Crown Immunity in Class Proceedings: The Injustice of Barring Institutional Historical Abuse Claims

This paper argues that class proceedings are an inappropriate mechanism to right institutional historical wrongs perpetrated by the Crown because the Crown is not in the same legal position as private defendants. The Crown is immune from tort liability unless legislation expressly creates such liability. As a consequence, institutional historical abuse claims arising prior to the enactment of such statutes are often barred. Barring historical abuse claims prevents class proceedings from achieving any of the legislation’s objectives: access to justice, judicial economy, and behaviour modification. Class members are denied access to justice because claims arising before the enactment of Crown liability legislation are barred; judicial economy is not achieved because class members’ claims must be divided by the year they arise, the statute under which they are brought, and the cause of action alleged; and governments are not deterred because present and future taxpayers act as government insurers. Part B of this paper discusses the nature of historical abuse class proceedings against the Crown. Part C examines the law of federal Crown immunity in the context of class proceedings. Part D considers the similar trajectory of provincial Crown immunity and its impact on class proceedings. Part E consists of a case study that begins with a brief history of Indian Hospitals in Canada and then analyzes how both federal and provincial Crown immunity would likely affect the proposed Indian Hospital class proceedings. Finally, Part F proposes out-of-court redress programs as an alternate dispute resolution mechanism for institutional historical abuse.