Category Archives: Commercial Litigation

Restrictions on Claims Against the Ontario Government

As part of the omnibus legislation introduced with the Ontario budget speech of April 11, 2019, the Ontario government has proposed to make claims against it considerably more difficult to assert.

Among other things, the proposed legislation would:

  1. Limit tort claims to instances where “bad faith” can be proved. For many years, Ontario legislation permitted claims for negligence without bad faith, as did most of the common law world, but Ontario appears now to be reverting to the ancient law that the Crown “can do no wrong”;
  2. Require claimants to demonstrate the merits of their claims before commencing them, and to do so before obtaining production of relevant documents and information from government files, which materials are often crucial to proving a claim; and
  3. Apply the proposed new restrictions not only to claims yet to be made but also to existing claims commenced before the proposed legislation is passed, thus altering the underlying law regarding such claims in the government’s favour.

Historically, such measures appear to be highly retrogressive. Following the Second World War, governments in the common law world, recognizing their increased roles in the economy, and the prospect of harm that government actions might cause, passed legislation permitting themselves to be sued as of right for torts they committed. Following the lead of Great Britain, such legislation was passed by the Canadian Parliament and the Provincial Legislatures. Now, in Ontario at least, the government proposes to turn the clock back to a time when it was immune from lawsuits.

It is likely that Ontario’s proposed legislation will be Charter challenged. If such challenges are successful, it may be that the Ontario government will seek to pass “notwithstanding” legislation to render Charter challenges nugatory. An enormous battle lies ahead.