Crown - David Scrimshaw on Diigo

30 Oct 09

CanLII - 2009 SCC 49 (CanLII)

When a supplier goes bankrupt, the tax authorities do not own GST and QST amounts that have been collected but not remitted or are collectible at the time of the bankruptcy. Instead, they have an unsecured claim against the supplier.

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Law BIA secured creditor Crown

deemed trusts intended to secure GST claims are ineffective in bankruptcy
situations

02 Sep 09

Law Society of Upper Canada v. Canada (Attorney General), 2008 CanLII 1666 (ON S.C.)

RCMP prosecution brief must be disclosed to LSUC investigators

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Law disclosure prosecution Federal-Provincial Immunity Crown

A police officer investigating a crime is not acting as a government
functionary or as an agent of anybody. He or she occupies a public office
initially defined by the common law and subsequently set out in various statutes
[14] The Crown does not have a
simple proprietary right in disclosure materials. [4] In
R. v. Stinchcombe 1991 CanLII 45 (S.C.C.), [1991] 3 S.C.R. 326
the court set out the Crown’s duty to disclose to the defence all material
evidence, and noted at page 331, “the fruits of the investigation” in possession
of the Crown “are not the property of the Crown for use in securing a
conviction, but the property of the public to be used to ensure that justice is
done.”
5 more annotations...
- courts other than the Federal Court may make orders about documents held by
  federal government institutions
- The Federal Crown is bound to produce documents in civil proceedings in Ontario
  courts when orders for same are made pursuant to the Rules of Civil
  Procedure
- the Crown does not have immunity under s. 17 of the Interpretation Act
  from such an order, in light of s. 8(2)(c) of the Privacy Act.
- [34] The notion of protecting the
  federal Crown from incursions by the province makes no sense when the federal
  government has said in s. 8(2)(c) of the Privacy Act that its obligations
  to keep information confidential is subject to court orders affecting those
  documents.
- the doctrine of interjurisdictional immunity does not apply so as to insulate
  the RMCP from an order for search and seizure.

17 Jun 09

Leclair v. Ontario (Attorney General), 2008 CanLII 32834 (ON S.C.)

C.A. We agree with the Master’s conclusion. In our view, it accords with the principles set forth by this court in Mattick Estate v. Ontario (Minister of Health), [2001] O.J. No. 21 http://www.canlii.org/en/on/onca/doc/2009/2009onca470/2009onca470.html

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Law Crown liability

it is not necessary to identify every person that might have been be involved
nor is it necessary to specify that litigation is contemplated or that a
particular cause of action is being considered. It is sufficient to
identify the “occasion’.
While there is no doubt that the investigation conducted by the police and/or a
pathologist plays an integral part of a decision made by the Crown Attorney to
prosecute an individual, they are distinct events
3 more annotations...
- A claim for malicious prosecution may be maintained even where there has been no
  fault in the investigation. Similarly, there can be a negligent
  investigation by either the police or by a pathologist without there being a
  claim for malicious prosecution.
- The Crown should not be left to guess what possible liability it might have in
  situations such as these.
- [15] Having failed to give proper
  notice at the outset, the law is clear that such a claim in any proceeding
  commenced without giving notice is a nullity. The sixty-day notice requirement
  cannot be abridged in any way. There is no discretion on the court to look
  beyond the technical requirement of s. 7 (1).2

23 Dec 08

Canada (Attorney General) v. Davis Pontiac Buick GMC (Medicine Hat) Ltd., 2008 FCA 378 (CanLII)

where an agency relationship exists, the procurement actions of the agent including the awarding of the contract are, as a matter of law, the actions of the principal and not the actions of the agent

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Law agent principal Crown

09 Oct 08

Attis v. Canada (Health), 2008 ONCA 660 (CanLII)

this is a case where Health Canada acted within its mandate in exercising its discretion regarding the enforcement of its regulatory regime. It had no interaction with the appellants in the course of that role. In those circumstances, in my view, the motion judge correctly concluded that it was plain and obvious that the appellants failed to frame a cause of action capable of establishing proximity.

