Perils of politics (Alberta's Court of Appeal issues a split decision over the liability of provincial politicians in hospital negligence claims).

• Author: Mitchell, Teresa

The Alberta Court of Appeal recently issued an interesting decision about the personal legal liability of politicians for the decisions they make in the course of governing.

Four different statements of claim were filed in the Alberta Court of Queen's Bench. Each of the defendants claimed damages for personal injury, and, in one case, death, as a result of the medical care and treatment they received in Alberta hospitals. Each claim alleged that Ralph Klein, Premier of Alberta, and Shirley McLellan, then Minister of Health in the provincial cabinet, were negligent in their decision-making concerning funding for health care, and, as a result of their negligence, the plaintiffs suffered harm.

The politicians asked the court to strike out the claims against them personally. They argued that it is improper to sue officers of the Crown personally, that only the Crown should be named as a party, and the actions against them were "scandalous, frivolous, and vexatious", which is standard legal jargon for "not the done thing." Initially, they were successful. Justice Lomas of the Court of Queen's Bench ordered that they be removed from the lawsuits. The plaintiffs appealed this decision and the matter ended up before the Alberta Court of Appeal.

The Court of Appeal issued a split decision, two to one, in favour of the plaintiffs and reinstated the court actions against the Premier and the Minister of Health. The Court dealt first with the ground that it is improper to sue government officials personally. Justice Anne Russell noted that it is well established that the common law binds public officials as individuals and not specifically as government actors. "... in determining the liability of a Crown servant or officer, no distinction should be made between the individual's `official' versus `unofficial' actions. No matter the role of the tortfeasor, liability will always fall `first and foremost' personally upon that individual." The Court said this principle of individual responsibility falls in favour of naming defendants personally. The majority decision also rejected an argument that because the politicians worked for the Crown, only the Crown should be named in the suit. The decision says "Although the Crown will assume liability for torts committed by its officers and agents in connection with their official roles, s. 5(2) of the Act (Proceedings Against the Crown Act), does not immunize Crown officers from suit. In fact, Madame Justice...