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Access to Justice - Constitutional Basis. Poorkid Investments Inc. v. Ontario (Solicitor General)
In Poorkid Investments Inc. v. Ontario (Solicitor General) (Ont CA, 2023) the Court of Appeal expounds on the 'rule of law', here in a class action alleging 'under-policing' [my term] with respect to indigenous protests near Caledonia, Ontario:The nature of the rule of law
[51] The rule of law is a venerable principle of political philosophy – a complex, multifaceted ideal that informs legislative and judicial processes. It has ancient origins and has been developed in a tradition running through scholars such as Aristotle, Thomas Aquinas, Sir William Blackstone, and A.V. Dicey. The rule of law is the subject of a large and growing body of contemporary academic scholarship: see, for example, Kristen Rundle, Revisiting the Rule of Law (New York: Cambridge University Press, 2022); Frederick Schauer, “Lon Fuller and the Rule of Law” (2020) University of Virginia School of Law Public Law and Legal Theory Paper Series 2020-46; John Tasioulas, “The Rule of Law” in Tasioulas, ed., The Cambridge Companion to the Philosophy of Law (Cambridge: Cambridge University Press, 2019); and Brian Z. Tamanaha, “The History and Elements of the Rule of Law” (2012) Sing. J.L.S. 232.
[52] To say that the rule of law is respected in a legal order is to make a claim about the health of that legal order – that it is functioning in accordance with a range of criteria the concept may be understood as embracing. Lon Fuller famously offered a list of eight rule of law principles he described as the “inner morality of law” in The Morality of Law, rev’d edn. (New Haven: Yale University Press, 1969), at pp. 33-38. According to Fuller, the law should be: 1) general in nature; 2) publicized; 3) prospective in operation; 4) understandable; 5) non-contradictory; 6) possible to comply with; 7) relatively constant; and 8) congruent with its administration. John Finnis offers a similar account in Natural Law and Natural Rights, 2nd ed. (Oxford: Oxford University Press, 2011), at pp. 270-71: “A legal system exemplifies the Rule of Law to the extent … that (i) its rules are prospective, not retroactive, and (ii) are not in any other way impossible to comply with; that (iii) its rules are promulgated, (iv) clear, and (v) coherent one with another; that (vi) its rules are sufficiently stable to allow people to be guided by their knowledge of the content of the rules; that (vii) the making of decrees and orders applicable to relatively limited situations is guided by rules that are promulgated, clear, stable, and relatively general; and that (viii) those people who have authority to make, administer, and apply the rules in an official capacity (a) are accountable for their compliance with rules applicable to their performance and (b) do actually administer the law consistently and in accordance with its tenor.”
[53] Contemporary accounts of the rule of law typically share a number of these commitments but may differ in important respects. This is to be expected: good faith disagreement about the essential nature of the rule of law flourishes in any democratic order that aspires to the ideal: see Jeremy Waldron, “The Rule of Law as an Essentially Contested Concept” (2021) NYU School of Law Public Law and Legal Theory Research Paper Series, Working Paper No. 21-15. The rule of law has always served as a constitutional lodestar for lawmakers – an ideal to be aspired to, rather than a canonical set of rules that is subject to enforcement.
[54] The Supreme Court outlined the elements of the rule of law for adjudication purposes in the Re Manitoba Language Rights, 1985 CanLII 33 (SCC), [1985] 1 S.C.R. 721 and the Reference re Secession of Quebec, 1998 CanLII 793 (SCC), [1998] 2 S.C.R. 217. Those elements are: 1) the supremacy of the law over the acts of government and private persons; 2) the creation and maintenance of an actual order of positive laws that preserves and embodies the more general principle of normative order; and 3) the requirement that the relationship between the state and the individual be regulated by law.
