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CHAPTER 360

OF THE

REVISED STATUTES, 1989

amended 1991, c. 16


NOTE - This electronic version of this statute is provided by the Office of the Legislative Counsel for your convenience and personal use only and may not be copied for the purpose of resale in this or any other form. Formatting of this electronic version may differ from the official, printed version. Where accuracy is critical, please consult official sources.

An Act Respecting
Proceedings against the Crown

Short title

1 This Act may be cited as the Proceedings against the Crown Act. R.S., c. 360, s. 1.

Interpretation

2 In this Act,

(a) "agent", when used in relation to the Crown, includes an independent contractor employed by the Crown;

(b) "Crown" means Her Majesty in right of the Province;

(c) "officer", in relation to the Crown, includes a minister of the Crown and any servant of the Crown;

(d) "order" includes a judgment, decree, rule, award and declaration;

(e) "person" does not include the Crown;

(f) "proceedings against the Crown" includes a claim by way of set-off or counterclaim raised in proceedings by the Crown and interpleader proceedings to which the Crown is a party;

(g) "rules of court" means rules of court made under the authority of the Judicature Act or of the County Court Act. R.S., c. 360, s. 2.

Exceptions to Act

3 (1) This Act does not affect the Workers Compensation Act, An Act Respecting Succession Duties, The Nova Scotia Corporation Income Tax Act, 1947, The Nova Scotia Corporation Income Tax Act, 1949, Chapter 154 of the Revised Statutes, 1900, Of the Supreme Court of Canada and the Exchequer Court of Canada, or the Expropriation Act.

Limitation on effect of Act

(2) Except as otherwise provided in this Act, nothing in this Act

(a) subjects the Crown to greater liability in respect of the acts or omissions of an independent contractor employed by the Crown than that to which the Crown would be subject in respect of such acts or omissions if it were a private person;

(b) subjects the Crown, in its capacity as a highway authority, to any greater liability than that to which a municipal corporation is subject in that capacity;

(c) affects any right of the Crown to intervene in proceedings affecting its rights, property or profits;

(d) subjects the Crown to proceedings under this Act in respect of a cause of action that is enforceable against a corporation or other agency owned or controlled by the Crown;

(e) subjects the Crown to proceedings under this Act in respect of anything done in the due enforcement of the criminal law or the provisions of any Act of the Legislature.

Consent unnecessary

(3) Subject to this Act, where a person has a claim against an officer of the Crown or a corporation owned or controlled by the Crown that, if this Act had not been passed, might be enforced subject to the consent of an officer of the Crown, then the claim may be enforced as of right without such consent. R.S., c. 360, s. 3.

PART I

SUBSTANTIVE LAW

Right to enforce claim against Crown

4 Subject to this Act, a person who has a claim against the Crown may enforce it as of right by proceedings against the Crown in accordance with this Act in all cases in which

(a) the land, goods or money of the subject are in the possession of the Crown;

(b) the claim arises out of a contract entered into by or on behalf of the Crown; or

(c) the claim is based upon liability of the Crown in tort to which it is subject by this Act. R.S., c. 360, s. 4.

Tort liability of Crown

5 (1) Subject to this Act, the Crown is subject to all liabilities in tort to which, if it were a person of full age and capacity, it would be subject

(a) in respect of a tort committed by any of its officers or agents;

(b) in respect of any breach of the duties that a person owes to his servants or agents by reason of being their employer;

(c) in respect of any breach of the duties attaching to ownership, occupation, possession or control of property;

(d) under any statute, or under any regulation or by-law made or passed under the authority of any statute.

Act of officer or agent

(2) No proceedings lie against the Crown under clause (a) of subsection (1) in respect of an act or omission of an officer or agent of the Crown unless the act or omission would, apart from this Act, have given rise to a cause of action in tort against that officer or agent or his personal representative.

Tort of officer in performing legal duty

(3) Where a function is conferred or imposed upon an officer of the Crown as such by common law or by statute, and that officer commits a tort in the course of performing or purporting to perform that function, the liability of the Crown in respect of the tort is the same as if that function had been conferred or imposed solely by virtue of instructions lawfully given by the Crown.

Limitation of liability

(4) An enactment that negatives or limits the amount of the liability of an officer of the Crown in respect of any tort committed by that officer, in the case of proceedings against the Crown under this Act in respect of a tort committed by that officer, applies in relation to the Crown as it would have applied in relation to that officer if the proceedings against the Crown had been proceedings against that officer.

Where property has vested in Crown

(5) Where property vests in the Crown by virtue of any rule of law that operates independently of the acts or the intentions of the Crown, the Crown is not, by virtue of this Act, subject to liability in tort by reason only of the property being so vested, but this subsection is without prejudice to the liability of the Crown under this Act in respect of any period after the Crown, or any person acting for the Crown, has in fact taken possession or control of the property or entered into occupation thereof.

Judicial Act

(6) No proceedings lie against the Crown under this Act in respect of anything done or omitted to be done by any person while discharging or purporting to discharge responsibilities of a judicial nature vested in him, or responsibilities that he has in connection with the execution of judicial process.