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Law Crown Duty-of-Care Negligence

[73]
If I am wrong about the absence of a proximate relationship,
I would find that the imposition of a duty of care is negatived in any event
under the second stage of the Anns test by residual policy considerations
reflecting the broad societal and legal implications of imposing a duty of care:
if regulatory bodies are held liable in negligence, and are required to pay the
complainant’s damages, this could lead to decreased vigilance by the regulated
entity, in this case the manufacturer, importer, and distributor of the
product.
1 more annotations...
- Diminished deterrence for a regulated industry is to be avoided particularly
  when it is the industry, and not the regulator, that holds critical knowledge
  regarding product safety. Yet, as governments increase their regulatory
  functions, they may increasingly be seen as providing a service to members of
  the public upon which individuals may reasonably rely. This will
  particularly be the case if individuals are given governmental assurance,
  through websites, representations or otherwise, about matters such as the safety
  of products

22 Sep 08

Deputy Minister of Rev. (Que.) v. Rainville, 1979 CanLII 2 (S.C.C.)

Provincially legislated preference for unpaid taxes cannot make the Crown a secured creditor under the BIA. [Also known as Bourgault Estate v. MNR (1979), 30 N.R. 24 (SCC)]

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Law Bankruptcy Priority Crown

Its power to legislate concerning the provincial as well as federal Crown
privilege, in the case of bankruptcy, having been established by In re Silver
Brothers Ltd.[10], the
provision clearly indicates its intention to do so and the only question
remaining is as to the scope of the provision
It is abundantly clear that this was intended to put on an equal footing all
claims by Her Majesty in right of Canada or of a province except in cases where
it was provided otherwise, namely, para. (c), the levy, and para. (h), workmen's
compensation or unemployment insurance assessments and withholdings for income
tax.
3 more annotations...
- Paragraph (j) ends with the following words. "notwithstanding any
  statutory preference to the contrary". The purpose of this part of the
  provision is obvious. Parliament intended to put all debts to a government on an
  equal footing; it therefore cannot have intended to allow provincial statutes to
  confer any higher priority
- There is no need to consider the scope of the expression "claims of the Crown"
- It is quite clear that this applies to claims of provincial governments
  for taxes and I think it is obvious that it does not include claims not secured
  by Her Majesty's personal preference, but by a privilege which may be
  obtained by anyone under general rules of law, such as a vendor's or a builder's
  privilege

Azura Management (Hemlock) Corp. v. Hemlock Valley Resorts Inc., 2007 BCSC 1761 (CanLII)

Provincial rural property tax lien is not secured under BIA. No mention on whether it was registered or not.
No consideration of s. 87(1) but probably, the lien was not registered.

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Law Crown secured priority BIA property tax

[4]
The land owned by Hemlock Valley
Resorts Inc. was subject to taxation under the Taxation (Rural Area)
Act, R.S.B.C.
1996, c. 448. As of October 17, 2007, $68,189.20 remained owing for taxes,
penalty and interest under that Act.

15 Sep 08

Canada (Attorney General of) v. Vecchio, 1991 CanLII 476 (BC S.C.)

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Law Priority Crown Creditor

"There can be no doubt about the general principle that if there are a number
of creditors of equal degree and the Crown is one of them, then subject to
contrary legislation, the Crown is entitled to be paid in priority to the other
creditors:
However, there are a number of exceptions to the general principle.
4 more annotations...
- It may perhaps, be excluded by "necessary implication".
- It may not apply to the Crown when the Crown is engaged in a "commercial
  enterprise".
- The exception with which we are concerned in this case is the "benefit-burden"
  exception.
- If the Crown has taken advantage of legislation in order to attain its status as
  a creditor of the same degree as the other creditors over which it is asserting
  priority, then it cannot have the benefit of that legislation without also being
  subject to those burdens which are so closely associated with the benefits that
  they limit the scope of the very right that is being asserted

Carbopego-Abastecimento De Combustiveis S.A. v. AMCI Export Corporation; Nova Scotia Power Inc. v. AMCI Export Corporation, 2007 NSSC 118 (CanLII)

