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Suing the Government

by Mary MacGregor

written 1996, published in Beef in B.C. January/February 97

In my years of practising law, I have been asked many times about the possibility of suing the government over some objectionable government act.

Historically, the government was immune from being sued. It was considered an extension of the King or Queen and could not even be sued without its consent. The legal theory was that “the King can do no wrong”.

Times have changed. Provincial and federal governments have passed legislation allowing lawsuits against government without government consent. This article is about the current state of the law, relating to negligent actions by government officials.

Negligence is a “tort”. A “tort” is a civil wrong, like trespass, or defamation, committed against a person. A crime is also an act of wrongdoing, but it offends the state as well as the victim. Assault, for example, is a crime—citizens beating up on each other is a threat to the peace of the state. The crime will be punished by a fine, or imprisonment. The same act, the assault is also a tort--a wrong against the individual who is attacked. That individual can sue and be awarded damages as compensation for the wrong that he has suffered.

Government officials have long been responsible for their intentional improper conduct.

Government can now be made liable for damages resulting from certain types of negligent conduct by government officials.

Immunities

Certain types of government action cannot be attacked on the basis that they are negligent. For example, legislation cannot be challenged on the basis that government was negligent in creating those provisions.

Government officials also make “judicial, or quasi-judicial” decisions. Those are decisions which are made using procedures and criteria similar to those that judges would use—a formal process, and specific information on which the decision can be based. For example, a person delegated by the Minister of Forests to hear an appeal under the Range Act is making a quasi-judicial decision.

Judicial or quasi-judicial decisions can be challenged under the Judicial Review Procedure Act, mainly to ensure that the decision is not based on factual, legal, or jurisdictional errors. Was a fair procedure used to come to the decision? The nature of the outcome, the correctness of the decision itself, is not the central issue in a Judicial Review Procedure Act review.

The rationale of the courts with respect to reviewing such decisions, is that the legislature intended to appoint someone with special expertise to make this particular decision or decide this particular issue, and the decision that the person makes will not be overturned, given a fair procedure. If the procedure was not fair, the reviewing judge will usually refer the decision back to the decision-maker to make the decision using a proper procedure, or disregarding information that the decision-maker should not have referred to in coming to the reviewed decision. The reviewing judge will not simply make a new decision.

Negligent Conduct

Only certain types of negligent government conduct will result in an award of damages.

The general rule is that there is no duty owed by governments to individual citizens to take care in making government POLICY decisions. There is a duty owed to take care in government OPERATIONAL decisions.

It is can be difficult to distinguish “policy” and “operational” decisions.

To illustrate which is which, here is an example from a British Columbia case. Government made a decision to supplement winter feed for elk. The winter feeding program severely affected a local rancher. The judge decided that no damages flowed from the decision to provide supplemental winter feed. That was a government policy decision about maintenance of a specific elk population. However, government could have been found negligent in its method of implementing that decision. In other words, depending on how the supplemental winter feeding was done, the government could have been responsible for any harm to a private individual which should have been foreseen and avoided by using a different feeding site or method. Negligence in the method of implementing the policy decision is compensable, provided that there is evidence of the negligence tendered at trial.

Just v. British Columbia

In recent years there has been a succession of cases over highway maintenance. In these cases, there has been an accident causing injury or death, and both the government and the Ministry of Transportation and Highways have been sued.

Just v. British Columbia went to the Supreme Court of Canada. Both the Supreme Court of British Columbia and the British Columbia Court of Appeal had said that the system of highway maintenance and inspection was a policy decision, from which there could be no negligence duty.

The Supreme Court of Canada rendered its decision in 1990. It distinguished between two types of government activity: true policy decisions, and implementation.

Mr. Justice Cory explained the decision as follows:

True policy decisions should be exempt from tortious claims so that governments are not restricted in making decisions based upon social, political or economic factors. However, the implementation of those decisions may well be subject to claims in tort. [Just v. B.C. [1990] 1 WWR 385 at page 403].

…As a general rule, the traditional tort law duty of care will apply to a government agency in the same way that it will apply to an individual. In determining whether a duty of care exists, the first question to be resolved is whether the parties are in a relationship of sufficient proximity to warrant the imposition of such a duty. [Ibid at page 406].

