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RSNL1990 CHAPTER P-26

PROCEEDINGS AGAINST THE CROWN ACT

Amended:

1995 cL-16.1 s30(3); 1999 c31; 1999 c22 s20; 2001 cN-3.1 s2; 2002 cI-0.1 s60; 2008 c33 s4; 2008 cE-9.1 s27; 2009 cR-15.01 s121; 2011 c13; 2013 c19

CHAPTER P-26

AN ACT RESPECTING PROCEEDINGS AGAINST THE CROWN

Analysis



Short title

        1. This Act may be cited as the Proceedings Against the Crown Act.

1973 No59 s1

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Definitions

        2. In this Act,

             (a)  "agent" when used in relation to the Crown includes an independent contractor employed by the Crown;

             (b)  "officer", in relation to the Crown, includes a minister of the Crown and an employee of the Crown;

             (c)  "order" includes a judgment, decree, rule, award and declaration;

             (d)  "person" does not include the Crown;

             (e)  "proceedings against the Crown" includes a claim by set-off or counterclaim raised in proceedings by the Crown, and interpleader proceedings to which the Crown is a party; and

              (f)  "Rules of the Supreme Court" means the Rules of Court made under theJudicature Act.

1973 No59 s2; 1986 c42 Sch B

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Acts not affected

        3. (1) This Act does not affect and is subject to theIncome Tax Act, 2000 , the Revenue Administration Act , the Crown Royalties Act, the Crown Corporations Local Taxation Act, the Expropriation Act, the Family Homes Expropriation Act, the Unimproved Land Redistribution Act, the Underdeveloped Mineral Areas Act, the Crown Lands Act, the Mineral Act, the Income and Employment Support Act, the Emergency Services Act, theWorkers' Compensation Act, and proceedings to which the Federal Courts Jurisdiction Act relates.

             (2)  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 those acts or omissions if it were a private person;

             (b)  subjects the Crown, in its capacity as a highway authority, to greater liability than that to which a municipality is subject in that capacity;

             (c)  affects a right of the Crown to intervene in proceedings affecting its rights, property or profits;

             (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; or

             (e)  subjects the Crown to proceedings under this Act in respect of a thing done in the enforcement of the criminal law or the penal provisions of an Act of the Legislature.

1973 No59 s3; 1978 c36 s80; 1978 c38 s68; 1978 c39 s78(2); 1982 c8 s64; 1984 c39 s10; 1986 c1 s79; 1986 c42 Sch C; 1990 c18 s47; 2002 cI-0.1 s60; 2008 c33 s4; 2008 cE-9.1 s27; 2009 cR-15.01 s121

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Right to sue Crown

        4. (1) A claim against the Crown that, but for this Act, might be enforced by petition of right, subject to the approval of the Lieutenant-Governor, may be enforced as of right by proceedings against the Crown under this Act, without the approval of the Lieutenant-Governor.

             (2)  A proceeding arising on a claim in contract against the Crown that is taken after September 2, 1986 may be taken in accordance with this Act.

1973 No59 s4; 1986 c42 Sch C

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Liability of Crown in tort

        5. (1) Notwithstanding section 12 of the Interpretation Act, the Crown is subject to 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 its officers or agents;

             (b)  in respect of a breach of those duties that a person owes to his or her employees or agents because of being their employer;

             (c)  in respect of a breach of the duties attaching to the ownership, occupation, possession or control of property; and

             (d)  under a statute or under a regulation made or passed under the authority of a statute.

             (2)  Proceedings do not lie against the Crown under paragraph (1)(a) in respect of an 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 or her personal representative.

             (3)  Where a function is conferred or imposed upon an officer of the Crown by common law or by statute, and that officer commits a tort in the course of performing or purporting to perform the function, the liability of the Crown in respect of the tort is the same as if the function had been conferred or imposed solely by virtue of instructions lawfully given by the Crown.

             (4)  An enactment that negatives or limits the amount of the liability of an officer of the Crown in respect of a tort committed by that officer or limits the time within which an action may be taken against that officer, in the case of proceedings against the Crown under this Act 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.

