Crown Immunity in Class Proceedings: The Injustice of Barring Institutional Historical Abuse Claims

• Author: Emily Leduc Gagné
• Pages: 127-159

127

Crown Immunity in Class Proceedings: The Injustice

of Barring Institutional Historical Abuse Claims

Emily Leduc Gagné

: This paper argues that class proceedings are an inappropriate

mechanism to right institutional historical wrongs perpetrated by the

Crown because the Crown is not in the same legal position as private

defendants. The Crown is immune from tort liability unless legislation

expressly creates such liability. As a consequence, institutional histor-

ical abuse claims arising prior to the enactment of such statutes are

often barred. Barring historical abuse claims prevents class proceedings

from achieving any of the legislation’s objectives: access to justice, judi-

cial economy, and behaviour modif‌ication. Class members are denied

access to justice because claims arising before the enactment of Crown

liability legislation are barred; judicial economy is not achieved because

class members’ claims must be divided by the year they arise, the stat-

ute under which they are brought, and the cause of action alleged; and

governments are not deterred because present and future taxpayers act

as government insurers. Part B of this paper discusses the nature of his-

torical abuse class proceedings against the Crown. Part C examines the

law of federal Crown immunity in the context of class proceedings. Part

D considers the similar trajectory of provincial Crown immunity and its

impact on class proceedings. Part E consists of a case study that begins

with a brief history of Indian Hospitals in Canada and then analyzes how

both federal and provincial Crown immunity would likely af‌fect the pro-

posed Indian Hospital class proceedings. Finally, Part F proposes out-of-

court redress programs as an alternate dispute resolution mechanism for

institutional historical abuse.

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CCAR 15-2.indb 128 3/2/2020 3:50:31 PM

129

CROWN IMMUNITY IN CLASS

PROCEEDINGS: THE INJUSTICE OF

BARRING INSTITUTIONAL HISTORICAL

ABUSE CLAIMS

Emily Leduc Gagné*

A. INTRODUCTION

The Crown has all the power of the state at its disposal. Federal and prov-

incial governments create laws, operate schools and hospitals, and estab-

lish infrastructure and policies that govern citizens’ daily lives.

So, what is the check on Crown power?

The judiciary.

Individuals can sue the attorneys general of Canada and the prov-

inces for wrongs the government commits against them. Yet the Crown

is not in the same legal position as private defendants. The Crown is

immune from tort liability unless legislation expressly creates such liabil-

ity. As a consequence, institutional historical abuse claims arising prior

to the enactment of such statutes are often barred. In these cases, courts

cannot fulf‌ill their role as a check on state power.

Crown immunity is based on the medieval notion that “the King

can do no wrong.”1 But Canadian history and case law proves that the

* Emily completed her Juris Doctor at The University of Ottawa, where she won the

Aird & Berlis LLP Prize and the Honorable Ray Lawson Scholarship for highest GPA

in her f‌irst year, and graduated magna cum laude with the Osgoode Society Prize for

Canadian Legal History for f‌inishing in the top ten in her Common Law class. In

August 2019, she began her articling year at McCarthy Tétrault LLP. Emily has

published case comments in Wolters Kluwer’s Tax Topics, received a SSHRC grant

for her Master of Fine Arts in Creative Writing at the University of British Columbia,

and was long listed for the national CBC Poetry Prize in 2018. She is currently

writing a legal biography.

1 Stephen Linstead, “The Law of Crown Privilege in Canada and Elsewhere, Part I”

(1968) 3 Ottawa Law Review 79 at 86.

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