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Bad Faith - Crown Liability and Protection Act (CLPA)
COMMENT
'Bad faith' (and it's corollary: 'good faith') are used heavily by government in limiting the liability of various government bodies by immunizing their liability for acts done in 'good faith' (or not, when they are acting in 'bad faith') [eg. ODSPA, s.58(1)]:No personal liability
58 (1) No action or other proceeding in damages shall be instituted against the Ministry, the Director or a delivery agent, an officer, employee of any of them or anyone acting under their authority for any act done in good faith in the execution or intended execution of a duty or authority under this Act or for any alleged neglect or default in the execution in good faith of any duty or authority under this Act. There are many, many more such usages in other statutes.
Recently, the new Ontario Crown Liability and Proceedings Act, 2019 (CLPA) created a judicial 'leave' (prior judicial permission) requirement for anyone wishing to sue "the Crown or an officer or employee of the Crown" for a "tort of misfeasance in public office" or for any vicarious liability to the Crown for bad faith by an officer or employee of the Crown [CLPA s.17] (see the topic: Crown and Government Liability). This provision will applies to most of these Crown liability statutory provisions.
CASE DICTA
. 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 (permission) 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)].
This quote addresses the CLPA s.17 provisions:The Crown Liability and Proceedings Act, 2019
[8] The CLPA replaced the Proceedings Against the Crown Act, R.S.O. 1990, c. P.27. Like that Act, the CLPA imposes liability on the Crown for tortious conduct from which it would otherwise be immune at common law. The CLPA preserves various immunities for the Crown and officers, employees, and agents of the Crown with respect to the performance of certain duties and governs the conduct of proceedings in which the Crown is a party. The Act maintains some procedural provisions similar to those in the Proceedings Against the Crown Act but effects a significant change concerning some torts. Specifically, s. 17 of the CLPA establishes a screening procedure that applies to claims against the Crown, or an officer or employee of the Crown, for misfeasance in public office or a tort based on bad faith respecting anything done in the exercise or intended exercise of powers, duties, or functions.
[9] Proceedings concerning the tort of misfeasance in public office or torts based on bad faith in the exercise or intended exercise of public authority are deemed stayed, unless leave to bring the proceeding is granted pursuant to s. 17(2) of the CLPA:(2) A proceeding to which this section applies that is brought on or after the day section 1 of Schedule 7 to the Smarter and Stronger Justice Act, 2020 comes into force may proceed only with leave of the court and, unless and until leave is granted, is deemed to have been stayed in respect of all claims in that proceeding from the time that it is brought. [10] The CLPA sets out a detailed leave procedure that limits the evidence that may be adduced by the parties in ss. 17(3)-(7):(3) On a motion for leave under subsection (2), the claimant shall, in accordance with section 15 if applicable, serve on the defendant and file with the court,
(a) an affidavit, or such other document as may be prescribed, setting out a concise statement of the material facts on which the claimant intends to rely; and
(b) an affidavit of documents, or such other document as may be prescribed, disclosing, to the full extent of the claimant’s knowledge, information and belief, all documents relevant to any matter in issue in the proceeding that are or have been in the claimant’s possession, control or power.
(4) On a motion for leave under subsection (2), the defendant may serve on the claimant and file an affidavit, or such other document as may be prescribed, setting out a concise statement of the material facts on which the defendant intends to rely for the defence, but is not required to do so.
(5) No person may be examined or summoned for examination on the contents of an affidavit or prescribed document referred to in subsection (3) or (4) or in relation to the motion for leave, other than the maker of the affidavit or prescribed document.
(6) The defendant shall not be subject to discovery or the inspection of documents, or to examination for discovery, in relation to the motion for leave.
(7) The court shall not grant leave unless it is satisfied that,
(a) the proceeding is being brought in good faith; and
(b) there is a reasonable possibility that the claim described in subsection (1) would be resolved in the claimant’s favour. [11] In summary, claimants must file an affidavit setting out the material facts on which they intend to rely, along with an affidavit of documents; the defendant may file an affidavit but is under no obligation to do so; no one is to be examined or summoned for examination in regard to the affidavit, affidavit of documents, or in relation to the motion for leave except for the maker of the affidavit or prescribed document; and the defendant is not subject to discovery or the inspection of documents, or to examination for discovery. The constitutionality of this screening process is the question at the heart of this appeal.
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