THE LIABILITY OF CROWN OFFICERS FOR ADVISING
REFUSAL OF THE FIAT
F. Murray Greenwood*
It is a prerogative of the Crown in Right of Quebec to refuse its fiat to
any petition of right. It makes no difference for what reason the petitioner
has not obtained the fiat; the case cannot be set down for trial.1 The mystique
of the prerogative has engendered the idea, seldom challenged, that the dis-
cretion of the Crown to grant or refuse the fiat is without limit. Canadian
judges have expressed the opinion that the courts are nor concerned with the
soundness of the reason behind the refusal of a fiat and that such refusal leaves
the claimant without any remedy whatsoever. 2 I respectfully submit that such
statements are correct only in relation to the continuance of suit against the
Crown and are inapplicable to the personal liability of a Crown Minister who
advises the Lieutenant-Governor to refuse the fiat. The proposition I shall
attempt to establish in the following pages is that the Lieutenant-Governor’s
responsible ministers’ are liable to an aggrieved suppliant for advising refusal
of the fiat, whenever that advice is given for no reason integrally connected
with the merits of suppliant’s cause of action.
A preliminary point must be made. Even assuming that wrongful refusal
can amount to a ‘faute’ under art. 1053 C.C., can it be shown that the plaintiff
has suffered damage? I suggest that the damage suffered results directly from the
loss of the action. For if the fiat is once granted, the plaintiff can proceed to
*This article is a revised version of one chapter of a thesis entitled “The Contractual and Delictual
Liability of the Crown in Right of Quebec”, which won the Public Law Prize in third year at McGill
University. Mr. Greenwood is presently a fourth year law student at the University of Montreal.
‘Re Mitchell’s Petition of Right (1896) 12 Times L.R. 324 at p. 458; Tobin P. Reg. (1864) 16 C.B.N.S.
310. For the contrary opinion see Chitty, Prerogatires of the Crown, p. 341: “In every case however,
in which the subject hath a right against the Crown … a petition is the birthright of the subject
and is sustainable at common law”. In Quebec the requirement to obtain the fiat is laid down in
art. 1014 of the Code of Procedure.
‘Royal Trust Co. v. Attorney-Genral for Alberta [1936] 2 W.W.R. 337 at p. 341 (Ford, J.); Orpm t.
Attorney-Gentral for Ontario [1925] 2 D.L.R. 366 at p. 372 (Riddell, J.).
‘The minister primarily responsible for advising the Lieutenant-Governor to grant or refuse the
fiat is the Attorney-General: Attorney-General’s Department Act R.S.Q. 1941, c. 46, s. 3.
In cases
of political importance the involvement of other ministers, particularly the Premier,
is not
inconceivable. Although the Lieutenant-Governor enjoys no immunity in respect of dclictual or
quasi-delictual liability (see Musgrare v. Pulido (1879) 5 A.C. 102) he incurs no personal liability
for a refusal of the fiat. Considering the impropriety of the Lieutenant-Governor exercising an
independent discretion in this matter, sanction of a wrongful refusal ordered by his minister cannot
amount to a ‘frute’ under art. 1053 C.C.
No. 21
LIABILITY OF CROWN OFFICERS
judgment in the ordinary manner. Recourse may be had to the method whereby
damages are established in an action against an attorney whose negligence has
resulted in the peremption of his client’s suit. The court estimates whether or
not the client’s action would have succeeded and in what amount had his
attorney’s negligence not intervened. 4 To ascertain the existence and extent
of the prejudice suffered in a case of wrongful refusal, the court would estimate
the soundness of the original cause of action against the Crown and the probable
amount-at least in cases where a sum of money is prayed for-which the
suppliant would have been awarded. It may be argued that this method of
establishing damages would be acceptable were the Crown liable to executionary
process, but since as a general principle it is not,6 the failure of the claimant
to obtain permission to sue does not necessarily entail monetary loss. Even if
a petitioner obtains judgment payment remains a matter of Crown discretion.
This is true in that Crown funds cannot be seized in execution. A judgment
for a sum of money is not however purely declaratory. It is sanctioned by the
duty imposed by the Legislature on the Minister of Finance, who upon receipt
of a certified copy of the judgment “must then pay the amount due out of monies
placed at his disposal for such purpose”.6 Bireach of this duty would undoubtedly
entail his personal liability.7 Payment therefore is not strictly a matter of pure
discretion; it is a matter of legal duty. The fact that this duty is subject only
to the indirect sanction of personal liability is not a relevant consideration,
for such sanction is sufficient to ensure that in all probability a judgment
obtained against the Crown will be satisfied.
