|This is an unofficial archived version of The Proceedings Against the Crown Act|
as enacted by SM 1987-88, c. 9 on July 17, 1987.
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R.S.M. 1987, c. P140
The Proceedings Against the Crown Act
|Table of Contents|
HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:
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")
This Act is subject to The Workers Compensation Act.
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.
No action shall be brought against 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 Highways 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 arises as the result of misfeasance or of non-feasance.
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.
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.
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.
Subject to this Act, and notwithstanding section 14 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.
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.
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.
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.
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.
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.
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.
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.
JURISDICTION AND PROCEDURE
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.
All enactments and rules of court relating to appeals and stay of execution or proceedings, with necessary modifications, apply to proceedings against the Crown.
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.
Where under clause (l)(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.
In proceedings under this Act, the Crown shall be designated: "The Government of Manitoba".
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.
In proceedings against the Crown the trial shall be without a jury.
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.
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.
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.
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.
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.
No person may avail himself of any setoff 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.
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.
JUDGMENTS AND EXECUTIONS
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.
Subject to this Act, where, in proceedings against the Crown, an order for costs or any other order is made by a court against the Crown, the proper officer of the court shall, on an application in that behalf, issue a certificate thereof.
If the court so directs, a separate certificate shall be issued with respect to the costs, if any, ordered to be paid to the applicant.
A certificate issued under this section may be served upon the person for the time being named in the record as the solicitor, or as the person acting as solicitor, for the Crown.
If the order provides for the payment of money by way of damages or otherwise, or of costs, the certificate shall state the amount so payable; and the Minister of Finance shall, subject as hereinafter provided, pay out of the Consolidated Fund without further legislative authority than this subsection to the person entitled, or to his order, the amount appearing by the certificate to be due together with the interest, if any, lawfully due thereon.
The court by which such an order is made or a court to which an appeal against the order lies may direct that, pending an appeal or otherwise, payment of the whole of the amount so payable, or any part thereof, shall be suspended; and, if the certificate has not been issued, may order the direction to be inserted therein.
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.
MISCELLANEOUS AND SUPPLEMENTAL
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.
Expenditure incurred by or on behalf of the Crown under this Act shall be defrayed out of the Consolidated Fund.
Proceedings against the Crown by way of petition of right at common law are abolished.
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.