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The Proceedings Against the Crown Act
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This version is current as of July 24, 2017.
It has been in effect since June 2, 2017.

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C.C.S.M. c. P140

The Proceedings Against the Crown Act

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:

Definitions

1           In this Act,

"agent", when used in relation to the Crown, includes an independent contractor employed by the Crown; (« représentant »)

"Crown" means Her Majesty the Queen in right of the Province of Manitoba; (« Couronne »)

"officer" in relation to the Crown, includes a minister of the Crown and any servant of the Crown; (« fonctionnaire »)

"order" includes a judgment, decree, rule, award, and declaration; (« ordonnance »)

"person" does not include the Crown; (« personne »)

"proceedings against the Crown" includes a claim by way of set-off or counter-claim raised in proceedings by the Crown, and interpleader proceedings to which the Crown is a party; (« procédures contre la Couronne »)

"rules of court" means rules of court made under the authority of The Court of Appeal Act or of The Queen's Bench Act. (« règles de pratique »)

Application of Workers Compensation Act

2(1)        This Act is subject to The Workers Compensation Act.

Saving clauses

2(2)        Except as otherwise provided in this Act, nothing in this Act

(a) subjects the Crown to greater liability in respect of the acts or omissions of an independent contractor employed by the Crown than that to which the Crown would be subject in respect of such acts or omissions if it were a private person; or

(b) subjects the Crown, in respect of highways or of drainage works, to any greater liability than that to which a municipality is subject in respect thereof; or

(c) affects any right of the Crown to intervene in proceedings affecting its rights, property, or profits; or

(d) subjects the Crown to proceedings under this Act in respect of a cause of action that is enforceable against a corporation or other agency owned or controlled by the Crown.

Limitations as to actions in respect of highways

2(3)        No action shall be brought against the Crown or an officer or agent of the Crown to enforce a claim for damages alleged to have been caused by an accident arising, after the coming into force of this subsection, from the condition of a highway including a sidewalk, or from the presence of a nuisance on a highway including a sidewalk, unless

(a) notice in writing of the accident, indicating the place where it occurred as well as the nature and alleged cause thereof is served upon, or mailed by registered mail to, the Deputy Minister of Infrastructure and Transportation within seven days of the happening thereof; and

(b) the action is brought within two years after the date of the accident;

and this subsection applies whether the alleged liability of the Crown or an officer or agent of the Crown arises as the result of misfeasance or of non-feasance.

Limitation as to actions in respect of drainage works

2(4)        No action shall be brought against the Crown to enforce a claim for damages alleged to have been sustained in respect of drainage works unless it is brought within two years after the date on which the damages were, or are claimed to have been, sustained.

Effect of want of notice

2(5)        Where death results from an accident to which subsection (3) applies, the want of the notice required under subsection (3), is not a bar to an action; and in all other cases the want or insufficiency of the notice required under subsection (3), is not a bar to an action, if the court before which the action is brought considers that there was reasonable excuse for the want or insufficiency.

S.M. 1995, c. 33, s. 19; S.M. 2001, c. 43, s. 54; S.M. 2013, c. 54, s. 55.

PART I

SUBSTANTIVE LAW

Right to sue the Crown without fiat

3           A claim against the Crown, that, if this Act had not been passed, might be enforced by petition of right, subject to the grant of a fiat by the Lieutenant Governor, may be enforced as of right by proceedings against the Crown in accordance with this Act, without the grant of a fiat by the Lieutenant Governor.

Liability of the Crown in tort

4(1)        Subject to this Act, and notwithstanding section 49 of The Interpretation Act, the Crown is subject to all those liabilities in tort to which, if it were a person of full age and capacity, it would be subject

(a) in respect of a tort committed by any of its officers or agents;

(b) in respect of any breach of those duties that a person owes to his servants or agents by reason of being their employer;

(c) in respect of any breach of the duties attaching to the ownership, occupation, possession, or control, of property; and

(d) under any statute, or under any regulation or by-law made or passed under the authority of any statute.

Liability of Crown for acts of its officers or agents

4(2)        No proceedings lie against the Crown under clause (1)(a) in respect of any act or omission of an officer or agent of the Crown unless the act or omission would, apart from this Act, have given rise to a cause of action in tort against that officer or agent or his personal representative.

Liability for acts of officers performing duties legally required

4(3)        Where a function is conferred or imposed upon an officer of the Crown as such, either by any rule of the common law or by statute, and that officer commits a tort in the course of performing or purporting to perform that function, the liability of the Crown in respect of the tort shall be such as it would have been if that function had been conferred or imposed solely by virtue of instructions lawfully given by the Crown.

