CITATION: Leroux v. Her Majesty The Queen in Right of the Province of Ontario, 2020 ONSC 730

DIVISIONAL COURT FILE NO.: DC-003-19

SUPERIOR COURT FILE: CV-17-573091-00CP DATE: 20200203

ONTARIO

SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

B E T W E E N :

MARC LEROUX AS LITIGATION GUARDIAN FOR BRIANA LEROUX

Plaintiff

– and –

HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ONTARIO

Defendant

Kirk Baert and Celeste Poltak

for the Plaintiff

Ravi Amarnath

for the Defendant

Jennifer Hunter and Jacqueline Palef

for the Canadian Civil Liberties Association

HEARD at Toronto: January 28, 2020

FAVREAU J.:

Introduction

[1] The Canadian Civil Liberties Association (the "CCLA") brings a motion for leave to intervene as a friend of the Court on an appeal from an order certifying this action as a class proceeding.

[2] For the reasons below, the motion is granted.

Background to the appeal

[3] The plaintiff, Briana Leroux, by her Litigation Guardian Marc Leroux, has brought a class action against Her Majesty The Queen in Right of the Province of Ontario ("Ontario"), claiming that Ontario was negligent and breached section 7 of the Charter in the provision of services to adults with developmental disabilities.

[4] Briana Leroux is in her early 20s. She is developmentally disabled. The claim alleges that when Ms. Leroux turned 18, her ability to access services changed dramatically. Having previously received services through the Ministry of Children and Youth Services, she was now required to apply to the Ministry of Community and Social Services under the Services and Supports to Promote the Social Inclusion of Persons with Development Disabilities Act, 2008, S.O. 2008, c. 14. The claim alleges that Ms. Leroux was then placed on indeterminate waitlists with inconsistent prioritization processes, and that this has caused her and her family financial and other damages. The claim alleges that Ontario was negligent and breached her section 7 Charter rights in the way it operated three specific programs for adults with development disabilities. The action is brought on behalf of a class of adults in Ontario with developmental disabilities who have been assessed and placed on waiting lists for these programs.

[5] The action was certified by Belobaba J. on December 14, 2018. The motion judge found that the claim met all of the requirements for certification under the Class Proceedings Act, 1992, S.O. 1992, c.6 (“CPA”). As part of his decision, the motion judge found that the claim disclosed a cause of action in negligence because the allegations against Ontario were directed at the operation of the programs at issue and not at matters of policy involving funding for the programs.

[6] Ontario sought leave to appeal the certification decision. This Court granted leave on May 24, 2019.

[7] The appeal is scheduled to be heard on March 2 and 3, 2020.

[8] The plaintiff and the defendant have served and filed their materials on the appeal. One of the issues raised by Ontario on the appeal is that section 11 of the recently enacted Crown Liability and Proceedings Act, 2019, S.O. 2019, c. 7, Sched. 17 ("CLPA"), provides immunity to Ontario from the negligence claims advanced by the plaintiff class.

[9] The CLPA came into force on July 1, 2019, after the action was certified and the Divisional Court granted leave to appeal. Section 11(4) of the CLPA provides that the Crown is immune from liability for decisions made in good faith respecting policy matters:

No cause of action arises against the Crown or an officer, employee or agent of the Crown in respect of any negligence or failure to take reasonable care in the making of a decision in good faith respecting a policy matter, or any negligence in a purported failure to make a decision respecting a policy matter.

[10] Section 11(5) of the CLPA defines “policy matter” as including a list of specific types of decisions and activities.

[11] Section 31(4) of the CLPA provides that section 11 applies to proceedings commenced before the legislation came into force:

Section 11 and the extinguishment of causes of action and dismissal of proceedings under that section apply with respect to proceedings commenced against the Crown or an officer, employee or agent of the Crown before the day this section came into force.

[12] In its factum on the appeal, Ontario argues that the motion judge erred in finding that the claim discloses a cause of action. With respect to the negligence claim, Ontario argues that, at common law, it does not owe a duty of care to the plaintiff class because the claim relates to policy decisions over funding and the allocation of resources. Ontario also argues that section 11 of the CLPA provides immunity for the allegations of negligence in the claim.

[13] Paragraph 28 of Ontario’s factum states that the CLPA’s immunity provisions are “intended to clarify the scope of the Crown’s common law immunity” to claims related to policy decisions and that the “CLPA confirms that the Plaintiff’s allegations in negligence are not justiciable and removes any ambiguity regarding the viability of such claims”.

