Law360 Canada (April 28, 2023, 6:27 AM EDT) -- Appeal by the Crown from the application judge’s finding that s. 17 of Crown Liability and Proceedings Act (CLPA) violated s. 96 of the Constitution Act, 1867 (CA) and was of no force and effect. The respondents, named representative plaintiffs in a class action brought against the appellants, sought damages from the Crown on behalf of property owners and businesses in Caledonia, Haldimand County and the vicinity, as well as those who entered agreements of purchase and sale for homes to be built in a proposed subdivision known as McKenzie Meadows. The damages were alleged to have been incurred because of the closure of public highways and a railway line, occupation of the subdivision and an interruption of hydro service. They sought damages arising out of the Ontario Provincial Police’s (OPP) response to protests by Indigenous activists in Caledonia, Ontario, and pleaded four grounds of liability: misfeasance in public office, nonfeasance, negligence and nuisance. The respondents did not seek leave under the CLPA to bring their proceedings. Instead, they brought an application for a declaration that s. 17 of the CLPA violated s. 96 of the CA and was of no force and effect. The application judge found that the financial cost (almost exclusively legal fees) of bringing a motion for leave under s. 17 did not violate s. 96 of the CA. However, he found that the procedure established by s. 17 violated s. 96 because it barred claimants from presenting the evidence necessary to satisfy the court that there was a reasonable possibility that a claim would succeed, and so prevented them from having meaningful access to the superior courts. The Crown appealed....