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Crown and Government Liability - Crown Liability and Proceedings Act, 2019 (Ont) (CLPA) (2)

. His Majesty the King in right of Ontario v. Dell

In His Majesty the King in right of Ontario v. Dell (Div Court, 2023) the Divisional Court considered a purpose of the CLPA:

[33] Beginning with the scheme and object of the Act, it “imposes liability on the Crown for tortious conduct from which it would otherwise be immune at common law”, “preserves various immunities for the Crown ... with respect to the performance of certain duties” and “governs the conduct of proceedings in which the Crown is a party”: Poorkid Investments Inc. v. Ontario (Solicitor General), 2023 ONCA 172, at para. 8.

. Poorkid Investments Inc. v. Ontario (Solicitor General)

In Poorkid Investments Inc. v. Ontario (Solicitor General) (Ont CA, 2023) the Court of Appeal heard (and allowed) an appeal of a "declaration that s. 17 of the CLPA violates s. 96 of the Constitution Act, 1867 and is of no force and effect", in the course of a class action against the Crown and police regarding allegation of 'under-policing' [my term] with respect to indigenous protests near Caledonia, Ontario. CLPA s.17 requires a plaintiff to obtain prior leave (permission) from the court when suing for misfeasance in public office, or for "a tort based on bad faith respecting anything done in the exercise or intended exercise of the officer or employee’s powers or the performance or intended performance of the officer or employee’s duties or functions" [CLPA s.17(1)].

This quote addresses the CLPA s.17 provisions:

The Crown Liability and Proceedings Act, 2019

[8] The CLPA replaced the Proceedings Against the Crown Act, R.S.O. 1990, c. P.27. Like that Act, the CLPA imposes liability on the Crown for tortious conduct from which it would otherwise be immune at common law. The CLPA preserves various immunities for the Crown and officers, employees, and agents of the Crown with respect to the performance of certain duties and governs the conduct of proceedings in which the Crown is a party. The Act maintains some procedural provisions similar to those in the Proceedings Against the Crown Act but effects a significant change concerning some torts. Specifically, s. 17 of the CLPA establishes a screening procedure that applies to claims against the Crown, or an officer or employee of the Crown, for misfeasance in public office or a tort based on bad faith respecting anything done in the exercise or intended exercise of powers, duties, or functions.

[9] Proceedings concerning the tort of misfeasance in public office or torts based on bad faith in the exercise or intended exercise of public authority are deemed stayed, unless leave to bring the proceeding is granted pursuant to s. 17(2) of the CLPA:

(2) A proceeding to which this section applies that is brought on or after the day section 1 of Schedule 7 to the Smarter and Stronger Justice Act, 2020 comes into force may proceed only with leave of the court and, unless and until leave is granted, is deemed to have been stayed in respect of all claims in that proceeding from the time that it is brought.

[10] The CLPA sets out a detailed leave procedure that limits the evidence that may be adduced by the parties in ss. 17(3)-(7):

(3) On a motion for leave under subsection (2), the claimant shall, in accordance with section 15 if applicable, serve on the defendant and file with the court,

(a) an affidavit, or such other document as may be prescribed, setting out a concise statement of the material facts on which the claimant intends to rely; and

(b) an affidavit of documents, or such other document as may be prescribed, disclosing, to the full extent of the claimant’s knowledge, information and belief, all documents relevant to any matter in issue in the proceeding that are or have been in the claimant’s possession, control or power.

(4) On a motion for leave under subsection (2), the defendant may serve on the claimant and file an affidavit, or such other document as may be prescribed, setting out a concise statement of the material facts on which the defendant intends to rely for the defence, but is not required to do so.

(5) No person may be examined or summoned for examination on the contents of an affidavit or prescribed document referred to in subsection (3) or (4) or in relation to the motion for leave, other than the maker of the affidavit or prescribed document.

(6) The defendant shall not be subject to discovery or the inspection of documents, or to examination for discovery, in relation to the motion for leave.

