Tort Law, Crown Liability, and the Rule of Law

Abstract

In this thesis, I examine the connection between tort litigation against government and the rule of law principle. I argue that tort claims against government have unavoidable rule of law implications. Since all such tort claims necessarily allege that the government has breached the law, and as tort claims themselves are governed by a legal (judicial) process, the rule of law is necessarily implicated in all tort lawsuits against government. My project has both a conceptual and a normative dimension. Conceptually, I unpack the way that the rule of law is understood both theoretically, and as reflected and applied in Canadian constitutional law sources. I maintain that the concept of the rule of law in Canada involves a “formalist” core but with many “substantive” offshoots that are often, but not universally accepted. One of these substantive offshoots is a commitment to a principle, whether under the rule of law or as a separate constitutional principle, that I term the “equal government principle”. Normatively, I argue that if our government is committed to the rule of law (which may include the equal government principle), there are significant consequences for how government ought to litigate, and orient itself towards, tort claims. First, I argue that the government must adopt an “ideal litigant” approach, seeking to follow the procedural rules and to facilitate, rather than hinder, the just resolution of tort claims. Second, I argue that if our government is committed to the equal government principle, substantive efforts to make tort law more favorable to government than private parties is problematic – whether a matter of unique procedural advantages or statutory limitations of tort liability for government. My conclusion is that there are significant and unacknowledged costs to the rule of law paid when our government(s) do not approach tort litigation appropriately – but whether these costs are worth paying remains a question beyond the scope of this project.