Since the introduction of Ontario's Crown Liability and Proceedings Act, 2019 ("CLPA" or "the Act"), which came into force and effect in July 2019 with retroactive application, all levels of court in Ontario have been tasked with considering the legislative interpretation and effect of various provisions in the Act. In our earlier blog series, we summarized the recent cases considering the scope and constitutionality of provisions of the CLPA.
The most recent decision to consider certain provisions of the CLPA is the application decision of Justice Broad in the proposed class action Poorkid Investments Inc. v. HMTQ, an action against Her Majesty the Queen in right of the Province of Ontario ("Ontario"), which was automatically stayed when the Act CLPA came into force by virtue of s. 17 of the Act.
The applicants were the named representative plaintiffs of a proposed class action against the Crown on behalf of all businesses and residents of the community of Caledonia, Haldimand County, and surrounding areas. The applicants' alleged misfeasance in public office, nonfeasance, negligence, and nuisance against the Crown related to a blockade by protestors of three public highways and a railway line.
As of the date of the application, the proposed class action had not yet been certified. However, pursuant to s. 17 of the Act, the claim was deemed to be stayed. The applicants brought an application for a declaration that s. 17 of the CLPA violated s. 96 of the Constitution Act, 1982 (the "Constitution") and that pursuant to s. 52 of the Constitution, s. 17 of the CLPA was of no force and effect.
Section 17 of the CLPA
Section 17 of the CLPA provides that a proceeding brought against the Crown (or a Crown officer or employee) which includes a claim for misfeasance in public office or which is based on bad faith, is automatically stayed and may proceed only with leave of the court. The provision further provides that such leave shall not be granted unless it is found that the proceeding is 1) being brought in good faith and 2) that there is a reasonable possibility that the claim would succeed.
In addition, pursuant to s. 17, the claimant moving for leave must provide evidentiary support by affidavit, and the claimant may also be compelled to submit to cross-examination. By contrast, there is no corresponding obligation on the Crown to give any documentary or oral discovery in response.
The applicants argued that s. 17 of the CLPA violated s. 96 of the Constitution in two ways: by imposing 1) economic barriers and 2) procedural barriers to litigants seeking to have meaningful access to the Superior Courts in order to hold government and government officials accountable. While Justice Broad disagreed that s. 96 of the Constitution was engaged by any economic or financial costs imposed by s. 17, he did find that the procedural hurdles presented by s. 17 were inconsistent with s. 96 and the constitutional protection for meaningful access to the Superior Court.
Section 96 of the Constitution provides that "the Governor General shall appoint the Judges of the Superior, District, and County Courts in each Province…", but, as recognized by Justice Broad, the provision "goes beyond the question of jurisdiction to appoint superior court judges" and "also protects the core jurisdiction of the superior courts which includes arbitrating and resolving private law disputes, including disputes involving the Crown." Justice Broad reviewed the jurisprudence on s. 96 of the Constitution, finding that it "demonstrates that an important aspect of the protection guaranteed by s. 96 is in relation to barriers, including barriers erected by legislation, to the ability of litigants to access superior courts." Justice Broad went on to hold, citing McLachlin C. J., that access to justice is also fundamental to the rule of law and that since "the rule of law is fostered by the continued existence of the s. 96 courts, it is only natural that s. 96 provide some degree of constitutional protection for access to justice."
Justice Broad found that s. 96 was not engaged by the financial or economic costs to litigants in bringing motions for leave pursuant to s. 17 of the CLPA. Citing Christie v British Columbia (Attorney General), 2007 SCC 21, Justice Broad held that "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." Furthermore, the court found the applicants had not provided sufficient evidence relating to the cost of motions under s. 17.
However, Justice Broad did hold that the procedural screening mechanisms enacted by s. 17 of the CLPA violated s. 96 of the Constitution. In particular, he found:
…prohibiting any documentary or oral discovery of the defendant as an integral part of the screening mechanism does prevent many claimants who may well have meritorious claims against the Crown based on bad faith or misfeasance in public office from having meaningful access to the Superior Court in a way that is inconsistent with s. 96 and the requirements that flow by necessary implication from s. 96. This inconsistency is brought about by barring such claimants from any realistic and effective means of presenting sufficient, credible and necessary evidence to satisfy the court that there is a reasonable possibility that their claims would succeed.
In other words, the court held that "a direct and inevitable causal link has been shown between the barrier represented by section 17 of the CLPA , which requires a plaintiff to show credible evidence to support a finding that they have a reasonable possibility of succeeding without access to any documentary or oral discovery from the defendant, and obtaining access to justice."
Having found that s. 17 of the CLPA was inconsistent with s. 96 of the Constitution, Justice Broad concluded that it should be of no force or effect pursuant to s. 52 of the Constitution. As a result, the stay of the proposed class proceeding was lifted. Ontario has appealed the decision.
As the case law continues to demonstrate, the interpretation and effect of the CLPA is very much a live issue in Ontario courts. The appeal in this decision will certainly be one to watch for as this is the first case where a court has found any provision of the CLPA to be unconstitutional. The court's finding that s. 17 of the CLPA violates s. 96 of the Constitution and the constitutional protection over the courts' inherent jurisdiction is no doubt significant; what this may mean for other provisions of the Act remains to be seen.
Of note, the constitutional argument that was successful in Poorkid was advanced with respect to s. 11 of the CLPA in Leroux v. Ontario by the plaintiff and the intervener, the Canadian Civil Liberties Association, which was represented by the writers at both the Superior and Divisional Court. However, the Divisional Court decided the appeal of the certification decision on other grounds. The Leroux decision has now also been appealed to the Court of Appeal for Ontario.
As counsel to the CCLA, which has a clear and demonstrated interest in the ongoing consideration of this legislation, we continue to keep a close eye on these cases.
 Poorkid Investments at paras 1-4.
 Poorkid Investments at paras 5, 11.
 Poorkid Investments at para 6.
 Poorkid Investments at para 10.
 Poorkid Investments at para 24.
 Poorkid Investments at para 105.
 Poorkid Investments at para 50.
 Poorkid Investments at para 50.
 Poorkid Investments at para 66.
 Poorkid Investments at paras 78-85.
 Poorkid Investments at para 105.
 Poorkid Investments at para 98.
 Poorkid Investments at para 129.
 Leroux v Ontario, 2020 ONSC 1994; Leroux v Ontario, 2021 ONSC 2269.