The Extra-Contractual Liability of the State

Overview

The extra-contractual liability of the State governs civil claims seeking financial compensation for harm caused by administrative acts, material operations, and state-managed property. While judicial review of administrative action evaluates the validity, jurisdiction, or procedural fairness of an official decision to annul or quash it, an action in extra-contractual liability pursues compensatory redress. It operates under private law to restore an aggrieved individual to the position they would have occupied absent the injurious state conduct.

In contemporary Canadian and Quebec public law, the Crown no longer enjoys general immunity from civil obligations. The historical common law maxim that the King can do no wrong has been repealed by modern statutes. In Quebec, the State is subject to the general rules of the Civil Code of Quebec, supplemented by public law principles where the unique attributes of governance require specialized rules. At the federal level, the Crown Liability and Proceedings Act incorporates provincial private law regimes while establishing specific statutory conditions and procedures.

Enforcing state liability requires identifying both the civil basis of the claim and the precise immunity invoked. Statutory, legislative, judicial and core-policy protections differ. Canada (Attorney General) v. Power, 2024 SCC 26, also recognizes a distinct constitutional route to damages for legislation infringing Charter rights, subject to a high threshold. Defeating immunity does not dispense with the remaining requirements of the chosen cause of action.

Learning Objectives

• Distinguish the procedural and substantive architecture of extra-contractual state liability from judicial review of administrative action under Quebec and federal law.
• Analyze the application of vicarious liability, direct institutional fault, custody of property, and neighbourhood disturbances to public authorities.
• Apply the different immunity tests, distinguish Charter damages under Power from ordinary civil liability, and use Marchi to separate policy from operations without skipping fault and causation.

Historical and Constitutional Foundations

The British Common Law Heritage and Crown Immunity

The modern law of state liability reflects the evolution of British constitutional principles. Following the centralization of royal authority, English common law developed two doctrines shielding the sovereign: the substantive maxim that the King can do no wrong and the procedural rule of Crown immunity from suit. Under these doctrines, the sovereign could not commit a civil wrong, nor could royal courts exercise coercive jurisdiction over the Crown without royal consent.

Aggrieved citizens were historically limited to filing a petition of right, an exceptional procedure requiring royal permission before a claim could proceed. While a petition of right permitted claims for breach of contract or the restitution of property, it was unavailable for torts committed by Crown agents. Consequently, legal responsibility fell upon public officers in their personal capacity. Under the Diceyan formulation of the rule of law, individual public servants were personally accountable before ordinary courts for tortious acts committed under colour of official authority, even when obeying superior orders.

This dual regime created severe gaps in citizen redress. In the United Kingdom, Parliament abolished immunity from suit through the Crown Proceedings Act 1947. In Canada, Parliament enacted the Crown Liability Act in 1953, establishing statutory liability for torts committed by Crown servants. This statutory transformation shifted financial responsibility from individual servants to the public treasury, assimilating the Crown to an employer under general legal principles.

The Quebec Civil Law Regime and Procedural Equality

Quebec’s development must be distinguished from the British position. Civil proceedings against the provincial government historically used the petition of right, but extra-contractual claims were recognized before the 1965 procedural reform. The former Code’s article 94 subsequently confirmed that a claim could be exercised as against a person of full age and capacity, subject to its special provisions. It is incorrect to describe all pre-1965 victims of governmental negligence as lacking a direct remedy.

The 1965 Code’s reform of Crown procedure is historical law. Today, the Code of Civil Procedure and the Civil Code govern proceedings against the Quebec State, subject to their special rules, including article 80 CCP on judgments against the Attorney General. The federal petition-of-right history and provincial reform should not be conflated.

The Civil Code was enacted in 1991 and came into force in 1994. Article 1376 applies the rules on obligations to the State and its bodies, subject to applicable public law; article 1457 supplies fault, injury and causation. Article 300 concerns legal persons established in the public interest and does not confer separate personality on every ministry. Prud’homme v. Prud’homme, 2002 SCC 85, makes the civil-law baseline and the need to identify a public-law exception clear. CCQ, arts. 300 and 1376.

The Federal Statutory Framework

The Crown Liability and Proceedings Act is bijural. Section 3(a) applies in Quebec: subparagraph (i) concerns damage caused by a Crown servant’s fault and (ii) damage resulting from a thing in Crown custody or ownership, or from Crown fault as custodian or owner (also subject to section 13’s control/occupation conditions). Section 3(b) governs the common-law provinces, separating servant torts in (i) from property-related duties in (ii). The two lettered paragraphs are not respectively employee and property rules. CLPA, s. 3.