Officer for whom Crown may be liable

(7) No proceedings lie against the Crown under this Act in respect of any act, neglect or default of any officer of the Crown, unless that officer has been directly or indirectly appointed by the Crown and was at the material time paid in respect of his duties as an officer of the Crown wholly out of the Consolidated Fund. R.S., c. 360, s. 5.

Indemnity and contribution

6 The law relating to indemnity and contribution is enforceable by and against the Crown in respect of any liability to which it is subject, as if the Crown were a person of full age and capacity. R.S., c. 360, s. 6.

PART II

JURISDICTION AND PROCEDURE

Judicature Act

7 Subject to this Act, proceedings against the Crown in the Supreme Court shall be instituted and proceeded with in accordance with the Judicature Act. R.S., c. 360, s. 7.

County court

8 Subject to this Act and to any enactment limiting the jurisdiction of the county court, proceedings against the Crown may be instituted in a county court and proceeded with in accordance with the County Court Act. R.S., c. 360, s. 8.

Appeals and stays of execution or proceedings

9 Subject to this Act, all enactments and rules of court relating to appeals and stays of execution or proceedings, with necessary modifications, apply to proceedings against the Crown. R.S., c. 360, s. 9.

Supreme or county court

10 Nothing in this Act authorizes proceedings against the Crown except in the Supreme Court or a county court. R.S., c. 360, s. 10.

Discovery and inspection of documents

11 In proceedings against the Crown, the rules of the court in which the proceedings are taken as to discovery and inspection of documents, examination for discovery and interrogatories apply in the same manner as if the Crown were a corporation, except that the Crown may refuse to produce a document or to make answer to a question on discovery or interrogatories on the ground that the production thereof or the answer would be injurious to the public interest. R.S., c. 360, s. 11.

Style of Crown

12 In proceedings under this Act, the Crown shall be designated "The Attorney General of Nova Scotia representing Her Majesty the Queen in right of the Province of Nova Scotia". R.S., c. 360, s. 12.

Service of document on Crown

13 A document to be served on the Crown shall be served by delivering a copy to the office of the Attorney General or the Deputy Attorney General or any barrister or solicitor employed in the Department of the Attorney General, or by delivering a copy to a barrister or solicitor designated for the purpose by the Attorney General. R.S., c. 360, s. 13.

Trial without jury

14 In proceedings against the Crown the trial shall be without a jury. R.S., c. 360, s. 14.

Interpleader

15 The Crown may obtain relief by way of interpleader proceedings, and may be made a party to such proceedings in the same manner as a person may obtain relief by way of such proceedings or be made a party thereto, notwithstanding that the application for relief is made by a sheriff or bailiff or other like officer, and the provisions relating to interpleader proceedings under the Judicature Act and the County Court Act, subject to this Act, have effect accordingly. R.S., c. 360, s. 15.

Power of court in proceedings against Crown

16 (1) Subject to this Act, in proceedings against the Crown the court may make any order, including an order as to costs, that it may make in proceedings between persons, and may otherwise give the relief that the case requires.

No injunction or specific performance

(2) Where, in proceedings against the Crown, any relief is sought that might, in proceedings between persons, be granted by way of injunction or specific performance, the court shall not, as against the Crown, grant an injunction or make an order for specific performance, but may, in lieu thereof, make an order declaratory of the rights of the parties.

No order for recovery or delivery of property

(3) In proceedings against the Crown in which the recovery of land or other property is claimed, the court shall not make an order for the recovery of the land or the delivery of the property, but may, in lieu thereof, make an order declaring that the claimant is entitled, as against the Crown, to the land or property or to the possession thereof.

Order against officer

(4) The court shall not in any proceedings grant an injunction or make an order against an officer of the Crown if the effect of granting the injunction or making the order would be to give any relief against the Crown that could not have been obtained in proceedings against the Crown, but may, in lieu thereof, make an order declaratory of the rights of the parties.

Set-off and counterclaim in certain cases

(5) No person may avail himself of any set-off or counterclaim in proceedings by the Crown for the recovery of taxes, duties or penalties, or avail himself, in proceedings of any other nature by the Crown, of any set-off or counterclaim arising out of a right or claim to repayment in respect of any taxes, duties or penalties.

Set-off and counterclaim generally

(6) No person may, without leave of the court, avail himself of any set-off or counterclaim in proceedings by the Crown unless the subject-matter of either the set-off or the counterclaim relates to a matter under the administration of the particular government department with respect to which the proceedings are brought by the Crown. R.S., c. 360, s. 16.

Crown may require information

17 (1) In proceedings against the Crown, the Crown, before taking any step in the proceedings, may require the claimant to provide the Crown with such information as the Crown may reasonably require as to the circumstances in which it is alleged that the liability of the Crown has arisen and as to the departments and officers of the Crown concerned.

Default judgment against Crown

(2) In proceedings against the Crown, judgment shall not be entered against the Crown in default of appearance or pleading without the leave of the court to be obtained on an application of which notice has been given to the Crown.

