Greenbelt Crown Immunity: Court Of Appeal For Ontario Divides On The Scope Of Section 96

Key Takeaways

• The Court of Appeal for Ontario’s 2:1 decision in Minotar continues the recent trend of the Court upholding provincial legislation that limits or excludes Crown civil liability.
• The Minotar majority held that section 96 protects the superior courts’ institutional role and core jurisdiction, which does not guarantee access to any particular cause of action against the government.
• The dissent would have taken a broader view of section 96, holding that legislation barring misfeasance and bad faith claims against public officials impermissibly undermines judicial oversight of unlawful state action.
• With the Supreme Court of Canada set to consider section 96 when it hears the Ontario Place Protectors appeal on October 15, 2026, Minotar sharpens the debate over how far legislatures can go with Crown immunity provisions without derogating from the constitutionally protected “core jurisdiction” of the superior courts.

On August 28, 2026, the Court of Appeal for Ontario released a 2:1 decision in Minotar Holdings Inc. v. Ontario (Municipal Affairs and Housing). Minotar is the third instalment in a recent series of cases at the Court concerning the constitutionality of legislative provisions designed to limit or exclude the Ontario Crown’s civil liability and proceedings against it.

The trilogy concerns a clash of two critically important constitutional ideas: a legislature’s supremacy to enact laws in relation to matters of exclusive provincial legislative competence; and the role of the superior courts to exercise core aspects of their jurisdiction central to their function as guardians of the rule of law.

The Court of Appeal for Ontario has come down in favour of legislative supremacy in all three cases. In Poorkid, the Court upheld s. 17 of the Crown Liability and Proceedings Act, 2019, which established a leave requirement for claims against the Crown and Crown officers and employees for misfeasance in public office or torts based on bad faith conduct.

In Ontario Place Protectors, the Court dismissed a constitutional challenge to provisions in the Rebuilding Ontario Place Act (“ROPA”) containing broad provisions that immunize the Crown and others from civil liability and proceedings arising out of the Ontario Place redevelopment.

The Supreme Court of Canada will hear an appeal from Ontario Place Protectors on October 15, 2026. When it does, it will undoubtedly consider the reasons of both the majority and dissent in Minotar. Before turning to the facts of Minotar, we review section 96 of the Constitution Act, 1867 and its role in Canadian constitutional law.

What does Section 96 of the Constitution Act, 1867 protect?

The constitutional challenges in Poorkid, Ontario Place Protectors, and Minotar were all rooted in section 96 of the Constitution Act, 1867. Section 96 is a seemingly uninteresting procedural provision. The first section in the Judicature Part of the Act (Part VII), section 96 provides that the Governor General for Canada “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.”

But considerable doctrine has developed, which has resulted in section 96 becoming an important check on provincial legislative and executive power. In the seminal Residential Tenancies Act Reference, the Supreme Court held that section 96 forms part of a Confederation compromise that limits the otherwise exclusive legislative authority of the provinces over the administration of justice in each province.

Dickson J. held that the Judicature provisions ensure national unity through a unitary judicial system and preserve the role of the superior courts that was occupied by the English Royal Courts of Justice. Section 96 therefore constitutes an “exception” to provincial legislative authority over the administration of justice in section 92(14). The provinces therefore cannot replace the superior courts with provincial tribunals, which would undermine the unitary judicial system that the drafters of the Constitution Act, 1867 intended.

At the same time, Dickson J. attempted to establish guardrails designed to ensure that the exception to provincial legislative authority over the administration of justice does not swallow the rule. Section 96 has been held to protect only the “core jurisdiction” of the superior courts. The “core” is said to be “very narrow” and “includes only critically important jurisdictions which are essential to the existence of a superior court of inherent jurisdiction and to the preservation of its foundational role within our legal system.”

In Crevier, the Supreme Court held that the protected core jurisdiction includes judicial review of the legality of decision-making delegated by statute to administrative tribunals. The Supreme Court of Canada recently affirmed this principle in Democracy Watch, concluding that legislation purporting to oust the superior courts’ ability to supervise the exercise of delegated power “oversteps the limits of the legislatures’ constitutional authority” and is ultra vires.