The relevant provincial private law operates subject to federal statutory conditions. A general discussion of direct institutional liability cannot bypass the statutory basis and attribution requirements of a claim against the federal Crown.

Section 10 requires a cause of action against the servant for Crown liability based on that servant’s conduct. Section 9 bars proceedings in respect of the death, injury, damage or loss for which the specified federal pension or compensation has been paid or is payable. This is a statutory bar, not merely an instruction to deduct duplicate amounts. Its scope depends on the compensation scheme and facts. CLPA, ss. 9–10.

Distinguishing Civil Liability from Administrative Legality Review

Divergent Purposes and Methodological Orientations

Extra-contractual state liability differs fundamentally from judicial review of administrative action. Although both mechanisms scrutinize public conduct, they pursue distinct objectives and apply contrasting judicial methodologies.

Judicial review focuses on legality, jurisdiction, and procedural fairness. Its purpose is to ensure that administrative bodies act within statutory boundaries set by Parliament or the legislature. Standard remedies on judicial review (declarations of nullity, quashing orders, and orders of mandamus) are public law instruments that deprive unlawful administrative acts of legal effect. Judicial review does not compensate financial loss; it polices administrative legality.

In contrast, extra-contractual state liability provides private law compensation. Its objective is to repair bodily, material, or moral prejudice through monetary damages. An action in damages does not assess an administrative decision under the reasonableness standard articulated in Canada (Minister of Citizenship and Immigration) v Vavilov. Instead, it asks whether the public authority acted as a prudent and diligent person under article 1457 CCQ. An administrative act may be lawful under administrative standards yet executed in a negligent, actionable manner under civil law. Conversely, an administrative decision quashed on judicial review does not automatically generate civil damages without proof of civil fault causing compensable harm.

Procedural Delays and Jurisdictional Allocation

Quebec CCP article 529 requires a reasonable time for judicial review; it does not create a statutory 30-day presumption. A 30-day jurisprudential reference point for individual decisions must be applied contextually. Federal Courts Act subsection 18.1(2) prescribes 30 days after communication of a decision or order, subject to court-ordered extension, not an unextendable period. CCP, art. 529; FCA, s. 18.1.

Ordinary personal actions generally prescribe in three years under article 2925 CCQ. Determine when the right of action arose (art. 2880), applying article 2926 to injury appearing gradually or belatedly and any interruption, suspension or special regime. The period does not universally begin whenever a claimant later learns of the injury.

Municipal claims require special care. CTA section 585 contains a 15-day notice requirement for the claims it covers, subject to its statutory exceptions; sections 585(5) and 586 contain six-month prescription rules. For an action based on bodily injury, article 2930 CCQ prevents a special notice requirement or shorter prescription from defeating the ordinary protection, as Doré v. Verdun (City), [1997] 2 SCR 862, explains. Do not instruct every injured pedestrian to satisfy a mandatory 15-day condition. Other compensation statutes and special limitation rules must still be checked. CTA, ss. 585–586; CCQ, art. 2930; Doré.

Quebec civil jurisdiction depends on the parties, relief and amount under article 35 CCP and any special law. Claims against the federal Crown may fall within concurrent Federal Court and competent provincial-court jurisdiction under FCA section 17 and CLPA section 21; a federally created body is not necessarily the Crown. Direct review of federal boards follows sections 18 and 28, including the bodies assigned to the Federal Court of Appeal. FCA.

Autonomy of the Action in Damages After TeleZone

For many decades, administrative defendants argued that an injured citizen could not institute a civil action for damages without first challenging and invalidating the underlying administrative decision through judicial review. They contended that a damages action challenging the adverse consequences of an administrative act constituted an impermissible collateral attack on an operative public decision.

The Supreme Court of Canada rejected this position in Canada (Attorney General) v TeleZone Inc, 2010 SCC 62. The Court affirmed the full autonomy of the civil action in damages. Writing for a unanimous Court, Justice Binnie held that an action against the Crown for damages caused by administrative fault does not require prior or concurrent judicial review proceedings. A plaintiff seeking compensatory damages, rather than the quashing of an administrative order, is entitled to invoke the ordinary jurisdiction of civil courts.

