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Proceedings Against the Crown Act

R.S.O. 1990, Chapter P.27

Consolidation Period: From December 10, 2015 to the e-Laws currency date.

Last amendment: 2015, c. 38, Sched. 7, s. 58.

Legislative History: 1994, c. 27, s. 51; 1997, c. 16, s. 14; 2004, c. 16, Sched. D, Table; 2006, c. 21, Sched. F, s. 124; 2007, c. 7, Sched. 34; 2008, c. 19, Sched. V, s. 10; 2009, c. 24, s. 32; 2009, c. 33, Sched. 17, s. 9; 2009, c. 34, Sched. P; 2015, c. 38, Sched. 7, s. 58.

Definitions

1. In this Act,

“agent”, when used in relation to the Crown, includes an independent contractor employed by the Crown; (“mandataire”)

“Crown” means Her Majesty the Queen in right of Ontario; (“Couronne”)

“order” includes a judgment, decree, rule, award and declaration; (“ordonnance”)

“proceeding against the Crown” includes a claim by way of set-off or counterclaim raised in a proceeding by the Crown and includes an interpleader proceeding to which the Crown is a party; (“instance contre la Couronne”)

“servant”, when used in relation to the Crown, includes a minister of the Crown. (“préposé”)  R.S.O. 1990, c. P.27, s. 1.

Acts not affected

2. (1) This Act does not affect and is subject to the Expropriations Act, the Public Transportation and Highway Improvement Act, the Land Titles Act and the Registry Act, as to claims against The Land Titles Assurance Fund, the Motor Vehicle Accident Claims Act, Parts V.1 (Debt Retirement Charge) and VI (Special Payments) of the Electricity Act, 1998, the Workplace Safety and Insurance Act, 1997 and every statute that imposes a tax payable to the Crown or the Minister of Finance.  R.S.O. 1990, c. P.27, s. 2 (1); 1997, c. 16, s. 14; 2004, c. 16, Sched. D, Table; 2008, c. 19, Sched. V, s. 10; 2009, c. 33, Sched. 17, s. 9; 2009, c. 34, Sched. P, s. 1.

Limits of scope of Act

(2) Nothing in this Act,

(a) subjects the Crown to greater liability in respect of the acts or omissions of a servant or agent of the Crown than that to which the Crown would be subject in respect of such acts or omissions if it were a person of full age and capacity; or

(b) subjects the Crown to a proceeding under this Act in respect of a cause of action that is enforceable against a corporation or other agency of the Crown; or

(c) subjects the Crown to a proceeding under this Act in respect of any act or omission of a servant of the Crown unless that servant has been appointed by or is employed by the Crown; or

(d) subjects the Crown to a proceeding under this Act in respect of anything done in the due enforcement of the criminal law or of the penal provisions of any Act of the Legislature; or

(e) authorizes a proceeding against the Crown under the Employers and Employees Act.  R.S.O. 1990, c. P.27, s. 2 (2).

Section Amendments with date in force (d/m/y)

1997, c. 16, s. 14 - 01/01/1998

2004, c. 16, Sched. D, Table - 01/01/2004

2008, c. 19, Sched. V, s. 10 - 01/01/2009

2009, c. 33, Sched. 17, s. 9 - 15/12/2009; 2009, c. 34, Sched. P, s. 1 - 15/12/2009

Right to sue Crown without fiat

3. A claim against the Crown that, if this Act had not been passed, might be enforced by petition of right, subject to the grant of a fiat by the Lieutenant Governor, may be enforced as of right by a proceeding against the Crown in accordance with this Act without the grant of a fiat by the Lieutenant Governor.  R.S.O. 1990, c. P.27, s. 3.

Right to sue Crown corporation without consent

4. A claim against a corporation of the Crown that, if this Act had not been passed, might be enforced, subject to the consent of a servant of the Crown, may be enforced as of right without such consent.  R.S.O. 1990, c. P.27, s. 4.

Liability in tort

5. (1) Except as otherwise provided in this Act, and despite section 71 of the Legislation Act, 2006, the Crown is subject to all liabilities in tort to which, if it were a person of full age and capacity, it would be subject,

(a) in respect of a tort committed by any of its servants or agents;

(b) in respect of a breach of the duties that one owes to one’s servants or agents by reason of being their employer;

(c) in respect of any breach of the duties attaching to the ownership, occupation, possession or control of property; and

(d) under any statute, or under any regulation or by-law made or passed under the authority of any statute.  R.S.O. 1990, c. P.27, s. 5 (1); 2006, c. 21, Sched. F, s. 124.

