Leroux v. Her Majesty The Queen in the Right of the Province of Ontario

2020 ONSC 730; Lerners represented the Canadian Civil Liberties Association (the “CCLA”) in a motion for leave to intervene as a friend of the Court. Leave was sought on the appeal from the order of Belobaba J dated December 14, 2018 certifying a class action against Her Majesty the Queen in Right of the Province of Ontario (“Ontario”) claiming that Ontario was negligent and breached s. 7 of the Charter in the provision of services to adults with developmental disabilities. Ontario sought and was granted leave to appeal the certification decision. One of the issues raised by Ontario on the appeal is that section 11 of the recently enacted Crown Liability and Proceedings Act, 2019, S.O. 2019, c. 7, Schd 17 (the “CLPA”), provides immunity to Ontario from the negligence claims advanced by the plaintiff in this case. It is this issue, specifically the constitutionality of these provisions of the CLPA, on which the CCLA sought to intervene. In this case, Lerners successfully argued that the CCLA met the criteria for intervention, and the Divisional Court granted the CCLA’s motion to intervene as a friend of the Court on the appeal scheduled to be heard on March 2 and 3, 2020. Of particular note, the court held that although the CCLA sought to argue specific grounds for the unconstitutionality of the provisions that had not been raised by the respondent, this did not constitute the raising of a “new issue” but rather was an alternative legal argument, which is permissible within the role of the intervener and does not constitute an injustice to the parties.