TeleZone removes a requirement to obtain prior quashing simply because a damages claim questions administrative conduct. It does not guarantee a remedy or eliminate statutory exclusive schemes, jurisdictional requirements, limitation periods, res judicata, collateral-attack rules and abuse-of-process controls. A court must examine the true substance of the claim and the available defences; abuse of process is not the only possible ground of dismissal.

Regimes of State Liability in Private Law

Vicarious Liability for Public Servants and Agents

The primary basis of extra-contractual state liability is vicarious liability for the acts and omissions of public servants, officers, and administrative agents. Under Quebec civil law, this liability rests on article 1463 CCQ, which provides that a principal is bound to make reparation for injury caused by the fault of its agents and servants in the performance of their duties.

Establishing vicarious liability against the State requires satisfying three conditions:

• A relationship of subordination: The State must exercise authority, direction, and control over the public employee. Civil servants within government ministries, technical inspectors, and public security personnel stand in a recognized relationship of subordination to the Crown.
• A civil fault committed by the servant: The plaintiff must prove that the individual public servant failed to act as a prudent and diligent person in similar circumstances under article 1457 CCQ. The standard of conduct is defined by statutory obligations, administrative directives, and professional norms governing public employment.
• Connection to the performance of duties: The wrongful act must have been committed in the performance of the servant's duties. Under Quebec jurisprudence, the State remains liable even when the servant exceeds authority, violates internal rules, or commits an intentional civil wrong, provided the act remains connected to the assigned public duties. The State is relieved of liability only if the servant acted entirely outside their functions for personal ends unconnected to public service.

Direct Institutional Liability and Systemic Fault

A public body may also be directly liable under article 1457 CCQ for an established organizational fault causing injury, subject to its legal status, the governing statute and public-law immunities. A ministry is not automatically a separate legal person under article 300. For the federal Crown, first establish a statutory basis under the CLPA instead of assuming unrestricted direct liability.

Direct state liability frequently takes the form of a systemic fault. A systemic fault occurs where an administrative body fails to organize, supervise, or maintain operational systems adequate to fulfill its public mandate safely. Examples include failing to enact necessary safety inspection protocols, neglecting to train and supervise regulatory personnel, maintaining information systems that fail to share critical safety warnings between public departments, or tolerating structural delays that compromise emergency response.

Where direct liability is legally available, the claimant can prove organizational fault without necessarily identifying one negligent employee. The label systemic fault does not itself establish liability: prove the relevant standard of conduct, organizational failure, injury and causation, and address any applicable immunity.

Liability for Custody of Property and Neighbourhood Disturbances

The State maintains extensive public property in Quebec, including provincial highways, bridges, dams, waterways, correctional institutions, and administrative complexes. As owner and custodian of property, the State is subject to specialized civil liability regimes under the Civil Code of Quebec.

Article 1465 CCQ creates a rebuttable presumption of fault for injury caused by the autonomous act of a thing in the defendant’s custody. The custodian can establish absence of fault, subject to any special statute that displaces this presumption. Determine actual powers of control, direction and supervision; custody is not invariably ownership and may be affected by an arrangement with a contractor. A public authority cannot assume it transferred custody merely by hiring maintenance services, but neither is custody legally untransferable. CCQ, art. 1465.

Public authorities are also subject to the regime of neighbourhood disturbances under article 976 CCQ. Article 976 provides that neighbours must accept normal annoyances that do not exceed the limits of mutual tolerance, considering the nature or location of their land or local custom. Where an annoyance exceeds normal tolerance, the author of the disturbance is strictly liable to repair the prejudice, without any requirement to prove fault.

St. Lawrence Cement Inc. v. Barrette, 2008 SCC 64, confirms liability without proof of fault for abnormal neighbourhood annoyances under article 976. The claimant must still establish the neighbourhood relationship, abnormal inconvenience, injury and causation. Statutory authorization or regulatory compliance alone does not negate abnormality; an applicable express legislative immunity or special regime must be examined separately. The case involved a private operator and does not erase public-law qualifications for every public body. St. Lawrence Cement, paras. 72–86.

Worked example: contaminated runoff and municipal operational failure

Factual Scenario

A regional municipality owned and operated a public snow disposal facility situated uphill from a commercial organic farm. The municipal council had adopted a formal snow-removal plan designating the land as a municipal snow repository. Over several successive winters, municipal public works crews piled road snow containing de-icing salts and automotive residues directly on unpaved soil adjacent to the farm boundary.