Where proceedings in tort lie

(2) No proceeding shall be brought against the Crown under clause (1) (a) in respect of an act or omission of a servant or agent of the Crown unless a proceeding in tort in respect of such act or omission may be brought against that servant or agent or the personal representative of the servant or agent.  R.S.O. 1990, c. P.27, s. 5 (2).

Liability for acts of servants performing duties legally required

(3) Where a function is conferred or imposed upon a servant of the Crown as such, either by a rule of the common law or by or under a statute, and that servant commits a tort in the course of performing or purporting to perform that function, the liability of the Crown in respect of the tort shall be such as it would have been if that function had been conferred or imposed by instructions lawfully given by the Crown.  R.S.O. 1990, c. P.27, s. 5 (3).

Application of enactments limiting liability of servants of the Crown

(4) In a proceeding against the Crown under this section, an enactment that negatives or limits the liability of a servant of the Crown in respect of a tort committed by that servant applies in relation to the Crown as it would have applied in relation to that servant if the proceeding against the Crown had been a proceeding against that servant.  R.S.O. 1990, c. P.27, s. 5 (4).

Property vesting in the Crown

(5) Where property vests in the Crown independent of the acts or the intentions of the Crown, the Crown is not, by virtue of this Act, subject to liability in tort by reason only of the property being so vested.  2007, c. 7, Sched. 34, s. 1.

Same

(5.1) Property that vests in the Crown as a consequence of the dissolution of a corporation by the Crown is property that vests in the Crown independent of the acts or the intentions of the Crown within the meaning of subsection (5).  2007, c. 7, Sched. 34, s. 1.

Same

(5.2) Subsection (5) does not affect the liability of the Crown under this Act in respect of any period after the Crown, or a servant or agent of the Crown,

Note: On December 10, 2016, subsection 5 (5.2) of the Act is amended by striking out “Subsection (5) does not” at the beginning and substituting “Subsections (5) and (5.4) do not”. (See: 2015, c. 38, Sched. 7, s. 58 (1))

(a) in respect of personal property, begins to use the property for Crown purposes; or

(b) in respect of land, has registered a notice against the title to the property that it intends to use the property for Crown purposes.  2007, c. 7, Sched. 34, s. 1.

Notice

(5.3) Notice under subsection 1 (3) of the Escheats Act is not notice for the purposes of clause (5.2) (b).  2007, c. 7, Sched. 34, s. 1.

Note: On December 10, 2016, subsection 5 (5.3) of the Act is repealed and the following substituted: (See: 2015, c. 38, Sched. 7, s. 58 (2))

Notice

(5.3) Registration of the Crown on title under subsection 12 (1) of the Forfeited Corporate Property Act, 2015 or any registration on title to land by the Public Guardian and Trustee is not notice for the purposes of clause (5.2) (b). 2015, c. 38, Sched. 7, s. 58 (2).

No liability for investigation, etc.

(5.4) The Crown is not liable in tort by reason of any activity conducted either by the Crown or anyone acting on its behalf or with its approval to investigate any aspect of property that vests in the Crown in the manner described in subsection (5), to restore that property to productive use or to respond to complaints or to preserve public health and safety, or similar actions for similar purposes, including, without being limited to, the following:

1. Any action taken for the purpose of conducting, completing or confirming an investigation.

2. Any action taken for the purpose of securing, managing or maintaining the property, including action to,

i. ensure or end the supply of water, sewage services, electricity, artificial or natural gas, steam, hot water, heat or maintenance,

ii. secure the property by means of locks, gates, fences, security guards, cameras or other means, or

iii. repair, demolish or remove anything that is or might create a safety risk or a hazard.

3. Any action taken on the property for the purpose of responding to,

i. any danger to the health or safety of any person that results or may result from the presence of anything on the property or the presence or discharge of a contaminant on, in or under the property,

ii. any impairment or serious risk of impairment of the quality of the natural environment for any use that can be made of it that results or may result from the presence or discharge of a contaminant on, in or under the property, or

iii. any injury or damage or serious risk of injury or damage to any property or to any plant or animal life that results or may result from the presence or discharge of a contaminant on, in or under the property.

4. Any action taken under the Escheats Act.

5. Any other action prescribed by the regulations.  2007, c. 7, Sched. 34, s. 1.

Note: On December 10, 2016, subsection 5 (5.4) of the Act is repealed and the following substituted: (See: 2015, c. 38, Sched. 7, s. 58 (3))

No liability in tort

(5.4) Where property vests in the Crown in the manner described in subsection (5), the Crown is not liable in tort by reason of any act, neglect, default or omission of the Crown or anyone acting on its behalf or with its approval related to any of the following purposes or a purpose that is similar to the following purposes:

1. Investigating, securing, maintaining or managing the property.

2. Restoring the property to productive use, responding to complaints or preserving public health and safety.

3. Exercising any authority in respect of the property under the Escheats Act, 2015 or the Forfeited Corporate Property Act, 2015. 2015, c. 38, Sched. 7, s. 58 (3).