(7) The court shall not grant leave unless it is satisfied that,

(a) the proceeding is being brought in good faith; and

(b) there is a reasonable possibility that the claim described in subsection (1) would be resolved in the claimant’s favour.

[11] 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.

. Daly v. Ontario (Landlord and Tenant Board)

In Daly v. Ontario (Landlord and Tenant Board) (Ont CA, 2023) the Court of Appeal considered the 'sue-ability' of the LTB (an administration tribunal) and the Crown itself, both in the context of a lawsuit by an aggrieved tenant:

[6] In her submissions, the appellant does not directly address either of the grounds upon which the motion judge reached his decision. In any event, there is no error in the motion judge’s conclusion on either of those grounds. The LTB is not a suable entity. Moreover, s. 232(1) of the Residential Tenancies Act, 2006, S.O. 2006, c. 17 makes clear that no proceeding for damages can be commenced against members of the LTB who have exercised their duties in good faith. These principles have been confirmed by this court: Raba v. Landlord and Tenant Board, 2014 ONSC 2599, at paras. 5-10, aff’d 2014 ONCA 864, at para. 1. The appellant’s attempt to distinguish Raba does not succeed. While we note that the appellant raised the constitutionality of s. 232(1) of the Residential Tenancies Act in her fresh as amended statement of claim, that challenge was not properly brought, it was not dealt with by the motion judge, and it is not the subject of this appeal.

[7] Similarly, the Crown is not liable for anything done or omitted to be done by a person while discharging or purporting to discharge responsibilities of a judicial nature: Crown Liability and Proceedings Act, 2019, S.O. 2019, c. 7, Sch. 17, s. 9(2)(b). The relationship between the Crown and members of quasi-judicial boards and tribunals exercising an adjudicatory authority derived from statute is outside the ambit of vicarious liability: see Speckling v. Kearney, 2007 BCCA 145, at para. 4.

. Corrigan v. Ontario

In Corrigan v. Ontario (Ont CA, 2023) the Court of Appeal considered, and allowed, a Crown appeal of a motion order failing to dismiss an action on grounds that CLPA notice [under CLPA 18(1)] had not been given. The court considered the 'new' (but similar) notice provisions carried over from the old PACA:

(2) The Motion Judge Erred in not Striking the Action

[13] Prior to the enactment of the CLPA, s. 7(1) of the Proceedings Against the Crown Act, R.S.O. 1990, c. P.27, provided, in terms that are in all material respects the same as s. 18(1) of the CLPA, that no action could be brought against the Crown unless prior notice of 60 days was given. It was consistently held under that legislation that proper notice was a precondition to a claim in damages against the Crown, that this requirement could not be abridged, and that an action commenced without proper prior notice was a nullity: Zeus v. Spick, [2000] O.J. No. 3758 (S.C.), at para. 5, aff’d [2001] O.J. No. 2848 (C.A.), at para. 3; Beardsley v. Ontario (2001), 2001 CanLII 8621 (ON CA), 57 O.R. (3d) 1 (C.A.), at paras. 10-12; Miguna v. Ontario (Attorney General) (2005), 2005 CanLII 46385 (ON CA), 262 D.L.R. (4th) 222 (Ont. C.A.), at paras. 7-8. In Noddle v. The Ontario Ministry of Health, 2019 ONSC 7337, at para. 32, it was also held that the requirement could not be waived.

[14] The same approach should be followed under the CLPA. First, the legislature, in enacting s. 18(1) of the CLPA in terms that mirror s. 7(1) of the former legislation, should be taken to have intended the same effect. Second, s. 18(6) removes any doubt about this, as it mandates treating an action commenced without complying with the required notice as a nullity from the time of its commencement.

[15] With respect, the motion judge’s conclusion that the Crown was not entitled to have the action struck as a nullity, because it did not move as soon as the respondent indicated she did not intend to comply with s. 18(1) of the CLPA, rewrites the legislation. It conditions the Crown’s right to have the action treated as a nullity on the timing of the motion, a condition not found in the text. It introduces a notion of waiver by delay that is inconsistent with the judicial interpretation of the prior legislation, which held that its requirements could not be abridged or waived. And it cannot stand in the face of s. 18(6) – since the action was a nullity from the time it was commenced, there is no basis on which the Crown’s delay in moving could affect the action’s status as a nullity.

