Civil Litigation

Benign housekeeping or self-protection? wonders Moreau

By Mia Clarke, Associate Editor

While the government says it’s just trying to improve the legal process for those who have a beef with the Crown, proposed legislative changes may actually deny justice to those with meritorious claims, Toronto civil litigator Stephen Moreau writes in The Lawyer’s Daily.

If enacted, the Crown Liability and Proceedings Act (CLAPA) would repeal the Proceedings Against the Crown Act (PACA), which has served as “a litigator’s roadmap to suing the provincial Crown in Ontario since 1963,” writes Moreau, partner with Cavalluzzo LLP, and Lara Koerner Yeo, an associate with the firm.

“The outcry to this proposed statute was strong, with accusations that the new government was seeking to insulate itself from liability,” they write in the online legal publication.

“By contrast, in presenting the CLAPA, the attorney general stated that this Act is intended to codify the common law and ensure Ontarians’ access to a more efficient, transparent process when suing the Crown. This makes the Act seem like the result of benign legislative housekeeping ... However, a codification it is not. A close reading of CLAPA reveals that the codification exercise extends or may extend beyond the common law.”

Moreau and Koerner Yeo say CLAPA outlines “three changes of potential significance: a novel statutory definition of a ‘policy matter’ and ‘regulatory decision;’ the imposition of a procedural barrier that leave be granted before a party can bring a tort claim based in misfeasance or bad faith; and the retroactive and prospective reach of elements of the Act through broad regulation-making powers.

“Section 11 extinguishes causes of action in negligence against the Crown with respect to legislative, policy and regulatory decisions and, in so doing, defines ‘policy matter’ and ‘regulatory decision.’”

They say advocates know that core government policy decisions are immune.

“The Supreme Court [of Canada] has wrestled with what constitutes an immune government policy decision and has maintained that Crown functions which operationalize a core policy decision are actionable. Neither in these murky jurisprudential waters nor in the various provincial and federal Crown liability statutes, has there been an attempt to define ‘policy matter’ similar to what one reads at s. 11(5),” write Moreau and Koerner Yeo.

They say if subsection 11(5)(c) is read literally, it could shield all actions that “operationalize” core policy decisions from legal action.

“It will be interesting to see if Crown counsel attempt to give s. 11(5)(c) such a reach because, if they convince a court that all acts of ‘carrying out’ are immunized, far more than codification will have resulted,” write Moreau and Koerner Yeo.

“Indeed, it is hard to see how operational negligence claims could be made,” they say.

“It is here that the attorney general’s codification comments may come back to bite, as one could also quite narrowly confine s. 11(5)(c) to all decisions surrounding what courts already regard as core policy decisions (such as decisions on who to consult and what process to adopt in making such a decision, all aspects associated with ‘carrying out’ policy). A potentially broader immunization might be found in ss. 11(6)(e) and (f), which similarly seem to immunize Crown actions operationalizing regulatory decisions.”

Moreau and Koerner Yeo say the legislation appears to be an attempt to “override” common law.

“It is unclear how this drafting is supposed to ensure a more efficient, transparent process for litigants, which is, alongside codification of the common law, the purported intention of the Act.”

They say sections 11, 17 and 30 all “warrant a close read.”

“Section 17 prescribes special procedures for claimants alleging torts of misfeasance or bad faith. Section 30 empowers the Crown with broad regulation-making powers, including the power to regulate away certain claims in existence prior to the Act’s entry into force,” write Moreau and Koerner Yeo.

“This is not the stuff of codification. The government may intend such sections to police against frivolous and unmeritorious claims. They may well do that, but if they go far beyond policing the frivolous, they could succeed in denying access to justice to people with meritorious claims against the Crown.”

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