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Just When You Thought It Could Not Get Any Harder

Changes Could Be Coming to Proceedings Against the Crown

Theomarcus Giannou
Theomarcus Giannou,
Law Student

Theresa Hartley
Theresa Hartley,
Partner

May 2019

by Theomarcus Giannou and Theresa Hartley

Overview

Ontario's Conservative government recently proposed Bill 100, also known as the Protecting What Matters Most Act, which primarily addresses new budget measures. Also contained within the Bill, however, is the proposed repealing of the Proceedings Against the Crown Act [PACA] which was enacted in 1990 and governs how litigation is commenced against the Provincial Crown. It will be subsequently replaced with the Crown Liability and Proceedings Act [CLPA]. The CLPA proposes substantial changes to Crown liability, including limitations thereon, and sets out the procedural rules that will apply in proceedings against the Crown. Generally, in comparison to its predecessor, the CLPA will result in a more limited path to recovery for claimants against the Crown and other further protections insulating the Crown from liability.

Analysis

Among the notable changes is the introduction of the concept of good faith. The CLPA would bar any proceeding against the Crown in respect of anything done in good faith in the enforcement of the criminal law or penal provisions of an Act. This entirely novel provision suggests that as long as the Crown displayed good faith, it can be shielded from liability. Good faith is recognized by the Supreme Court of Canada in the landmark case of Bhasin v. Hrynew as an obligation to act honestly in the performance of contractual obligations.1 It is not, however, typically used as a sufficient defense to a potential action, as is being proposed.

The concept of ‘good faith' also appears in the proposed Section 11 of the CLPA which represents the most pronounced departure from the PACA. Under Section 11, no cause of action arises against the crown in respect of any negligence or failure to take reasonable care in respect of a regulatory or policy decision so long as it was done in good faith. The definitions of policy matter and regulatory decision are quite broad and have the potential to encompass virtually any decision made by the Crown. This has the effect of granting the Crown further immunity with respect to decision-making so long as it was done in good faith irrespective of any negligence.

Of relevance to current litigants, Section 11 applies retroactively to causes of action that already exist, despite being brought prior to the CLPA's enactment. The CLPA is effectively wiping the liability slate clean and absolving the Crown from liability in these circumstances.

clpa

...the CLPA purports to introduce another hurdle for potential claimants.

From a procedural standpoint, the CLPA purports to introduce another hurdle for potential claimants. Under the CLPA, leave of the court is now required to bring a proceeding against the Crown in respect of the tort of misfeasance in public office or a tort based on bad faith. In order for the court to grant leave, the plaintiff must demonstrate that the proceeding is being brought in good faith and there is a reasonable possibility that it would be resolved in the plaintiff's favour. A ‘reasonable possibility' is a novel concept and it remains to be seen where it fits on the current burden of proof spectrum. Despite this uncertainty, it appears as though potential plaintiffs have a relatively high threshold to meet especially when considering the Crown is not subject to examination for discovery or discovery and inspection of documents on such a motion. The requirement for leave was absent from the PACA and provides yet another protective layer from liability for the Crown.

Conclusion

The proposed CLPA contains several key changes that substantially alter the way proceedings can be brought against the Crown in Ontario. It is important for current litigants to be aware of the retroactive application of the CLPA to existing actions. Litigants on both sides will also need to be aware of the new procedural requirements, as well as the introduction of a ‘reasonable possibility' burden of proof, which will hopefully receive a more concrete definition over time through litigation. The broad concept of ‘good faith' has also been introduced as a sufficient defence to actions in negligence and it will be interesting to see how the courts will deal with these new concepts. One thing that is certain is that the CLPA will be the subject of much litigation in the future if and when it receives Royal Assent.


  1. Bhasin v. Hrynew [2014] SCC 71, 3 SCR 494.

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