamiulnuatsh Takuhikan.

Walter Kravchuk, Counsel, Department of Justice Canada
Alexandra Main, Counsel, Crown Law Office – Civil, Ministry of the Attorney General (Ontario)
Adrian Zita-Bennett, Counsel, Department of Justice Canada