Does the Attorney-General or other responsible minister in advising refusal
for no reason integrally connected with the merits of suppliant’s claim, commit
a fault actionable under art. 1053 C.C.? Art. 1053 C.C. establishes a general
duty of care binding on all officers of the Crown, who cannot plead special
immunity or act of state by way of defense. 8 Distinctions in the field of Crown
liability are normally made between suing an officer personally and suing the
Crown itself. The procedure whereby a fiat is necessary to sue the Crown
admittedly precludes an aggrieved party from any recourse against the Crown
without one; there is no legal procedure by which the court’s decree will stand
in lieu of a fiat. This by itself, however, does not rule out the possibility of
4Savatier, Traiti de la Res~pnsabiliti Civile, vol. 2, p. 46D.
5R. v. Cntral Railuay Signal Co. (1933] S.C.R. 555. Where, however, the Government is adjudged
to surrender moveable or immoveable property the court may accordingly issue a writ of attachment
in revendication or a writ of possession: arts. 1022 and 1023 C.P.
OArt. 1024 C.P.
‘Considering the imperative terms of the article, the courts would in all likelihood adopt the
French rule, which permits that a minister refusing without good cause to honour a judgment against
the Government may be sued for his “faute personnelle” in the civil courts: see J. Appleton, Traiti
EllmentairedeContntieux Administrative, Paris (1927), p. 335. Mandamus would not lie: art. 87 a C.P.
$Roncardlli v. Duplessis [1959] S.C.R. 121; Entick v. Carrington (1765) 19 St. Tr. 1030; Dicey, Low of
iha Constitaion, 9th ed., p. 193.
136
6McGILL LAW JOURNAL
[Vol. 8
suit for wrongful refusal; such an action is no longer directed against the
Crown, but against the defaulting officer personally.
Whenever any person or corporation is given a discretionary power to
exercise,* that discretion is never absolute, unless of course Parliament’s grant
is expressed so widely and in such detail as to clearly encompass the most diverse,
irrational and extraneous reasons for acting. The clearest and most learned
statement of this principle of statutory interpretation was given by Mr. Justice
Rafid in the Supreme Court of Canada in the recent Quebec case of Roncarelli
v. Duplessis:g
In public regulation of this sort there is no such thing as absolute and untrammelled
discretion”, that is that action can be taken on any ground or for any reason that can be
suggested to thc mind of the administrator; no legislative Act can, without express language,
be taken to contemplate an unlimited arbitrary power exercisable for any purpose, however
a’pricious or irrelevant, regardless of the nature or purpose of the statute. Fraud and corruption
hi he Commission may not be mentioned in such statutes but they arc always implied as
exceptions. “Discretion” necessarily implies good faith in discharging public duty; there is
always a perspective within which a statute is intended to operate; an any clear departure
from its lines or objects is just as objectionable as fraud or corruption. Could an applicant be
refused a permit because he had been born in another province, or because of the colour of his
hair? The ordinary language of the Legislature cannot be so distorted.
It also results from Roncardli v. Duplessis’0 that not only the actual repository
of the discretion”, but also any public officer exercising de facto power 2 over
the latter owes a duty to members of the public. Anyone–legally seized of the
discretion or not-who for reasons extraneous to the statute makes use of ad-
ministrative power to inflict damage on a third party commits an actionable
wrong’and is liable under art. 1053 C.C.
The principles laid down by the Supreme Court can be applied to a refusal
of the fiat. As the discretion to refuse or to cancel a liquor license is circum-
scribed by the purposes of the Alcoholic Liquor Act, so also is the discretion
vested’ in the Lieutenant-Governor to grant the fiat “if he think fit” limited
to the -general purposes for which the Legislature has conferred the power.
The Legislature’s grant of discretion to the Lieutenant-Governor as advised by
the Attorney-General has traditionally been explained as a safeguard for the
State to provide against a constant barrage of frivolous litigation. If the
reason for refusing the fiat is that the plaintiff has no cause of action, then as
‘(1959] S.C.R. 121, at p. 140.
0See particularly the judgment of Rand, J., at pp. 141-142.