             (5)  Where property vests in the Crown by a rule of law that operates independently of the acts or the intentions of the Crown, the Crown is not, under this Act, subject to liability in tort by reason only of the property being so vested, but this subsection does not affect the liability of the Crown under this Act in respect of a period after the Crown, or a person acting for the Crown, has in fact taken possession or control of the property or entered into occupation of it.

             (6)  Proceedings do not lie against the Crown under this Act in respect of a thing done or omitted to be done by a person while discharging or purporting to discharge

             (a)  responsibilities of a judicial nature vested in him or her; or

             (b)  responsibilities that the person has in connection with the execution of judicial process.

             (7)  Proceedings do not lie against the Crown under this Act in respect of an act, neglect or default of an officer of the Crown, unless that officer has been directly or indirectly appointed by the Crown and was at the material time paid in respect of his or her duties as an officer of the Crown wholly out of the Consolidated Revenue Fund.

1973 No59 s5

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Indemnity and contribution rules

        6. The law relating to indemnity and contribution is enforceable by and against the Crown in respect of a liability to which it is subject, as if the Crown were a person of full age and capacity.

1973 No59 s6

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Proceedings in Supreme Court

        7. Proceedings against the Crown in the Supreme Court of Newfoundland and Labrador shall be instituted and proceeded with under the Judicature Act and the Rules of the Supreme Court.

1973 No59 s7; 1986 c42 Sch B; 2001 cN-3.1 s2

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Appeals, etc.

        8. Enactments and rules of court relating to appeals and stay of execution or proceedings, with the necessary changes, apply to proceedings against the Crown.

1973 No59 s9

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Documents

        9. In proceedings against the Crown, the rules of the court in which the proceedings are pending as to inspection of documents and interrogatories apply in the same manner as if the Crown were a corporation, except that the Crown may refuse to produce a document or to answer a question on interrogatories on the ground that the production of the document or the answer would be injurious to the public interest.

1973 No59 s11

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Designation of Crown

      10. In proceedings under this Act the Crown shall be designated "Her Majesty in right of Newfoundland and Labrador ".

1973 No59 s12; 2001 cN-3.1 s2

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Service on Crown

      11. A document to be served on the Crown shall be served by leaving a copy with the Minister of Justice or the Deputy Minister of Justice.

1973 No59 s13

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Trials

      12. In proceedings against the Crown the trial shall be without a jury.

1973 No59 s14

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Interpleader

      13. The Crown may obtain relief by way of interpleader proceedings, and may be made a party to those proceedings in the same manner that a person may obtain relief by way of those proceedings or be made a party to them, notwithstanding that the application for relief is made by a sheriff or other person, and the provisions relating to interpleader proceedings under the Rules of the Supreme Court have effect accordingly.

1973 No59 s15;1999 c22 s20

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Rights of parties

      14. In proceedings against the Crown the rights of the parties are as nearly as possible the same as in an action between person and person, and the court

             (a)  may make an order, including an order as to costs, that it may make in proceedings between persons; and

             (b)  may otherwise give the relief that the case requires.

1973 No59 s16

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Injunctions

      15. (1) Where, in proceedings against the Crown, relief is sought that might, in proceedings between persons, be granted by injunction or specific performance, the court shall not, as against the Crown, grant an injunction or make an order for specific performance but may instead make an order declaratory of the rights of the parties.

             (2)  The court shall not in proceedings grant an injunction or make an order against an officer of the Crown where the effect of granting the injunction or making the order would be to give relief against the Crown that could not have been obtained in proceedings against the Crown, but may instead make an order declaratory of the rights of the parties.

1973 No59 s17

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Recovery of property

      16. In proceedings against the Crown in which the recovery of real or personal property is claimed, the court shall not make an order for its recovery or delivery, but instead may make an order declaring that the claimant is entitled as against the Crown to the property claimed or to the possession of it.

1973 No59 s18

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Enforcement of orders

   16.1 (1) In this section, "Agreement on Internal Trade" means the Agreement on Internal Trade, signed in 1994 by the Governments of Canada, the provinces, Yukon and the Northwest Territories, as amended from time to time.

             (2)  A certified copy of an order made by a presiding body under the Agreement on Internal Trade that requires the Crown to pay tariff costs or a monetary penalty, or both, may be filed with the Trial Division and, on being filed, has the same force and effect as an order for the payment of money made by the court against the Crown.

