HomeCase CommentaryTrial Lawyers extends its tentacles

Trial Lawyers extends its tentacles

Recently, in Poorkid Investments v HMTQ,Broad J of the Ontario Superior Court declared s 17 of the Crown Liability and Proceedings Act, 2019 (“CLPA”) unconstitutional. The provision imposed various procedural hurdles on plaintiffs who seek to bring claims against the Crown or its officers for “the 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.” The decision relied heavily on Trial Lawyers Association of British Columbia v British Columbia (“Trial Lawyers”), a 2014 decision that also declared procedural barriers to accessing the superior courts to be unconstitutional.

In this short blog post, I query two aspects of this decision. The first is that the decision interpreted the test for granting leave prescribed by s 17 of the CLPA rather strictly. It was arguably possible to interpret the legislation in a way that would have obviated the need for constitutional analysis. Second, I note that, while the decision is to a significant extent a logical extension of Trial Lawyers, it also relies on conceptions of access to justice and the rule of law that are contestable and have the potential to defeat policy innovations that can in fact further access to justice and the rule of law. To be absolutely clear, I am not suggesting that the CLPA was such an innovation. But the chilling effect, should it prove to be real, would be unfortunate.

The Regime

The CLPA indeed imposed various hurdles on those seeking to bring misfeasance in public office claims against the Crown or its officers, or other claims based on alleged bad faith of Crown officers by, among other things:

  • requiring leave of the Court to bring such claims, presumptively staying such claims until leave is obtained;
  • mandating affidavit evidence from the claimant, but not the defendant, on the leave motion;
  • prohibiting discovery or examination of the defendant, or any related party, with the sole exception of cross-examination of an affiant should the defendant file an affidavit; and
  • instructing the Court to only grant leave if it is satisfied that the proceeding is brought in good faith and there is a reasonable possibility it will be resolved in the claimant’s favour.

The Test for Leave

Central to his decision to declare s 17 of the CLPA unconstitutional was Broad J’s view that the inability to have any documentary or oral discovery rights prior to allowing a claim to proceed prevents many litigants who may well have meritorious claims from accessing the Superior Court. In his view, this was inconsistent with s 96 of the Constitution Act, 1867. In coming to this conclusion, he took judicial notice that:

  1. bad faith is essentially a state of mind;
  2. bad faith is difficult to prove without at least some evidence from the defendant; and
  3. proving bad faith may require disclosure of internal communications of the defendant showing that an official was acting for an improper purpose or with bias against the plaintiff.

With respect, I am not sure that the latter two of these are matters “so generally known and accepted in the community that [they] cannot be reasonably questioned, or […] can readily be determined or verified by resort to sources whose accuracy cannot reasonably be questioned” (para 101, relying on Paciocco & Steusser’s The Law of Evidence). While discovery may often be required to prove bad faith, bad faith is also often obvious from public communications and/or circumstances. It is simply unknown the extent to which discovery is required to prove bad faith.

But more importantly, under s 17 of the CLPA, proof of bad faith is not required. To grant leave, a Court need only be satisfied that there is a “reasonable possibility” that the proceeding will be resolved in the claimant’s favour. This need not be interpreted to be a high standard. Rather, a claimant’s good faith belief, based on information known to it, that bad faith may have been present could be held to satisfy this leave requirement. There are many other instances in procedural law where leave is not difficult to obtain, even when it performs some important gatekeeping function. Interpreting the leave requirement to require reasonable suspicion also prevents litigants from commencing claims and then using discovery as fishing expeditions.

Moreover, it is uncontroversial that, when assessing the constitutionality of legislation under the Constitution Act, 1867, a Court is to prefer a plausible interpretation of legislation that is constitutional over one that is unconstitutional. It is thus somewhat surprising that Broad J did not interpret the leave requirement in such a way so as to ensure s 17’s constitutionality.

