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Government Law - CROWN - Actions by and against Crown - Practice and procedure - Discovery

Thursday, January 12, 2017 @ 7:00 PM  


Appeal by the plaintiff from a decision dismissing her application to examine a person other than the Crown defendant’s designated representative for discovery. The appellant sued for injuries suffered in a motor vehicle accident in a national park. She argued Parks Canada was negligent in failing to ensure the highway was reasonably safe. The Crown designated DeMone, the Associate Director for Parks Canada’s Highway Service Centre at the time of the accident, as its representative for examination for discovery. The appellant wanted to examine one of Parks Canada’s two snow plough operators on duty at the material time. The chambers judge found that DeMone was not incapable of being informed of the necessary facts and that she should thus not exercise her discretion under s. 7 of the Crown Liability and Proceedings (Provincial Court) Regulations to designate another Crown representative. The appellant argued the judge relied on an erroneous interpretation of s. 7.

HELD: Appeal dismissed. The chambers judge applied the correct test. The plain language of s. 7 provided that the Deputy Attorney General made the initial designation of its representative. The Crown Liability and Proceedings Act and the Regulations did not reflect an intention to assimilate the Crown to the same rules applicable between private parties in all circumstances. Section 7 of the Regulations reflected an intention to establish a uniform rule throughout Canada governing the designation of a Crown representative in actions involving the Crown in provincial superior courts. It was implicit in s. 7 that the primary role in making a designation lay with the Deputy Attorney General and the court played a secondary role. The existing test focused on whether a representative was not informed and was incapable of being informed, in which case their unsuitability had been demonstrated. The test did not mean that a representative would always be acceptable unless it was impossible for them to be informed by following up on questions asked at discovery. This test was clear and predictable, but flexible enough in its application to permit a fair and meaningful discovery process.