2011 c13 s1; 2013 c19 s1

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Set-off and counterclaim

      17. (1) A person may not avail himself or herself

             (a)  of a set-off or counterclaim in proceedings by the Crown for the recovery of taxes, duties or penalties; or

             (b)  in proceedings of another nature by the Crown, of a set-off or counterclaim arising out of a right or claim to repayment in respect of taxes, duties or penalties.

             (2)  A person may not, without leave of the court, avail himself or herself of a set-off or counterclaim in proceedings by the Crown unless the subject matter of the set-off or the counterclaim relates to a matter under the administration of the particular government department with respect to which proceedings are brought by the Crown.

1973 No59 s19

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Advance information

      18. Before taking a step in proceedings against the Crown, the Crown may require the claimant to provide the Crown with the information that the Crown may reasonably require as to the circumstances in which it is alleged that the liability of the Crown has arisen and as to the departments and officers of the Crown concerned.

1973 No59 s20

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Crown defence

      19. (1) In proceedings against the Crown, a defence that, if the proceedings were between persons, could be relied upon by the defendant as a defence to the proceedings or otherwise may be relied upon by the Crown.

             (2)  In proceedings against the Crown, judgment shall not be entered against the Crown in default of appearance or pleading without the leave of the court to be obtained on an application of which notice has been given to the Crown.

1973 No59 s21

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Proceedings against the world at large

      20. Nothing in this Act authorizes proceedings in respect of a claim against the property of the Crown or the seizure, attachment, arrest, detention or sale of property of the Crown.

1973 No59 s22

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Rep. by 1995 cL-16.1 s30(3)

      21. [Rep. by 1995 cL-16.1 s30(3)]

1995 cL-16.1 s30(3)

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Interest

      22. 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.

1973 No59 s24

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Certificates of order against Crown

      23. (1) Where, in proceedings against the Crown, an order for costs or another order is made by a court against the Crown, the appropriate officer of the court, on an application, shall issue a certificate of the order.

             (2)  Where the court so directs, a separate certificate shall be issued with respect to the costs ordered to be paid to the applicant.

             (3)  A certificate issued under this section may be served upon the person named in the record as the solicitor, or as the person acting as solicitor, for the Crown.

             (4)  Where the order provides for the payment of money by way of damages or otherwise, or of costs, the certificate shall state the amount payable and the Minister of Finance shall pay out of the Consolidated Revenue Fund to the person entitled, or according to his or her instructions, the amount appearing by the certificate to be due together with the interest lawfully due.

             (5)  The court by which the 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 a part of it, shall be suspended; and, where the certificate has not been issued, may order the direction to be inserted in it.

1973 No59 s25

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Proceedings against Crown

      24. (1) No enforcement proceeding, execution, attachment proceeding or similar process shall be issued against the Crown.

             (2)  Notwithstanding subsection (1), a garnishment, attachment, or similar process that is otherwise lawful may issue against the Crown for the payment of money owing or accruing as remuneration payable by the Crown for goods or services.

             (3)  Notwithstanding subsection (1), a garnishment order may issue against the Crown according to section 4 of the Public Officials Garnishee Act.

1999 c31 s.1

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Rules of Court

      25. The power to make the Rules of Supreme Court includes power to make rules to give effect to this Act, and those rules may contain provisions concerning proceedings against the Crown in substitution for or by way of addition to the rules applying to proceedings between subjects.

1973 No59 s27; 1986 c42 Sch B

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Expenditures

      26. Expenditure incurred by or on behalf of the Crown under this Act shall be paid by the Minister of Finance out of the Consolidated Revenue Fund.

1973 No59 s28

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Other proceedings against Crown

      27. (1) Except as provided in this Act, proceedings against the Crown are abolished.

             (2)  This Act does not limit the discretion of the court to grant relief by way of mandamus in cases in which the relief might have been granted before May 1, 1973 , notwithstanding that because of this Act some other and further remedy is available.

1973 No59 s29; 1986 c42 Sch C

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Conflict

      28. Except as otherwise provided in this Act, where this Act conflicts with another Act, this Act prevails.

1973 No59 s30