As It Happens

Ontario is using a new law to retroactively dismiss lawsuits it lost: lawyer

A class action lawyer suing the Ontario government over alleged mistreatment of several vulnerable groups says a new law the province is using retroactively to try to shut down those cases is unprecedented and unfair.

Ford government asks courts to throw out 8 class actions under the new Crown Liability and Proceedings Act

Ontario Premier Doug Ford's government has passed a bill that would allow it to retroactively shut down lawsuits against it. (Evan Mitsui/CBC News)


A lawyer representing several groups who are accusing the Ontario government of mistreatment says the province is trying to shut down their lawsuits unfairly.

The Ontario government is asking the courts to throw out at least eight class actions against it. One involves an inmate named Adam Capay, who was held in solitary confinement for most of his 4 ½ years in custody.

Ontario Premier Doug Ford's government is arguing that under a new law called the Crown Liability and Proceedings Act, which came into law on July 1, the suits should be thrown out. And it is using the law retroactively.

Kirk Baert's firm Koskie Minsky is behind eight certified class actions the government is fighting under the new law. He spoke to As It Happens host Carol Off about the new law. Here is part of their conversation.

How unusual is the argument the Ontario government is making to try and shut down these lawsuits?

It's the first time we know of in Canada that either a province or the federal government has passed a law of this type to retroactively dismiss cases that have already been brought in the courts.

There's just no way this is consistent with our system of justice or the rule of law to retroactively dismiss cases that the government already lost.- Kirk Baert, lawyer

The province says the purpose of this law is to stop people from suing over government policy or spending decisions. Is that not a valid concern?

It certainly is, and that would be a valid reason to have such a law. Although there's never been one before now.

But this law is much, much wider than that in that it reaches mistakes made by government on the ground at the operational level, not just policy decisions about budgets.

But their argument is that it just simply clarifies existing law. The Crown Liability and Proceedings Act is just a clarification of existing law.

I know that's what they say in their press release. But the words of the statute — which are what count, not the press release — are much wider.

First of all, it attempts to reach non-budgetary decisions that were negligently carried out by the government.

Secondly, it's retroactive. So it applies to cases where the government has already lost the case and is appealing that decision.

Third, it requires plaintiffs to go to court in advance of bringing the case in order to prove bad faith on the part of the government. And in that proceeding, you wouldn't be entitled to any of the government's documents, which is the normal way that civil litigation works in the province of Ontario.

So they've carved themselves out a special place and made it retroactive, even for cases that are already in the pipeline.

Tell us about the case of Adam Capay. This is a former inmate who was held in solitary confinement in a windowless cell in Thunder Bay for a long period of time. Tell us what's at stake with that case?

Mr. Capay is a member of the class in a case called Francis, which is a case we brought on behalf of people who've been solitarily confined in jails in Ontario and whom have mental health issues. So that case was certified last year, on consent, I might add. The government agreed to that. And now they're seeking to have this law used in order to retroactively dismiss the case.

Some of the other cases relate to people suffering from bail delays, claims by disabled adults whose funding was cut off, solitary confinement of children, Crown wards who were mistreated, abuse in provincial training schools or other provincially operated institutions — it's a wide variety of cases, most of which, if not all, don't relate to budgetary questions. They relate to negligent acts by the Ontario government over a period of many years.

Adam Capay spent more than four years in solitary confinement while he awaited trial for first-degree murder. (Alison Jane Capay/askfm)

And on that, I want to ask you about one of your cases, which is that the government's argument will be tested in March in this case involving a 21-year-old woman named Briana Leroux. What's that about?

Ms. Leroux's case is being brought by her litigation guardian, who's her father, Marc Leroux. And in Ontario, those with developmental disabilities have certain types of funding up to their 18th birthday. And then the day after that, that funding is cut off and they're moved into a very badly run system.

There are numerous wait lists, and our allegation is that the wait lists are run in a negligent fashion. There are no objective criteria. It's sort of a Kafkaesque situation where people are sent into a system that has no beginning and no end and changes every day.

So we had a motion to get that case certified. It was fully argued over three days. We were successful and the judge found that we had a claim in negligence and under the Charter of Rights and Freedoms. The government appealed that decision to the divisional court, and that's being heard in March.

But, in the meantime, this law was passed and now they're seeking to rely on it retroactively to get a case they already lost dismissed.

The government argues that the core issue is policy and funding, and so you can't sue the government for policy and funding issues. This is something that they are saying they must protect. So how do you argue that?

The problem with that argument is that that's what they said in front of the motions judge with respect to us being able to sue them in the first place — that it was a policy decision.

And our statement of claim, our lawsuit, is expressly framed to not be about the policy of funding adults or not who have disabilities with certain programs, but about the operation of the program once it is funded and passed by the legislature.

So the judge already found in the court below that this was not a case about policy, but about the management or mismanagement of this province-wide system. And so it's a complete red herring to raise the policy question because our case was never about policy in the first place.

Kirk Baert is a class-action lawyer at the firm Koskie Minsky. (Shelagh Howard Photography/Koskie Minsky)

Is your problem with this law the itself or that it's retroactive?

Well, it's both. I mean, first of all, this law was passed without any consultation with the public or with the legal profession or the judiciary. It was attached to a very large budget implementation bill without any discussion or warning.

Second, retroactive laws, or retrospective laws, should be reserved for exceptional situations like wars or disasters or other things of that nature.

I don't have any doubt whatsoever that this law is not going to remain standing in the present form that it's been drafted because there's just no way this is consistent with our system of justice or the rule of law to retroactively dismiss cases that the government already lost.

The province acts like this is normal. I ask them to name a single democratic country which has done what they've done, and they won't be able to name one — because there aren't any.

Written Kate Swoger and John McGill. Interview produced by Kate Swoger. Q&A has been edited for length and clarity.