The rationale for privative clauses which preclude judicial review of administrative decision-making is tied to the rule of law. The rule of law is expressly recognized in the preamble to the Constitution Act, 1982 and has long been considered as an unwritten constitutional principle that informs the operative provisions of Canada’s constitutional texts.

The Supreme Court’s section 96 jurisprudence has therefore recognized the role of the superior courts in implementing the “three fundamental facets of the rule of law: equality of all before the law, the creation and maintenance of an actual order of positive laws, and oversight of the exercise of public powers.”

Ontario Legislative Immunity Provisions

The Minotar case asks a related but different question than Crevier and Democracy Watch: how far can provincial legislatures go in immunizing the Crown from civil liability and civil proceedings? Can they legislatively remove civil claims for misfeasance in public office and bad faith conduct?

The Supreme Court of Canada has not yet directly considered this question. The issue is topical because, in addition to the leave requirement in s. 17 of the Crown Liability and Proceedings Act, 2019, the Ontario legislature has enacted broad civil immunity provisions in many Ontario statutes, of which ROPA and the Greenbelt Act are just two examples.

While the text of these provisions differs, the form is common. Ontario’s suite of immunity provisions typically:

• prohibit causes of action as a direct or indirect result of an enumerated list of activities, including the Act’s enactment, regulations made under it, and decisions authorized by the Act or actions taken pursuant to it;
• prohibit claims for costs, compensation, civil causes of action, damages and remedies in language that is both comprehensive and non-exhaustive;
• make clear that the elimination of a claimant’s remedies does not constitute expropriation or injurious affection;
• in some cases, include provisions expressly providing that the exclusions and immunities are retrospective; and
• contain Crevier carve-outs stating that the otherwise broad bar on proceedings “does not apply with respect to an application for judicial review.”

In Ontario Place Protectors and Minotar, the applicants argued that the Crevier carve-outs do not go far enough and that the breadth of the immunities enacted by the Ontario legislature erodes the core jurisdiction of the superior courts protected by section 96 and the rule of law.

The Minotar Case

In Minotar, an Ontario regulation under the Greenbelt Act mistakenly designated Minotar’s land as falling within the Greenbelt. The designation blocked commercial development of the land.

The Ministry of Municipal Affairs and Housing told Minotar that the mistake would be fixed at a ten-year review, but the Ministry changed its mind and refused to make the correction.

Minotar sued the responsible Minister and Ontario. The parties settled the action. It was a term of the settlement that most of the land would be removed from the Greenbelt. The settlement contemplated that Minotar could renew its action if the settlement was breached. However, the legislature enacted amendments to the Greenbelt Act returning Minotar’s land to the Greenbelt and extinguishing causes of action that Minotar could have brought against the Ministry and its officials.

The majority succinctly summarized the provisions as follows:

[12] The amendments also added provisions shielding the Crown in right of Ontario and Executive Council from liability. Section 19(1) removes causes of action arising from the changes to the Greenbelt Area and Plan, specifically immunizing Ontario’s actions with respect to the appellant’s land and the settlement agreement it had concluded with [Minotar]. Sections 19(2)-(3) bar bringing and maintaining proceedings and seeking remedies for conduct immunized by s. 19(1), including remedies for bad faith and misfeasance. These provisions apply retrospectively pursuant to s. 19(5). Section 19(4), however, preserves the right to apply for judicial review. Finally, s. 19.1 terminates the settlement agreement.

Minotar brought an application seeking a declaration that the legislation violates section 96 of the Constitution Act, 1867. The application was dismissed.

Majority Decision

On appeal, Minotar focused on the Greenbelt Act’s retroactive extinguishment of its claims for misfeasance in public office and bad faith conduct by government officials. It argued that the legislation is unconstitutional because it violates the core jurisdiction of the superior courts guaranteed by section 96 and is also inconsistent with the unwritten constitutional principle of the rule of law. A majority of the Court of Appeal, in reasons authored by Miller J.A., dismissed the appeal.

