12
• july 12 , 2013
Focus
THE LAWYERS WEEKLY
BUSINESS LAW
Court imposes limits on Crown immunity
Chris MacLeod
Ruzbeh Hosseini
Lantheus Medical Imaging
IadanInc.Ltd.
v. Atomic Energy of Can[2013] O.J. No. 1906,
Justice Alexandra Hoy, writing on
behalf of the Ontario Court of
Appeal, reversed a decision which
denied an application by Lantheus Medical Imaging Inc. (LMI)
to enforce a letter of request
Butterworths
against Atomic Energy of Canada
Ltd., a Crown corporation.
In denying the application, the
lower court Justice Kenneth
Campbell concluded that: 1) the
court did not have jurisdiction to
enforce the letter of request
against AEC due to the doctrine
of Crown immunity; and 2) even
if the court had jurisdiction, LMI
had not satisfied all six factors
identified in Re Friction Division
Products, Inc. and E.I. Du Pont de
Nemours & Co. Inc. et al. [1986]
O.J. No. 1029, for consideration
in determining whether to
enforce a letter of request.
The central issue on appeal was
one of statutory interpretation and
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whether section 60 of the Evidence
Act, R.S.O. 1990, c. E.23 binds the
Crown. Section 60 of the Evidence
Act allows a justice of the Superior
Court of Justice to compel the production of documents or the examination of non-party witnesses in a
foreign proceeding where such a
request is made by a foreign court
or tribunal.
The particular question to be
determined was whether section
60 of the Evidence Act is considered
one of the “rules of practice and
procedure” within the meaning
ascribed by the Crown Liability
and Proceedings Act, R.S.C. 1985, c.
C-50 (CLPA) such that agents in
right of the Crown in Canada may
be compelled to provide evidence.
The CLPA modifies and in many
respects abrogates the common
law rule that the federal Crown is
not liable for certain causes of
action and expands the jurisdiction
of the courts of the provinces for
proceedings involving the federal
Crown. For example, section 27 of
the CLPA specifically binds a federal Crown agency to the Rules of
Civil Procedure, R.R.O., 1990, Reg.
194 (see Temelini v. Ontario Provincial Police (Commissioner)
[1999] O.J. No. 1876).
The application judge held that
section 60 of the Evidence Act did
not fall within the definition of
“rules of practice and procedure,”
which he determined was limited
in this case to the Rules of Civil
Procedure. Specifically, the judge
determined that since section 60
of the Evidence Act was a rule for
evidence
gathering,
Crown
immunity was not abrogated by
the definition of “rules of practice
and procedure” in section 27 of the
CLPA. The judge determined that
more would be required from Parliament in order to depart from the
principle of Crown immunity in
the circumstance.
The Court of Appeal held that
the application judge had erred
in narrowly interpreting the
phrase “rules of practice and
procedure,” as section 27 of the
CLPA has a broad meaning and
it refers to all of the practices
and procedures of the court, not
only to those related to the Rules
of Civil Procedure, which are in
fact “supplementary in nature,
and are by no means the only
rules
governing…Ontario’s
courts [see para. 30].” Justice
Hoy determined that the Evidence Act not only regulates the
admissibility of evidence and the
method by which admissible evidence is proffered (rules of evidence), but it also contains provisions that govern the conduct
of litigation (rules of practice
and procedure). In the court’s
view, section 60 of the Evidence
Act is a rule governing the conduct of litigation and therefore
falls within the definition of
Lcs813 / dreamstime.com
The central issue on
appeal was one of
statutory interpretation
and whether section
60 of the Evidence Act,
R.S.O. 1990, c. E.23
binds the Crown.
Chris MacLeod &
Ruzbeh Hosseini
Cambridge LLP
“rules of practice and procedure”
in the CLPA.
In coming to its conclusion, the
court confirmed past decisions of
the Court of Appeal that the
interpretation of section 60 of
the Evidence Act as being of the
“rules of practice and procedure”
is “in keeping with the modern
legislative trend of moving
towards putting the Crown on an
equal footing with everyone else.”
Having concluded that AEC was
bound by section 60 of the Evidence Act, the Court of Appeal
then turned to the issue of whether
the application judge erred in
refusing to give effect to the letter
of request. The court confirmed
the central guiding principle of
enforcement of letters of request,
being the comity of nations, and it
reiterated past decisions of Ontario
courts that the six factors identified in Re Friction Division Products do not form a bright-line test,
but rather are “guideposts” to an
order giving effect to a letter of
request. Specifically, the application judge had found that LMI
had failed to establish that the
evidence being sought from AEC
was necessary for litigation and
adduced at trial. In the Court of
Appeal’s view, the application
judge’s conclusion that LMI’s
application failed due to this finding was an error in the application
of the law.
Chris MacLeod is a partner in
Cambridge LLP with a practice
focused on complex business
litigation, including cross-border
dispute resolution, multijurisdictional litigation and private
international law. Ruzbeh Hosseini
is an associate at Cambridge, who
practises in the business litigation
and cross-border litigation groups.