SECTION 20

Emergency Response Liability Protection

20. A person directed or required under subsections 17(3) or (4), 18(2) or 19(2) to do or refrain from doing anything is not personally liable, either civilly or criminally in respect of any act or omission in the course of complying with the direction or requirement or doing any reasonable thing incidental to it, unless it is shown that the act or omission was in bad faith.

BEHIND THE WORDS

The intent of Section 20 is to remove liability from a person who is directed to do something that he/she would not normally do. As the federal government is providing this comfort, it can be suggested that it is, in turn, inviting some liability. For example, if an inspector directs someone to do something in a specific fashion the federal government may be liable for some responsibility with respect to consequences linked to the specific action.

The following is quoted from Treasury Board of Canada Circular No. 1990-1, T.B. No. 812546, file No. 2425-05-0, of January 4, 1990.

" Policy Statement

(a) The Crown will indemnify a servant against personal civil liability incurred by reason of any act or omission within the scope of the servant's employment or duties and will make no claim against that servant based upon such personal liability, if the servant acted honestly and without malice.

(b) In any case not covered in (a), where there are extenuating circumstances:

(i) a Deputy Head may determine the extent to which servants may be indemnified, provided the full amount of the indemnification does not exceed $25,000; and

(ii) the Treasury Board may determine the extent to which servants may be indemnified when the full amount of the indemnification exceeds $25,000.

(c) Nothing in this policy affects any obligation of the servant to the Crown in respect of the care, custody or control of money, or the application of Chapter 38 of the Queen's Regulations and Orders for the Canadian Forces.

(d) Notwithstanding this policy, the Crown may discipline a servant in respect of an incident which is the subject of a claim or suit."

Under 17(3) or (4) the protection arises from a direction.

Under 18(2) the protection is automatic.

Under 19(2) the protection arises from a direction.

Approving the use of an emergency response assistance plan for a particular accident in the form of a direction of a general nature would probably not involve the Crown in any more responsibility than it had already incurred in approving the original emergency response assistance plan.

If an inspector behaves in accordance with the TB Guidelines, any liability would be directed toward the Crown and not the individual inspector.

RELATED SECTIONS

Subsections 17(3), 17(4), 18(2) and 19(2)

Section 7 - Approval of an ERAP and the implied duty to activate such plans when appropriate

COURT DECISIONS OF INTEREST

"Please refer to the disclaimer on page 0-1"

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