[14] Ontario's factum goes on to make the following arguments:

30. Subsection 11(4) of the CLPA bars any claim in negligence against the Crown respecting a good faith decision (or purported failure to make a decision) respecting a policy matter. The detailed definition of “policy matter’ set out in s. 11(5) of the CLPA includes:

1. the creation, design, establishment, redesign or modification of a program, project or other initiative;

2. the funding of a program, project or other initiative; and

3. the manner in which a program, project or other initiative is carried out.

[Emphasis added in original]

31. Even if this Honourable Court finds that the claim does not attack funding and resource allocation issues, Crown decisions respecting (a) the design, redesign or modification of the Developmental Services program, including the program’s limitations in participation (i.e. waiting lists), and (b) the manner in which the Developmental Services are to be delivered, are immune from liability under s. 11(4) and (5) of the CLPA.

[15] The plaintiff’s responding factum makes the following four arguments in response to Ontario's reliance on the CLPA:

a. The CLPA should be read down and should not be interpreted to expand the scope of Crown immunity beyond the common law. To do so would be inconsistent with the intent of the CLPA as reflected in legislative debates and would be contrary to case law that states that legislation can only alter the common law explicitly.

b. Section 11(5) of the CLPA conflicts with section 5(1) of the Class Proceedings Act because it would prevent an already certified class action from proceeding.

c. The retroactive application of the CLPA to the plaintiff’s claim would interfere with a vested right.

d. Section 51(1)(b) of the Legislation Act, 2006, S.O. 2006, c.21, which provides that the repeal of legislation does not affect acquired rights, creates a strong presumption that the CLPA was not meant to preclude the plaintiff from pursuing this action.

[16] The plaintiff has also served a Notice of Constitutional Question (the “NCQ”). The NCQ does not make reference to a specific section of the Constitution. Rather, it asserts that sections 11(5) and 31(4) of the CLPA should be struck down or read down because they are contrary to the “rule of law in a fair and democratic society”:

The Respondent asserts that these provisions of the CLPA cannot, as a matter of law, and in accordance with the principles of fairness and the rule of law in a fair and democratic society, operate in this manner so as to vitiate causes of action well known to the common law and/or extinguish terms of a Certification Order made pursuant to the CPA…

A purposive interpretation of sections 11(5) and 31(4) of the CPLA requires that they either be struck or at the very least read down in so far as they purport to affect certified claims made under the CPA…

The CCLA's proposed intervention

[17] The CCLA applies to intervene on the appeal as a friend of the Court.

[18] If granted leave to intervene, the CCLA seeks to address Ontario’s argument at paragraph 31 of its factum that, even if the Crown is not immune to the plaintiff’s negligence claim at common law, the CLPA has expanded the scope of Crown immunity to cover claims of the nature advanced in this case. The CCLA proposes to argue that the Crown’s expansive interpretation of section 11(4) and (5) of CLPA contravenes section 96 of the Constitution Act, 1867. While the CCLA did not include a draft of the factum it proposes to file on the appeal, its argument was summarized as follows in its factum on the motion for leave to intervene:

It is the CCLA’s position that if s. 11 of the CLPA is interpreted and applied in this manner (i.e. to extinguish claims against the Crown in negligence that are otherwise actionable under the common law), this amounts to usurping the core jurisdiction of the superior court and is therefore a violation of section 96 of the Constitution Act, 1867. This raises a significant issue of public importance. When the province passes and then relies on legislation that removes all cases from the courts in which the Crown may be held liable in negligence, and it does so on the basis that such claims are “extinguished” by virtue of an overly broad statutory definition, the court’s core jurisdiction and the public’s interest is clearly engaged. The core jurisdiction of the court includes upholding the rule of law and suing the Crown in tort is one tool that individuals have to hold the government accountable for its actions. Although the province may legislate on crown immunity, the exercise of that power must comply with s. 96 of the Constitution Act, 1867, which safeguards the core jurisdiction of the superior courts.

[19] If granted leave to intervene, the CCLA proposes that it participate in the appeal on the following basis:

a. That it be granted permission to file a factum not exceeding 15 pages; and

b. That it be granted leave to make oral submissions not exceeding 20 minutes at the hearing.

[20] During the hearing of the motion, counsel for the CCLA committed to serving and filing her client’s factum by February 4, 2020 if leave to intervene was granted.

