Constitution - Provincial Administration of Justice [s.92(14)]. 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:
 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”.
 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. 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.
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.
 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,  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. 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.
 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.
The role and jurisdiction of superior courts
 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),  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
 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.
 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
 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. 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.