[55] These elements focus on the nature and purpose of the law rather than its substance, and are not independently enforceable in legal proceedings. As Wagner C.J. and Brown J., writing for a majority of the Supreme Court, explained in Toronto (City) v. Ontario (Attorney General), 2021 SCC 34, 462 D.L.R. (4th) 1, at para. 58, to enforce unwritten constitutional principles would trespass on the legislature’s authority to amend the Constitution, raise concerns about the legitimacy of judicial review, and distort the separation of powers. Fundamentally, it would be at odds with the settlement reflected in the text of the Constitution itself. Thus, they stated the conclusion categorically: “unwritten constitutional principles cannot serve as bases for invalidating legislation”: Toronto (City), at para. 63. Nothing could be clearer.
[56] There is nothing new or surprising in this. The Court reached the same conclusion when considering the unwritten principle of the rule of law in British Columbia v. Imperial Tobacco Canada Ltd., 2005 SCC 49, [2005] 2 S.C.R. 473, at paras. 59-60. Nevertheless, it is clear that the elements of rule of law identified by the Court may be invoked both as an interpretive aid and to help develop necessary structural constitutional doctrines: Toronto (City), at paras. 55-56. The majority in Toronto (City) cites Trial Lawyers as an example of the rule of law informing a purposive interpretation of s. 96 of the Constitution Act, at para. 55.
[57] However, two distinct difficulties attend the use of the rule of law as an interpretive aid in adjudication. The first is the need to respect the scope of the elements of the rule of law identified by the Court. The second is the difficulty of maintaining the distinction between the use of rule of law as an interpretive aid, which is legitimate, and direct enforcement of the rule of law to invalidate legislation, which is not. The application judge’s decision illustrates both difficulties.
“Meaningful access to the court” as described by the application judge is not an element of the rule of law
[58] It seems reasonable that there should be “meaningful access to the court in the sense of ensuring that a litigant’s claim is determined on its merits, including the right to present material evidence”, but the application judge’s “meaningful access” concept is not required by the rule of law on that account, nor does it engage the aspect of the rule of law dealing with physical access to courts set out in B.C.G.E.U. v. British Columbia (Attorney General), 1988 CanLII 3 (SCC), [1988] 2 S.C.R. 214.
[59] The rule of law is not a repository of all things considered desirable in a legal system. None of the elements of the rule of law recognized in Re Manitoba Language Rights and Reference re Secession of Quebec speak directly to the terms of legislation: Imperial Tobacco, at para. 59.
[60] Indeed, it is noteworthy that in Imperial Tobacco the Supreme Court rejected several “fair civil trial” features asserted as protected by the rule of law in upholding the constitutionality of British Columbia legislation that went much further than s. 17 of the CLPA: it authorized actions by the provincial government against tobacco product manufacturers for the recovery of health care expenses incurred by the government, changed evidentiary requirements, permitted the government to establish aggregate claims, reversed the burden of proof in several respects, and operated retrospectively. The legislation changed the general rules of civil litigation considerably, but, as the Supreme Court stated, there is no constitutional right to have one’s civil trial governed by customary rules of civil procedure and evidence: Imperial Tobacco, at para. 76. That conclusion applies with equal force in this case.
