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Crown and Government Liability - Crown Liability and Proceedings Act, 2019 (Ont) (CLPA) (3). Yadeta v. Peel (Municipality) Police Service Board
In Yadeta v. Peel (Municipality) Police Service Board (Ont CA, 2024) the Ontario Court of Appeal dismissed an appeal of a denial of a motion under s.17 ['Proceedings re misfeasance, bad faith'] of the Crown Liability and Proceedings Act, 2019 for leave "to pursue a claim for malicious prosecution, misfeasance in public office and bad faith against the Crown":[6] First, the appellant brought a motion under s. 17 of the Crown Liability and Proceedings Act, 2019, S.O. 2019, c. 7, Sched. 17, for permission to pursue a claim for malicious prosecution, misfeasance in public office and bad faith against the Crown. ...
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[9] In his reasons, the motion judge correctly canvassed the statutory requirements to grant leave under s. 17 of the Crown Liability and Proceedings Act and explained how the appellant’s claims and materials failed to meet these requirements. We agree with the motion judge’s finding that, even on a generous reading of the appellant’s claim and materials, there is no reasonable possibility that he could succeed in his claims for malicious prosecution, misfeasance in public office and other claims that the Crown acted in bad faith. The motion judge aptly noted that the appellant failed to provide any material facts or evidence that support these claims, and that it is not sufficient for him to state that he will provide material facts after discoveries. As also found by the motion judge, the appellant has not pointed to any unlawful act in the prosecution of the criminal case against him that would support a claim for misfeasance in public office. Further, as noted by the motion judge, the criminal proceedings were not resolved in the appellant’s favour as required for a claim of malicious prosecution; rather, the appellant voluntarily entered into a peace bond and forfeited the nude images of the complainant in exchange for the withdrawal of the charges against him. . His Majesty the King in right of Ontario v. Dell
In His Majesty the King in right of Ontario v. Dell (Div Court, 2023) the Divisional Court considered CLPA s.17 ['Proceedings re misfeasance, bad faith'], which apply to actions against the Crown that plead bad faith (and misfeasance, though that's not an issue here). The primary issues are the 'leave to sue' and automatic stay (until leave is granted) requirements of CLPA 17(2), here where the lower court issued orders before the leave had been resolved:(1) Section 17 of the Crown Liability and Proceedings Act, 2019
[30] Ontario submits that the case management judge erred in failing to give effect to the automatic stay in s. 17 of the Act in two ways:(i) by requiring that Ontario bring a motion; and,
(ii) by ordering that all six motions proceed concurrently rather than addressing the leave motion first. [31] The Dell group submits that s. 17 should be interpreted to permit the Order, either by limiting it to claims against Ontario or excluding motions from the operation of the stay.
[32] The analysis of these positions turns on the proper interpretation of s. 17 of the Act. The required approach to statutory interpretation is well-settled. The words of a statute should be read in their “grammatical and ordinary sense and harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”: Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, at para. 21.
[33] Beginning with the scheme and object of the Act, it “imposes liability on the Crown for tortious conduct from which it would otherwise be immune at common law”, “preserves various immunities for the Crown ... with respect to the performance of certain duties” and “governs the conduct of proceedings in which the Crown is a party”: Poorkid Investments Inc. v. Ontario (Solicitor General), 2023 ONCA 172, at para. 8.
[34] Moving to the role of s. 17, it “establishes a screening procedure that applies to claims against 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.”: Poorkid Investments Inc., at para. 8.
[35] The screening process under s. 17(2) imposes an obligation on plaintiffs to get leave of the court. It allows the court to screen out unmeritorious bad faith claims: Poorkid Investments Inc., at para. 27.
[36] The Dell group must therefore obtain leave to pursue its claim of bad faith against Ontario. The leave process is streamlined. Subsections 17(3)-(6) limit the evidence that may be adduced by the parties on the leave motion and s. 17(7) limits the grounds for granting leave.
[37] Subsection 17(2) also imposes a stay. Proceedings that include torts based on bad faith are deemed stayed, unless and until leave to bring the proceeding is granted pursuant to s. 17(2): Poorkid Investments Inc., at para. 8.
[38] Against that backdrop, we have a dispute about the scope of the automatic stay in s. 17(2). Under that subsection, the “proceeding” that s. 17 applies to is stayed. The respondents submit that it is limited to the claims against Ontario and does not stay the entire action.
[39] The term “proceeding” is defined in s. 1(1) of the Act. It is broadly defined and not limited to claims against the Crown:1(1) “proceeding” means an action or application for damages and any other civil proceeding in respect of damages to which the rules of court apply; [40] The proceedings to which s. 17 applies are set out in s. 17(1):17(1) This section applies to proceedings brought against the Crown or an officer or employee of the Crown that include a claim in respect of a tort of misfeasance in public office or 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. [Emphasis added.] [41] The obligation to obtain leave and the automatic stay are in s. 17(2):(2) A proceeding to which this section applies … 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. [Emphasis added.] [42] This interpretation is also consistent with the notice requirements to sue the Crown, as set out in s. 18 of the Act. That section expressly distinguishes a “proceeding” from a “claim” against the Crown by precluding the plaintiff from bringing a “proceeding that includes a claim for damages” against the Crown unless notice is given.
[43] Reading these provisions using their plain and ordinary meaning, the proceeding in this case is the Dell group’s entire action, not just the claims against Ontario. The definition of “proceeding” encompasses all actions to which the Rules of Civil Procedure apply, which includes actions against other parties.
[44] Section 17 applies because the proceeding “includes” “a claim” against the Crown in respect of a tort based on bad faith, as set out in s. 17(1). And under s. 17(2), the Dell group action is stayed “in respect of all claims in that proceeding” unless and until leave is granted. The entire action is stayed.
[45] The respondents submit that these provisions should be read more narrowly such that the stay applies only to the claims against the Crown, not the claims against other defendants. This is inconsistent with the express words of s. 17(2) quoted above. The action is stayed in respect of “all claims in that proceeding”.
[46] This interpretation is consistent with s. 17(9) and (10), which set out the impact of the granting or refusing of leave:(9) The granting of leave under subsection (2) lifts the stay of the proceeding.
(10) If leave is not granted under subsection (2),
(a) the proceeding is rendered a nullity; or
(b) if the proceeding contains any claims other than the claim described in subsection (1), the proceeding is rendered a nullity in respect of the claim described in that subsection and the stay is lifted with respect to the remainder of the proceeding.
[Emphasis added.] [47] Subsection 17(10) shows that the “proceeding” that is stayed includes both the claims against the Crown under s. 17(1) and any other claims. It speaks about the stay being lifted from the “remainder of the proceeding” not just other claims against the Crown.
[48] Essentially, the respondents ask that we read in “against the Crown” after the various references to proceedings and claims in these sections of the Act. However, the definition of “proceeding” is clear and not limited. Reading s. 17 as a whole and in the context of the Act, the stay in s. 17(2) is not a stay of the “claim” against the Crown or a “proceeding” only to the extent that it is a claim against the Crown. It is a stay of the proceeding – in this case, the Dell group action.
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