Vol. 7 No. 1

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Civil Action Challenges
to Government Decisions

Michael H. Morris and Roy Lee Photo : James Adeney

Michael H. Morris and Roy Lee explore Canada’s developing law on the availability of civil collateral action claims against government decisions that could also be the subject of judicial review. The Federal Court of Appeal has shed some clarity on this area of the law in the recent decision of Grenier v. Canada.

Morris is a General Counsel with the Ontario Regional Office while Lee is Counsel and Special Advisor to the Senior Regional Director.

The following is an excerpt from Civil Action Challenges to Government Decisions, in volume 20 (2007) of the Canadian Journal of Administrative Law, published by Carswell.

The opinions expressed in the article are those of the authors and do not necessarily represent the positions of the Department of Justice or the Government of Canada.

TORONTO – At a 2005 conference, David Stratas made the following observation:¹

. . .if one is dealing with government as a defendant and the issue is one of government discre­tion under a statute, serious and largely unexplored issues concerning the relationship between civil actions and judicial review of administrative decision-making arise.

The growing trend to hold govern­ments accountable (and liable) for the consequences of public policies has provoked a beehive of procedural confusion arising from the interaction of civil actions and judicial review. In particular, when confronted with judicial intervention through civil actions – courts have struggled with whether, and how to apply traditional notions of deference to the executive and legislative branch. This problem is particularly vexing where public policy or legislative choices are impugned through civil actions.²

Substantive and unresolved legal issues are raised by the differences in how courts scrutinize government action under private law principles as opposed to public/administrative law principles. One of these issues confronts litigators at an initial and very practical level: Do civil action claims even lie against government decisions that could have been the subject of a judicial review challenge on administrative law grounds? The law on this gate-keeping issue has been notoriously unclear and is the subject of this paper – with a focus on recent developments in the federal jurisdiction.

Specifically, in the year since Stratas made his observation, the Federal Court of Appeal has shed some clarity on this area of the law in the recent decision of Grenier c. Canada (Procureur général).³ In that case, the Federal Court of Appeal found that a litigant who seeks to impugn a federal agency’s decision is not free to choose between a judicial review proceeding and an action in damages: he/she must proceed by judicial review in order to have the decision invalidated.

While this clarity will be particularly welcome by federal government lawyers, given the divided jurisdictions in Canada, and very different regimes governing judicial review applications, it is far from clear whether this approach will become a trend. At the moment, it is not an approach that can be said to be generally followed in other jurisdictions, although a recent case in Ontario suggests that jurisdiction could follow the Federal Court of Appeal’s approach in Grenier.^3a

1. David Stratas, “Civil Liability in Administrative Law: Recent Developments and Prospects for the Future” (New Directions in Administrative Law&Practice: The National Forum, delivered at Osgoode Hall Law School, York University Professional Development, CLE, 20-21 September 2005) at 4 [Stratas, “New Directions”].
   
   
2. This was recently observed by Lorne Sossin in “Redress for Unjust State Action: An Equitable Approach to the Public/Private Distinction”
   in David Dyzenhaus & Mayo Moran, eds., Calling Power To Account (Toronto: University of Toronto Press, 2004) at 196.
3. 3. 2005 CarswellNat 4429, (sub nom. Grenier v. Canada), [2006] 2 F.C.R. 287, 262 D.L.R. (4th) 337 (F.C.A.) [Grenier cited to F.C.R.], and see also Stratas, “New Directions”, supra note 1.
   
   3a. See L. (A.) v. Ontario (Minister of Community & Social Services) (2006), 2006 CarswellOnt 7393, 83 O.R. (3d) 512 (Ont. C.A.), leave to appeal refused 2007
   CarswellOnt 3059, 2007 CarswellOnt 3060 (S.C.C.) [L.A.].