Liability of the Crown: Are Immunities Unnecessary in Québec?

Nicholas Jobidon, University, My, University, My
2020
The Crown has extensive powers and can sometimes cause injuries to those it governs through the use or misuse or these powers. Since there is no legislative scheme in place in Québec to create a specific regime for compensating these injured parties, the Crown is generally subject to the law of the land just like any other subject of the law. The separation of powers in Canada limits the power of the courts to review and evaluate Crown actions. The deference they must exercise in this review
more » ... e in this review ensures that courts do not encroach on the legislative's will to endow the Crown with its sovereign powers. This deference is relatively well understood in public law when it comes to declaring whether the use of these sovereign powers by the Crown was legal and within its mandate. The same principle of deference also applies to civil lawsuits in compensation. In Québec, the current form this deference takes is that the Crown is immune from normal rules of civil liability when it uses its core policy powers (such as regulatory powers), unless these powers were exercised in bad faith. This judicial scheme, however, appears unnecessary and needlessly complex. The definition of bad faith has been construed by the Supreme Court to include any action that would constitute a gross fault under the Québec civil law regime; in practice, the exercise of policy powers would command deference even if the standard was that of a simple fault. This means that the immunity only protects the Crown from injuries caused by the sort of action that it would not be liable for under the private law regime, making the immunity unnecessary.
doi:10.20381/ruor-24645 fatcat:gfywjprvqjef7gj2izhdpmq7ni