One of the most controversial (and potentially unconstitutional) aspects of the Ontario government’s 2019 budget released on April 11, is the proposed repeal of the Proceedings Against the Crown Act. This Act has been in force for 56 years and establishes the framework for citizens to sue the government. In its place, the Ford Conservatives will enact the Crown Liability and Proceedings Act. The proposed Act will severely limit the circumstances under which a plaintiff can pursue a lawsuit against the government whileintroducing significant additional procedural hurdles. Provided that the government is deemed to have acted in “good faith”, the proposed Act bars any cause of action for:
• acts or omissions of a legislative nature;
• decisions of a regulatory nature; or
• policy decisions, including programme funding and termination, and the supervision, oversight and control of programmes;
even if these acts and decisions are performed negligently or incompetently.
Further, the proposed Act will require plaintiffs to seek leave of the Court when alleging bad faith or misfeasance.During the application for leave, plaintiffs will be subject to Crown cross-examination on their evidence and convince a judge their claim has a reasonable possibility of success. Shockingly, the government will not be required to produce evidence for cross-examination at this stage.
The proposed act also introduces new disclosure rules that allow the Crown to refuse production of evidence that the Court deems, “injurious to the public interest.”
As if this weren’t shocking enough, the proposed Act is written to apply retroactively, and will be used to dismiss existing lawsuits against the Crown.
Challenges under the Canadian Charter of Rights will not be directly affected by the proposed Act. However,it will drastically limitthe instances in which plaintiffs can seek financial compensation for harm caused by the government.
If you have been seriously injured in any claim involving government negligence, and have questions relating to the proposed Act’s impact on your potential or existing lawsuit, we are pleased to offer a free consultation. Campisi LLP– Clients First, Excellence Always!