The case arose from a series of accidents on the Trans-Canada highway during a winter storm
In a recent decision, the Ontario Superior Court of Justice ruled that the Crown, represented by the Ministry of Transportation, cannot be compelled to participate in discovery under the Public Transportation and Highway Improvement Act.
The case arose from a series of collisions on the Trans-Canada Highway in northern Ontario during a winter storm. The plaintiffs alleged that the Crown and its road maintenance contractor, Carillion, were negligent in their care of the highway. During the discovery process, the plaintiffs sought various records, including details of the Crown's contract with Carillion, complaints about road conditions, audits of Carillion's performance, and GPS data from maintenance vehicles. The Crown voluntarily disclosed some information but maintained that the Public Transportation and Highway Improvement Act did not require it to participate in discovery. The motion judge agreed, ruling that the Crown's participation was discretionary.
On appeal, the plaintiffs argued that the court had jurisdiction to compel discovery from the Crown and that, by voluntarily engaging in the litigation process, the Crown had "attorned" to the court's jurisdiction and could no longer claim immunity. The Superior Court rejected both arguments, finding that the court has no authority to compel the Crown to answer discovery questions in claims under the act. It also ruled that the Crown's voluntary participation did not override its legal immunity.
The court relied on binding precedent from Longo v. The Queen [1959] OWN 19, which established that only explicit statutory language can remove the Crown's privilege against discovery. Since neither the act nor the Rules of Civil Procedure contain such provisions, the court held that the Crown remains immune from compelled discovery. The court also rejected the argument that the Crown had attorned to the court's jurisdiction, emphasizing that it had consistently asserted its legal position throughout the proceedings.
The court dismissed the appellants' argument that it had inherent jurisdiction to override the Crown's immunity, stating there was no legal basis for such an approach. It reaffirmed that any changes to the Crown's compellability in discovery would require legislative amendments or a decision from a higher court, such as the Ontario Court of Appeal.
The motion judge acknowledged that a more modern approach to Crown prerogative might be preferable but recognized that precedent bound her. Ultimately, the court's decision maintained the existing legal framework governing the Crown's discovery rights in highway negligence claims. It confirmed that the Crown's participation in discovery remains strictly voluntary without explicit statutory authority.
