Just When You Thought It Could Not Get Any Harder
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.
From a procedural...
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