Chapter 4. Communications, Liability and Surveillance


4.6  Delegation and Crown Liability

One question that is usually raised in respect of crown liability is the question if there is any difference in crown liability based on a delegate being located in Quebec versus the rest of the provinces due to the differing legal systems? Are there any differences in the legal systems that could affect crown liability that a delegate should be aware of, and any implications in the performance of their duties as a delegate? In response we note that the Quebec Civil Code contains a concept which is very similar to the common law concept of tort which governs the rest of the Provinces. There are differences between Quebec and the rest of the provinces but it is believed that these do not raise any significant issues for delegates in Quebec. To assess what the differences are this has been review with lawyers who have studied both the civil law and the common law to try to find out what the differences are. These lawyers both agree that although the reasoning may be different between the two types of law as a practical matter, insofar as negligence is concerned, you would likely get the same result if the case is heard in Ontario, under the Common Law, or in Quebec, under the Civil Law. The only difference might be in the amount of damages given but as the government has an indemnification policy this would not normally be a problem.

Section 3 of the Crown Liability Act provides that the crown is liable in tort for damages where:

  1. an employee/agent of the crown commits a tort
     
  2. Where there is a breach of duty attaching to the occupation of the property (Occupier's liability)
     
  3. The crown is said to be "Vicariously" liable for actions of employees/agents
     
  4. The employee or agent may be personally liable.
     
  5. mention that negligence is the one you would normally be concerned with.

A tort is defined as a "Civil" as opposed to a "Criminal" wrong and the objective is to compensate a person who has been injured by the actions of others. There are numerous Types of Torts - example:

  1. Negligence (the one we would normally be concerned with)
     
  2. Slander
     
  3. False imprisonment
     
  4. Assault etc.

Standard of care is to be that of a reasonable person in a similar position. An engineer must perform to the standard of a reasonably competent engineer in the same circumstances. When considering the standard of care, one must consider the resources that were available to that person at the time.

To be found liable there must be:

  1. A duty of care owed to the person claiming negligence
     
  2. A breach of that duty of care
     
  3. A breached standard of care expected
     
  4. Person(s) has/have suffered damages
     
  5. Relationship between damages and negligent act

To be found Liable, all of the above conditions must be met. They are not mutually exclusive.

The award of delegation is usually provided through a letter/memo or job description outlining what powers have been delegated to you from the Minister. Whether a delegate is considered to be an agent will depend on:

  1. whether the person is acting on behalf of the Minister and not his employer (or himself).
     
  2. the nature and degree of crown control exerted over a person's performance of his/her functions
     
  3. whether the delegate sign a certificate /approval on behalf of the Minister

Legal assistance and indemnification is provided if the delegate/TCCA employee (even if the agent was found negligible):

  1. Acted within the scope of their duties
     
  2. Acted honestly and without malice
     
  3. Did not initiate the action

Where the employer/employee is notified of a possible claim, it is Treasury Board Policy to: (1) provide a Lawyer, and (2) pay any damages awarded against an employee.

Additional information on liability can be found in the Transport Canada publication TP 11825 titled "Liability through the exercise of Delegated Authority."

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