Hi Angela,

I think the short answer to your question is yes. Here's my quick take on the legislation.

1.  It restricts liability on regulatory matters to actions taken in bad faith, and then defines regulatory matters quite broadly. It includes, for example, the manner in which inspections and enforcement actions are carried out.

2.  In order to sue for bad faith (or misfeasance in a public office), it requires plaintiffs to obtain leave of a court, and to show a reasonable possibility that the claim would be resolved in their favour. It simultaneously limits their ability to gather evidence of bad faith, because the Crown is not required to provide any supporting documents on the leave application and cannot be examined for discovery. Since “bad faith” is a state of mind, it is often difficult for plaintiffs to know if an action was taken in bad faith until they see relevant documents and examine the defendant. This means that claims for bad faith/misfeasance in a public office will only be available in a small number of cases, where the plaintiff is already in possession of information indicating bad faith.

3.  It purports to codify the “policy matters” for which the government is currently immune from liability under common law. While several of the items listed would likely be found by a court to be policy matters in any event, it includes some actions which expand the scope of Crown immunity; most notably, “the manner in which a program, project or other initiative is carried out.” I think that this would arguably be considered a form of “implementation” or an “operational” function of government, not a matter of policy.

4.  It retroactively extinguishes ongoing litigation related to the above.

Effectively, items 1 and 2 say to plaintiffs, “You can only sue in instances of bad faith; you have to persuade a court that there is a reasonable possibility of you winning in order to get permission to sue; and to get that permission, you have to gather evidence of bad faith without the assistance of the processes that are normally available in the civil litigation process.”

It’s unfortunate, though I guess strategic, that this is being introduced as part of the omnibus budget legislation, and so will not receive the scrutiny it deserves.

Erika

Erika Chamberlain, LL.B., Ph.D. (Cantab.)

Professor and Dean

Acting Associate Dean (Research)

Faculty of Law, Western University

London, ON, Canada, N6A 3K7

echambe@uwo.ca, (519) 661.2111 x.80036

-----Original Message-----
From: Angela Swan [mailto:aswan@airdberlis.com]
Sent: April-29-19 9:01 PM
To: Neil Foster <neil.foster@newcastle.edu.au>
Cc: Obligations Discussion Group <obligations@uwo.ca>
Subject: Re: Change to Crown Liability Act in Ontario

Thank you very much, Neil, for that helpful and interesting comment.

Are we seeing a reversion to the days when — in parts of Canada at least — you had to get the government’s permission to sue it?

With best wishes,

Angela

Sent from my iPhone

On Apr 29, 2019, at 8:10 PM, Neil Foster <neil.foster@newcastle.edu.au<mailto:neil.foster@newcastle.edu.au>> wrote:

Dear Angela;

I can’t offer comments on the Canadian law, I’m afraid, but colleagues may be interested to know that these provisions sounds similar to (though perhaps even more extreme than) provisions in Part 5 of the Civil Liability Act 2002 (NSW) (replicated in other Australian jurisdictions)- see eg

44 WHEN PUBLIC OR OTHER AUTHORITY<http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/nsw/consol_act/cla2002161/s41.html#public_or_other_authority> NOT LIABLE FOR FAILURE TO EXERCISE<http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/nsw/consol_act/cla2002161/s41.html#exercise> REGULATORY FUNCTIONS<http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/nsw/consol_act/cla2002161/s41.html#function>

(1) A public or other authority<http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/nsw/consol_act/cla2002161/s41.html#public_or_other_authority> is not liable in proceedings for civil liability to which this Part applies to the extent that the liability is based on the failure of the authority to exercise<http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/nsw/consol_act/cla2002161/s41.html#exercise> or to consider exercising any function<http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/nsw/consol_act/cla2002161/s41.html#function> of the authority to prohibit or regulate an activity if the authority could not have been required to exercise<http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/nsw/consol_act/cla2002161/s41.html#exercise> the function<http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/nsw/consol_act/cla2002161/s41.html#function> in proceedings instituted by the plaintiff<http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/nsw/consol_act/cla2002161/s5m.html#the_plaintiff>.

