Ontario's Top Court Upholds Leave Requirements For Bad Faith And Misfeasance Claims Against The Crown

• Published date: 04 April 2023
• Subject Matter: Employment and HR, Government, Public Sector, International Law, Litigation, Mediation & Arbitration, Employee Rights/ Labour Relations, International Courts & Tribunals, International Trade & Investment, Court Procedure, Trials & Appeals & Compensation, Indigenous Peoples
• Law Firm: McCarthy Tétrault LLP
• Author: Canadian Appeals Monitor, Byron Shaw and Adam Dobkin

The Court of Appeal for Ontario has ruled that Ontario's statutory leave requirement for bad faith and misfeasance claims against the Crown is constitutional, reversing a lower court decision that would have declared s. 17 of the Crown Liability and Proceedings Act, 2019 ("CLPA") to be of no force or effect.¹ Poorkid Investments Inc. v. Ontario (Solicitor General)² holds that s. 17 of the CLPA does not infringe the core jurisdiction of the superior courts protected by s. 96 of the Constitution Act, 1867.³

Background

In Ontario, claims against the Crown or Crown officers and employees that include a claim for misfeasance in public office or bad faith in the exercise of public duties or functions are deemed to be stayed under s. 17 of the CLPA and can only proceed with leave of the court.⁴ To obtain leave, the plaintiff must establish that the proceeding is brought in good faith and that there is a reasonable possibility the claim will succeed.⁵ The procedure on a s. 17 leave motion was summarized by the Court of Appeal in Poorkid as follows:

In summary, claimants must file an affidavit setting out the material facts on which they intend to rely, along with an affidavit of documents; the defendant may file an affidavit but is under no obligation to do so; no one is to be examined or summoned for examination in regard to the affidavit, affidavit of documents, or in relation to the motion for leave except for the maker of the affidavit or prescribed document; and the defendant is not subject to discovery or the inspection of documents, or to examination for discovery. The constitutionality of this screening process is the question at the heart of this appeal.

In Poorkid, the plaintiffs brought a proposed class action against a number of defendants including the Ontario Crown, the Solicitor General of Ontario, the Ontario Provincial Police Commissioner, and an OPP Inspector. The plaintiffs sought damages arising out of the OPP's response to protests by Indigenous activists in Caledonia, Ontario. The claims included misfeasance in public office, nonfeasance, negligence and nuisance.

The plaintiffs did not seek leave under s. 17. Instead, they challenged the constitutionality of s. 17 on the basis that it violates s. 96 of the Constitution Act, 1867. As the Court of Appeal observed, s. 96 is "ostensibly a simple provision governing the appointment of judges to the superior courts..."⁶ Section 96 provides that the "The Governor General shall appoint the Judges...