“As indicated in footnote 3, the Lieutcnant-Governor, unless contrary to constitutional convention
he exercises an independent discretion in refusing the fiat, will not incur personal liability.
“It may be argued that by virtue of s. 3 of the Attorney-General’s Department Act the Attorney-
General is the de jure legal adviser of the Lieutenant-Governor and the principle of Roncarelli r.
D pe.ssix ould apply only to the intermeddling of ministers other than the Attorney-General.
It can be inswered that the Legislature by stating that the Attorney-General is to advise the
Lieutenant-Governor could not in the absence of express wording intend to permit the Attorney-
General to influence the use of the discretion in a manner wholly irrelevant to the purposes of art.
1014 C.P. Could it seriously be argued that had Mr. Duplessis been statutory adviser to the Liquor
Commission, that fact alone would have enabled him to influence the use of the discretion vested in
the Liquor Commission for a purpose not contemplated by the Alcoholic Liquor Act?
No. 2]
LIABILITY OF CROWN OFFICERS
an honest judgment decision the claimant has no recourse in damages. If the
Attorney-General’s advice, however, can be proved to have been motivated by
religious or political prejudice, personal animosity or the like, suppliant has,
it is submitted, such a recourse.
If it were otherwise the Attorney-General
would be permitted to use a power granted for public purposes to inflict injury
for private and malicious reasons. Surely such was not intended by the Legisla-
ture and cannot be implied in the absence of express wording in art. 1014 C.P.’ 3
The perspective within which the discretionary power to refuse the fiat
is to operate has been discussed in a number of English cases. In Dyson v. Attorney-
General, Farwell, L. J.14 stated that “it would be unjustifiable to refuse the fiat
in any case where a plausible claim is made out”. In Irwin v. Grey, the Chief
Justice’5 spoke of the Home Secretary’s function as advising whether or not a
cause of action arose. Brett, M. R. in Re Nathan8 indicated that the granting
of the fiat depends on a “judicial discretion”. In the same case Bowen, L. J.17
referred to the Attorney-General’s “constitutional duty” not to endorse a
refusal of the fiat unless the claim is frivolous. It can be argued that Bowen,
L. J.’s use of the term “constitutional duty” suggests that sanction is restricted
to Parliamentary criticism’, while Farwell, L. J.’s expression “unjustifiable”
does not necessarily mean unjustifiable in a legal sense. Lord Langdale in
Ryves v. The Duke of Wellington”5 is more explicit however, and it is clear that in
his opinion it would be unjustifiable in a legal sense to refuse a fiat for any but
sound reasons:
I am far from thinking, that it is competent to the King, or rather to his responsible
advisers, to refuse capiciously to put into a due course of investigation any proper question
raised on a petition of right. The form of the application being, as it is said,
the grace and
favour of the King, affords no foundation for any such suggestion.
The one Quebec case touching on the point in issue expresses a similar con-
clusion: the discretionary right to withhold the fiat does not extend to refusal
3It may be objected that art. 1014 C.P. is merely declaratory of the common law and cannot be
dealt with in the same restrictive manner as modern statutory regulation: the presumption that the
Legislature unless it speaks expressly could not have intended to sanction a biased use of discretion
is inapplicable. I submit that in relation to the point in question there exists no essential difference
between a power recognized by the common law and one given by statute. If the question arises as
to the limits of a common law power, and the court is in doubt as to its extent, surely the same
presumptions that fraud and bias can never be implied are equally cogent. To hold otherwise is to
suggest that the Legislature when it concerns itself with statutory regulation enacts sweet
reasonableness, while that which it deems unnecessary to regulate is inherently unreasonable.
14[1911) 1 K.B. 410, at p. 422.
1′(1862) 3 F. & F. 635, at p. 637. See below, footnote 22.
16[1884] 12 Q.B. 461, at p. 474.
17At p. 479.
IsCf. 9 Halsbury, 2nd ed., p. 694, n.e.: “It has been suggested that it is the duty of the Attorney-
General to advise the Crown to grant its fiat to all petitions except those which are frivolous;
but it is doubtful whether there is any real ground for this view. In any case the Attorney-
General could only be responsible to the King and Parliament in the matter, and not to the
courts”.
‘(1846) 9 Beav. 579, at p. 599.
