which an indemnity was granted in the last decade. I can say that I have a clear globalappreciation of the scope of indemnities granted and their total cost.I want to thank the Ministry of Attorney General for its cooperation throughout my review. Mymandate is clear that the review I was asked to undertake is “independent,” but I relied upon theMinistry for access to relevant documents. None of my requests for specific documents wasrefused. I could not have completed this report without the diligent research work, and soundanalysis and advice of Ms Erin Shaw.
Context of the Review
For much of the history of the common law, the Crown could not be sued. Therefore, litigantsoften sued crown servants in their personal capacity, and the Crown would provide indemnitiesto protect servants from the costs of actions in tort. In the twentieth century, the legal framework changed and, through legislation, the Crown was made vicariously liable for torts committed byits servants.
However, in most jurisdictions – including British Columbia – Crown servants,now usually called public servants, could still be sued personally for wrongs committed in thecourse of their employment. Therefore the practice was continued of indemnifying publicservants to defend against claims in tort related to their employment. There are examples of suchindemnification in BC from at least the early 1980s. Coverage was extended to actions indefamation in 1989.A.
Contemporary Legislative and Policy Framework
Today in British Columbia public servants who are covered by a collective agreement willtypically find their rights to indemnification included in that agreement. Such agreements areoutside the scope of this review. Instead, I have been asked to focus on the policy framework applicable to “excluded employees” (those falling outside collective agreements), members of Cabinet
and Order-in-Council appointees.
In BC, this was not accomplished until 1974, through the
Crown Proceeding Act
, R.S.B.C. 1996, c. 89.
Cabinet members are covered in their capacity as members of the executive branch of government; their relevantfunction for the purposes of indemnification relates to the decisions they make in their executive capacity only.MLAs are not covered as they serve as members of the legislative branch only.