Application of statutes limiting liability of officers of the Crown

4(4)        An enactment that negatives or limits the amount of the liability of an officer of the Crown in respect of any tort committed by that officer, in the case of proceedings against the Crown under this section in respect of a tort committed by that officer, applies in relation to the Crown as it would have applied in relation to that officer if the proceedings against the Crown had been proceedings against that officer.

Property vesting in the Crown

4(5)        Where property vests in the Crown by virtue of any rule of law that operates independently of the acts or the intentions of the Crown, the Crown is not, by virtue of this Act, subject to liability in tort by reason only of the property being so vested; but this subsection is without prejudice to the liability of the Crown under this Act in respect of any period after the Crown, or any person acting for the Crown, has in fact taken possession or control of the property, or entered into occupation thereof.

Limitation of liability in respect of judicial acts

4(6)        No proceedings lie against the Crown under this section in respect of anything done or omitted to be done by any person while discharging or purporting to discharge responsibilities of a judicial nature vested in him, or responsibilities that he has in connection with the execution of judicial process.

S.M. 2000, c. 26, s. 62.

Right to sue without statutory consent

5           A claim against an officer of the Crown or a corporation owned or controlled by the Crown that, if this Act had not been passed, might be enforced subject to the consent of an officer of the Crown, may be enforced as of right without that consent.

Application of law as to indemnity and contribution

6           The law relating to indemnity and contribution is enforceable by and against the Crown in respect of any liability to which it is subject, as if the Crown were a person of full age and capacity.

PART II

JURISDICTION AND PROCEDURE

Proceedings in the Court of Queen's Bench

7(1)        Subject to subsection (2), all proceedings against the Crown in Her Majesty's Court of Queen's Bench for Manitoba shall be instituted and proceeded with in accordance with The Queen's Bench Act.

Small claims proceedings

7(2)        Subject to the provisions of The Court of Queen's Bench Small Claims Practices Act, any proceeding against the Crown in the Court of Queen's Bench may be proceeded with in accordance with The Court of Queen's Bench Small Claims Practices Act.

S.M. 1996, c. 64, s. 11.

Appeals and stay of execution or proceedings

8           All enactments and rules of court relating to appeals and stay of execution or proceedings, with necessary modifications, apply to proceedings against the Crown.

Application of rules as to discovery, inspection of documents, etc.

9(1)        In proceedings against the Crown, the rules of court as to discovery and inspection of documents, examination for discovery, and interrogatories, apply in the same manner as if the Crown were a corporation except

(a) the Crown may refuse to produce a document or to make answer to a question on discovery or interrogatories on the ground that the production thereof or the answer would be injurious to the public interest; and

(b) the person who shall attend to be examined for discovery shall be an officer or employee of the Crown designated by the Attorney-General.

Application to court to change designated officer

9(2)        Where under clause (1)(b) the Attorney-General designates an officer or employee of the Crown as the person who shall attend to be examined for discovery and a litigant in the matter is dissatisfied with the designation by the Attorney-General, he may apply to the court seized of the matter for an order directing the Attorney-General or another officer or employee of the Crown to attend and be examined for discovery.

Designation of the Crown in proceedings

10          In proceedings under this Act, the Crown shall be designated: "The Government of Manitoba".

Service on the Crown

11          A document to be served on the Crown shall be served by leaving a copy with the Attorney-General, the Deputy Attorney-General, any Assistant Deputy Attorney-General, or a person employed by the government under the Attorney-General and designated by the Attorney-General for the purposes of this section.

Trial without a jury

12          In proceedings against the Crown the trial shall be without a jury.

Interpleader

13          The Crown may obtain relief by way of interpleader proceedings, and may be made a party to such proceedings in the same manner as a person may obtain relief by way of such proceedings or be made a party thereto, notwithstanding that the application for relief is made by a sheriff or bailiff or other like officer; and the provisions relating to interpleader proceedings under The Queen's Bench Act, subject to this Act, have effect accordingly.

Rights of parties and authority of court

14(1)       In proceedings against the Crown the rights of the parties are as nearly as possible the same as in a suit between person and person; and the court may make any order, including an order as to costs, that it may make in proceedings between persons, and may otherwise give such appropriate relief as the case may require.

Injunction or specific performance not to lie against the Crown

14(2)       Where, in proceedings against the Crown, any relief is sought that might, in proceedings between persons, be granted by way of injunction or specific performance, the court shall not, as against the Crown, grant an injunction or make an order for specific performance, but may, in lieu thereof, make an order declaratory of the rights of the parties.

Order for recovery of land not to be made against the Crown

14(3)       In proceedings against the Crown in which the recovery of land or other property is claimed, the court shall not make an order for the recovery of the land or the delivery of the property; but may, in lieu thereof, make an order declaring that the claimant is entitled, as against the Crown, to the land or property or to the possession thereof.

