The Court of Appeal for Ontario has ruled that Ontario's statutory leave requirement for bad faith and misfeasance claims against the Crown is constitutional, reversing a lower court decision that would have declared s. 17 of the Crown Liability and Proceedings Act, 2019 ("CLPA") to be of no force or effect.1 Poorkid Investments Inc. v. Ontario (Solicitor General)2 holds that s. 17 of the CLPA does not infringe the core jurisdiction of the superior courts protected by s. 96 of the Constitution Act, 1867.3
In Ontario, claims against the Crown or Crown officers and employees that include a claim for misfeasance in public office or bad faith in the exercise of public duties or functions are deemed to be stayed under s. 17 of the CLPA and can only proceed with leave of the court.4 To obtain leave, the plaintiff must establish that the proceeding is brought in good faith and that there is a reasonable possibility the claim will succeed.5 The procedure on a s. 17 leave motion was summarized by the Court of Appeal in Poorkid as follows:
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.
In Poorkid, the plaintiffs brought a proposed class action against a number of defendants including the Ontario Crown, the Solicitor General of Ontario, the Ontario Provincial Police Commissioner, and an OPP Inspector. The plaintiffs sought damages arising out of the OPP's response to protests by Indigenous activists in Caledonia, Ontario. The claims included misfeasance in public office, nonfeasance, negligence and nuisance.
The plaintiffs did not seek leave under s. 17. Instead, they challenged the constitutionality of s. 17 on the basis that it violates s. 96 of the Constitution Act, 1867. As the Court of Appeal observed, s. 96 is "ostensibly a simple provision governing the appointment of judges to the superior courts..."6 Section 96 provides that the "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."7 However, s. 96 has been interpreted by the Supreme Court of Canada to protect the special status of the superior courts as the cornerstone of Canada's unitary justice system to ensure their function is not usurped by an act of Parliament or a provincial legislature.8
Most s. 96 cases involve challenges to legislation that vests "court-like" functions on administrative tribunals or inferior courts. In Reference re Residential Tenancies Act,9 the Supreme Court of Canada laid down a three-part test to determine whether this type of legislation violates the core jurisdiction of the superior courts protected by s. 96. The court asks:
1) Whether the power, function, or jurisdiction purported to be conferred conforms to the power, function, or jurisdiction exercised by s. 96 courts at the time of confederation. If it does, the court asks:
2) Whether, in its institutional context, the power, function, or jurisdiction is judicial in nature. If it is, the court asks:
3) Whether, having regard to the tribunal's function as a whole, the power is a sole or central function of the tribunal, such that it is operating like a s. 96 court.10
The constitutional challenge in Poorkid was a different variety. As the Court of Appeal noted:
There is no claim that the CLPA has transferred the core jurisdiction of the superior courts to another body; jurisdiction over the relevant tort claims continues to lie with the superior courts. The procedure governing the adjudication of those actions has changed, however, and the question is whether this procedural change is tantamount to a removal of the superior courts' core jurisdiction.11
The Court of Appeal's Ruling
The application judge found that s. 17 of the CLPA infringed s. 96 of the Constitution Act, 1867. The Court of Appeal for Ontario reversed. Huscroft J.A. wrote for a unanimous panel including Harvison Young and Sossin J.A.
The decision is noteworthy for three reasons.
First, Poorkid confirms that s. 96 of the Constitution Act, 1867 does not establish a justiciable individual right of access to the superior courts. Section 96 is a structural provision of the constitution that prevents governments from eviscerating the core jurisdiction of the superior courts.12 The Court of Appeal distinguished Trial Lawyers Association of British Columbia v. British Columbia (Attorney General),13 in which the Supreme Court struck down legislation requiring payment of daily hearing fees for using the B.C. Supreme Court under s. 96 of the Constitution Act, 1867. The hearing fees 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 the court's jurisdiction. This interfered with the function of the court as an institution charged with delivering the common good. Trial Lawyers was not about violation of individual constitutional rights. Huscroft J.A. explained:
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.14
Second, the Court clarified the appropriate use of academic commentary and the bounds of judicial notice in constitutional cases and litigation in general. The application judge had referred to academic commentary from Professor Erika Chamberlain to the effect that bad faith is a state of mind, which is difficult to prove without evidence from the defendant under the s. 17 leave procedure. But the Court of Appeal held that this was an error. "Academic arguments should be assessed with the same sort of critical detachment as submissions from counsel" and "[w]hether scholarship is ostensibly descriptive or normative, it is improper to take judicial notice of the facts asserted or the conclusions reached."15 The commentary relied upon by the application judge "was not factual in nature; it was the expression of an opinion and there was no basis for the application judge to take judicial notice of its conclusions and assumptions as statements of fact."16
Third, the Court pronounced on the ambit of the rule of law, one of the unwritten constitutional principles that gives meaning and effect to the text of Canada's constitutional documents.17 The application judge had held that meaningful access to the court included the right to present material evidence, which s. 17 does not provide for on a leave motion. But the Court of Appeal held that "[t]he rule of law is not a repository of all things considered desirable in a legal system." Huscroft J.A. also noted that in British Columbia v. Imperial Tobacco Canada Ltd.,18 the Supreme Court of Canada upheld provisions in B.C. tobacco cost recovery legislation that "went much further than s. 17 of the CLPA."19
Unless and until Poorkid is overruled by the Supreme Court of Canada, s. 17 of the CLPA is constitutional. Litigants bringing claims for misfeasance in public office or torts based on bad faith for the exercise or intended exercise of powers, duties or functions of the Ontario Crown must seek leave of the Court and cope with the procedures set out in s. 17.
Poorkid Investments Inc. v. Ontario (Solicitor General), 2023 ONCA 172
Date of Decision: March 15, 2023
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1. S.O. 2019, c. 7, Sched. 17 [CLPA].
2. 2023 ONCA 172 [Poorkid].
3. 30 & 31 Victoria, c. 3 (U.K.).
4. CLPA, s. 17(2).
5. Ibid., s. 17(7).
6. Poorkid, supra. at para. 23.
7. Constitution Act, 1867, s. 96.
10. Ibid. at p. 734.
11. Poorkid, supra at para. 29.
12. Ibid. at para. 31.
13.  3 S.C.R. 31.
14. Poorkid, supra at para. 35.
15. Ibid. at para. 43.
16. Ibid. at para. 41.
17. Ibid. at para. 61, citing Quebec (Attorney General) v. 9147-0732 Québec Inc., 2020 SCC 32, 451 D.L.R. (4th) 367, at para. 11; Toronto (City) v. Ontario (Attorney General), 2021 SCC 34, at para. 65.
18.  2 S.C.R. 473.
19. Ibid. at para. 59.
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