MAG says Crown liability changes defend taxpayers from ‘deep-pocketed lawyers’

The Ministry of the Attorney General says that the Crown Liability and Proceedings Act “does not present any insurmountable access to justice barriers” in class-action law.

The statement by Jenessa Crognali, press secretary for Minister Doug Downey, comes after the Law Commission of Ontario raised concerns about Crown liability in a recent report on class action law.

“Simply stated, the Crown Liability and Proceedings Act, 2019 could prevent some or potentially all negligence claims against the Province of Ontario, including some or all potential class actions. This situation could create significant if not insurmountable barriers to justice, to judicial economy and to behaviour modification in class actions against the province,” said the LCO’s report “Class Actions: Objectives, Experiences and Reforms,” released on July 17.

The report by the independent legal reform organization was only an early, partial analysis of the Crown Liability and Proceedings Act, 2019, which just received royal assent in May. Courts will still need to determine the scope of the law, LCO Executive Director Nye Thomas told Law Times.

The LCO report raised concerns about s. 11 of the CLPA, “Extinguishment of causes of action respecting certain governmental functions,” as well as s.17, “No proceeding for misfeasance, bad faith without leave;” s. 30, “Regulations and s. 31, “Transition.”

But Downey’s office says that “people can always sue in Ontario’s courts to receive the justice they deserve.”

“What these changes accomplish is to ensure that the government can make good faith legislative, regulatory and policy decisions without fear of being sued by deep-pocketed lawyers, and to ensure that the courts are not evaluating the legislative, regulatory or policy decisions of a government – that is what the ballot box is for,” Crognali tells Law Times in an e-mail.

While there is limited data available on how courts treat class action suits in Ontario, the LCO’s report said the “number of class action matters filed in recent years has clearly increased.”

Downey’s office says the current system enables well-funded lawyers to “constantly” bring “expensive lawsuits over principles of law long settled by the Supreme Court of Canada.”

“These frivolous lawsuits result in tens of millions of dollars in legal costs for the taxpayer each year. Each dollar spent defending against a baseless lawsuit brought by an expensive lawyer is a dollar that could have gone to services like healthcare or education,” says Crognali’s statement.

Others have raised concerns about the CLPA outside of the LCO report. For instance, Erika Chamberlain, dean of the Faculty of Law at Western University, wrote in an article that the law could halt lawsuits where “plaintiffs and their lawyers will have already invested years in litigation.”

“Although it’s not uncommon for governments to include legislative reforms within budget bills, it leaves the impression that the government is trying to hide the change from the scrutiny it might otherwise attract,” wrote Chamberlain.

Downey’s office says that disputes involving contracts, constitutional issues, human rights and judicial review of government decisions are not impacted by the CLPA changes.

“[T]he government would remain liable for negligent acts of its employees if proven in court,” Crognali’s statement says.