Limitation on orders or injunctions against the Crown

14(4)       The court shall not in any proceedings grant an injunction or make an order against an officer of the Crown if the effect of granting the injunction or making the order would be to give any relief against the Crown that could not have been obtained in proceedings against the Crown, but may, in lieu thereof, make an order declaratory of the rights of the parties.

Set-off or counter-claim

14(5)       No person may avail himself of any set-off or counter-claim in proceedings by the Crown for the recovery of taxes, duties, or penalties, or avail himself, in proceedings of any other nature by the Crown, of any set-off or counter-claim arising out of a right or claim to repayment in respect of any taxes, duties or penalties.

Restriction on set-off, counter-claim, etc.

14(6)       No person may, without leave of the court, avail himself of any set-off or counter-claim in proceedings by the Crown unless the subject matter of either the set-off or the counter-claim relates to a matter under the administration of the particular government department with respect to which the proceedings are brought by the Crown.

PART III

JUDGMENTS AND EXECUTIONS

Interest on judgments

15          A judgment debt due to or from the Crown bears interest in the same way as a judgment debt due from one person to another.

16(1) to (5)  [Repealed] S.M. 1996, c. 59, s. 102.

Prohibition of execution, etc., against the Crown

16(6)       No execution or attachment or process in the nature thereof shall be issued out of any court for enforcing payment by the Crown of money or costs.

S.M. 1996, c. 59, s. 102.

DOMESTIC TRADE AGREEMENTS

Definitions

16.1(1)     The following definitions apply in this section.

"award" means an award or order for costs or a monetary award or monetary penalty that

(a) is made under a provision of a domestic trade agreement; and

(b) is not subject to review or appeal, as determined in accordance with the provisions of the agreement. (« décision »)

"domestic trade agreement" means

(a) the Agreement on Internal Trade, signed in 1994 by the governments of Canada, the provinces, Yukon and the Northwest Territories, including any amendments to the agreement;

(b) the New West Partnership Trade Agreement entered into by the governments of British Columbia, Alberta and Saskatchewan on July 1, 2010, and which Manitoba agreed to join on November 17, 2016, including any amendments to the agreement; and

(c) a trade agreement prescribed by regulation under subsection (6) as a domestic trade agreement, including any amendments to such an agreement. (« accord sur le commerce canadien »)

Enforcement of awards

16.1(2)     If an award is made against the government under a domestic trade agreement and the agreement contains provisions providing for the award to be enforceable against the government as if it were an order of the Court of Queen's Bench, the person or party to the agreement entitled to the award may at any time file a certified copy of the award or the document containing the award with the Court of Queen's Bench.

Effect of filing

16.1(3)     On an award or a document containing an award being filed with the Court of Queen's Bench, the award has the same force and effect as if it were a judgment of the Court of Queen's Bench.

Certifying awards

16.1(4)     For the purpose of subsection (2), a copy of an award or a document containing an award must be certified as being a true copy by the appropriate official or body designated in the regulations.

Information sharing

16.1(5)     If information that is subject to any type of legal privilege, including solicitor-client privilege, or any kind of confidence, including Cabinet confidence, or that is supplied explicitly or implicitly in confidence, is disclosed pursuant to a domestic trade agreement, the disclosure does not waive or negate any privilege or confidence attached to the information, and the privilege or confidence continues for all purposes.

Regulations respecting domestic trade agreements

16.1(6)     The Lieutenant Governor in Council may make regulations

(a) prescribing agreements as domestic trade agreements for the purposes of clause (c) of the definition "domestic trade agreement" in subsection (1);

(b) designating officials or bodies for the purposes of subsection (4);

(c) defining a term used but not defined in this section;

(d) respecting any other matter that the Lieutenant Governor in Council considers necessary or advisable to carry out the intent of this section.

S.M. 1995, c. 32, s. 2; S.M. 2010, c. 9, s. 2; S.M. 2013, c. 28, s. 2; S.M. 2017, c. 7, s. 1.

PART IV

MISCELLANEOUS AND SUPPLEMENTAL

Right of Crown to take advantage of certain statutory provisions

17          This Act does not prejudice the right of the Crown to take advantage of the provisions of any Act of the Legislature; and, in proceedings against the Crown, any Act of the Legislature that could, if the proceedings were between persons, be relied upon by the defendant as a defence to the proceedings, whether in whole or in part, or otherwise, may, subject to any express provision to the contrary, be so relied upon by the Crown.

Financial provisions

18          Expenditure incurred by or on behalf of the Crown under this Act shall be defrayed out of the Consolidated Fund.

Common law petition of right abolished

19          Proceedings against the Crown by way of petition of right at common law are abolished.

Uniform construction

20          This Act shall be so interpreted and construed as to effect its general purpose of making uniform the law of the provinces that enact it.