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When the province introduced the Crown Liability and Proceedings Act, 2019, it was met with criticism from some legal experts and organizations that claimed the legislation would severely restrict access to justice in the province. At the time the proposed legislation was announced, the Law Commission of Ontario was nearing the completion of an in-depth report on class proceedings in the province, prompting the Commission to include an Appendix to address concerns about the new legislation. One of the sections of the new Act, s. 17, drew criticism for its potential to complicate and extend the certification process for class actions against the province while placing unfair requirements on the parts of plaintiffs.

In a recent decision by the Ontario Superior Court of Justice, the plaintiffs in a class action against the Ontario Crown challenged the section as unconstitutional, claiming it was inconsistent with the purpose of s. 96 of the Constitution Act, 1867. The Court agreed and struck down the section, which could have implications for future class actions against the province going forward.

Section 17 of the Crown Liability and Proceedings Act, 2019

The section in question requires the plaintiff(s) in any proceeding against the Crown based in misfeasance or bad faith to obtain leave of the Court before an action can move forward. In seeking leave, the claimant(s) must provide an affidavit summarizing the material facts related to the claim, as well as a list of documents relevant to the matter and in the claimant’s possession. The obligation to provide disclosure at this state does not apply to the Crown. Further, the claimant may be subjected to examination on the materials provided, but the Crown may not. To grant leave, a Court must be satisfied that the claim is brought in good faith and that the claimant(s) has a reasonable chance of success.

In essence, the section puts the onus on the plaintiff to disclose their entire case and all related documentation at the earliest stages but places no reciprocal burden on the defendant.

In the Law Commission’s report, the Commission highlight concerns around the requirement under s. 17 for the plaintiff to present their case on the merits as a preliminary step to a class proceeding, which it claimed would potentially “subvert the objectives of access to justice and judicial economy”. Further, others have said that the one-sided aspect of the section creates a situation that could make it impossible for a plaintiff to satisfy the requirements to obtain leave. In a 2019 commentary, Western University Faculty of Law Dean Erika Chamberlain pointed out that a plaintiff would likely have a difficult time establishing bad faith on the part of the Crown without being able to obtain disclosure from the defendant. Without the ability to request documentation or subject the Crown to examination, a plaintiff would rarely have sufficient material to meet the threshold required for leave.

Court rules s. 17 of the Crown Liabilities and Proceedings Act is “inconsistent with s. 96” of the Constitution

In Poorkid Investments Inc. v. HMTQ, the plaintiffs represent a class comprised of businesses, residents, and prospective residents of Caledonia and Haldimand County, Ontario. The class, comprised of a group of entities and individuals including the Ontario Provincial Police, the Solicitor General, and the Provincial Police Chief, sought to bring an action against the Crown for damages suffered due to a blockade of major highways and a railway line, as well as the occupation of a new subdivision in Caledonia, by Six Nations land defenders in 2020-2021. The protest was held in opposition to the building of the new subdivision on what the protesters claimed was unceded Haudenosaunee territory and lasted for over a year. Ultimately, the subdivision developer, Foxgate Developments, was forced to cancel the development and refund all deposits to the purchasers.

The class action seeks damages against the Crown for misfeasance, nonfeasance, negligence, and nuisance concerning the protest.

In one of the first jurisprudential challenges of s. 17 of the Crown Liability and Proceedings Act, the plaintiffs brought an application for a declaration that the section violated s. 96 of the Constitution and therefore was of no force and effect. In examining the plaintiffs’ claim, the Court considered the guiding principles behind s. 96, which states in full:

The Governor General shall appoint the Judges of the Superior, District, and County Courts in each Province, except those of the Courts of Probate in Nova Scotia and New Brunswick.

While the language of the section is rather simple, the Supreme Court of Canada has, over time, imbued the section with more significance. Specifically, the Supreme Court has previously stated that s. 96 protects the core jurisdiction of the Superior Courts to resolve both private and public disputes from interference by the federal or provincial government. In the 2014 decision, Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), the Supreme Court reasoned that preventing Superior Courts from fulfilling this duty would be to “strike at the core” of the jurisdiction granted under s. 96 of the Constitution.

In the case at hand, the Court examined the wording and meaning of s. 17 and concluded that the imbalance of the onus and obligations on plaintiffs and the Crown is inherently unfair to plaintiffs. Specifically, the Court highlighted the impossible standard a plaintiff must meet to demonstrate it has a reasonable chance of success “without any access to documentary or oral discovery from the defendant”. In turn, the section is in violation of the protections of the Superior Courts’ core jurisdiction under s. 96:

[P]rohibiting 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.

As a result of the analysis, the Court granted the plaintiffs’ application, rendering s. 17 of the Crown Liability and Proceedings Act of no force or effect, removing a barrier going forward for plaintiffs looking to bring a claim or class action against the Crown. We will continue to watch the situation in the event of an appeal by the Crown.

For Exceptional Class Action Defence and Litigation Appeals, Contact Milosevic Fiske LLP 

If you are an organization against whom a class action claim has been filed, contact Milosevic Fiske LLP in Toronto. We can help simplify this highly complex litigation. Our experienced litigation lawyers help our clients see through the dense forest of even the most complicated disputes. We excel at cutting through the complexities and guiding clients to a creative, cost-effective solution. In cases where an appeal becomes necessary, we have the experience necessary to bring an effective appeal before the Ontario Court of Appeal or the Supreme Court of Canada. Call us at 416-916-1387 or contact us online to learn more about how we can help.