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Law Priority Crown Creditor

In this case, the applicant is a judgment creditor of AMCI pursuant to the
Creditors’ Relief Act, while NSPI is not. Furthermore, the registration
of notice of the judgment pursuant to s. 2A(1) prevails over any conflicting
provision of the Creditors’ Relief Act, the Judicature Act, or
the Civil Procedure Rules, pursuant to s. 2E

12 Sep 08

143858 Canada inc. v. Ginsberg Gingras & associés inc., 1994 CanLII 5522 (QC C.A.)

In the result, I conclude that Hydro-Quebec was a secured creditor in the bankruptcy, that since its security was provided in provincial legislation the sole purpose of which was securing a debt due to Hydro-Quebec as an agent of the Crown, and since the security was validly registered prior to the date of the assignment in bankruptcy by the debtor, the claim of Hydro-Quebec remained valid as a secured claim in the bankruptcy.

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Law bankruptcy crown Secured Creditor priority

Under
the Hydro-Quebec Act (R.S.Q.
ch. H-5),
Hydro-Quebec is an agent of the Crown in right of Quebec (Sec. 13) and
its property is Crown property (Sec. 14). Under Sec. 31(4)
of the Act, Hydro-Quebec had a privilege, for the price of power supplied to a
debtor exploiting an industrial or commercial undertaking, upon the moveable and
immoveable property of its debtor:

05 Sep 08

In re The Bankruptcy of General Fireproofing Co. of Canada Ltd., 1937 CanLII 2 (S.C.C.)

Chattels case.

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Law bankruptcy priority Municipal crown secured Property Tax

The right is operative notwithstanding the fact that title to the goods and
chattels is claimed by virtue of an execution against the person taxed or that
such title is claimed by purchase, gift, transfer or assignment from the person
taxed, or that such title is claimed by virtue of any assignment or transfer
made for the purpose of defeating distress; and the right is operative also in
certain cases where the title is claimed by relatives

29 Aug 08

Farm Credit Corp. v. Holowach (Trustee of), 1988 CanLII 143 (AB C.A.)

s. 41 of the Law of Property Act of Alberta which precludes deficiency claims against individuals in foreclosure actions applies to the Crown (and by implication, FCC)

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Law Crown Agent Secured Creditor immunity bankruptcy crown priority

10. The Corporation is, for all purposes of this Act, an agent of Her Majesty in
right of Canada.
All parties argued this appeal on the basis that the mortgagee was entitled to
raise any immunity of the federal Crown.
2 more annotations...
- the Court must give effect to the statutory direction that the Crown is not
  bound unless it is `mentioned or referred to' in the enactment."
- When the "federal Crown chooses to sue someone in relation to a matter that is
  not governed by any special prerogative rules, it must abide by the laws
  applicable to such matters in private disputes in the province in question":

27 Aug 08

Figliola v. Ontario (Director, Family Responsibility Office), 2008 ONCJ 366 (CanLII)

The case law appears to be clear that an order for costs can be made against the Director of the F.R.O. merely in the face of special and unusual circumstances.

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Law Costs Crown Agent

she was consenting to a refraining order being issued
[22]
The case law appears to
be clear that an order for costs can be made against the Director of the F.R.O.
merely in the face of special and unusual circumstances.
4 more annotations...
- [23]
  There have been
  numerous cases in which it has been determined that the F.R.O. is required to
  respond to correspondence and enquiries in a timely fashion.
- Director of the Family Responsibility Office is an agency of the state and that
  position carries with it a very high responsibility to do the job in a
  professional and fair manner, not just to the recipient but also to the support
  payor.
- The Director has a responsibility to respond to an officer of the court, who was
  making bona fide efforts to correct a wrong. To be met only with
  silence and a continuing enforcement process without any internal review to
  correct the mistakes of the Director cannot be acceptable or tolerated
- [26]
  It is simply not
  acceptable for the F.R.O. to ignore correspondence from counsel. It is
  incumbent on the legal department of the F.R.O. to respond in a timely fashion
  to any such correspondence. If it has been determined as a matter of
  expediency that correspondence directed to enforcement officers will not be
  brought the attention of legal counsel, then the F.R.O. must then be responsible
  for any sanctions directed by the court that may result in this type of
  policy. It is the duty of the F.R.O. to monitor and effectively to manage
  the support enforcement policy.

