Ontario PCs want to make it next to impossible to sue the government

Legislation buried in budget bill would make many government actions immune to civil suits

Cbc.ca
April 24, 2019
Lucas Powers

Premier Doug Ford's Progressive Conservatives are moving to make it harder to sue the Ontario government.

The PCs plan to repeal and replace the long-standing Ontario Proceedings Against the Crown Act -- legislation that, among other things, outlines government liability in cases of misfeasance and negligence.

The new law would increase the legal threshold necessary to proceed with civil litigation, including class action lawsuits, against the government. Further, it would considerably limit the instances in which the government could be on the hook for financial compensation to plaintiffs.

"What the government is trying to do is place itself beyond the reach of the courts and make it difficult, and in many cases impossible, to sue the government -- even when it acts in bad faith or breaches the duties of office," said Amir Attaran, a law professor at the University of Ottawa.

Walled off from lawsuits

"Every province sets limits on how and when the government may be sued. But what Ontario is proposing is to wall itself off from lawsuits like no other province."

Perhaps the most significant element of the new legislation, according to Toronto human rights and refugee lawyer Kevin Wiener, is that it eliminates any potential financial liability in most cases where someone is harmed by government policy or regulatory decisions made in "good faith."

"What it means is that the people who exercise power over you can exercise that power negligently and cause you damage and no one will have to pay," said Wiener.

Similarly, the province will not be liable for instances in which a person says there were harmed by the government exercising its authority.

One way to look at it is that the government is saying, 'With great power should come no responsibility.'
- Kevin Wiener , Toronto lawyer
While the act would not serve to "totally eradicate Crown liability," Wiener said it amounts to the government arguing that "as long as people say they are acting in good faith, it doesn't matter how incompetent they are."

"One way to look at it is that the government is saying, 'With great power should come no responsibility,'" he said.

Law to apply retroactively

While courts have yet to interpret the proposed legislation, the fact it will apply retroactively to existing cases means it could potentially be used to derail ongoing matters -- like a class action lawsuit by a Toronto law firm on behalf of juvenile inmates placed in solitary confinement.

"This a way to wipe the decks clean. And even if the government did something wrong, even if people have sued it already, they're going to shut those lawsuits down," Attaran said.

One "silver lining," Wiener pointed out, is that financial damages can still be awarded in Charter cases.

'Trying to escape liability'

Meanwhile, the proposed Crown Liability and Proceedings Act will force plaintiffs to obtain permission from a court to move forward with suing the government in the first place.

Under current law, no such permission is required to file suit.

That means an applicant will have to prove to a judge that the province acted negligently or in bad faith before proceedings begin. The problem, however, is that usually requires access to government documents or other materials that the province will not be required to provide.

Crown lawyers will also have the option to cross-examine whomever is trying to get permission to launch a suit.

"The bottom line here is that government is trying to escape liability for being sued, even when it does things that may be very, very wrong," Attaran said, adding that contract disputes between business owners and the province are a good example of the type of cases that will likely become nearly impossible to litigate in the future.

The move could prove an impetus for other provinces to pursue similar legal changes, he added.

Details of the proposed legislation were outlined in the PCs recent budget bill, which was tabled in the legislature by Finance Minister VicFedeli last Thursday.

In an email statement, a spokesperson for Attorney General Caroline Mulroney said the legislation will update "outdated procedures and codifies the common law to clarify and simplify the process for lawsuits brought by or against the government."

Mulroney posted a brief statement on Twitter late on Sunday saying section 11 of the proposed bill expressly states that the legislation only applied to negligence and failure to take reason care.

The attorney general said, as the Supreme Court has previously and consistently held: "there is general agreement in common law world that government policy decisions are not justiciable and cannot give rise to tort liability."

"The proposed bill enshrines and clarifies that concept in an attempt to reduce frivolous and unmeritorious claims, saving time and money for the courts and taxpayers," Mulroney wrote.

The Canadian Civil Liberties Association says it will challenge the legislation if it receives royal assent.