The municipality failed to construct a retention basin or install an impermeable liner, despite internal engineering reports warning that meltwater runoff would contaminate the shallow aquifer. During spring thaw, melting snow saturated with sodium chloride and hydrocarbons flowed across the surface and into the groundwater, damaging organic crops and rendering the farm's irrigation well unusable.

The farm owner sued the municipality in damages, claiming compensation for lost crop revenue, soil remediation costs, and operational losses. The municipality pleaded that establishing and operating the snow dump was an exercise of statutory power immune from civil liability, and that the farm owner was obliged to tolerate municipal public works under general public interest principles.

Public Law Immunities and Liability Thresholds

Absolute and Qualified Statutory Immunities

Although equality before private law is the governing principle, the legislature frequently enacts statutory immunities to protect public functions from civil litigation. Statutory immunities are classified into absolute immunities and qualified immunities.

The wording of each immunity is decisive: identify the protected person, activity and conditions. Some provisions exclude liability within a defined sphere; others protect acts performed in good faith. Do not treat gross negligence as a universal statutory exception independent of the actual text.

In Finney v Barreau du Québec, 2004 SCC 36, the Supreme Court of Canada examined a qualified immunity clause protecting a professional regulatory body. Section 193 of the Professional Code provided that the Barreau and its officers incurred no liability for acts performed in good faith in the exercise of their functions. The Supreme Court held that bad faith is not limited to deliberate malice or dishonesty; it includes gross negligence and reckless indifference to public protection. An administrative body that displays a persistent, complete failure to act upon serious complaints acts in bad faith, committing an abuse of power that forfeits statutory immunity.

Legislative Immunity and the Enactment of Statutes

Mere enactment of legislation later held invalid does not by itself establish ordinary civil liability. Welbridge Holdings Ltd. v. Greater Winnipeg, [1971] SCR 957, concerns municipal legislative action; Mackin v. New Brunswick (Minister of Finance), 2002 SCC 13, and Guimond v. Quebec (Attorney General), [1996] 3 SCR 347, address the constitutional setting. Distinguish ordinary fault-based compensation from Charter damages under section 24(1).

In Canada (Attorney General) v. Power, 2024 SCC 26, the majority confirms that state immunity from Charter damages for unconstitutional legislation is limited. The high threshold includes legislation that was clearly unconstitutional, in bad faith, or an abuse of power. These are alternatives; the absence of proven bad faith does not necessarily dispose of a clearly-unconstitutional-law claim. Later invalidation alone is insufficient. The assessment concerns the law and relevant circumstances at enactment, not hindsight. Power, paras. 4, 104–110.

This threshold fits within the Ward framework: establish a Charter breach; identify a compensatory, vindicatory or deterrent function for damages; address countervailing considerations, including good governance and alternative remedies; then determine quantum. Satisfying the threshold does not automatically produce damages. Parliamentary privilege continues to protect individual members and may limit available evidence; the claim recognized in Power is against the State, not a personal damages action against legislators. Power answered preliminary legal questions, not whether Mr. Power had proved entitlement to an award. Power, paras. 35–43, 80–85, 115–119.

Do not transplant this section 24(1) test into article 1457 CCQ. For an ordinary civil claim, identify the independently applicable fault, attribution and immunity rules; for a Charter claim, apply the constitutional remedial framework.

Judicial and Quasi-Judicial Immunity

Judicial immunity protects adjudicative independence, but its precise scope depends on the office and the act. A disappointed litigant cannot convert an appealable error into civil damages merely by alleging that the decision was wrong.

In Morier and Boily v. Rivard, [1985] 2 SCR 716, the majority applied the statutory grant of superior-court-judge immunity to inquiry commissioners acting in their inquiry mandate. It did not establish identical immunity for every administrative decision-maker. For a tribunal member, locate the constituting statute and immunity clause, determine the protected function, and distinguish an error within that function from conduct falling outside the protection. Do not presume that a generic allegation of bad faith defeats an absolute statutory immunity. Morier and Boily.

Prosecutorial Discretion and the Malice Standard

Prosecutorial immunity protects independent prosecution decisions while leaving room for narrowly defined claims. In deciding whether to initiate, proceed with, or withdraw criminal charges, prosecutors exercise broad discretion that must remain free from external pressure, political influence, and fear of civil lawsuits merely because a defendant is acquitted.

