Vehicle for systemic racism: Section 17 of Ontario’s Crown Liability and Proceedings Act | Jeffrey Hartman
Wednesday, July 08, 2020 @ 1:50 PM | By Jeffrey Hartman
Despite trying to qualify his June 2 comment, Premier Ford’s indirect message, that our racism hurts a little less than the American brand, is inescapable and it aligns with his track record of upholding systemic racism. One of the items on his record, the enactment of s. 17 of the Crown Liability and Proceedings Act, 2019 (CLPA), has received little attention and yet it is an integral tool of Ontario’s promotion of racism.
The CLPA in essence regulates how to sue Ontario in various cases. Section 17 implements a procedure for claims involving intentional wrongdoing by a provincial actor:
- The party suing the province (called the plaintiff) needs to obtain the court’s permission to sue Ontario beforehand.
- When asking for permission to sue, the plaintiff must provide all available documents and statements that they plan to use in court to support their claim.
- Ontario, as the defendant, does not need to show the plaintiff any document it would use in court to defend itself.
- Regardless of whether permission is granted, the plaintiff must bear their own legal costs, which is contrary to the general rule in Ontario that the loser pays legal costs.
- The court will only allow the case to be heard if satisfied that the claim is brought in good faith and that there is a reasonable possibility that it will result in success.
This procedure is not required for all claims against Ontario, just those based on bad faith conduct. But this is an important distinction because s. 17 would seem to make it more difficult to correct the worst behaviour and, as a result, it protects systemic racism. Ontario has not been shy in utilizing s. 17. I have two Black clients who were, among other injustices, were called derogatory terms by provincial employees. When we sued without obtaining leave as required by s. 17, Ontario said the case cannot proceed because until leave is granted.
I am told by counsel at Ontario that there has yet to be a s. 17 motion. We therefore cannot explore specific instances in which it has been used to exacerbate systemic racism. What we can do, though, is examine key features which, if strictly construed, will have that effect.
Section 17 adds time and cost to an already laborious and expensive process. This no doubt clashes with Rule 1.04 (1) of the Rules of Civil Procedure, which requires a liberal construction of those rules to “secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.”
It is not unreasonable to earmark $20,000 for discoveries and the motion for leave. These costs, of course, cannot be recovered even if leave is granted. But deterrence is, of course, Premier Ford’s primary objective. Consider, for instance, his amendment to Rule 76 which aims to increase the efficiency of claims below $200,000. For Premier Ford, access to justice in Ontario depends on who the defendant is.
The plaintiff’s unilateral obligation to provide fulsome disclosure is inherently unfair. It is not difficult to appreciate that in many instances of systemic racism, Ontario — only Ontario — will have most of the documentary evidence in its possession. A plaintiff in these circumstances will only be able to provide affidavit evidence. Viewed thusly, s. 17 resembles a motion to strike where the plaintiff, who is denied access to relevant evidence, bears the onus.
And herein lies the purpose and importance of discovery: to make good legal decisions, we need to see the whole picture. Section 17 thus seems antithetical to good legal decision making.
So where does this leave us? I believe s. 17 will be read down with leave granted very generously.
In my experience, judges, knowing how time and cost intensive litigation is, are not keen on making it more laborious — especially where parties must bear their own costs. It also bears repeating that motions to strike already serve to weed out clearly bogus claims.
Litigation does not occur in a vacuum. Judges are aware of sociolegal context. Consider, for instance, R. v. Persad  O.J. No. 95 where Justice Andras Schreck found that Ontario was engaged in “deliberate state misconduct” by failing to heed repeated directions to improve conditions at Toronto South Detention Centre. Courts are clearly aware of the massive power disadvantage between Ontario and marginalized populations, especially in an institutional setting.
There is also a constitutional component that supports dilution of s. 17. Section 7 of the Charter of Rights and Freedoms prevents deprivations of liberty and security of the person except where authorized by the principles of fundamental justice.
The liberty aspect protects, among other things, personal autonomy over choices that affect the “core of what it means to enjoy individual dignity and independence.” Security of the person is engaged where state conduct interferes with and profoundly impacts psychological integrity. The ability to sue and be sued forms the essence of Western legal personhood.
If s. 17 is strictly construed, it is likely that meritorious claims will fail for want to documentary evidence. Procedural fairness, as a principle of fundamental justice, would seem offended by this scenario.
The lacuna between Premier Ford’s revised comments on systemic racism and s. 17 tell two very different tales. Claims involving allegations of systemic racism, as a form of misfeasance or bad faith conduct, would seem to be captured by s. 17.
Unless s. 17 is repealed, I suppose we know Premier Ford’s true position on stamping out systemic racism in Ontario.
Jeffrey Hartman is a Toronto-based criminal lawyer at Hartman Law, with a special focus on prison and police law. You can reach him at firstname.lastname@example.org or call 416-316-2234.
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