Legal critics claim new Ont. law makes it harder to sue provincial government

New law retroactively ends lawsuits lost by Ontario government At least eight class action lawsuits could be shut down by the Ontario government under the new law.

TORONTO — A new law enacted in Ontario in July makes it harder to take class action lawsuits against the Ontario government, according to legal critics.

The provincial government is asking the courts to throw out at least eight such cases against it under the Crown Liability and Proceedings Act.

“There has always been a law which allows us to sue the government,” lawyer Ari Singer told CTV’s Your Morning.

“This is now a huge change to that law, which essentially limits our right to bring an action against the government.”

The provincial government said the new law was enacted to stop people suing over government policy or spending decisions.

“I think it’s a great newsbyte to say that, but in reality what they’re doing is they’re actually changing the definition of policy,” Singer said.

“If you read the actual law a lot of the stuff of what they’re saying is a policy or a legal or a funding decision, is actually the implementation of the law. It’s really quite scary.”

The new law can also be applied retroactively, meaning that cases the province has already lost can now be appealed. Singer said the province is trying to protect itself.

“The best parallel that you can see is similar to what happened with the Beer Store and the LCBO contract that the government changed,” he said.

“They broke the contract and then they passed a law saying that we don’t have to pay you for that contract. So it’s very similar to this situation, when people used to be able to hold the government to account they can’t because the government is changing the rules and then applying it backwards.”

Singer said the move by the Ontario government could be implemented elsewhere, creating a “snowball effect.”

“I happened to just be mentioning this to a colleague of mine in Alberta and she said the government over there is thinking of doing the same things,” he said.

“What is scary is, once governments do this and if the laws are upheld, no other government is then going to pass a law saying ‘Oh we’re opening ourselves up to liability.’”

One such case involves inmate Adam Capay, who was held in solitary confinement for most of his four and a half years in custody.

The mentally ill Indigenous man, 26, was accused of stabbing Sherman Quisses twice in the neck while both were at a correctional facility in Thunder Bay, Ont.

Superior Court Justice John Fregeau, while acknowledging that Capay was responsible for Quisses' death, ruled that Capay’s treatment was so "abhorrent” and "inhumane" it affected his ability to stand trial for murder and stayed the charge of first degree murder.

“He (Capay) brought an action against the government essentially saying that he was tortured for four years,” Singer said.

“And now the government is essentially shutting down that action.”

Critics say the new law also introduces procedural hurdles to suing the government over corruption or wrongdoing.

It would also limit the instances in which the government could be on the hook for financial compensation to plaintiffs.

A spokesperson from the office of the Ontario Attorney General told CTVNews.ca in an email statement that it “puts people at the centre of all its policy decisions.”

“The purpose of the Crown Liability and Proceedings Act is to clarify the law concerning lawsuits that involve the government,” Brian Gray said.

“The changes seek to apply one consistent set of rules concerning government liability to all cases and clarify the extent of the government’s civil liability for certain activities that are unique to government: enacting legislation and making good faith regulatory and policy decisions.

“Anyone seeking to bring other types of claims against the government will still be able to do so.”

Gray added that the Act is the subject of legal challenges, making it “inappropriate to comment further.”

The Law Commission of Ontario raised concerns about Crown liability with Ontario’s attorney general Doug Downey when the new law was introduced.

The Ministry of the Attorney General told Law Times, the act “does not present any insurmountable access to justice barriers” in class-action law.

“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,” Downey’s press secretary Jenessa Crognali told Law Times in an email.

“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.”

Another potential roadblock see plaintiffs forced to obtain permission from a court to move forward with suing the government in the first place. A problem here being that this usually requires access to government documents that the province will not be required to provide.

Other historic cases relating to negligence by the Ontario government and which could be affected by the new law include bail delays, claims by disabled adults whose funding was cut, and children held in solitary confinement.

- With files from The Canadian Press