The rule of law as an interpretive aid
[61] The written aspects of the Constitution are carefully crafted, reflecting constitutional settlements that courts must respect. Unwritten constitutional principles may provide interpretive guidance for understanding the nature of particular constitutional settlements, but that guidance is ultimately limited by constitutional text and design. Courts cannot rely on unwritten constitutional principles to alter or supplement the text of the Constitution; constitutional text has “primordial” importance and can be changed only by constitutional amendment: Quebec (Attorney General) v. 9147-0732 Québec Inc., 2020 SCC 32, 451 D.L.R. (4th) 367, at para. 11; Toronto (City), at para. 65. . Poorkid Investments Inc. v. Ontario (Solicitor General)
In Poorkid Investments Inc. v. Ontario (Solicitor General) (Ont CA, 2023) the Court of Appeal outlines the narrow nature of the s.96 Constitution Act ['Superior Court'] provision, here in an 'access to justice' context which the court declines to adopt:Trial Lawyers
[30] Trial Lawyers concerned a challenge to the constitutionality of hearing fees – charges for the daily use of the court – set out in the rules applying to proceedings in the Supreme Court of British Columbia. McLachlin C.J., writing for a majority of the Court, held that the hearing fees were so high as to prevent people from coming to the courts to have their disputes resolved. This, she said, prevented the business of the courts from being done; it infringed the core jurisdiction of superior courts by depriving them of their ability to serve as courts of inherent general jurisdiction. She reasoned as follows:The historic task of the superior courts is to resolve disputes between individuals and decide questions of private and public law. Measures that prevent people from coming to the courts to have those issues resolved are at odds with this basic judicial function. The resolution of these disputes and resulting determination of issues of private and public law, viewed in the institutional context of the Canadian justice system, are central to what the superior courts do. Indeed, it is their very book of business. To prevent this business being done strikes at the core of the jurisdiction of the superior courts protected by s. 96 of the Constitution Act, 1867. As a result, hearing fees that deny people access to the courts infringe the core jurisdiction of the superior courts: at para. 32. [31] Trial Lawyers is an exceptional decision that is expressly limited in its reach. The Supreme Court did not hold that the hearing fees infringed s. 96 of the Constitution Act, 1867 simply because they prevented some individuals from accessing the superior courts. Nor could it have done so. Section 96 is a structural provision of the Constitution; it does not establish individual rights and in particular does not establish an individual right of access to the superior courts. It would be a mistake to conclude that because a structural provision of the Constitution exists for the benefit of persons – because it serves the common good by establishing the judicial system or the institutions of government – it establishes a justiciable individual right. The hearing fees impugned in Trial Lawyers were found to impermissibly infringe the core jurisdiction of the superior courts because they deprived the superior courts of their ability to hear and determine disputes otherwise within that jurisdiction. This was a matter of impairing the function of a superior court as an institution charged with delivering the common good, not a violation of an individual’s constitutional rights. The difference is significant: the focus of the Supreme Court’s analysis was necessarily on the courts as an institution rather than on individual rights.
[32] The Supreme Court confirmed this understanding of Trial Lawyers recently in the Quebec Reference. A majority of the Court characterized the problem in Trial Lawyers this way: those who could not afford the hearing fees but were not eligible for an income-based exemption from paying them “fell through the cracks in the judicial system; their disputes could no longer be resolved by the law, which jeopardized the maintenance of an actual order of positive laws and thus the rule of law”: at para. 69.
[33] Trial Lawyers specifically rejected the argument that hearing fees are unconstitutional per se. Although McLachlin C.J. did not explain when hearing fees become sufficiently high as to infringe the core jurisdiction of the superior courts, it is plain from the language of the decision that quantum matters. Hearing fees are impermissible when they “prevent” disputes from coming to the courts; “deny” or “effectively [deny]” disputes coming before the superior courts; “[bar] access” to the superior courts; and so on: Trial Lawyers, at paras. 32-37. In other words, financial impediments to access to the superior courts rise to the level of a constitutional infringement only if they have the effect of preventing the superior courts from exercising their core jurisdiction.
[34] The core jurisdiction concept has, from the outset, been understood as “very narrow”, including “only critically important jurisdictions which are essential to the existence of a superior court of inherent jurisdiction and to the preservation of its fundamental role within our legal system”: Reference re Amendments to the Residential Tenancies Act (N.S.), 1996 CanLII 259 (SCC), [1996] 1 S.C.R. 186, per Lamer C.J. (concurring), at p. 224. The Supreme Court confirmed the narrow scope of the concept in the Quebec Reference, noting that it focuses on the essential business of the superior courts: “review of the legality and constitutional validity of laws, enforcement of its orders, control over its own process, and its residual jurisdiction as a court of original general jurisdiction”: at para. 68. For their part, Wagner C.J. and Rowe J. (dissenting in part) emphasized that the superior courts’ core jurisdiction involves only “critically important” jurisdictions, the deprivation of which would deprive the superior courts of the ability to play their central and unifying role in the constitutional order and to uphold the rule of law: at para. 233.
