Buried within the Ontario government’s April budget is a new Crown Liability and Proceedings Act that threatens to severely restrict our ability to sue the provincial government.

It will roll back Crown liability by more than 70 years.

Not only that, but changes will be applied retroactively as to extinguish existing lawsuits, like a class action by juvenile inmates who were placed in solitary confinement. In some cases, plaintiffs and their lawyers will have already invested years in litigation.

Historical context

The historical common law rule that “the King can do no wrong” meant that the government was immune from civil liability. Beginning with Great Britain’s Crown Proceedings Act in 1947, various Commonwealth jurisdictions introduced legislation that permitted governments to be sued in the same way as private citizens. The government was no longer “above the law.”

The growth of the administrative state in the second half of the 20th century meant that government activity could harm citizens in new ways. And with their deep pockets, governments became an increasingly attractive target of lawsuits. In Ontario, this included class action suits for their mishandling of the SARS crisis, as well as claims against licensing officials and ambulance authorities.

(CP PHOTO/J.P. Moczulski)

But not every government act could be subject to a lawsuit. Over time, the courts have extended immunity to government officials for lawsuits based on their legislative actions, quasi-judicial decisions and matters of policy. This immunity reflects the separation of powers between courts, the legislature and the executive, and prevents the courts from second-guessing the decisions of elected officials.

The Ontario government has claimed that its new legislation merely codifies these common law rules. In fact, it goes much further to restrict Crown liability, and will also impose substantial procedural hurdles for potential plaintiffs.

Proposed restrictions

The proposed new act restricts Crown liability in three main ways.

First, it prohibits lawsuits based on government policy decisions. Although this is based on an existing common law principle, the new act extends policy immunity by defining “policy” in a very broad way.

For example, it includes not just the creation or funding of government programs, but also the way that those programs are carried out. Under the common law, the implementation of programs is subject to potential tort liability. In other words, once the government decides to do something, it must use reasonable care not to harm people in the process.

The proposed act therefore extends well beyond the common law.

Second, the act prohibits lawsuits based on “regulatory” acts or omissions that are made in good faith. This means that, no matter how incompetent government officials are, they cannot be sued. For example, if an official negligently inspected a licensed establishment, resulting in licence restrictions that caused a loss of revenue, the establishment would have no civil recourse.

Such regulatory actions can only be the subject of lawsuits if the government official acted in bad faith.

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But in lawsuits involving bad faith, plaintiffs must now get permission from a court before they can sue, and show that their claim has a reasonable possibility of success. During this process, the Crown can examine the plaintiff, but need not produce any documents or witnesses itself.

This puts plaintiffs in a tough position. Bad faith is essentially a state of mind, so it’s typically difficult to prove without at least some evidence from the defendant. For instance, it may require disclosure of internal communications showing that an official was acting for an improper purpose or with bias against the plaintiff.

Without disclosure of these documents or the ability to question government officers, plaintiffs will only be able to speculate that bad faith was involved. This may not be sufficient to get a court’s permission to proceed.

Avoiding scrutiny

Although it’s not uncommon for governments to include legislative reforms within budget bills, it leaves the impression that the government is trying to hide the change from the scrutiny it might otherwise attract.

THE CANADIAN PRESS/Chris Young

The Ontario Attorney General’s office described the legislation as “housekeeping,” but comments by Premier Doug Ford suggest that it was at least partly motivated by a desire to eliminate what he described as “nonsense” lawsuits.

Lawsuits are an important measure by which citizens can hold the government accountable for its negligence or abuse of power. They can be used to bring systemic injustice to the public eye, or just to make sure that public decision-makers act fairly.

For instance, one federal inmate successfully sued for abuse of office because prison authorities refused to provide him with shoes that fit his extra wide feet. He only obtained $6,000, but the lawsuit was necessary to make authorities comply.

A government whose election promises include to “restore accountability and trust” should not be seeking to avoid liability when its officers cause harm.