In Nelles v. Ontario, [1989] 2 SCR 170, the Supreme Court rejected absolute personal immunity for the Attorney General against a malicious-prosecution action. This cause of action nevertheless carries a stringent threshold. The decision separately applied the Ontario Crown’s then-statutory protection; the result concerning the prosecutor did not abolish every statutory Crown immunity.

Malicious prosecution under Nelles requires proceedings initiated by the defendant, termination in the claimant’s favour, absence of reasonable and probable cause, and malice or an improper purpose. Acquittal and negligent judgment alone do not establish these conditions; the applicable Quebec civil framework must also be respected. Separately, Henry v. British Columbia (Attorney General), 2015 SCC 24, sets a distinct, stringent test for Charter damages arising from intentional wrongful non-disclosure. Nelles; Henry, para. 31.

The Core Policy Versus Operational Dichotomy

Evolution from Anns to Laurentide Motels

The most significant public law doctrine governing extra-contractual state liability in negligence is the distinction between core policy decisions and operational implementation. This doctrine balances two constitutional values: holding public authorities accountable for harm caused by negligent operations, and preserving the constitutional separation of powers by preventing courts from reviewing democratic policy choices through tort law.

The doctrine originated in the English decision Anns v Merton London Borough Council, [1978] AC 728, and entered Canadian common law in Kamloops (City of) v Nielsen, [1984] 2 SCR 2. The governing principle holds that decisions formulating public policy, balancing competing political and economic interests, and allocating public funds cannot be subjected to a civil duty of care in negligence. Once a policy decision is adopted, however, the practical execution and administration of that policy must be conducted with the diligence of a prudent person.

Laurentide Motels Ltd. v. Beauport (City), [1989] 1 SCR 705, used public-law principles to determine when civil liability could arise from municipal fire-service operations; it did not replace the Civil Code’s fault rules with English tort law for every aspect of the claim. After article 1376 CCQ took effect in 1994, the Civil Code is the starting point and a relevant public-law exception must be identified. Prud’homme, 2002 SCC 85, paras. 27–31, explains this change of analytical starting point. Prud’homme, paras. 27–31.

The Modern Framework Under Nelson v Marchi

In subsequent years, public defendants frequently characterized operational negligence as immune policy decisions by pointing to budget limitations or administrative manuals. In R v Imperial Tobacco Canada Ltd, 2011 SCC 42, the Supreme Court narrowed protected policy decisions, holding that true core policy decisions are courses or principles of action based on public policy considerations (such as economic, social, and political factors) typically made by elected officials or senior executives.

In Nelson (City) v Marchi, 2021 SCC 41, the Supreme Court of Canada provided a definitive restatement of the core policy doctrine. The plaintiff, Ms. Marchi, injured her leg while crossing a snowbank created by municipal plows in downtown Nelson, British Columbia. The city claimed immunity on the basis that its snow removal followed internal guidelines and involved budgetary choices.

The Supreme Court rejected the city's defence. Writing for a unanimous Court, Justices Karakatsanis and Martin held that the presence of discretion or financial considerations does not convert an operational act into a core policy decision. A core policy decision attracts immunity because courts respect the constitutional separation of powers. The Court identified four non-exhaustive factors to determine whether an administrative decision qualifies as an immune core policy decision:

• The level and nature of the decision-maker: Core policy decisions are typically made by elected representatives, ministers, or senior executive officials holding statutory mandates to establish public policy. Decisions made by frontline employees, supervisors, or field personnel are generally operational.
• The deliberative character of the process: A core policy decision usually results from a formal, deliberative process in which competing policy options, expert reports, and socio-economic data are considered. Spontaneous, reactive, or routine decisions made in the field lack this deliberative character.
• The nature and seriousness of budgetary constraints: While core policy decisions allocate macro-level budgets among competing public priorities, the routine operational management of existing equipment or personnel does not attract policy immunity simply because resources are limited.
• The extent to which the decision is based on objective criteria: The more a decision weighs competing interests and requires value judgments, the more likely it is to engage the separation of powers. The more it rests on technical standards or general standards of reasonableness, the more likely it can be reviewed for negligence. Objective criteria may point toward an operational decision, but this factor is not necessarily determinative on its own; all the circumstances must be assessed in light of the purpose of core policy immunity.