[35] This case is nothing like Trial Lawyers. Section 17 of the CLPA does no more than regulate the way in which disputes come before the superior courts. It does not prevent disputes from being heard and determined by the superior courts and in no way infringes – let alone “emasculates” – the core jurisdiction s. 96 protects.
Section 17 of the CLPA does not infringe the core jurisdiction of the superior courts
[36] Much of the confusion in this case arises out of the misreading of Trial Lawyers and s. 96 caselaw outlined above. Section 96 caselaw is concerned with protecting the status of superior courts and the core of their adjudicative authority from legislative and executive encroachment. It is not concerned with the ability of individuals to access the superior courts and does not establish an individual right of access to the superior courts. Limitations on access to the superior courts are matters of constitutional concern under s. 96 of the Constitution Act, 1867 only in so far as they impermissibly infringe the core jurisdiction of the superior courts. Nothing of the sort has occurred in this case. . Poorkid Investments Inc. v. Ontario (Solicitor General)
In Poorkid Investments Inc. v. Ontario (Solicitor General) (Ont CA, 2023) the Court of Appeal heard (and allowed) an appeal of a "declaration that s. 17 of the CLPA violates s. 96 of the Constitution Act, 1867 and is of no force and effect", in the course of a class action against the Crown and police regarding allegation of 'under-policing' [my term] with respect to indigenous protests near Caledonia, Ontario. CLPA s.17 requires a plaintiff to obtain prior leave from the court when suing for misfeasance in public office or for "a tort based on bad faith respecting anything done in the exercise or intended exercise of the officer or employee’s powers or the performance or intended performance of the officer or employee’s duties or functions" [CLPA s.17(1)].
In these quotes to Court of Appeal first sets out the lower court's reasons for granting it's declaration, and then it's own reasons for disagreeing - eventually denying a constitutional s.96 basis for access to justice:[13] The application judge framed the question before him as whether s. 96 of the Constitution Act, 1867 is “infringed by legislation that requires persons seeking to pursue an action against the Crown (or its agents) alleging bad faith or misfeasance in public office to obtain leave of the court to do so in circumstances where the defendant Crown is not obliged to make any documentary discovery or to submit to any oral examination”.
[14] The application judge found that the rule of law, which informs a proper interpretation of s. 96, requires not simply access to the superior courts but meaningful access, which he described as “ensuring that a litigant’s claim is determined on its merits, including the right to present material evidence”. The application judge found that s. 17 precluded this, taking judicial notice of what he described as facts in published comments on the legislation by Professor Erika Chamberlain, who he quoted as follows:In lawsuits involving bad faith, plaintiffs must now get permission from a court before they can sue and show that their claim has a reasonable possibility of success. During this process, the Crown can examine the plaintiff, but need not produce any documents or witnesses itself.
This puts plaintiffs in a tough position. Bad faith is essentially a state of mind, so it’s typically difficult to prove without at least some evidence from the defendant. For instance, it may require disclosure of internal communications showing that an official was acting for an improper purpose or with bias against the plaintiff.
Without the disclosure of these documents or the ability to question government officers, plaintiffs will only be able to speculate that bad faith was involved. This may not be sufficient to get a court’s permission to proceed. [15] Based on this commentary, the application judge concluded that bad faith is a state of mind; it is difficult to prove in the absence of evidence from a defendant; and it may require disclosure of a defendant’s internal communications.
[16] The application judge acknowledged that the implementation of a robust deterrent screening mechanism to prevent unmeritorious claims against the Crown from proceeding is a valid legislative objective that does not, by itself, prevent access to the superior courts in a manner contrary to s. 96 of the Constitution Act, 1867. But relying on Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014 SCC 59, [2014] 3 S.C.R. 31, the application judge noted that the legislature’s power to establish screening mechanisms is not unlimited. In a key passage in his decision, the application judge stated:In my view, prohibiting any documentary or oral discovery of the defendant as an integral part of the screening mechanism does prevent many claimants who may well have meritorious claims against the Crown based on bad faith or misfeasance in public office from having meaningful access to the Superior Court in a way that is inconsistent with s. 96 and the requirements that flow by necessary implication from s. 96. This inconsistency is brought about by barring such claimants from any realistic and effective means of presenting sufficient, credible and necessary evidence to satisfy the court that there is a reasonable possibility that their claims would succeed. [17] Thus, the application judge concluded that s. 17 is unconstitutional because it establishes a barrier to “meaningful” access to the superior courts, while denying a realistic and effective means of overcoming that barrier by relieving the Crown from being subject to documentary and oral discovery.