Regulations

(5.5) The Lieutenant Governor in Council may make regulations prescribing actions for the purposes of subsection (5.4).  2007, c. 7, Sched. 34, s. 1.

Note: On December 10, 2016, subsection 5 (5.5) of the Act is repealed. (See: 2015, c. 38, Sched. 7, s. 58 (3))

Limitation of liability in respect of judicial acts

(6) No proceeding lies against the Crown under this section in respect of anything done or omitted to be done by a person while discharging or purporting to discharge responsibilities of a judicial nature vested in the person or responsibilities that the person has in connection with the execution of judicial process.  R.S.O. 1990, c. P.27, s. 5 (6).

Section Amendments with date in force (d/m/y)

2006, c. 21, Sched. F, s. 124 - 25/07/2007

2007, c. 7, Sched. 34, s. 1 - 17/05/2007

2015, c. 38, Sched. 7, s. 58 (1-3) - 10/12/2016

Application of law as to indemnity and contribution

6. The law relating to indemnity and contribution is enforceable by and against the Crown in respect of any liability to which it is subject, as if the Crown were a person of full age and capacity.  R.S.O. 1990, c. P.27, s. 6.

Notice of claim

7. (1) Subject to subsection (3), except in the case of a counterclaim or claim by way of set-off, no action for a claim shall be commenced against the Crown unless the claimant has, at least sixty days before the commencement of the action, served on the Crown a notice of the claim containing sufficient particulars to identify the occasion out of which the claim arose, and the Attorney General may require such additional particulars as in his or her opinion are necessary to enable the claim to be investigated.

Limitation period extended

(2) Where a notice of a claim is served under subsection (1) before the expiration of the limitation period applying to the commencement of an action for the claim and the sixty-day period referred to in subsection (1) expires after the expiration of the limitation period, the limitation period is extended to the end of seven days after the expiration of the sixty-day period.

Notice of claim for breach of duty respecting property

(3) No proceeding shall be brought against the Crown under clause 5 (1) (c) unless the notice required by subsection (1) is served on the Crown within ten days after the claim arose.  R.S.O. 1990, c. P.27, s. 7.

Discovery

8. In a proceeding against the Crown, the rules of court as to discovery and inspection of documents and examination for discovery apply in the same manner as if the Crown were a corporation, except that,

(a) the Crown may refuse to produce a document or to answer a question on the ground that the production or answer would be injurious to the public interest;

(b) the person who shall attend to be examined for discovery shall be an official designated by the Deputy Attorney General; and

(c) the Crown is not required to deliver an affidavit on production of documents for discovery and inspection, but a list of the documents that the Crown may be required to produce, signed by the Deputy Attorney General, shall be delivered.  R.S.O. 1990, c. P.27, s. 8.

Designation of Crown in proceeding

9. In a proceeding under this Act, the Crown shall be designated “Her Majesty the Queen in right of Ontario” or “Sa Majesté du chef de l’Ontario”.  R.S.O. 1990, c. P.27, s. 9.

Service on the Crown

10. In a proceeding under this Act, a document to be served personally on the Crown shall be served by leaving a copy of the document with a solicitor in the Crown Law Office (Civil Law) of the Ministry of the Attorney General.  R.S.O. 1990, c. P.27, s. 10.

Trial without jury

11. In a proceeding against the Crown, trial shall be without a jury.  R.S.O. 1990, c. P.27, s. 11.

Interpleader

12. The Crown may obtain relief by way of an interpleader proceeding and may be made a party to such a proceeding in the same manner as a person may obtain relief by way of such a proceeding, or be made a party thereto, even though the application for relief is made by a sheriff or bailiff or other like officer, and the provisions relating to interpleader proceedings in the rules of court, subject to this Act, shall have effect accordingly.  R.S.O. 1990, c. P.27, s. 12.

Rights of parties and authority of court

13. Except as otherwise provided in this Act, in a proceeding against the Crown, the rights of the parties are as nearly as possible the same as in a suit between persons, and the court may make any order that it may make in a proceeding between persons, and may otherwise give such appropriate relief as the case may require.  R.S.O. 1990, c. P.27, s. 13.

No injunction or specific performance against Crown

14. (1) Where in a proceeding against the Crown any relief is sought that might, in a proceeding between persons, be granted by way of injunction or specific performance, the court shall not, as against the Crown, grant an injunction or make an order for specific performance, but in lieu thereof may make an order declaratory of the rights of the parties.

