Section 17 of the Crown Liability and Proceedings Act (“CPLA”) ruled unconstitutional in part.
In Ontario, a proceeding brought against the Crown or a Crown officer or employee which includes a claim for misfeasance in public office or which is based on bad faith is automatically stayed and can only proceed if the plaintiff satisfies a judge on a motion that their claim is being brought in good faith and that there is a reasonable possibility that the claim would succeed.
The problem, however, is that during this motion, the plaintiff is forced to work in a vacuum because section 17 allows the Crown and Crown employees to remain silent, and to effectively keep all their evidence and documents private. Does that sound fair? The answer is no, and the court agreed, ruling that section 17 in the CPLA was unconstitutional as a violation of section 96 of the Constitution Act.
To be clear, the court was not criticizing the fact that there was an automatic stay of proceedings again the Crown, rather, the court ruled it was unconstitutional to require citizens to have to seek leave while at the same time keeping all the Crown’s material private from those very same citizens. The concern being that almost every motion for leave would be denied: effectively making the Crown untouchable. As described by the court,
“The inconsistency with s. 96 lies solely in the provisions relieving the Crown from being subject to any obligation to give documentary or oral discovery as an integral part of the screening mechanism implemented by s. 17, thereby depriving plaintiffs with meritorious claims from having any effective means of access to sufficient and necessary evidence to satisfy the court that the claim may possibly succeed.”
The court then had to decide whether they could come up with some way to expunge the offending (unconstitutional) parts of section 17, while still preserving the balance of that section, but after careful consideration, the court concluded that “the appropriate remedy is to declare that s. 17 is of no force or effect, and leave it to the legislature to enact a new provision” that will contain some disclosure obligations on the part of the Crown, in advance of any such motion for leave.
Although the court, under section 52(1), could have allowed the impugned section to remain in force for a short period of time while the legislature fixed the problems, the court declined, citing that it was an inappropriate situation to apply this remedy. Nothing urgent lied in the balance to justify the infringement to continue, even for a short period of time.
Poorkid Investments Inc. v. HMTQ, 2022 ONSC 883
https://www.canlii.org/en/on/onsc/doc/2022/2022onsc883/2022onsc883.html