Section 17 of the Crown Liability and Proceedings Act, 2019, SO 2019 c 7, Sched 17 has been declared unconstitutional and declared of no force and effect by the Superior Court of Justice




Section 17 of the Crown Liability and Proceedings Act declared unconstitutional The applicants were the named representative plaintiffs in a class proceeding, not yet certified, brought against the respondents (collectively the “Crown”) in a Statement of Claim issued February 19, 2021 (the “Claim”). In the Claim, the applicants sought damages against the Crown on behalf of all businesses and residents of the community of Caledonia, Haldimand County and surrounding areas, including a claim for damages by prospective residents who had purchased new homes to be built in a proposed subdivision. The Claim arose from a blockade of three public highways and a railway line serving Caledonia and the occupation of the subdivision within Caledonia by protesters.The Claim pleaded four grounds for liability on the part of the Crown, namely, misfeasance in a public office, nonfeasance, negligence, and nuisance.The Claim had been deemed to be stayed by the operation of 17 of the Crown Liability and Proceedings Act, 2019, S.O. 2019 c. 7, Sched. 17 (the “CLPA”). The applicants applied for a declaration that s. 17 of the CLPA violated s. 96 of the Constitution Act, 1982, being schedule B. to the Canada Act, 1982 (U.K.) c. 11 and a declaration pursuant to section 52(1) of the Constitution Act, 1982, that section 17 of the CLPA is of no force and effect. Summary of s. 17 of the CLPA In summary, the pertinent provisions of s. 17 of the CLPA provided that a proceeding brought against the Crown or a Crown officer or employee which included a claim for misfeasance in public office or which was based on bad faith was automatically stayed and could proceed only with leave of the court. Such leave would not be granted unless it was found that the proceeding was 1) being brought in good faith and 2) that there was a reasonable possibility that the claim would succeed.A motion for leave had to be supported by an affidavit setting out a concise statement of the facts upon which the claimant intended to rely as well as an affidavit of documents disclosing all documents relevant to any matter in issue in the proceeding that were or had been in the claimant’s possession, control, or power.The defendant (the Crown, Crown officer, or employee) could, but was not required to, file an affidavit in response to the motion for leave. The maker of the affidavit filed on behalf of the claimant, and the maker of any responding affidavit filed by the Crown, were subject to examination on their contents, but the defendant was not subject to discovery or inspection of documents, or to examination for discovery, in relation to the motion for leave. There was no provision in the section for a plaintiff to apply for leave to obtain documentary or oral discovery from the defendant. Each party to a motion for leave under s. 17 of the CLPA was to bear their own costs. S. 17 of the CLPA Found Unconstitutional The “reasonable possibility” of success test under s. 17 of the CLPA was equivalent to that required to be met under section 138 of the Securities Act. However, unlike s. 17, the Securities Act provision required the defendant as well as the plaintiff to produce affidavits setting out the facts they intended to rely upon, to make documentary production, and to submit to oral examinations.Broad J. reasoned that legislation enacted pursuant to the legislature’s jurisdiction over the administration of justice, which may have the effect of causing represented litigants to incur high legal costs was not vulnerable to constitutional challenge under s. 96 on that basis. Additionally, the Court found that there was insufficient evidentiary foundation on the record to support the applicants’ constitutional challenge to s. 17 of the CLPA based on the estimated costs of bringing a motion for leave.However, Broad J. found that the rule of law informed a proper interpretation of s. 96, was met, not by mere access to the court in a sense affording litigants the simple right to make submissions, but rather by meaningful access to the court in the sense of ensuring that a litigant’s claim is determined on its merits, including the right to present material evidence. Thus, the constitutionality of a legislative measure imposing a barrier would depend upon the effect of the barrier on the ability of litigants to access the Superior Court to have their disputes adjudicated on their merits. Adjudication on the merits was equivalent to the granting of “appropriate and effective remedies.”The Court found that a direct and inevitable causal link had been shown between the barrier represented by section 17 of the CLPA which required a plaintiff to show credible evidence to support a finding that they had a reasonable possibility of succeeding without access to any documentary or oral discovery from the defendant and obtaining access to justice. Broad J. took judicial notice that:(a) bad faith was essentially a state of mind;(b) bad faith was difficult to prove without at least some evidence from the defendant; and(c) proving bad faith could require disclosure of internal communications of the defendant showing that an official was acting for an improper purpose or with bias against the plaintiff.Broad J. found that prohibiting any documentary or oral discovery of the defendant as an integral part of the screening mechanism did prevent many claimants who could well have had 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 was inconsistent with s. 96 and the requirements that flow by necessary implication from s. 96. The legislature’s power to erect screening mechanisms was not unlimited. This inconsistency was brought about by barring such claimants from any realistic and practical means of presenting sufficient, credible, and necessary evidence to satisfy the court that there was a reasonable possibility that their claims would succeed.For the foregoing reasons, Broad J. found that s. 17 of the CLPA was inconsistent with s. 96 of the Constitution Act, 1867 and ordered and adjudged that section 17 of the CLPA was of no force or effect.

April 14, 2022
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