18 Aug 08

BCLRC Report on The Crown as Creditor: Priorities and Privileges

The use of the phrase "agent of Her Majesty" is rooted in the early history of the delegation of the Sovereign's executive authority.20 Thus by so describing a public corporation seems to clothe it with the mantle of the prerogative and remove any doubt about its status before the law | the Senate Standing Committee on Constitutional and Legal Affairs of the Parliament of the Commonwealth of Australia identified two reasons which, historically, have been advanced to support of Crown priority:2

the Crown is not able to choose its debtors, particularly in regard to taxation; and
the necessity to protect the reserves of the Crown and thereby maintain the financial stablility of the government / The Committee concluded that "while it is apparent that these reasons were once valid, it is clear that they no longer have the same force."3 These reasons also failed to persuade the Scottish Law Commission that the Crown should continue to enjoy some degree of priority over other creditors of a bankrupt

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Law Bankruptcy Crown Secured Creditor

10 more annotations...
- the Senate Standing Committee on Constitutional and Legal Affairs of the
  Parliament of the Commonwealth of Australia identified two reasons which,
  historically, have been advanced to support of Crown priority:²
  
  the Crown is not able to choose its debtors, particularly in regard to
  taxation; and
  the necessity to protect the reserves of the Crown and thereby maintain the
  financial stablility of the government
- The third category of Crown entity consists of those government authorities,
  often Crown corporations, that are involved in some economic activity or
  development. Crown corporations are a more recent phenomenon. They often involve
  the government in activities which were formerly performed by the private
  sector. Their function is more proprietary than regulatory
- Because a Crown corporation which is an agent of the Crown enjoys the special
  legal position of the Crown, the question of what is a Crown agent or agency has
  generated much litigation. To assist in this problem of classification the
  courts have suggested that the correct legal description of any subordinate of
  "Her Majesty," whether an individual or a corporation, is the ordinary legal
  classification of "agent" or "servant" of Her Majesty. The phrase "emanation of
  the Crown" has also been used¹⁴ but disapproved because it is "inappropriate
  and undefined" and tends to obscure the question
- The use of the phrase "agent of Her Majesty" is rooted in the early history of
  the delegation of the Sovereign's executive authority.²⁰ Thus by so
  describing a public corporation seems to clothe it with the mantle of the
  prerogative and remove any doubt about its status before the law
- It is clear from these criteria, as applied by the courts, that there is room
  for a great deal of judicial discretion. Professor Laskin, as he then was,
  recognized this vagueness in the law on Crown liability and suggested that the
  courts' view of policy is the most important factor in determining the status in
  question
- the Senate Standing Committee on Constitutional and Legal Affairs of the
  Parliament of the Commonwealth of Australia identified two reasons which,
  historically, have been advanced to support of Crown priority:²
  
  the Crown is not able to choose its debtors, particularly in regard to
  taxation; and
  the necessity to protect the reserves of the Crown and thereby maintain the
  financial stablility of the government.
- My Lords, I venture to interpose much doubt as to the application
  or extension,..."that where the King's and the subject's title concur the King's
  shall be preferred,"... to cases of ordinary commercial or industrial contracts
  entered into by a Government department in the course of the business or
  enterprise which it carries on. If a special statute confers upon such
  departments priorities, preferences, excuses for misfeasance or exemptions from
  liability, then of course the statute controls the situation. But if the
  propositions above cited should ever be used to justify or widen the royal
  prerogative by the inclusion of ordinary contracts into the range of privilege,
  then it is, I think, very important to realize that this dictum ... occurred in
  a case in which the nature of the debts, as Crown debts, and that in a very
  strict sense, was clear beyond all question
- the Senate Standing Committee on Constitutional and Legal Affairs of the
  Parliament of the Commonwealth of Australia identified two reasons which,
  historically, have been advanced to support of Crown priority:²
  