Analysis

[21] Rule 13.02 of the Rules of Civil Procedure provides for intervention as a friend of the court:

Any person may, with leave of a judge or at the invitation of the presiding judge or master, and without becoming a party to the proceeding, intervene as a friend of the court for the purpose of rendering assistance to the court by way of argument.

[22] The Court of Appeal and this Court have established the following considerations for deciding whether to grant leave to intervene as a friend of the court:

a. The nature of the case;

b. The issues involved;

c. The likelihood that the proposed intervener will make a useful and distinct contribution not otherwise offered by the parties; and

d. Whether the intervention will cause injustice to the parties or undue delay.

See: Jones v. Tsige (2011), 2011 99894 (ON CA), 106 O.R. (3d) 721 (C.A.), at para. 22; S. (P.) v. Ontario, 2014 ONCA 160, at para. 5; and Elementary Teachers' Federation et al v. Her Majesty, 2018 ONSC 6318 (Div. Ct.), at para. 8.

[23] The CCLA argues that its proposed intervention meets all four requirements. The plaintiff supports the CCLA's motion.

[24] Ontario opposes the motion, taking the position that the CCLA's proposed intervention raises a new issue not raised by the parties on the appeal, and that it will be prejudiced if the motion is granted.

Nature of the case and the issues

[25] The first two factors are often considered together.

[26] The cases have held that granting leave to intervene may be warranted in cases that involve constitutional issues or issues of public interest that transcend the dispute between the parties: Authorson (Litigation Guardian of) v. Canada (Attorney General), 2001 4382 (ON CA), [2001] O.J. No. 2768 (C.A.), paras. 7-8; and Jones, paras. 23-24.

[27] Ontario does not dispute that this case and the issues on the appeal raise matters of public importance. I agree. The reach and validity of section 11 of the CLPA have implications that go well beyond the scope of this litigation. The legislation has not yet been interpreted or applied by an appellate court. The issue of the scope of the Crown’s immunity from liability for policy matters as defined in section 11(5) of the CLPA is likely to arise in many, if not all, negligence claims against Ontario.

Likelihood that the CCLA will make a useful and distinct contribution

[28] In Elementary Teachers' Federation, this Court described what constitutes a useful contribution:

10 A contribution is not useful if it simply repeats issues and arguments put forward by the parties although some overlap may be permitted. (Halpern v. Toronto (City) Clerk (2000), 2000 29029 (ON SCDC), 51 O.R. (3d) 742 at para. 18 (Div. Ct.).)

11 There must be a real, substantial and identifiable interest in the subject matter, and an important and a distinct perspective to be articulated that is different from that of the parties. A well-recognized group with special expertise and a broadly identifiable membership base may be better able to provide a useful and distinct contribution to the resolution of the matter. Intervention is especially helpful where the interest of the more vulnerable are at stake and the outcome will be beyond the private rights of parties. (Reference re Workers' Compensation Act 1983 (Nfld), [1989] 2 SCR 335, 1989 23 (SCC) at paras. 11-12.)

12 The Ontario Court of Appeal has recognized the desirability of having "all of the relevant possibilities brought to its attention, including submissions on the impact of its judgment, not only on the parties, but on those not before the court." This is true even where only certain aspects of the ultimate decision may bear on the rights at issue and where the intervener may bring only a slightly different perspective to be considered. (Childs et al v. Desormeaux, [2003] O.J. No 3800 (QL), 2003 47870 (OCA) at para 15.)

[29] Therefore, when considering whether the proposed intervener will make a useful contribution, the court focuses on (i) the proposed intervener and its expertise or interest in the issues at stake, and (ii) the specific contribution the intervener proposes to make.

[30] Ontario does not dispute the CCLA’s expertise and interest in the issues at stake in this appeal. Indeed, the CCLA has long advocated for civil liberties and government accountability. It has been granted leave to intervene in many cases involving human rights and constitutional issues

[31] Ontario argues that the CCLA’s proposed argument raises a new issue, which is not an appropriate role for an intervener. As reviewed above, the CCLA seeks to argue that Ontario’s expansive interpretation of section 11(5) of the CLPA is contrary to section 96 of the Constitution Act, 1867. Ontario argues that this raises a new issue because, while the plaintiff served a NCQ, they do not identify a specific provision of the Constitution in their factum or their NCQ.

[32] The case law does suggest that it is inappropriate for an intervener to raise a new issue. For example, in Elementary Teachers' Federation, at para. 7, this Court held that “[a]n intervener is not an applicant. An intervener cannot therefore introduce new issues or claim new relief; it is limited to addressing issues already contained in the pleadings”.

