Law Times

PAGE 10 FOCUS September 7, 2010 • Law timeS Ontario has made class actions against the Crown for claims Dolmage paves way for cases against Crown A BY JULIUS MELNITZER For Law Times recent decision of the Ontario Superior Court of Justice in Dolmage v. of breach of fi duciary duty that occurred before 1963 viable. "Th e case stands for the proposition that the Crown is subject to the same claims as a citizen unless there is a clear statutory indication that creates immunity from such liability," says Kirk Baert of Toronto's Koskie Minsky LLP, who with colleague Celeste Poltak represented the plaintiff in Dolmage. It's not that Justice Maurice Cullity's judgment, released on July 28, provides an easy route Inside you will find: • an up-to-date alphabetical listing of more than 57,000 barristers, solicitors and Quebec notaries, corporate counsel, law firms and judges in Canada; • contact information for the Supreme Court of Canada, the Federal Court of Canada, Federal Cabinet Ministers, departments, boards, commissions and Crown corporations; • legal and government contact information related to each province for the Courts of Appeal, Supreme Courts, County and District Courts, Provincial Courts, law societies, law schools, Legal Aid, and other law-related offices of importance. More than a phone book Hardbound • Published February each year • On subscription $141 • P/C 0600140999 One-time purchase $157 • P/C 0600010999 • ISSN 0084-8573 CD-ROM • On subscription $214 • P/C 0600260999 One-time purchase $229 • P/C 0600210000 to his conclusions. "Th e reasons are a road map — albeit one as convoluted as can be imagined and one that goes all the way back to the Magna Carta — that clarifi es the right of citizens to sue the Crown for pre-1963 breaches of fi duciary duty," says Alan Farrer, managing partner at Th omson Rogers. Th e case arose from allega- tions of mistreatment between 1876 and 2009 of class mem- bers at the Huronia Regional Centre residential facility for individuals with developmental disabilities. Th e Crown argued it was immune from liability for all claims for breach of fi - duciary duty that arose before Sept. 1, 1963, when the Pro- ceedings Against the Crown Act came into force. As Cullity saw it, however, the question was a complicated one. "Th e diffi culty relates to the For a 30-day, no risk evaluation call 1.800.565.6967 Canada Law Book, a Thomson Reuters business. Prices subject to change without notice, to applicable taxes and shipping and handling. claims for breach of fi duciary duty," he wrote. "Such claims are not mentioned specifi cally in the act and, unless they fall within section 3 [which allows claims that could be enforced by peti- tion of right before passage of the legislation], there is nothing in the statute to authorise them to be asserted and enforced in proceedings against the Crown. "Th e possible consequences would appear to me that pro- ceedings for breach of fi duciary duty either are brought outside — and not under — the act and are not subject to [it]; or cannot be brought unless they could have been enforced by petition of right if [the act] had not been enacted." Adding complexity to the CLL ad - 1/4 _ 3X.indd 1 8/27/10 10:39:02 AM Justice Maurice Cullity's reasons are a road map 'that clarifies the right of citizens to sue the Crown for pre-1963 breaches of fiduciary duty,' says Alan Farrer. issue was the fact that breach of fi duciary duty against the Crown was an unknown cause of action when the act came about. Robert Ratcliff e of the Ministry of the Attorney Gen- eral's Crown law offi ce submit- ted, therefore, that the claim wasn't one that could have been enforced by petition of right before passage of the leg- islation. But Cullity disagreed. Th e question appropriate wasn't Class Actions in Canada Everything you need to successfully initiate, defend or manage a class action lawsuit This respected and comprehensive guide to bringing and defending class actions provides detailed analysis emphasizing the practical and tactical, as well as identifying pitfalls. This important work provides examples and direction through analysis of hundreds of class action cases litigated across Canada, as well as a comprehensive bibliography of class action articles. This well-organized, easy-to-read text features: • • • • ORDER your copy today Looseleaf & binders (2) • $289 Releases invoiced separately (2-3/yr) P/C 0378030000 • ISSN 1206-2375 • • practical direction and commentary by an expert in class action litigation guidelines for drafting appropriate class action pleadings expert guidance on the effective use of class actions in different legal areas, such as securities, environmental law and product liability analysis of case law regarding current topics including pre-certification motions, jurisdiction, costs and funding detailed Canada-wide coverage including the full text of all class action legislation and local rules from across the country analysis of all significant case law in Canada (including Quebec) whether a court sitting in 1963 would have granted a petition of right for a claim for breach of fi duciary duty but rather "to ask what the position would now be if the act had not been passed." For the purposes of the mo- tion, the Crown accepted that it had no immunity from li- ability for breaches of fi duciary duty that occurred after the act's passage. "If it is now the law that claims for damages against the Crown for breaches of fi - duciary can be made, it must follow that declaratory relief is also available in respect of such breaches," Cullity wrote. It was inconceivable, he add- ed, that the petition-of-right procedure wouldn't have been adapted to accommodate judi- cial recognition of the Crown's new fi duciary duties. "Such a development would be far less momentous than the rejection of Crown immunity for direct liability in tort that has otherwise deprived the rule that the Crown can do no wrong of any continuing infl u- ence," he wrote. According to Baert, Dolmage opens the Crown to claims that couldn't have been advanced to date. "Th e reason why we didn't canadalawbook.ca For a 30-day, no-risk evaluation call: 1.800.565.6967 Canada Law Book, a Thomson Reuters business. Prices subject to change without notice, to applicable taxes and shipping & handling. LT0906 www.lawtimesnews.com have many decisions on this issue was because it was only the advent of class actions that made these cases possible," he says. "So whether or not the Crown had legal immunity, it had eff ective immunity be- cause of the practical barriers to bringing these cases on an individual basis regardless of their merits." LT W ard Branch

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