Case information

Charter of Rights — Crown law — Crown liability — Whether the Attorney General should be liable, under s. 8 of the Ministry of the Attorney General Act, R.S.O. 1990, c. M.17, for only the tort of malicious prosecution — Whether the Attorney General should be liable for other intentional torts, provided the prosecutions were malicious, an abuse of office and/or a fraud on justice — Whether s. 5(6) of the Proceedings Against the Crown Act, R.S.O. 1990, c. P.27, extends absolute immunity for vicarious liability to the Crown as employer for the tortious acts of its Attorney General and Crown Attorneys, even if they commit grievous frauds on justice provided they merely purport to discharge duties of a judicial nature while doing so — Whether it undermines the purpose of the Act, stated in s. 5(1), to put the Crown employer on the same footing as any other person — Whether s. 5(6) removes any incentive for the Crown employer to insure against the risk of corruption or to discipline its Attorney General and Crown Attorneys who abuse office for improper purposes, breach public trust, and undermine the rule of law — Whether it bars a remedy against the Crown employer for victims of system-specific corruption under s. 24(1) of the Charter — Whether it is constitutional — Whether it should be repealed.

Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

Ms. Abernethy alleged that the Crown defendants (Her Majesty the Queen in Right of Ontario as Represented by Crown Attorneys (Justice) James A. Ramsay, Ron Davidson, Jennifer Broderick and Lucas O’Neill, Kathryn (Kathy) Rippey and Gerry McNeilly), among other things, committed misfeasance in public office, conducted themselves in breach of trust, assaulted her, and falsely arrested her. Against Ms. Santone, Ms. Abernethy alleged the tort of breach of privacy. The Crown defendants brought a motion to strike the claims against them, as did Ms. Santone, St. Joseph’s Healthcare (Hamilton) Director, and East Region Mental Health Services.

The motions judge granted summary judgment against Ms. Abernethy, but allowed her permission to amend the statement of claim to pursue the tort of breach of privacy against Ms. Santone, on specified terms. The Court of Appeal dismissed the appeal, allowing the breach of privacy claim to proceed as directed by the motions judge.