[16] The respondent argues that the motion judge was right to dismiss the Crown’s motion because she had noted the Crown in default, and r. 19.02(1)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, prevents a defendant who has been so noted from bringing a motion without leave. We reject this argument. First, it was not the ground relied on by the motion judge who heard the Crown’s motion; to the extent leave was required, he implicitly granted it. But more fundamentally, the procedural rule relied on by the respondent cannot trump the clear effect of the CLPA provision that required the court to treat the action as a nullity. Moreover, s. 25 of the CLPA states that the Crown may not be noted in default without leave of the court, obtained on a motion made with notice to the Crown, and there is no evidence such leave was obtained.

[17] The respondent also argues that an effect of the noting in default is that the defendant is deemed to admit the allegations in the claim. Since r. 21.01(1)(a), under which the Crown moved, is available only for questions of law that arise from the pleadings, and the only pleading was the claim, there was no basis to consider facts surrounding the failure to give notice. We reject this argument. On a motion under r. 21.01(1)(a), evidence may be admitted in the discretion of the court: r. 21.01(2)(a). Here, the motion judge properly exercised his discretion to consider such evidence. As this court noted in Beardsley, at para. 10, rejecting a similar argument to the one advanced here by the respondent: “Proper notice is a necessary pre-condition to the right to sue the Crown. It would defeat the interests of justice to restrict a defendant’s right to adduce evidence that proper notice was not given.”

[18] The respondent also argues that estoppel should operate to prevent the Crown from asserting that the action is a nullity. She points to the fact that an application she brought to the Human Rights Tribunal of Ontario (“HRTO”), against the Ministry of the Solicitor General and four individuals, was dismissed in August 2020 on the basis of the existence of her action. Section 34(11) of the Human Rights Code, R.S.O. 1990, c. H.19, bars an HRTO application where there is an existing civil action dealing with the same alleged rights infringement. The respondent argues that the Crown got the benefit of the existence of the action for the purpose of the dismissal of the HRTO application, and should be estopped from claiming the action is a nullity.

[19] We do not accept this argument.

[20] First, we are not satisfied that estoppel, any more than waiver, could have any effect on the operation of the CLPA given s. 18(6). Second, even assuming it could operate, we are not satisfied it would operate here.

[21] The motion judge made no findings that the respondent changed her position based on anything the Crown said to her or to anyone else, and he found the Crown acted in good faith throughout. The record is clear that the Crown unequivocally told the respondent that it considered the existing action against it to be a nullity. It was the respondent who not only persisted in maintaining the action but also commenced concurrent HRTO proceedings. This is what created the overlap in proceedings attracting the operation of s. 34(11) of the Human Rights Code, under which the HRTO has no discretion but to dismiss a human rights claim if there is a concurrent civil action, without regard to whether the civil action may be unsuccessful or struck out: Aba-Alkhail v. University of Ottawa, 2012 HRTO 656, at para. 26; Grogan v. Ontario (Human Rights Tribunal), 2012 ONSC 319, at para. 48, leave to appeal refused, M41084. In any event, the respondent was free to make the Crown’s position that the existing action against it was a nullity known to the HRTO if she believed that would assist her in resisting dismissal of her HRTO application.

[22] Moreover, although the Crown is the only formally named defendant in the action, the claim refers to the conduct of various individuals and entities. The motion judge referred to the respondent having taken the position that individual police officers, the police services board, and the City of Quinte West are also defendants to the action. He invited her to have the claim “clearly and on its face stipulate who she is naming as a party defendant”. It remains open to her to pursue that in the Superior Court – it is only as against the Crown that the action is a nullity. The HRTO’s reasons for dismissing the application reflect this uncertainty as to who in addition to the Crown are or may be parties to the action – those reasons referred to the action as being against “all-but-one of the respondents” to the HRTO proceeding. It was that substantial overlap that was relied on by the HRTO in dismissing the application.

