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Interprovincial Crown Immunity

The Alberta Court of Appeal came out with a case which analyzed the concept of interprovincial crown immunity: Fitter International Inc v British Columbia, 2021 ABCA 54 . Crown Immunity comes from the old common law rule which essentially said the king could not be sued in his own court. That rule has since been amended by provincial and federal Crown Proceedings Acts which allow the Crown to be sued. The Crown, in our legal system, is essentially a synonym for the Government.

The issue in this case was whether an Alberta court could make a decision about the constitutionality of BC legislation that had effects beyond the borders of BC. The Court of Appeal said at paragraph 39:

[39] Crown immunity was most recently raised before the Supreme Court in Newfoundland and Labrador (Attorney General) v Uashaunnuat (Innu of Uashat and of Mani-Utenam), 2020 SCC 4, in which an aboriginal claim regarding land located in Newfoundland and Labrador was brought in the Quebec courts. The majority of the court did not find it necessary to address the issue of interprovincial Crown immunity because “[t]he Innu seek no relief against the Crown of Newfoundland and Labrador, and any conclusions in respect of their s 35 rights will not bind the Crown of Newfoundland and Labrador”: para 72. However, in their dissenting opinion, Justices Brown and Rowe took the opportunity to describe interprovincial Crown immunity:

[274] The constitutional principle of Crown immunity means that the Crown can be sued only with its permission. This principle is “deeply entrenched in our law” and can only be modified by “clear and unequivocal legislative language”: Canada (Attorney General) v. Thouin, 2017 SCC 46, [2017] 2 S.C.R. 184, at para. 1. All provincial legislatures have introduced legislation allowing the Crown to be sued, but only in their own courts: see, for example, Proceedings Against the Crown Act, R.S.N.L. 1990, c. P-26, ss. 4 and 7.

[275] It is this simple. The Crown of one province cannot be sued in another province’s court: Athabasca Chipewyan First Nation v. Canada (Minister of Indian Affairs and Northern Development), 2001 ABCA 112, 199 D.L.R. (4th) 452, at paras. 23-43; Sauve v. Quebec (Attorney General), 2011 ONCA 369, at para. 3 (CanLII); Medvid v. Saskatchewan (Minister of Health), 2012 SKCA 49, 349 D.L.R. (4th) 72, at paras. 26-31; Constructions Beauce‑Atlas inc. v. Pomerleau inc., 2013 QCCS 4077, at paras. 16-32 (CanLII). In addition to being an incident of the constitutional principle of federalism, this is a statutory rule (Proceedings Against the Crown Act, s. 7) that can only be set aside if constitutionally challenged.

[40] The chambers judge misapprehended the Dyson procedure and its application to the case at bar. In addition, she erred in her interpretation of Morguard and Hunt, both of which express the view that we are one federation and as such each Canadian jurisdiction should have particular regard for orders emanating from others. Those decisions speak to the proposition that, in a federation, it is sometimes permissible to consider the laws of another province, but do not stand for the proposition that declarations of unconstitutionality can be heard in the courts of any province or territory in Canada in which the impugned legislation may have some effect, disregarding the principles of interprovincial Crown immunity.

So the Court essentially said, no an Alberta Court does not have jurisdiction over BC legislation. If you have questions about how this works, please feel free to contact us.

The information contained in this article is not legal advice. No solicitor client relationship is formed through this article. The reader is encouraged to retain counsel for advice in these matters.

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