McGILL LAW JOURNAL
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“‘lorsqu’il parair par les allegations d’une petition de droit, si elles 6taient
prouves, qu’un citoyen a une reclamation contre le gouvernement” .20 The
court did not attempt to define what the claimant’s recourse would be in case
of wrongful refusal. 21
The English decisions cited above are likewise reticent on the question of
recourse. The Canadian courts, finding no express legal sanction laid down
in these cases, have tended to minimize statements concerning the duty to
exercise the discretionary power in a rational manner. Faced with an attempt
by a claimant to continue suit against the Crown, and constrained by unam-
biguous precedent to find against him however unsound the reason for the fiat
being refused, they have adopted the unfortunate course of relegating incon-
venient judicial dicta to the limbo of well-intentioned moralizing.
Had the question of delictual recourse been before them, the tendency to
describe a frustrated petitioner’s position as absolutely hopeless might well
have undergone serious qualification. Indeed had they examined carefully the
one English decision on point, such qualification would have been likely. In
Iruin v. Grey22 plaintiff took an action against the Home Secretary. His case,
as Erle, C. J. pointed out was that Sir George Grey was guilty of a wrong in
advising Her Majesty not to grant the prayer of the petition. The action
was dismissed on the grounds that the facts alleged were not proved. The
Chief Justice was of the opinion that the Home Secretary had properly fulfilled
his duty to the plaintiff:2
… it was clearly the duty of the Secretary of State to examine the petition of right and to
give his advice upon it, whether a cause of actico againrt tht Crown aroo and he having done so,
no action lay.
There was no indication in the judgment that a personal action in damages
would never lie. 21 The holding presupposes that such an action would lie if
the Home Secretary did not properly fulfil his duty of advising on the merits
of the claim. It is submitted that this case is authority, at least by implication,
for the proposition that a public officer who advises refusal of the fiat must,
if he is to escape personal liability, base his advice on a bona fide estimate of
the soundness of petitioner’s cause of action.
Keeping in mind the arguments developed in the preceding paragraphs, it
is appropriate here to outline those cases, both English and Canadian, which
30i*Dmali v. La Reim (1890) 16 Q.L.R. 221, at p. 228 (Caron, J.).
2t =aron,J. cited Chitty (see above footnote 1). If he meant to suggest that the court’s decree could
stand in lieu of the fiat, his judgment to that extent expresses an incorrect proposition of law in
view of the later Canadian cases on point (discussed below).
22(1862) 3 F. & F. 635. In England it was the custom for the Home Secretary in conjunction with
the Attorney-General to advise on the fiat: see Robertson, Proceding, By and Again# the Crouw, p. 376.
“5At p. 637.
24t has, however, been held to be authority for that proposition: Rmffy-Arnel and Baemann
Aviatks Co. Ltd. v. Rex [1922] 1 K.B. 599, at p. 607 (McCardie, J.). The relevant dictum was un-
necessary to the decision, which dealt with suppliant’s right to amend his petition without obtaining
a second fiat. There leas no discussion of Irwin v. Grry, merely a remark made en panran: that it estab-
lished that a personal action would never lie.
No. 2]
LIABILITY OF CROWN OFFICERS
suggest that for whatever reason the fiat is refused, such refusal cannot be
challenged in court. It will be shown that in each case the suppliant continues
to sue the Crown and not the responsible agent of the Crown in his personal
capacity. For this reason statements as to the absolute nature of the discretion
to refuse the fiat can be considered obiter as far as suppliant’s delictual recourse
is concerned.
In Re Mitchell’s Petition of Right,25 the fiat was refused, whereupon petitioner
moved that the case be set down for trial as though the fiat had been affixed
thereto. It was held that “no matter for what reason the fiat had not been
obtained, the court had no jurisdiction to set down the petition of right with-
out the fiat of Her Majesty being first obtained”. The fiat is a condition
precedent to suit against the Crown; this alone is the holding in Mitchell’s Case
and in the three Canadian cases which follow it. In Orpen et al v. Attorney-General
for Ontario26 the question for decision was whether or not the court could compel
the Attorney-General to advise the Lieutenant-Governor to grant a fiat for the
hearing of a petition of right. In Royal Trust Company v. Attorney-General for
Alberta”l plaintiff, having been refused a fiat, took an action against the
Attorney-General in his official capacity and prayed for a declaration that the
Crown in Right of Alberta had no title to certain monies which had been
remitted to its agent in payment of succession duties.
