On July 1, 2019, the Ontario government replaced the Proceedings Against the Crown Act ("PACA") with the Crown Liability and Proceedings Act, 2019 ("CLPA"). The CLPA appears to align with a more fiscally responsible approach to government spending, but it removes important legal avenues for holding government employees accountable for their actions.
The CLPA applies to proceedings against the provincial Crown that seek damages in tort and that are commenced on or after July 1, 2019, regardless of when the claim arises. Apart from certain causes of action that are extinguished by section 11 of the CLPA, the PACA continues to apply to proceedings commenced against the Crown prior to July 1, 2019.
Many of CLPA's provisions make changes to lawsuits against the Crown, but none are as significant (or as dangerous) as section 11, which effectively limits the scope of Crown liability for the negligence of employees, officers and agents of the government.
At common law, the Crown enjoys an immunity against negligence claims where legislative and policy decisions are concerned. Only for operational activities can the Crown be held liable in negligence.
But the CLPA blurs this distinction between actionable operational activities and non-actionable policy and legislative decisions by incorporating operational activities into the definitions of "Policy decisions" and "Regulatory decisions" under the CLPA.
In other words, what has historically been described as operational, like the manner in which a program, project or other initiative is carried out, the manner in which an investigation, inspection or other assessment under an Act is conducted, and the manner in which an enforcement action under an Act is implemented, is now included in the class of policy and regulatory decisions for which no cause of action arises against the Crown.
As a result, the civil immunity previously enjoyed by the Crown has been enhanced.
Equally worrisome is that section 11 applies retroactively to actions that were commenced prior to the CLPA's coming into force. Subsections 11(7) and (8) bar and dismiss, without costs, all cases involving negligent policy, legislative, or regulatory actions or omissions, including those that have reached the trial stage.
In response to these changes, the Law Commission of Ontario had the following to say in a report entitled, "Class Actions: Objectives, Experiences, and Reforms":
Depending on how courts interpret these sections, it is possible that parties will not have any recourse against the government for negligent government activity, including failing to properly inspect a building, failing to clear snow from highways, or for systemic institutional wrongs.
Trading social responsibility for fiscal responsibility may be harmful to Ontarians in the long run. Litigants will nevertheless need to consider the CLPA, and section 11, in particular, in order to determine whether they have a viable cause of action against the province where negligence is alleged.
For more information about the CLPA, please do not hesitate to contact me.