Limitation on injunctions and orders against Crown servants

(2) The court shall not in any proceeding grant an injunction or make an order against a servant of the Crown if the effect of granting the injunction or making the order would be to give any relief against the Crown that could not have been obtained in a proceeding against the Crown, but in lieu thereof may make an order declaratory of the rights of the parties.  R.S.O. 1990, c. P.27, s. 14.

Order for recovery of property not to be made against Crown

15. In a proceeding against the Crown in which the recovery of real or personal property is claimed, the court shall not make an order for its recovery or delivery but in lieu thereof may make an order declaring that the claimant is entitled, as against the Crown, to the property claimed or to the possession thereof.  R.S.O. 1990, c. P.27, s. 15.

Restriction on set-off and counterclaim

16. (1) A person is not entitled to claim a set-off or to make a counterclaim in a proceeding by the Crown for the recovery of taxes, duties or penalties and is not entitled, in a proceeding of any other nature by the Crown, to claim a set-off or make a counterclaim arising out of a right or claim to repayment in respect of any taxes, duties or penalties.

Idem

(2) Subject to subsection (1), a person may claim a set-off or make a counterclaim in a proceeding by the Crown if the subject-matter of the set-off or the counterclaim relates to a matter under the administration of the particular government ministry with respect to which the proceeding is brought by the Crown.  R.S.O. 1990, c. P.27, s. 16.

Crown defences

17. In a proceeding against the Crown, any defence that, if the proceeding was between persons, could be relied upon by the defendant as a defence to the proceeding or otherwise may be relied upon by the Crown.  R.S.O. 1990, c. P.27, s. 17.

No judgment by default against Crown without leave

18. In a proceeding against the Crown, judgment shall not be entered against the Crown in default of appearance or pleading without the leave of the court to be obtained on motion of which notice has been given to the Crown.  R.S.O. 1990, c. P.27, s. 18.

Proceedings in rem

19. Nothing in this Act authorizes a proceeding in rem in respect of any claim against the Crown, or the seizure, attachment, arrest, detention or sale of any property of the Crown.  R.S.O. 1990, c. P.27, s. 19.

Interest on judgment debt

20. A judgment debt due to or from the Crown bears interest in the same way as a judgment debt due from one person to another.  R.S.O. 1990, c. P.27, s. 20.

Prohibition of execution against the Crown

21. (1) Subject to subsections (2) and (3), no execution or attachment or process in the nature thereof shall be issued out of any court against the Crown.

Garnishments against Crown

(2) A garnishment that is otherwise lawful may issue against the Crown for the payment of money owing or accruing as remuneration payable by the Crown for goods or services, subject to section 7 of the Wages Act.

Garnishment for support or maintenance

(3) A garnishment may issue against the Crown for an amount owing or accruing under an order for support or maintenance, subject to section 7 of the Wages Act.

Limitation

(4) A garnishment is effective against the Crown only in respect of amounts payable on behalf of the administrative unit served with notice of garnishment to the person named in the notice of garnishment.

Regulations

(5) The Lieutenant Governor in Council may make regulations,

(a) prescribing the method of service on the Crown of notices of garnishment in place of the method prescribed in section 10;

(b) providing that a notice of garnishment issued against the Crown is not effective unless a statement of particulars in the prescribed form is served with the notice of garnishment;

(c) providing that a notice of garnishment issued against the Crown shall be deemed to be served on the day that is the number of days specified in the regulation after the actual date of service or after the effective date of service under the rules of court, as the case may be, but the regulation shall not specify more than thirty days as the number of days;

(d) prescribing the form of statement of particulars for the purposes of this section.

Definition

(6) In this section,

“administrative unit” means a Ministry of the Government of Ontario, a Crown agency within the meaning of the Crown Agency Act or the Office of the Assembly under the Legislative Assembly Act.  R.S.O. 1990, c. P.27, s. 21.

Payment by Crown

22. The Minister of Finance shall pay out of the Consolidated Revenue Fund the amount payable by the Crown,

(a) under an order of a court that is final and not subject to appeal;

(b) under a settlement of a proceeding in a court;

(c) under a settlement of a claim that is the subject of a notice of claim under section 7; or

(d) under a final order to pay made by a competent authority under a trade agreement that the Crown has entered into with the government of another province or territory of Canada, the government of Canada or any combination of those governments.  1994, c. 27, s. 51; 2009, c. 24, s. 32.

Section Amendments with date in force (d/m/y)

1994, c. 27, s. 51 - 09/12/1994

2009, c. 24, s. 32 - 15/12/2009

Conflict

23. Where this Act conflicts with any other Act, this Act governs.  R.S.O. 1990, c. P.27, s. 23.

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