  the Crown is not able to choose its debtors, particularly in regard to
  taxation; and
  the necessity to protect the reserves of the Crown and thereby maintain the
  financial stablility of the government
- Food Controller v. Cork, in the House of Lords, it was
  stated:¹⁹
- The prerogative exists by virtue of the common law and thus is liable to be
  restricted or diminished by legislation. The emergence of parliamentary
  sovereignty significantly reduced the scope of the prerogative. Hence the
  reference to "residue" in the passage from Dicey quoted above. It has been held
  that once the exercise of a prerogative has been provided for by legislation,
  the prerogative is superseded and the statute governs the exercise of the
  right.⁶

Christian Brothers of Ireland in Canada (Re) [2004] O.J. No. 359

Equitable subordination

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Law Bankruptcy Crown Priority equitable-subordination

¶ 86 Crown
priority is a vestige of the prerogative powers of the Crown, which arise at
common law. In essence, it provides that "when the rights of the Crown come in
conflict with the right of a subject in respect to payment of debts of equal
degree, the right of the Crown must prevail":
It is argued that Crown priority can only be defeated either by statutory
abolition or by demonstrating that the nature of the debt held by the Crown is
of a lesser degree than that of the other creditors.
22 more annotations...

The debt of the Christian Brothers to the Claimants and its debt to the
Government for the Contribution Claims and, potentially, for the Third Party
Claims, are of equal degree since they are all unsecured claims

the reasoning of Lord Shaw of Dunfermline in Food Controller
and Others v. Cork [1923] A.C. 647 (H.L.), where, at p. 666, Lord Shaw said:

My Lords, I venture to interpose much doubt as to the
application or extension of the expression used by Macdonald C.B. "that where
the King's and the subject's title concur the King's shall be preferred," and
the modernization of it given by Lord Macnaghten, to cases of ordinary
commercial or industrial contracts entered into by a Government department in
the course of the business or enterprise which it carries
on

He concluded, at 667-668:

How is this a Crown debt?
It springs out of no power vested in the Crown by way of the imposition of a
duty or a tax. It is not in the ordinary enumeration of debts incurred for the
service of the country. It is an instance simply of a debt arising under
ordinary transactions of principal and agent .... The debt arises purely in
commercio

The sentiments of Lord Shaw of Dunfermline have found favour in certain western
Canadian cases: see The Queen v. Workmen's Compensation Board et al. (1962), 36
D.L.R. (2d) 166, affirmed in part on other grounds 40 D.L.R. (2d) 243, [sub nom.
R. (Provincial Treasurer) v. Workmen's Compensation Board et al.] (Alta. C.A.);
Alberta Government Telephones v. Selk, [1974] 4 W.W.R. 205 (Alta. Dist. Ct.). In
Manitoba Hydro v. Dvorak (1980), 119 D.L.R. (3d) 173
however, the Manitoba Court of Appeal declined to accept that view in the
circumstances of a specific provision in the Bankruptcy Act which excluded the
application of a Part of the Act to debts owing to Her Majesty (of which
Manitoba Hydro was held to be an agent
however, the Manitoba Court of Appeal declined to accept that view in the
circumstances of a specific provision in the Bankruptcy Act which excluded the
application of a Part of the Act to debts owing to Her Majesty (of which
Manitoba Hydro was held to be an agent
nonetheless, Freedman C.J.M., with whom Matas J.A. concurred, expressed the view
that "there may be cases in which we will be called upon to consider whether the
principle set forth by Lord Shaw of Dunfermline in Food Controller et al. v.
Cork ... should be applied"
Here, the substance of the Government's claim in the Estate is by way of a claim
for contribution or indemnity in relation to a liability to which both the
Christian Brothers and the Crown are exposed as a result of abuse inflicted on
young boys. It is even more removed than a strictly commercial debt from the
exercise of a power vested in the Crown "by way of the imposition of a duty or a
tax". What could be the policy rationale for preserving Crown priority in
relation to such a tainted claim, particularly when the contest is between the
Crown and the very victims of the acts that give rise to the claims in the first
place? I can see little rationale for doing so

It is important to remember that the Crown can never
participate equally with other creditors in a liquidation. Because of Crown
priority, the Crown either ranks ahead of claims of equal degree or its claim is
deemed to be of a lesser degree in which case it ranks behind other creditors.
The Crown's claims are either superior or inferior but never pari
passu.