[33] However, in my view, the CCLA’s proposed argument does not raise a new issue, but rather it adds an argument to the plaintiff’s position that section 11(5) of the CLPA should be struck or read down because it provides for overly expansive Crown immunity.

[34] Ontario argues that the CCLA raises a new issue because it relies on section 96 of the Constitution Act, 1867, which the plaintiff does not refer to in the factum or NCQ. In making this argument, Ontario relies on the Court of Appeal’s decision in Bedford v. Canada (Attorney General), 2011 ONCA 209, in which the Court of Appeal dismissed a motion for leave to intervene where the proposed intervener sought to argue that the provisions of the Criminal Code that prohibited sex work were contrary to section 15 of the Charter. In the Court below, the applicants had challenged the Criminal Code provisions on the basis of sections 2(b) and 7 of the Charter, but not section 15. The Court dismissed the motion on the basis that the record below had not been developed from the perspective of a section 15 challenge, finding at para. 16 that “it would be a disservice to the parties, to the court and, indeed, the public interest to litigate a s. 15 challenge on the basis of this record”.

[35] I do not read the Bedford decision as a blanket statement that an intervener is precluded from raising an alternative constitutional argument in all situations. Whether it is appropriate to allow an intervener to do so in any given case will depend on the circumstances. Ontario concedes that, in this case, the CCLA’s proposed contribution to the appeal is a legal argument and does not require a different evidentiary record.

[36] Here, given Ontario’s reliance on the CLPA and the plaintiff’s position that the CLPA should be struck down or read down because it is contrary to the rule of law, the validity and breadth of section 11(5) of the CLPA is a central issue on the appeal. As an intervener, the CCLA will make a useful contribution by providing a legal argument relevant to the issue.

[37] My decision should not be taken as a comment on the validity or strength of the CCLA’s proposed argument. This is not an appropriate consideration on a motion for leave to intervene and it will be up to the panel hearing the appeal to make this determination. However, given the significant implications of this appeal for future cases involving the scope of the Crown’s immunity from liability for policy matters under the recently enacted CLPA, the Court should have the benefit of a breadth of arguments on this issue.

[38] Accordingly, I find that the CCLA’s proposed intervention will make a useful contribution to the appeal.

Whether the intervention will cause injustice to the parties

[39] The only injustice identified by Ontario is that the appeal is already scheduled, and the parties have all filed their materials.

[40] As indicated above, the CCLA has undertaken to serve and file its factum by Tuesday, February 4, 2020. In addition, Ontario has conceded that the arguments to be made by the CCLA only engage legal issues and do not require any new evidence. The plaintiff does not object to Ontario filing a factum that responds to the arguments made by the CCLA.

[41] Under the circumstances, the CCLA’s intervention will not delay the appeal and will not otherwise cause any injustice to the parties.

Conclusion

[42] Based on the reasons above, the CCLA is granted leave to intervene as a friend of the Court in this matter on the following terms:

a. The CCLA will accept the record as prepared by the parties and not add to it, adduce further evidence or raise any new issues beyond the argument identified in its factum on this motion;

b. The CCLA is to serve and file a factum not exceeding 15 pages by no later than Tuesday, February 4, 2020;

c. The CCLA will be permitted to make submissions not exceeding 20 minutes at the hearing of the appeal;

d. The CCLA will make all reasonable efforts to avoid duplicating the plaintiff’s submissions;

e. The CCLA will not seek costs nor will costs be awarded against the CCLA, unless the panel orders otherwise; and

f. Ontario is permitted to file a supplementary factum not exceeding 10 pages in response to the issues raised by the CCLA. The factum is to be served and filed by no later than Thursday, February 20, 2020.

[43] As agreed between the parties, there will be no costs of this motion.

FAVREAU J.

RELEASED: February 3, 2020

CITATION: Leroux v. Her Majesty The Queen in Right of the Province of Ontario, 2020 ONSC 730

DIVISIONAL COURT FILE NO.: DC-003-19

SUPERIOR COURT FILE: CV-17-573091-00CP DATE: 20100203

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

B E T W E E N:

MARC LEROUX AS LITIGATION GUARDIAN FOR BRIANA LEROUX

Plaintiff

– and –

HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ONTARIO

Defendant

REASONS FOR JUDGMENT

FAVREAU J.

RELEASED: February 3, 2020