No proceedings in rem or seizure or sale of property

(3) Nothing in this Act shall authorize proceedings in rem in respect of any claim against the Crown, or the seizure, attachment, arrest, detention or sale of any property of the Crown. R.S., c. 360, s. 17.

Notice to Crown

18 No action shall be brought against the Crown unless two months previous notice in writing thereof has been served on the Attorney General, in which notice the name and residence of the proposed plaintiff, the cause of action and the court in which it is to be brought shall be explicitly stated. R.S., c. 360, s. 18.

PART III

JUDGMENTS AND EXECUTION

Interest on judgment debt

19 A judgment debt due to or from the Crown bears interest in the same way as a judgment debt due from one person to another. R.S., c. 360, s. 19.

Certificate of order against Crown

20 (1) Subject to this Act, where in proceedings against the Crown, an order for costs or any other order is made by a court against the Crown, the proper officer of the court shall, on an application in that behalf, issue a certificate thereof.

Separate certificate as to costs against Crown

(2) The proper officer may issue a separate certificate with respect to the costs, if any, ordered to be paid to the applicant.

Duty of Minister of Finance

(3) If the order provides for the payment of money, the certificate shall state the amount so payable and the Minister of Finance shall, subject as hereinafter provided, pay out of the Consolidated Fund to the person entitled, or to his order, the amount appearing by the certificate to be due together with the interest, if any, lawfully due thereon.

Suspension of payment pending appeal

(4) The court by which such an order is made or a court to which an appeal against the order lies may direct that, pending an appeal or otherwise, payment of the whole of the amount so payable, or any part thereof, shall be suspended and, if the certificate has not been issued, may order the direction to be inserted therein.

No execution or attachment

(5) No execution or attachment or process in the nature thereof shall be issued out of any court for enforcing payment by the Crown of money or costs. R.S., c. 360, s. 20.

Garnishment

21 (1) Where money is payable by the Crown to some person who, under an order of a court, is liable to pay money to another person, and that other person would, if the money so payable by the Crown were money payable by a subject, be entitled under rules of court to obtain an order for the attachment thereof as a debt due or accruing due, the court may, subject to this Act and in accordance with rules of court, make an order restraining the first mentioned person from receiving that money and declaring that that other person be entitled to be paid that money, but no such order shall be made in respect of

(a) repealed 1991, c. 16, s. 1.

(b) money which is subject to the provisions of any enactment prohibiting or restricting assignment or charging or taking in execution.

Execution on Crown not authorized

(2) Subsection (1) does not authorize the issue of execution in respect of moneys in the possession of the Crown.

Attachment notwithstanding subsection (2)

(3) A person who obtains an execution order for the payment or recovery of money against an officer of the Crown, a member of the Assembly, a judge of the provincial court, a judge of the Family Court or an adjudicator under the Small Claims Court Act may, for the purpose of enforcing the execution order, attach the wages, salary or remuneration due or accruing due to that person, and subsection (2) does not apply.

Mode of service on Crown

(4) Where the wages, salary or remuneration of the judgment debtor are paid by

(a) the Crown, the execution order shall be served on either the Minister of Finance or a person designated by the Minister; or

(b) an agency of the Crown, the execution order shall be served on the agency,

and such service may be by registered mail.

Regulations

(5) The Governor in Council may make such regulations as the Governor in Council deems necessary to effect the attachment of wages, salary or remuneration of a person described in subsection (3) against whom an execution order is obtained.

Regulations Act

(6) The exercise by the Governor in Council of the authority contained in subsection (5) shall be regulations within the meaning of the Regulations Act. R.S., c. 360, s. 21; 1991, c. 16, s. 1.

PART IV

MISCELLANEOUS AND SUPPLEMENTAL

Statutory defence

22 In proceedings against the Crown, any Act of the Legislature or of Parliament that could, if the proceedings were between persons, be relied upon by the defendant as a defence to the proceedings or otherwise, may, subject to any express provision to the contrary, be so relied upon by the Crown. R.S., c. 360, s. 22.

Rules of court

23 Any power to make rules of court or county court rules includes power to make rules for the purpose of giving effect to this Act, and any such rules may contain provisions relating to proceedings against the Crown in substitution for or by way of addition to any of the provisions of the rules applying to proceedings between subjects. R.S., c. 360, s. 23.

Consolidated Fund

24 Expenditure incurred by or on behalf of the Crown under this Act shall be defrayed out of the Consolidated Fund. R.S., c. 360, s. 24.

Abolition of other proceedings against Crown

25 (1) Except as provided in this Act, proceedings against the Crown are abolished.

Mandamus preserved

(2) This Act does not limit the discretion of the court to grant relief by way of mandamus in cases in which such relief might have been granted before the enactment of this Act, notwithstanding that by reason of this Act some other and further remedy is available. R.S., c. 360, s. 25.

Conflict

26 Except as otherwise provided herein, where this Act conflicts with any other Act this Act shall prevail. R.S., c. 360, s. 26.

Proclaimed - March 10, 1992

In force - April 1, 1992

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