The Crown Liability and Proceedings Act (the Act) permits actions to be commenced against the federal Crown, including torts, but only on terms specified within the Act. Without the legislation, actions against the Crown are prohibited in common law. Section 9 of the Act provides that:
- No proceedings lie against the Crown or a servant of the Crown in respect of a claim if a pension or compensation has been paid or is payable out of the Consolidated Revenue Fund or out of any funds administered by an agency of the Crown in respect of the death, injury, damage or loss in respect of which the claim is made. 
This section is intended to bar actions against the Crown in situations where an individual is already receiving a federal pension or other form of federal compensation as a result of their injury or loss. The remedy is quite extreme, in that it bars the entirety of the action from commencing rather than simply deducting the relevant portion of the funds, to ensure there is no double dipping. Actions against provincial governments are governed by the applicable provincial legislation, and some do provide less onerous restrictions.
In the personal injury context, the leading case providing guidance on the interpretation of Section 9 comes from the Supreme Court of Canada (SCC) in Sarvanis v. Canada,  1 SCR 921, 2002 SCC 28 (CanLII) (Sarvanis). In Sarvanis, an inmate in a federal penitentiary sustained injuries while working in a prison facility, resulting in a permanent disability. As a result of his injuries, the inmate qualified for and received Canada Pension Plan (CPP) disability benefits, which were payable based on his disability.
At the trial level, the Crown argued for summary judgment on the basis that Section 9 of the Act barred the action, in that the plaintiff was being paid federal pension benefits. The trial judge disagreed and found the action was not barred by statute. On appeal, the Federal Court of Appeal (FCA) applied a broad interpretation of what was considered to be compensation and concluded that the proper interpretation of Section 9 resulted in it capturing both compensation payments and more general federal pensions.
The SCC took a different view regarding the proper interpretation of section 9. In overturning the FCA decision, the SCC found the action could proceed because the Act “establishes Crown immunity where the very event of death, injury, damage or loss that forms the basis of the barred claim is the event that formed the basis of a pension or compensation award. The CPP, a contributory plan not contingent on death, injury, damage or loss, but rather on physical condition and on adequate quantum and duration of contribution, is a significantly different animal (para. 39).”
While acknowledging that the use of “in respect of…death, injury, damage or loss” allows for a broad interpretation, the SCC found that it must be interpreted within the overall context of the Act. Therefore, the SCC found that to fit within the scope of section 9, the payment received (in this case the CPP disability benefit) must be payable only when the disability was caused by a particular type of event, and not just on proof of a disability. The pension in this case was payable without reference to the cause of the disability, and as such was not caught by section 9.
 Crown Liability and Proceedings Act (R.S.C., 1985, c. C-50) s. 9.
 Sarvanis v. Canada,  1 SCR 921, 2002 SCC 28 (CanLII)
To be successful, a claim in medical malpractice requires the plaintiff to prove a breach of the standard of care, causation and damages.
In the seminal case of Snell v Farrell, the Supreme Court of Canada explained causation as “an expression of the relationship that must be found to exist between the tortious act of the wrongdoer and the injury to the victim in order to justify compensation of the latter out of the pocket of the former” (para. 27). Essentially, causation is a link between the negligent conduct, and the resulting injury. The plaintiff must prove on a balance of probabilities (at least 51% likelihood) that the negligent conduct is what caused the injury. The negligent conduct need not have been the sole cause of the injury. Rather, the test for causation is the “but for” test: the plaintiff must prove that “but for” the negligent actions (or omissions) of the defendant(s) (in the case of medical negligence, a health care professional), the injuries and/or outcome would have been materially different.
In most cases involving negligence in the diagnosis of cancer, causation is the biggest hurdle for the plaintiff. This is because even though the negligence may have caused a delayed diagnosis in the plaintiff’s cancer, such negligence cannot be said to have caused the cancer, and thus the cause of related surgeries and/or chemo- radiation therapies, which the plaintiff may have been required to undergo in any event. In these instances, while there may be damage and injury resulting from the delayed diagnosis, and even where is a clear breach in the standard of care, it can be challenging to prove there would have been a materially different outcome absent the negligent care. This difficulty also arises in the context of diagnoses of rare forms of cancer, and/or cancers for which there is currently no cure, or that are resistant to treatment. In those instances, even with proper care or timely diagnosis, the plaintiff cannot prove the outcome would have been materially different due to the nature of the illness, and the absence of effective treatment.
Notwithstanding these challenges, delayed diagnosis of cancer cases can be viable and successful for the plaintiff where the delay is sufficiently lengthy such that certain treatments and their effectiveness – such as the invasiveness and ultimate success of surgical excision, chemo and radiation therapy – would have been materially different, and recurrence and ultimate survival rates materially improved by an earlier diagnosis.
If you or a family member have experienced a delayed diagnosis in cancer, it is important to consult with a knowledgeable medical malpractice lawyer who can assess the viability of a successful claim, and work to obtain compensation for damages suffered as a result of another’s negligent care. Wagners has extensive experience in medical negligence and can assist you in screening and pursuing a claim.