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Order declaring Crown claims screening process unconstitutional overturned on appeal

Friday, March 17, 2023 @ 1:42 PM | By Karunjit Singh

Ontario’s appellate court has overturned a decision that adjudged a screening procedure that applies to claims against the Crown under the Crown Liability and Proceedings Act, 2019 (CLPA) to be unconstitutional and of no force or effect.

The Superior Court of Ontario had found that the screening procedure in s. 17 of the CLPA deprived plaintiffs of an effective means to access necessary evidence by relieving the Crown of any obligation to give documentary or oral discovery and was therefore inconsistent with s. 96 of the Constitution Act, 1867.

In Poorkid Investments Inc. v. Ontario (Solicitor General), 2023 ONCA 172, released on March 16, Appeal Court Justice Grant Huscroft held that “nothing in s. 17 bars, denies, or otherwise prevents access to the superior courts and their core function of adjudicating disputes.” He noted there was no evidentiary basis to support the conclusion that prohibiting documentary and oral discovery in the screening process deprives individuals of meaningful access to the superior courts in violation of s. 96 of the Constitution Act.

The judgment will lead to multiple bad faith claims against the Crown being stayed, according to counsel for the respondent Peter Murray of Arrell Law LLP. The provision also provides that proceedings brought against the Crown are automatically stayed and may proceed only with leave of the court, he added. The respondents did not bring a leave motion under s.17 of the CLPA and had instead sought a declaration that the section was of no force and effect.

“When the Crown appealed it brought a motion for an expedited hearing on the grounds there were many (about 80) cases affected by section 17 of the CLPA,” he told Law360 Canada in an email, adding that the respondents were considering all legal options.

The respondents were representatives in a class action seeking damages from the Crown over the failure of the Ontario Provincial Police to prevent crime and enforce injunctions against protests by Indigenous activists in Caledonia, Ont. The respondents pleaded four grounds of liability including misfeasance in public office, nonfeasance, negligence and nuisance.

Justice Huscroft concluded that mere difficulty in proceeding with a claim cannot be equated with preventing the superior courts from exercising their core jurisdiction.

The application judge had concluded that s. 17 was unconstitutional because it created an obstacle to “meaningful” access to the superior courts, and at the same time denied means of overcoming that obstacle by relieving the Crown from being subject to documentary and oral discovery. He also held that bad faith is a state of mind and difficult to prove in the absence of evidence from a defendant.

Justice Huscroft rejected this conclusion, noting that “it is not the claimant’s burden under s. 17 of the CLPA to establish bad faith in any event: claimants need only establish a reasonable possibility that their claim will succeed.”

He noted that the applications judge had misapplied the judgment in Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014 SCC 59, which held that high hearing fees infringed the core jurisdiction of superior courts since they deprived them of their ability to determine disputes within their jurisdiction.

“This was a matter of impairing the function of a superior court as an institution charged with delivering the common good, not a violation of an individual’s constitutional rights,” he wrote, adding that the Supreme Court had confirmed the narrow scope of the decision.

Justice Huscroft concluded that s. 96 did not prevent the legislature from reforming procedure governing litigation.

“That some ― perhaps even many ― claimants will be denied leave to bring proceedings as a result of the screening mechanism does not mean that the constitutional role of the superior courts has been impermissibly infringed,” he wrote.

He also rejected a conclusion by the applications judge that s. 17 was inconsistent with the rule of law, noting that the provision only changes the way in which some claims proceed to superior courts.

“[B]oth the Constitution and the rule of law require that s. 17 of the CLPA be given effect,” he wrote.

Justices Alison Harvison Young and Lorne Sossin concurred in the judgment.

Counsel for the appellants were Zachary Green and Ryan Cookson of the Ministry of the Attorney General of Ontario. They were not immediately available for comment.

If you have any information, story ideas or news tips for Law360 Canada on business-related law and litigation, including class actions, please contact Karunjit Singh at or 905-415-5859.