. Ontario v. Madan

In Ontario v. Madan (Ont CA, 2023) the Court of Appeal considered a negligence counterclaim against Ontario directly:

(a) Can Ontario be directly liable for negligence?

[50] The motion judge struck the claims alleging that Ontario was directly liable to the appellants in negligence. She held that under s. 8 of the Crown Liability and Proceedings Act, 2019, S.O. 2019, c. 7, Sched. 17 (the “Act”), the Crown could not be held directly liable in tort. The Crown could be held vicariously liable for the tortious acts of its officers, employees or agents.

[51] The relevant parts of s. 8 are set out below:

Crown liability

8(1) Except as otherwise provided under this Act or any other Act, the Crown is subject to all the liabilities in tort to which it would be liable if it were a person,

(a) in respect of a tort committed by an officer, employee or agent of the Crown;

...

Same

(2) For greater certainty, nothing in clause (1) (a) subjects the Crown to liability for a tort that is not attributable to the acts or omissions of an officer, employee or agent of the Crown.

Limitation of government actors’ liability applies to the Crown

(3) The negation or limitation under an Act of the liability of an officer, employee or agent of the Crown in respect of a tort committed by him or her applies to the same extent and in the same manner with respect to the Crown, and no proceeding may be brought against the Crown in respect of an act or omission of an officer, employee or agent of the Crown if a proceeding in tort in respect of such an act or omission may not be brought against that officer, employee or agent or against his or her personal representative.

[52] The provisions in s. 8 abrogate to some extent the Crown’s immunity from tort liability. Under the Act, Ontario is liable for torts committed by an officer, employee or agent of the Crown and Ontario’s liability in tort extends only to acts or omissions attributable to an officer, employee or agent of the Crown. Finally, the Crown is liable in tort for an act or omission, only if a proceeding in tort in respect of that act or omission could be brought against an officer, employee or agent of the Crown. Ontario’s tort liability is vicarious and depends on the plaintiff’s ability to prove the tortious conduct or omission of an officer, employee or agent of Ontario.

[53] The vicarious nature of the Crown’s liability in tort under the Act is clear on a careful reading of s. 8 of the Act.[4] Several judgments from this court have affirmed that reading: see Walters (Litigation Guardian of) v. Ontario, 2017 ONCA 53, 136 O.R. (3d) 53, at para. 34, leave to appeal refused, [2017] S.C.C.A. No. 100; Ontario v. Phaneuf, 2010 ONCA 901, 104 O.R. (3d) 392, at para. 13; Bruno v. Dacosta, 2020 ONCA 602, 69 C.C.L.T. (4th) 171, at paras. 33-34, leave to appeal refused, [2020] S.C.C.A. No. 412; Francis v. Ontario, 2021 ONCA 197, 154 O.R. (3d) 498, at paras. 142-45.

[54] Despite the language of s. 8 of the Act, and the line of authority referred to above, the appellants maintain that the Crown can be directly liable in tort. In their factum, the appellants make no reference to the language of the Act but instead, refer to an authority from British Columbia, where the comparable legislation, differently worded, does permit claims directly against the Crown: see Just v. British Columbia, 1989 CanLII 16 (SCC), [1989] 2 S.C.R. 1228.

[55] The appellants also misread this court’s decision in Francis, and make no reference to the other cases cited above, in para. 53. In Francis, at para. 144, this court said:

On a fair reading of the amended statement of claim, it is clear that the allegations being made against Ontario arise from its vicarious liability for the negligent acts of its servants. The amended statement of claim expressly references Regulation 778, by which administrative segregation decisions are left to the individual Superintendents. It is also clear from the amended statement of claim that the negligent acts are those of servants of Ontario. [Emphasis added.]