¶ 98 In the end, I
decline to rule on the issue of Crown priority because it is neither necessary
nor helpful in the circumstances to do so, and might well simply engender
further litigation. Even if the Government's claims do not have priority, but
must rank pari passu with those of the Claimants, the Government's claims would
pose a considerable problem for the Liquidator. Hence the need for the
Liquidator to make a deal with the Government would continue
Equitable Subordination
¶ 101 Mobile Steel
articulated three requirements for a successful claim of equitable
subordination: (a) the Claimant must have engaged in some type of inequitable
conduct; (b) the misconduct must have resulted in injury to the creditors of the
bankrupt or conferred an unfair advantage on the Claimant; and (c) equitable
subordination of the claim must not be inconsistent with the provisions of the
bankruptcy statute
A second line of exception to the "first in time" rule is provided by equity. In
Spence on Equitable Jurisdiction of the Court of Chancery, the author identified
the "first in time" rule as "the general rule" (vol. 2, at p. 727). However, he
stated that the rule was qualified by the notion of "the better equity" and that
"the circumstance of priority of time alone does not give a better equity"

In Snell's Principles of Equity, 29th ed. by P.V. Baker and P.
St. J. Langan (London: Sweet & Maxwell, 1990) the authors explain (at p. 57)
the circumstances in which the holder of a prima facie priority can lose
it:

A person with a prima facie claim to priority for his interest
may lose it through his own misconduct. The owner of a legal interest may be
postponed to a subsequent equitable interest owing to his fraud, or by estoppel,
or through gross negligence; and the owner of a prior equitable interest may be
postponed if his conduct is inequitable

I find that on the facts the Court could apply the doctrine to the Government's
Contribution and Third Party Claims, and I have little doubt -- based on the
equitable principles outlined above and the lack of any governing statutory
regime to the contrary -- that the Winding-up Court has the jurisdiction to do
so
¶ 104 Like the
argument in favour of holding there is no Crown priority in the circumstances of
this case, the equitable subordination argument is attractive, too.
on the facts the Court could apply the doctrine to the Government's Contribution
and Third Party Claims, and I have little doubt -- based on the equitable
principles outlined above and the lack of any governing statutory regime to the
contrary -- that the Winding-up Court has the jurisdiction to do so. However,
like the Crown priority argument as well, I am not satisfied that it is
equitable or appropriate to apply subordination principles in the circumstances
and to refuse to approve the Government Agreement on that basis. I come to this
conclusion because I do not think the application of equitable subordination
will solve the problem
However, like the Crown priority argument as well, I am not satisfied that it is
equitable or appropriate to apply subordination principles in the circumstances
and to refuse to approve the Government Agreement on that basis. I come to this
conclusion because I do not think the application of equitable subordination
will solve the problem
However, like the Crown priority argument as well, I am not satisfied that it is
equitable or appropriate to apply subordination principles in the circumstances
and to refuse to approve the Government Agreement on that basis. I come to this
conclusion because I do not think the application of equitable subordination
will solve the problem
the Crown is not free to assert a claim in a winding-up proceeding and then take
the position that the Winding-up Court does not have jurisdiction or the
constitutional authority to deal with any objections contesting its claim
If the Crown seeks to participate in, and benefit from, the winding-up
proceedings, it exposes itself to the jurisdiction of the Court under the
Winding-up and Restructuring Act to determine any contestation relating to its
claim, for purposes of the liquidation
¶ 111 The concept
of subordination in relation to the Assigned Claims is problematic. The Assigned
Claims are not claims of the Government against the Christian Brothers; they are
the claims of the 1996 Claimants against the Christian Brothers. They are before
the Court only because the Liquidator treated the claim filed by the Government
in this regard as a claim on behalf of the 1996 Claimants, and sent them a
statutory declaration to complete. A claim cannot be subordinated to itself. To
subordinate the Assigned Claims would be tantamount to setting aside what appear
to be valid contractual agreements between the Claimants and the Government.
Nothing before this Court would justify such a step

14 Aug 08

Ibew v. Alberta government telephones, 1989 CanLII 79 (S.C.C.)