(2) Without limiting what constitutes a function<http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/nsw/consol_act/cla2002161/s41.html#function> to regulate an activity for the purposes of this section, a function<http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/nsw/consol_act/cla2002161/s41.html#function> to issue a licence, permit or other authority in respect of an activity, or to register or otherwise authorise a person in connection with an activity, constitutes a function<http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/nsw/consol_act/cla2002161/s41.html#function> to regulate the activity.

Other provisions of Part 5

  * Require the “available resources” to be taken into account (s 42)- the subject of an interesting recent decision in the Court of Appeal in Weber v Greater Hume Shire Council [2019] NSWCA 74 (17 April 2019) http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWCA/2019/74.html

  * Raise the bar for breach to “highly unreasonable” in relation to an action for “breach of statutory duty” (s 43) or an action in negligence (s 43A) involving the exercise of a “special statutory power”

  * Reinstate the common law immunity of highway authorities (s 45).

If these Ontario provisions are enacted courts may possibly refer to the developing body of law in NSW on Part 5 in interpreting them. In this regard the “NoteUp References” feature of our local search site Austlii (www.austlii.ed.au<http://www.austlii.ed.au> )is excellent for tracking decisions on specific legislative provisions.

Regards

Neil

NEIL FOSTER

Associate Professor, Newcastle Law School Faculty of Business and Law

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My publications: http://works.bepress.com/neil_foster/ , http://ssrn.com/author=504828

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From: Angela Swan <aswan@airdberlis.com<mailto:aswan@airdberlis.com>>

Date: Tuesday, 30 April 2019 at 2:49 am

To: "obligations@uwo.ca<mailto:obligations@uwo.ca>" <obligations@uwo.ca<mailto:obligations@uwo.ca>>

Subject: Change to Crown Liability Act in Ontario

Here is a summary, taken from the Ontario Government’s Budget Bill<https://www.ola.org/sites/default/files/node-files/bill/document/pdf/2019/2019-04/b100_e.pdf>, Schedule 17, of the some of the proposed changes to the Proceedings Against the Crown Act which will take effect when the Crown Liability and Proceedings Act, 2019, becomes law.

Section 11 extinguishes causes of action against the Crown or an officer, employee or agent of the Crown respecting negligence or a failure to take reasonable care in relation to acts of a legislative nature, negligence or a failure to take reasonable care in relation to the making (or purported failure to make) a regulatory decision in specified circumstances, or negligence or a failure to take reasonable care in relation to the making (or purported failure to make) decisions respecting policy matters. No proceedings respecting such matters may be brought, and any existing proceedings are deemed to be dismissed without costs. The circumstances in which section 11 applies may be augmented on an ongoing basis by regulations made under section 30; such regulations may be retroactive and may be made to apply to proceedings in existence when the regulations come into force.

Sections 12 to 27 address various procedural matters, some of which apply in the case of proceedings against the Crown (or an officer or employee of the Crown), and some of which apply in any proceedings to which the Crown is a party. Except as provided by the Act and the regulations made under it, the rules of court apply to proceedings to which the Crown is a party (section 13). Under section 16, proceeding against the Crown by way of petition of right is abolished. Section 17 requires court leave to bring a proceeding against the Crown or an officer or employee of the Crown in respect of a tort of misfeasance in public office or based on bad faith exercise or performance, or intended exercise of performance, of powers, duties or functions. Section 18 sets out notice requirements for proceedings against the Crown that include a claim for damages. Section 19 addresses discovery in proceedings to which the Crown is a party. Proceedings against the Crown or an officer or employee of the Crown shall be tried without a jury (section 20). Sections 22 to 25 set out restrictions on the types of orders that may be made in proceedings involving the Crown. Section 27 addresses certain enforcement issues.

(Emphasis added.)

I would be interested in the assessment by members of the ODG of the extent to which the proposal will change the current law on Crown liability in Ontario.

Angela Swan