[56] Finally, the appellants’ reliance on Aylmer Meat Packers Inc. v. Ontario, 2022 ONCA 579, 162 O.R. (3d) 532 does not assist. Whether the Ministry of Agriculture, Food and Rural Affairs’ liability was direct or vicarious was not debated in Aylmer. Neither the Act, nor the cases referred to above were discussed or cited in the judgment. The parties and this court treated any distinction between the Ministry of Agriculture, Food and Rural Affairs’ direct liability in negligence and its vicarious liability for the actions of its employees as irrelevant to the issues addressed on the appeal.

[57] The motion judge correctly struck the negligence claims in the counterclaims to the extent they advanced a direct claim in negligence against Ontario.

. Cirillo v. Ontario

In Cirillo v. Ontario (Ont CA, 2021) the Court of Appeal considered issues under the then-new Crown Liability and Proceedings Act (CLPA):

[18] Ms. Cirillo appealed the motion judge’s certification decision to the Divisional Court. The week after she served her notice of appeal, the CLPA came into force. The Crown relied on ss. 11(4) and (5) of the CLPA in its responding factum on appeal to argue that certification of the negligence claims was now statute barred. Section 11(4) provides:

(4) No cause of action arises against the Crown or an officer, employee or agent of the Crown in respect of any negligence or failure to take reasonable care in the making of a decision in good faith respecting a policy matter, or any negligence in a purported failure to make a decision respecting a policy matter.

Section 11(5) defines the term “policy matter”:

(5) For the purposes of subsection (4), a policy matter includes,

(a) the creation, design, establishment, redesign or modification of a program, project or other initiative, including,

(i) the terms, scope or features of the program, project or other initiative,

(ii) the eligibility or exclusion of any person or entity or class of persons or entities to participate in the program, project or other initiative, or the requirements or limits of such participation, or

(iii) limits on the duration of the program, project or other initiative, including any discretionary right to terminate or amend the operation of the program, project or other initiative;

(b) the funding of a program, project or other initiative, including,

(i) providing or ceasing to provide such funding,

(ii) increasing or reducing the amount of funding provided,

(iii) including, not including, amending or removing any terms or conditions in relation to such funding, or

(iv) reducing or cancelling any funding previously provided or committed in support of the program, project or other initiative;

(c) the manner in which a program, project or other initiative is carried out, including,

(i) the carrying out, on behalf of the Crown, of some or all of a program, project or other initiative by another person or entity, including a Crown agency, Crown corporation, transfer payment recipient or independent contractor,

(ii) the terms and conditions under which the person or entity will carry out such activities,

(iii) the Crown’s degree of supervision or control over the person or entity in relation to such activities, or

(iv) the existence or content of any policies, management procedures or oversight mechanisms concerning the program, project or other initiative;

(d) the termination of a program, project or other initiative, including the amount of notice or other relief to be provided to affected members of the public as a result of the termination;

(e) the making of such regulatory decisions as may be prescribed; and

(f) any other policy matter that may be prescribed.

[19] The Crown also relied on s. 31(4) of the CLPA, which provides for the retroactive extinguishment of claims under s. 11. This would have caused the claim to have failed at the first requirement for certification in s. 5(1)(a) of the CPA.

[20] The Divisional Court remitted the question of whether the CLPA was a bar to certification of the negligence claims to the motion judge so that all the issues could eventually be considered together by the same panel on appeal.

(c) Re-hearing on Crown Immunity

[21] Relying on his original findings of fact, the motion judge held that the impugned decisions were “core policy decisions” and, as a result, ss. 11(4) and (5) of the CLPA applied to the appellant’s certification motion.

[22] During the hearing, both parties agreed that ss. 11(4) and (5) do not represent a substantial change in the common law on Crown immunity. However, the respondent submitted that the new sections “codify and more clearly define” the types of decisions for which the Crown is immune.

[23] The motion judge chose not to opine on whether the CLPA broadened the scope of Crown immunity from the common law and whether ss. 11(4) and (5) of the CLPA violate s. 96 of the Constitution Act, 1867, because it was unnecessary to do so. He already concluded that the impugned decisions were policy decisions under the common law before the enactment of the CLPA, and nothing in the CLPA affected this conclusion.