Section 17 of the Crown Liability and Proceedings Act, 2019 declared unconstitutional

The saga of constitutional challenges to Ontario’s Crown Liability and Proceedings Act, 2019 (the CLPA)¹ continues with the Ontario Superior Court of Justice’s recent decision in Poorkid Investments Inc v HMTQ.²  

In a motion to pursue a class action against the Ontario Provincial Police by Caledonia residents, the Superior Court invalidated the mandatory stay arising from section 17 of the CLPA due to its inconsistency with section 96 of the Constitution Act, 1867 (the Constitution).³ 

Background

The applicants are the named representative plaintiffs in a proposed class action, arising from Caledonia’s road and rail blockade by protestors in 2020. The claim seeks damages against the Crown, on behalf of all affected businesses and residents, for alleged misfeasance in public office, nonfeasance, negligence, and nuisance. This claim was automatically stayed in 2021 by virtue of section 17 of the CLPA. 

Section 17 provides that a proceeding brought against the Crown, or a Crown officer or employee, which includes claims for misfeasance in public office or those based on bad faith, is automatically stayed. Such claims may proceed only with leave of the court.⁴ Leave shall not be granted unless the court is satisfied the matter is: (i) brought in good faith; and (ii) there is a reasonable possibility it will succeed.⁵  

On a motion for leave to lift the automatic stay, the claimant must file affidavit evidence and productions to support the material facts on which it intends to rely.⁶ The defendant may file an affidavit, but is not required to do so.⁷ While any affiant can be examined, section 17 expressly provides that the “defendant shall not be subject to discovery or the inspection of documents, or to examination for discovery, in relation to the motion for leave.”⁸ 

The decision

The applicants brought an application for declarations that: 

• section 17 of the CLPA violated section 96 of the Constitution; and 
• under section 52(1) of the Constitution Act, 1982,⁹ section 17 of the CLPA is of no force and effect. 

It was undisputed that section 96 of the Constitution goes beyond simply appointing superior court judges. It also protects the “core jurisdiction” of superior courts to resolve private law disputes. An important aspect of this protection involves evaluating barriers to litigants’ ability to access superior courts.

The applicants contended that section 17 of the CLPA creates procedural and economic barriers that infringe section 96 of the Constitution and offend the rule of law. By relieving the Crown from disclosing internal communications and other relevant evidence on a motion for leave, complainants can only speculate about bad faith. As bad faith is a main element of misfeasance in public office, complainants, without disclosure, would be unlikely to meet the legislation’s “reasonable possibility” of success test. Section 17 also economically disadvantages complainants by requiring them to present almost their entire case at the leave stage or risk not having their day in court.

The Crown responded that section 17 does not prevent anyone from accessing superior courts, but rather requires litigants with certain types of claims to obtain leave from the Superior Court itself first before proceeding. The legal costs of doing so are not within government’s control. To prevent changes to the procedural or substantive law about how superior courts decide tort claims goes beyond guaranteeing a right of access to superior courts and imposes an unwarranted limitation on the province’s power to pass laws in relation to the “administration of justice” under section 92(14) of the Constitution.

Justice Broad was not satisfied that the alleged economic barrier violated section 96, given the Supreme Court of Canada’s ruling in British Columbia (Attorney General) v Christie.¹⁰ General access to legal services in relation to court and tribunal proceedings dealing with rights and obligations is not a fundamental aspect of the rule of law. Justice Broad added a caveat, stating if this conclusion was wrong, then there was an insufficient evidentiary record to support the applicants’ constitutional challenge.

Justice Broad did agree with the applicants, however, that section 92(14) of the Constitution does not give the provinces the power to administer justice in a way that denies the right of Canadians to access superior courts. Barriers to access—representing legitimate exercises of the provincial power to impose conditions on how and when people have a right to access the courts—can and do exist. However, aspects of section 17 of the CLPA were without precedent in Canadian law.

The Crown could not point to other legislative screening mechanisms that required complainants to first satisfy the court there was a reasonable possibility their claim would succeed while simultaneously denying any right to documentary or oral discovery from the defendant. This was especially troublesome given that Justice Broad took judicial notice that bad faith is a state of mind and difficult to prove without at least some evidence from the defendant.

Section 17 of the CLPA was therefore declared of no force or effect. The constitutional inconsistency did not arise from the implementation of a screening mechanism, the exemption to filing affidavit evidence for the Crown, nor the provision providing that each party to the leave motion bear its own costs. The inconsistency lay solely in the CLPA provisions relieving the Crown from any documentary or oral discovery because these deprived potential complainants with meritorious claims from having any effective means of access to the evidence needed to satisfy the court that their claim may succeed. 

Takeaways

This decision is a pertinent reminder that even legislation involving Crown immunity remains subject to constitutional parameters. The rule of law requires meaningful access to superior courts. 

Until the provincial legislature enacts a new provision that does not relieve the Crown from documentary and oral discovery as part of its leave screening mechanism, section 17 of the CLPA is of no force or effect. Practically speaking, although the stay on the applicants’ class proceeding has been lifted, what this declaration of unconstitutionally means for other pending leave motions under the CLPA remains the subject of academic debate.¹¹  

Until the time limit to appeal Justice Broad’s decision has expired, litigants should be mindful of filing deadlines and that section 17 could be upheld as constitutional by a higher court.