In Lovibond v. Governor-
General of Canada28 the insufficiency of the reason behind the refusal of the fiat
made no difference to the Privy Council’s inability to go behind the refusal
and in effect act as a court of appeal. 29
To summarize we can say that in one case only has the issue of a delictual
recourse come before the courts and the judgment in that case indicates that
such a recourse will lie in certain circumstances. The most unfavourable cases
deal with suits against the Crown without the fiat and not with suits against
the responsible agent of the Crown. There is no reason of public policy why
a suppliant with a prima facie cause of action should be refused a fiat. Judicial
abhorrence of the notion that the Crown’s advisers can be criticized in court
for not allowing right to be done30 is an unedifying example of the medievalism
too often employed in dealing with the prerogative, and is a clear perversion
of the rule of law, whatever definition of Dicey’s phrase we accept. According
to the Supreme Court anyone upon whom the Legislature has conferred dis-
cretion must exercise it without bias, while persons other than the recipient
of the power who influence its exercise in a manner not contemplated by the
relevant statute are liable under art. 1053 C.C. for the damage caused. When
-01896) 12 Times L.R. 324.
26[1925 2 D.L.R. 336.
21[1936] 2 W.W.R. 337.
18[1930] A.C. 717.
SSMhe specific holding in the case was that the Governor-General in deciding whether to grant the
fiat did not act as a “judicial officer” within the meaning of s. 3 of the Judicial Committee Act of
1833, and therefore no appeal lay to the Privy Council from his refusal.
“See particularly the judgment of Ford, J., in Royal Trust Company v. Attorney-General for Alberta.
McGILL LAW JOURNAL
(Vol. 8
considering a petition of right the Attorney-General acts as a safeguard against
a burdensome load of needless litigation. When in advising refusal of the fiat
he ceases to perform this function, he acts illegally and is personally liable.
The petition of right procedure–particularly the power of granting or refusing
the fiat-is an exceptional provision in our law and should be restrictively
interpreted. The personal liability of every officer of the Crown for his delicts
and quasi-delicts is a general rule and should be given full effect. For these
reasons I submit that wrongful refusal of the fiat is actionable in delict.
The acceptance by the judiciary of the principle of personal liability would
ameliorate the intolerable position of the litigant involved in proceedings
against the Crown; it would not provide a cure. The difficulty of proving
bias is obvious. Nor does an honest judgment decision by the Attorney-General
guarantee that suppliant’s claim has been equitably dealt with. The Attorney,
General is often in no position to make up his mind on the adequacy of a
petition; only a court of law after hearing all the evidence, given under oath
and subject to cross-examination, can efficiently decide such a question.
The system whereby the Crown must signify its pleasure that “right be
done”, while perhaps compatible with the notion that a duty of personal
allegiance is owed by every subject to a supreme feudal lord, is a dangerous
anachronism in the welfare state of the twentieth century. Its raisol d’tre
disappeared with the growth of the constitutional monarchy; its inherent
injustice”1 has been magnified a hundredfold by the proliferation of govern-
ment boards and commissions, which claim to enjoy the all too pervasive
“shield of the Crown”. Subjection of the executive government to the law is
a basic essential of a well-ordered society, and is imperative where that govern-
ment no longer restricts itself to the laissez-faire role of policeman-referee in
an economic community based on the freedom of contract, but organizes a
widespread regulation of trade and industry and indeed is itself industrialist
and trader.
The only sane way to deal with this “relic of the middle ages”, as one irate
Superior Court judge aptly characterized the petition of right 2, is to do away
with it or at least with the necessity of obtaining a fiat. The Dominion and
tie majority of the provinces have already eliminated the fiat with none of
the dire consequences which earlier government statements foresaw. The
bogey of a swarm of legal locusts is belied by the experience of those jurisdic-
tions which have established the Crown’s liability to suit on a basis similar
to that of a private defendant. In any case, by simply enacting that the sup-
pliant must give security for costs, the Quebec Legislature can ensure a minimum
of frivolous claims.
31For an example of how the discretion to grant the fiat can be exercised in an arbitrary way, sec the
unreported case of Day-Baldwin v. Lareau and Taicherean discussed in R.L. Calder, Comment Eteint
La Libert, Montreal (1935), pp. 76-78.
3Boulanger, J., in Le Syndicat des Employs dFA Service Ext/reur de la Cite de Q ulbc v. La Cite’ de
Quibec, [1951] P.R. 85.
