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Canada Lawyers sound alarm over new law that could limit lawsuits against Ontario government

Ontario Minister of Finance Vic Fideli delivers remarks following an announcement, in Toronto on August 13, 2018.

Christopher Katsarov/THE CANADIAN PRESS

A proposed law tucked into last week’s Ontario budget has alarmed lawyers, who describe the government’s planned legislation as a potentially unconstitutional attempt to insulate the province from lawsuits.

As part of the budget introduced last Thursday, the government said it would repeal the Proceedings Against the Crown Act, a 56-year-old piece of legislation that defines the circumstances under which the government can be sued.

While legal experts say the new law would fundamentally change the way government is held accountable to citizens through the courts, Attorney-General Caroline Mulroney has characterized the change as legislative housekeeping aimed at bringing an outdated law into line with recent Supreme Court decisions.

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“The Proceedings Against the Crown Act that’s currently on the books is an old law, from 1963,” she told reporters on Monday. “And what we’re doing is we’re clarifying the law.”

On Tuesday, Premier Doug Ford added another take on the issue, saying the proposed law is aimed at quashing lawsuits from special-interest groups.

“You even look sideways and some special-interest groups out there trying to sue you, you know,” he said during a morning appearance. “It’s ridiculous. I’ve never seen anything like it. It’s tying up the courts. I want to clear up the courts until real lawsuits can go through, for real people, for things that really matter. There’s a lot of frivolous nonsense going on right now in the courts.”

The province faces roughly 1,000 new civil claims a year, according to the Ministry of the Attorney-General. The new Crown Liability and Proceedings Act would shield the government from cases alleging negligence arising from legislative, regulatory or policy matters made in good faith. It goes on to define policy matters in broad, new terms that seem to cover most government activities.

“Much will depend on how the new provisions are interpreted by the courts, if the Bill is passed, but I would expect that tort claims against the Government will become more difficult, and that government lawyers will become more aggressive in bringing motions to strike,” Andrew Lokan, a partner at Paliare Roland Rosenberg Rothstein and co-author of Constitutional Litigation in Canada, said in an e-mail. “At a minimum, it will likely be more expensive and complex to bring negligence claims against the Government.”

Ms. Mulroney acknowledged the amendments would limit lawsuits against the government over policy changes when the government is acting in good faith, but said this reflects settled law and a Supreme Court decision.

The proposed law is written to apply retroactively, meaning several continuing suits could be extinguished.

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The province is currently facing many lawsuits alleging negligence, including two that target Ontario’s use of solitary confinement and one aimed at the use of prison lockdowns to manage staff shortages. Those cases include allegations of Charter breaches, which would not be affected by the new law.

Plaintiffs would still have the opportunity to sue the government for decisions made in bad faith or government misfeasance, but it would become more difficult. Under the new law, plaintiffs would have to seek court permission before bringing a misfeasance claim.

During this application phase, they would have to produce evidence, face Crown cross-examination and convince a judge their claim has a reasonable possibility of success before launching a lawsuit – all without access to government documents or witnesses.

Disclosure rules would change so that the Crown could refuse to produce evidence deemed “injurious to the public interest.”

“The proposed law would create numerous additional hurdles to misfeasance claims that will be virtually insurmountable for many plaintiffs harmed by government bad faith,” said Louis Century, a civil litigator with Goldblatt Partners.

The Canadian Civil Liberties Association said it was mulling a legal challenge of the proposed law.

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“Putting it in a budget bill makes no sense unless you’re trying to sneak it through without accountability,” Michael Bryant, the group’s executive director and a former attorney-general of Ontario. “I’m not saying we didn’t do it when we were in government, but that’s where government puts thing that they want passed without much scrutiny.”

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