The majority held that section 96 only guarantees the superior courts’ inherent procedural powers and subject-matter jurisdictions. It does not guarantee any personal rights against the government.

While section 96 limits provincial legislative power to some extent, the concept of core jurisdiction does not provide “an individual right of access to adjudication about any particular claim” and cannot “be used to challenge the legislature’s authority to make legislative changes to substantive law.”

According to the majority, section 96 therefore:

… does not block legislatures from retrospectively or retroactively targeting a specific party’s pending claims by repealing causes of action, even where claims alleging bad faith executive branch conduct have been extinguished for undisclosed reasons. Absent a violation of the division of powers or a right under the Charter of Rights and Freedoms, or an absence of clear and unambiguous language, none of which is alleged here – such legislation is valid if it does not impair the protected inherent powers or subject matter jurisdictions of the superior courts.

The majority also rejected Minotar’s reliance on the unwritten constitutional principle of the rule of law. It described Minotar’s argument as a “subtle rebranding of the invitation – rejected emphatically and repeatedly over the past 20 years – to invalidate legislation on the basis of unwritten constitutional principles” that “would do real harm to the balance of the Constitution.”

Dissent

In dissent, Monahan J.A. held that the Greenbelt Act provisions immunizing public officials from liability for misfeasance in public office and bad faith conduct are unconstitutional. Relying on Democracy Watch, he held that section 96 protects the superior courts’ role in supervising the legality of the exercise of public powers, and that the impugned provisions impermissibly eliminate accountability for the deliberate abuse of public powers.

Monahan J.A. read Democracy Watch more broadly than the majority. In his view, its reasoning extends beyond the administrative law context and confirms that section 96 protects judicial oversight of unlawful state action more generally. On this basis, Monahan J.A. concluded that legislation barring claims for misfeasance and bad faith impairs the superior courts’ constitutionally protected supervisory role and is inimical to the rule of law because it shields deliberate unlawful conduct from effective legal redress.

Monahan J.A. was sympathetic to Minotar’s reliance on the unwritten principle of the rule of law. According to Monahan J.A., “[s]hielding deliberately unlawful conduct by public officials from effective legal redress for the damage caused by that conduct undermines all three” of the values that the rule of law is supposed to protect through access to the superior courts. Monahan J.A. thus had “no trouble concluding that the adjudication of claims for misfeasance and bad faith falls within” the protected core of section 96 jurisdiction.

What Does Minotar Mean for Section 96?

Minotar is the third and most recent example of the Court of Appeal for Ontario rejecting a section 96 challenge to Ontario legislation limiting or eliminating Crown liability. But the facts of Minotar represent a more extreme exercise of legislative power than Poorkid and Ontario Place Protectors. As Monahan J.A. noted, s. 17 of the CLPA considered in Poorkid simply imposed procedural limits on claims for misfeasance in public office and bad faith by establishing a leave requirement.

While ROPA’s immunity provisions upheld in Ontario Place Protectors are “virtually identical” to the provisions in the Greenbelt Act, unlike Minotar, the Ontario Place Protectors had not commenced a civil claim, whether for misfeasance or any other cause of action, and there was no evidence that their private rights were at stake or specifically affected by the legislation.

The Minotar decision comes on the heels of the Supreme Court of Canada’s decision in Democracy Watch. While Democracy Watch mainly affirmed existing principles from Crevier, it is a timely example of the Supreme Court’s recognition of the constitutional limits on legislative power. The Minotar majority confined Democracy Watch to its facts, concluding that it stood only for the proposition that legislatures cannot oust judicial review of administrative decisions. But Monahan J.A. held that Democracy Watch’s statements about the superior courts as guardians of the rule of law were instructive and precluded the legislature from eliminating accountability for the deliberate abuse of public powers alleged to have intentionally caused harm to Minotar.

The Supreme Court will undoubtedly consider the reasoning of both the majority and Monahan J.A. in Ontario Place Protectors,scheduled to be heard on October 15, 2026.

To view the original article click here