Trial Lawyers Extends its Tentacles

I do not intend to re-litigate Trial Lawyers in this blog post: Asher Honickman has done so on this website and elsewhere before, and Justice Rothstein appears particularly proud of his dissent, highlighting it as an example of his approach to constitutional interpretation in extrajudicial commentary since his retirement from the Supreme Court. The decision also has notable defenders, such as Paul Vayda.

The decision relied on unwritten constitutional principles of access to justice and the rule of law that imposed hearing fees on litigants that increased the longer their trials took. Given the limited role that the Supreme Court held that unwritten constitutional principles should play in constitutional analysis in the City of Toronto decision, one could imagine that Trial Lawyers might be decided differently today. This is even more possible given that Trial Lawyers’s conceptions of access to justice and the rule of law are not in the text of s 96 of the Constitution Act, 1867, with the primacy of text also being emphasized by a majority of the Supreme Court in the post-Trial Lawyers case of Quebec (Attorney General) v 9147-0732 Québec inc. As such, clarity on Trial Lawyers’s implications post-City of Toronto/Québec inc may be helpful.

Pending that clarity, however, Trial Lawyers remains a precedent that is good law and “on the books”. Poorkid Investments indicates how it may prevent legislative and regulatory initiatives to reduce the cost of litigation. Central to Broad J’s concerns in Poorkid Investments was the restriction of discovery rights. But few observers of the access to justice issues plaguing Canadian courts would argue that an absence of discovery is actually an access to justice impediment—if anything, the opposite is true, as Justices Thomas Crowell and Coulter Osborne have both noted since their retirements. Moreover, there are no discovery rights in the Small Claims Court, in an effort to keep costs down. Is this also unconstitutional?

To be sure, the CLPA used pre-discovery knowledge as a proxy for a case’s strength. It is obviously imperfect in this regard, just as trial length is an imperfect proxy for lawyer efficiency: the issue in Trial Lawyers. But there is clearly a correlation in both cases to keeping costs down. And a defensible and predictable definition of access to justice must bear in mind the cost of procedures. This may not be a sufficient understanding of how to achieve “justice”. But it is an essential component of such an understanding. It is also predictable, with such predictability being an essential component of the rule of law (even if, as Mark Mancini has recently noted, such an understanding of the rule of law is simply a necessary though not sufficient precondition for having a “just” society). Having an individual assessment of required procedure in each case is itself an expense that does not address a case’s merits, and prevents the courts from dealing with more cases on their merits.

Clear procedural rules—such as those in Trial Lawyers and Poorkid Investments—certainly cause litigants to pause before prosecuting lawsuits in particular ways. At times, they will pose obstacles to prosecuting their cases as they would prefer. But the rules also motivate, if imperfectly, better use of court time, assisting all persons seeking to access the courts. It is also an incomplete conception of access to justice to not consider the impacts of procedure on such “out of sight, out of mind” litigants who will be better able to access court time if other screening mechanisms are present and/or parties are incentivized to keep trials shorter. Moreover, even when clear procedural rules have an imperfect overlap to their purpose, there is almost always another way to have a “just” result of a case. This reason to prefer “rules” over “standards” in procedural law is a matter I will be exploring in more detail in an upcoming article in the Australasian Journal of Legal Philosophy.


By introducing the CLPA, and in particular s 17, the Ford government may well have been seeking to insulate itself and/or its servants from meritorious lawsuits in a way that was fundamentally bad policy. It may also have been doing so by disingenuously appealing to reducing court caseloads in an effort to promote access to justice. But seldom is analyzing such motivations appropriate in determining the constitutionality of legislation. And, to be sure, this was not the basis of the decision in Poorkid Investments—rather, Broad J’s conclusion was understandable given that he was following Trial Lawyers’s holdings regarding s 96, access to justice, and the rule of law.

Ultimately, however, the access to justice issues facing Canada’s civil courts are not that trials are too short or discovery is too restricted. And there are reasons to fear that extratextual constitutional limits on provinces’ ability to regulate court procedure will not only create unpredictability, but could exacerbate, rather than ameliorate, these access to justice concerns.