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Law Crown Immunity

Ontario v. Fine's Flowers Ltd., 1993 CanLII 967 (ON C.A.)

Overtaken by amendment to CCAA

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Law Crown Immunity

It is conceded that there is no specific provision in the Act binding the
Crown.

Syndicat professionnel des ingénieurs d'Hydro-Québec v. Hydro-Québec ( C.A. ), 1995 CanLII 3598 (F.C.A.)

Hydro-Québec had not waived its immunity by signing a collective agreement with employees working in the nuclear power industry and by obtaining authority to operate its nuclear plant from the Atomic Energy Control Commission. There was not a sufficiently close nexus between the benefit received by Hydro-Québec in obtaining an operating licence and the duty of being subject to the Board's jurisdiction as regards Part I of the Canada Labour Code

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Law Crown immunity

Canada (Procureur général) c. Entreprises Jean Mercier ltée, 1992 CanLII 2914 (QC C.A.)

French only.

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Law Crown immunity

Québec (Société des alcools) c. Steinberg inc., 1992 CanLII 3607 (QC C.A.)

Necessary Implication: The Crown may be bound, as has often been said, "by necessary implication". If, that is to say, it is manifest from the very terms of the statute, that it was the intention of the legislature that the Crown should be bound, then the result is the same as if the Crown had been expressly named

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Law Crown Immunity CCAA

This appeal raises once more the question of whether, in the light of section 17
of the Interpretation Act (Statutes of Canada, Chapter I-21), a statute is
binding on an agent of the Crown
Three points of law are clear after AGT which may not have been clear before:
(1) Section 17 of the Interpretation Act applies to the Crown in right of a
province as well as in right of Canada; (2) the immunities and privileges of an
agent of the Crown are the same as those of the Crown; (3) there is no
"commercial activities exception" to Crown immunity.
8 more annotations...
- 1. NECESSARY IMPLICATION
- The Crown may be bound, as has often been said, "by necessary implication". If,
  that is to say, it is manifest from the very terms of the statute, that it was
  the intention of the legislature that the Crown should be bound, then the result
  is the same as if the Crown had been expressly named
- any exception to the normal Crown immunity rule based on a necessary implication
  should be narrowly confined
- As a result, an intention to bind the Crown is not to be inferred merely from
  the fact that the provisions of a statute will not operate smoothly or
  efficiently if the Crown is not bound, nor from the fact that if the Crown is
  not bound the statute will have only a limited application
- the words "mentioned or referred to" in s. 16 are capable of encompassing: (1)
  expresly binding words ("Her Majesty is bound"); (2) a clear intention to bind
  which, in Bombay terminology, "is manifest from the very terms of the statute",
  in other words, an intention revealed when provisions are read in the context of
  other textual provisions, as in Ouellette, supra; and, (3) an intention to bind
  where the purpose of the statute would be "wholly frustrated" if the government
  were not bound, or, in other words, if an absurdity (as opposed to simply an
  undesirable result) were produced. These three points should provide a guideline
  for when a statute has clearly conveyed an intention to bind the Crown.
- Based on dicta in Eldorado(2), it might be argued that SAQ would forfeit any
  immunity if it acted ultra vires, beyond its authority, but there is no
  suggestion of that in this case.
- It may be difficult to see the logic and the
  equity of a situation where the SAQ, as a merchant, competes with other
  creditors of an insolvent Steinberg using advantages not accorded to them,
  but we must apply the law as we find it.
- In any event, assessment of the desirability of a commercial exception is for
  Parliament to make, if so inclined, as was the case with the State Immunity Act,
  supra, in respect of sovereign immunity

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