[18] The application judge went on to find that the remedies of reading in, reading down, or severance were not appropriate because it could not be assumed that the Legislature would have passed the tailored provision, and there was no basis to determine the specifics of a discovery mechanism. He concluded that the appropriate remedy was to issue a declaration that s. 17 is of no force or effect, leaving it to the Legislature to enact a new, constitutionally compliant provision should it wish to do so.
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The role and jurisdiction of superior courts
[20] Although Canada’s constitutional structure is premised on federalism, Canada’s judicial system is unitary in nature: the judges of provincial superior courts are appointed by the federal government. In Reference re Residential Tenancies Act, 1981 CanLII 24 (SCC), [1981] 1 S.C.R. 714, at p. 728 (“Residential Tenancies”), Dickson J. (as he then was) described the judicature provisions of the Constitution Act, 1867 as supporting a “strong constitutional base for national unity”. In Reference re Code of Civil Procedure (Que.), art. 35, 2021 SCC 27, 459 D.L.R. (4th) 555 (“Quebec Reference”), the Supreme Court emphasized that the judicature provisions, along with s. 92(14), were designed by the Fathers of Confederation to strike a balance between provincial initiatives on the administration of justice and the need to respect the status of the superior courts as the centrepiece of the unitary judicial system. The Court added that the fundamental principles underlying s. 96 and the organization of Canada’s judiciary are national unity and the rule of law: Quebec Reference, at paras. 1-2,4.
Provincial legislative authority
[21] Section 92(14) of the Constitution Act, 1867 establishes the exclusive authority of the provinces over the administration of justice, which includes prescribing the procedure that must be followed in civil matters. As the application judge noted, Ontario has established various procedural mechanisms that govern the ability of litigants to bring their disputes to the superior courts for adjudication, including r. 21.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which permits matters to be determined prior to trial; r. 20 of the Rules of Civil Procedure, which establishes a summary judgment procedure to resolve matters without a trial; rr. 2.1.01 and 2.1.02 of the Rules of Civil Procedure and s. 140 of the Courts of Justice Act, R.S.O. 1990, c. C.43, which preclude frivolous or vexatious proceedings; and the Class Proceedings Act, 1992, S.O. 1992, c. 6, which permits class actions by named plaintiffs but requires preliminary motions to certify the proceedings and appoint a representative plaintiff.
[22] There is no question that the CLPA is within Ontario’s legislative authority. However, Ontario’s authority to enact the CLPA must be considered alongside other constitutional provisions to ensure the consistent operation of the Constitution as a whole. Provincial legislative authority under s. 92(14) cannot be exercised in a manner that infringes s. 96 and the core jurisdiction of superior courts that it has been held to protect.
Protecting the core jurisdiction of the superior courts
[23] Section 96 of the Constitution Act, 1867 is ostensibly a simple provision governing the appointment of judges to the superior courts – courts of inherent jurisdiction. It provides as follows:96. The Governor General shall appoint the Judges of the Superior, District, and County Courts in each Province, except those of the Courts of Probate in Nova Scotia and New Brunswick. [24] However, s. 96 has come to be understood as performing a much more significant role: “protecting the special status of the superior courts of general jurisdiction as the cornerstone of our unitary justice system”: Quebec Reference, at para. 4. Doctrine has developed with a view to protecting the special status of the superior courts – ensuring that their jurisdiction is not usurped by Parliament or a provincial legislature, whether by transferring their core powers to inferior courts and administrative tribunals or removing them altogether. If this were to occur, the superior courts would lose their essential nature and the federal-provincial structural balance fundamental to Canada’s justice system would be lost.
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