By: Grace Hermansen
On May 29th, 2019, the Crown Liability and Proceedings Act, 2019 (CLPA) officially became law in Ontario, replacing the Proceedings Against the Crown Act (PACA). This legislation outlines when and how lawsuits can be brought against the provincial government. Without this statutory framework, the common law principle of sovereign immunity dictates that the Crown cannot not be sued. What is concerning about the modifications made by the CLPA is certain provisions seemingly re-introduce sovereign immunity and in doing so could have broad implications for access to justice in Ontario.
In a report on class actions, the Law Commission of Ontario briefly assessed the potential impact of the CLPA, and the provincial government is currently attempting to appeal the certification of eight class actions by applying the CLPA retroactively. The Canadian Environmental Law Association also considered the implications for environmental lawsuits. It is possible the CLPA also affects lawsuits brought by Indigenous communities for infringements of their constitutionally protected Aboriginal and treaty rights.
Government liability for policy and regulatory decisions
Under the former Act, the Crown could be sued in tort for negligent actions or omissions. The common law restricts this in part by removing government liability for policy decisions. R v Imperial Tobacco Canada Ltd provides direction on the difference between policy decisions and negligent actions or omissions: governments should be free from judicial interference when they make public policy decisions in good faith that are based on economic, social and political factors; however, the Crown can attract liability where government agents negligently carry out their official duties.
The new legislation makes what could be big changes to government tort liability. The CLPA establishes that no cause of action arises against the provincial government in respect of any negligence or failure to take reasonable care in the context of regulatory decisions or policy matters. Depending on how this provision is interpreted by the courts, it has the potential go much further than simply codifying the common law.
The CLPA defines a policy matter so as to possibly include operational acts or decisions. For example, the manner in which a program is carried out is considered a policy matter. Even more concerning is the removal of liability for regulatory decisions. Regulatory decisions are defined broadly, including whether a licence, permission, or other authorization should be issued; whether to carry out an enforcement action; or whether a person or entity has met a requirement under an Act. Under this definition, if a government agent issues a new permit to a factory that allows it to increase its emissions to an extent that harms human health or the environment, the CLPA could preclude a claim against the Crown for damages caused by the increase in pollution.
Government liability for infringement of Aboriginal and treaty rights
The Duty to Consult and Accommodate (DTCA) & Infringement Actions
When the provincial government fails to fulfil the DTCA, it is usually within the context of making a decision or acting in a way that could affect aboriginal or treaty rights. Despite the CLPA, the affected community or individual still has the right to bring a claim against the government in the form of judicial review for failure to consult on potential adverse effects to section 35 rights, including the DTCA. Thus, the action or decision is not immune from challenge.
While the CLPA does not apply to judicial review, in December 2019 the Ontario government introduced Bill 161, which proposes amendments to the legislation that governs an application for judicial review, the Judicial Review Procedure Act. Bill 161 introduces a time period that requires applicants to apply for judicial review within 30 days of the decision being made for which review is being sought and it also provides that the court may face restrictions in allowing the time limit to be extended. Previously there was no statutory time period, and common law allowed the applicant to file within six months to a year, or even longer, dependent on the reason.
There is a distinction between seeking judicial review of a government decision that infringed a treaty or aboriginal right, such as the DTCA, and seeking declaratory relief or damages for an infringement of treaty or aboriginal rights. The concern is that the latter may be barred by the CLPA. The next section will outline this concern.
Torts concerning Aboriginal and treaty right
As suggested in the previous paragraph, it is possible that the CLPA may limit liability where an Indigenous person or community seeks declaratory relief or damages for government infringement of section 35 rights. Imagine that a smelter has released toxic material into the groundwater of the traditional territory of a First Nation. This action harms a species significant to the community’s trapping rights, and the provincial government’s subsequent actions fail to hold the smelter liable. The government actions in this example could be framed as a failure to take reasonable care in making a regulatory decision that determines the facility has contravened a duty or obligation set out under an Act. Under the CLPA, technically no cause of action can arise against the Crown for a regulatory decision of this sort. This example highlights the concern that a cause of action against the provincial government in tort that includes infringement of a treaty or aboriginal rights may be barred by the CLPA.
While the question of barring constitutional infringements remains unanswered, actions that do not involve section 35 infringements but exclusively or predominantly affect indigenous persons could very likely be barred by the CLPA. If the provincial government sets up a program that places burdens on indigenous communities, common law tells us that a tort claim against the government for the creation of the program (a policy decision) would likely be unsuccessful. However, the CLPA expands this immunity by saying if a government agent fails to take reasonable care in its supervision of how the program is rolled out, the community is barred from bringing an action against the government in tort. For instance, under the CLPA a survivor of a residential school may be prohibited from bringing a claim for damages against a government agent for harms experienced at the hands of the agent while in the residential school.
The CLPA introduces changes to Crown liability that could limit the ability to hold the government accountable for environmental harms and infringements of Indigenous rights. While judicial review applications are not affected by the CLPA, the Act purports to eliminate tort claims and potentially even actions seeking damages or declaratory relief for infringements of constitutional rights. The interpretation of the CLPA by courts will help us determine the real impact of the legislation on access to justice and Indigenous rights.