The decision has been discussed in an article Tort Liability of Governments for Negligence written by The Honourable Justice Allen M. Linden, who (before his appointment as a judge) wrote the definitive Canadian text on the law of torts in Canada. Mr. Justice Linden writes:

Another way of looking at this issue is to say that the Court recognized that a government must be entitled to govern free from the restraints of ordinary tort liability. In short, it cannot be a tort for a government to govern. However, when a government is implementing policy by supplying services, that is, doing things for its people other than governing, it should be subject to ordinary negligence principles. … an immunity may be necessary, but it must be limited only to those functions of government that properly can be considered to be “governing”, and not extended to the other tasks of government that might be styled “servicing”. [Tort Liability of Governments for Negligence, The Honourable Justice Allen M. Linden, B.C. Branch of the Canadian Bar Association, Civil Litigation Section, March 1995, at page 17.]

Case Law After Just v. B.C.

Individual Canadians have sued governments successfully in several cases after Just.

In Swanson and Peever v. Canada ((1991) 124 N.R. 218), Canada paid compensation to the families of those killed in the crash of an airplane owned by Wapiti Aviation. Transport Canada was well aware of Wapiti’s past safety violations but did not take sufficient measures to force Wapiti to correct its system. There was evidence that a Transport Canada inspector had warned his superiors about Wapiti’s “total disregard for regulations, rights of others and safety of passengers” and said also that without intervention, “we are virtually certain to be faced with a fatality”.

In Brewer Brothers v. Canada (A.G.) ((1991) 8 CCLT (2d) 45), the Federal Court of Appeal decided that compensation should be paid to grain producers when the Canadian Grain Commission negligently allowed an elevator to operate without having posted adequate bond security required under the Canada Grain Act. The grain producers who delivered grain to the elevator lost money when the elevator went into receivership before paying them.

In Botting v. British Columbia ([1996] BCD Civ. 3083-03), the Supreme Court of British Columbia awarded damages to the family of a man who died crossing the Gold River bridge. The bridge was under repair at the time, leaving an unsafe situation. The truck was damaged entering the bridge, and stopped. The driver got out to see what was the problem, and fell into the river through a gap between the two spans under repair. The Court found that the government was negligent in designing and constructing the adjacent span in such a way as to cause the illusion, at night, that the span that the driver stepped onto was continuous through to the bridge railing.

And in Mochinski v. Trendline Industries Ltd. and B.C. ((1996) 29 CCLT (2d) 1), the British Columbia Court of Appeal awarded damages to injury to a driver resulting from an accident near Yakh. Despite efforts by the Ministry of Transportation and Highways and Trendline Industries Ltd., a block of ice fell from the face of a rock bluff onto the road in front of the vehicle, causing the driver to lose control and veer into a ditch beside the highway, suffering injury. The Court confirmed that both Trendline and the Ministry were jointly liable in negligence. The Court also said that there are certain responsibilities that the government cannot fully off-load or delegate to a contractor, even where the contractor has a contract with the Ministry which makes the contractor responsible for road maintenance.

There are also cases where the claimants were not successful. These cases are generally decided on the basis that there was no negligence on the part of government; or that the government decision which resulted in the harm was a policy decision rather than an implementation decision.

For example in Brown v. British Columbia ((1994) 19 CCLT (2d) 268), a motorist skidded on an icy road on Vancouver Island. The Supreme Court of Canada found a duty to maintain the road, but also decided that the government was exempt from ordinary negligence principles because it had made a decision to adopt a summer schedule of reduced service. The judge held this to be a policy, not an implementation, decision, involving “classic policy considerations of financial resources, personnel and…significant negotiations with government unions”.

In Pamaran v. Victoria (City) ([1996] BCD Civ. 3085-01), the Supreme Court of British Columbia dismissed a claim by a woman who fell on an uneven sidewalk in November. The claim was based on the allegation that the City was negligent in permitting a hazard to exist on a city sidewalk, failing to barricade the area or warn pedestrians, and so on. The City evidenced a policy which was to repair or patch only differences in sidewalk evaluation that are 35 mm or more, and presumably proved that that was the reason why the sidewalk had not been fixed.

Conclusion

Canada leads the way in permitting claims against government for negligent conduct. The United States, the United Kingdom, and Australia (all countries with similar legal systems) are less permissive. These countries apparently believe that the threat of negligence claims might so terrify civil servants as to bring paralysis to the decision-making processes of government.

The Canadian trend is towards increased liability by governments for their actions.