What is Liability of Government in Tort Law?

For as long as Ontario has had a legal system, the government has held citizens responsible when they damage government property. From vandalized buildings to damaged roads, the government will not hesitate to hold the responsible citizen liable. This can happen when the damage was intentional or when it occurred through a careless accident.

The opposite has not always been true, however. While the government has always had an avenue to recover compensation, for years private citizens had no recourse against the government. Although that changed over the years, recent updates to Ontario law have again restricted government liability in tort.

What is Liability of Government in Tort Law?

So, what is government liability? Government liability in tort is different compared to a negligence complaint between two private citizens. However, understanding the liability of government in tort is easiest by considering the history of these lawsuits in Ontario.

Common Law

Historically, the theory of government liability was that “the king can do no wrong.” In other words, no private citizen could sue the government for civil damages. This is true even when government actors are careless or reckless.

Ultimately, this system was unfair. Starting in the 1940’s, governments in the United Kingdom began to institute so-called “crown proceedings acts.” Under these laws, private citizens can bring civil actions against the government. However, Ontario did not adopt a similar law until 1990.

The Proceedings Against the Crown Act

Since 1990, the Proceedings Against the Crown Act has given citizens injured by an agent of the provincial government a path to recover monetary compensation. This act was an enormous step from the common law and opened up real options for injury victims harmed by the government.

The Proceedings Against the Crown Act did not provide limitless opportunities, however. There are some important differences in the rights and requirements of a plaintiff that differ significantly from a standard negligence lawsuit. The Act requires additional notice requirements and places other burdens on the plaintiff prior to filing suit. The act also does not open every government entity to liability. For example, there are limits to the liability a municipal corporation could face.

Despite the progress Ontario has made when it comes to government liability in tort, recent changes have dramatically reduced the rights of a private citizen to bring a lawsuit for damages against the provincial government.

The Crown Liability and Proceedings Act

The Crown Liability and Proceedings Act was adopted in July of 2019. The adoption of the act was sudden, and it was buried deep within complex budget legislation. Unfortunately, this Act has stripped away many of the rights to bring a suit against the government.

Because the act is new, the true impact is unknown. However, many legal experts have shared their concerns regarding the restrictive nature of the new law. It remains to be seen how restrictive the Crown Liability and Proceedings Act is in practice. However, there is concern that a large number of negligence claims and class action lawsuits could be barred moving forward. In fact, because the Crown Liability and Proceedings Act is retroactive, existing lawsuits could e impacted by the change.

Bringing a Lawsuit Against the Government

Despite the recent changes in the law, there are still opportunities to bring a negligence claim against government entities in Ontario. However, it is important to understand that the Crown Liability and Proceedings Act could impact your right to recover. Lawyers experienced in bringing civil suits against the government are in the best position to answer any questions you might have about your legal options.