In Marchi, the city failed to establish that the challenged snow-clearing method was an immune core-policy decision and owed a duty of care. The Supreme Court did not finally find negligence and award compensation: a new trial was required on breach and causation. The four non-exhaustive factors concern the real nature of the decision; neither an official’s rank nor the presence of a budget alone resolves the issue. The public authority bears the burden of establishing the immunity, which does not shield irrational or bad-faith decisions. Marchi, paras. 54–68, 86, 101–103.

Application to Resource Allocation and Public Maintenance

The Marchi framework applies across multiple fields of administrative activity, including transportation, public health, environmental regulation, and infrastructure management.

For infrastructure, high-level allocation among public priorities may qualify as core policy. Inspection frequency or maintenance scheduling must still be characterized on the evidence rather than labelled automatically. Failure to follow established safety standards may support an operational fault claim; the claimant must prove the remaining conditions of liability and meet any applicable statutory regime.

A general inspection strategy may involve policy; an inspector’s careless execution may instead be operational. But a mistaken test result does not automatically establish negligence or causation. Apply the relevant statutory duties, immunity and civil standard to the actual conduct.

Worked example: municipal winter maintenance and the Marchi criteria

Factual Scenario

A municipality experienced a severe winter storm resulting in substantial snowfall. The municipal council had previously adopted a formal Winter Snow and Ice Control Policy establishing four priority tiers: Priority 1 covered emergency routes and hospital access roads; Priority 2 covered major commercial arteries; Priority 3 covered residential collector streets; Priority 4 covered residential sidewalks.

During the storm, the municipal public works supervisor in Sector East decided to alter the snow-clearing sequence without consulting management. To finish residential streets before the end of the shift, the supervisor instructed plow operators to push accumulated roadway snow onto the sidewalk in front of a senior citizens' centre, blocking the pedestrian pathway with a 1.5-metre packed snowbank. No salt was spread on the blocked walkway, and no pedestrian detour was established.

Two days later, an elderly resident navigating around the snowbank slipped on concealed ice and suffered severe fractures. The resident commenced an action in damages against the municipality under article 1457 CCQ. The municipality moved for dismissal, asserting that municipal winter maintenance was an immune core policy decision under Laurentide Motels and Nelson v Marchi.

Practice Checklist

Preliminary Analysis and Jurisdiction

• Identify the legal status of the public defendant (provincial Crown, federal Crown, municipality, or public regulatory body).
• Determine whether the claim seeks compensatory damages (extra-contractual liability) or the invalidation of an administrative act (judicial review).
• Confirm that prior judicial review is not required under the TeleZone doctrine, ensuring the claim does not constitute an abuse of process.
• Determine accrual and prescription under CCQ articles 2880, 2925–2926 and any special regime; check CTA sections 585–586 and the bodily-injury protection against short notice/prescription rules in article 2930.
• Select the competent forum: for damages against the Quebec State, the Superior Court or Court of Quebec according to the amount; for damages against the federal Crown, ordinarily the Superior Court or Federal Court, not the Court of Quebec (Crown Liability and Proceedings Act, s. 21(1); Federal Courts Act, s. 17). Check any special jurisdictional regime.

Evaluating Liability Regimes

• Vicarious liability: Establish the employment relationship, the specific civil fault of the public servant, and the connection to official duties under art. 1463 CCQ.
• Direct institutional liability: Identify systemic, structural, or organizational failures in training, supervision, or safety protocols under art. 1457 CCQ.
• Custody of property: Determine whether harm was caused by the autonomous act of public property under the State's care under art. 1465 CCQ, subject to special statutes such as CTA section 585(7) for covered snow- or ice-related accidents.
• Neighbourhood disturbances: Assess whether state infrastructure generated abnormal annoyances exceeding normal neighbourly tolerance under art. 976 CCQ.

Assessing Public Law Immunities

• Review statutory texts for express immunity clauses and verify whether the immunity is absolute or qualified by good faith (Finney).
• Separate ordinary civil claims from Charter damages: Power’s high threshold includes clearly unconstitutional legislation, bad faith or abuse of power, within the Ward framework; invalidity alone is insufficient.
• Verify whether adjudicative functions attract judicial or quasi-judicial immunity (Morier).
• Identify the prosecutorial cause of action: all malicious-prosecution elements under Nelles, or the distinct constitutional test for intentional non-disclosure under Henry.
• Apply the four Nelson v Marchi factors to distinguish immune core policy decisions from actionable operational negligence (hierarchy, deliberation, budgetary nature, objective standards).