Court File and Parties
ONTARIO SUPERIOR COURT OF JUSTICE
RE: ADRIENNE HAVERCROFT and JAMES SUTTON, Applicants
-and-
HIS MAJESTY THE KING IN RIGHT OF ONTARIO, Respondent
BEFORE: FL Myers J
COUNSEL: Simon Bieber, Julia Wilkes, and Sean Pierce, for the applicants
Emily Owens and Padraic Ryan, for the respondent
HEARD: November 25, 2022
ENDORSEMENT
Outcome
1It is plain and obvious that this application under the Canadian Charter of Rights and Freedoms cannot succeed.
2The Supreme Court of Canada has determined the issues already. The issues raised in this application are not new. There has been no change in circumstances that fundamentally shifts the parameters of the legal debate. Accordingly, I must apply the prevailing law from the Supreme Court of Canada and that means that the applicants cannot succeed in this claim
3Therefore, under Rules 21.01 (a) and (b) of the Rules of Civil Procedure, RRO 1990, Reg 194, as made applicable to application proceedings by Rule 14.09, the notice of application is struck out and the application is dismissed.
The Claim
4The applicants claim that public funding in Ontario of the education by Roman Catholic separate schools of (a) students who are not Roman Catholic, and (b) all high school students, violates the applicants’ freedom of religion under s. 2 (a) of the Charter and violates their equality rights under s. 15 of the Charter.
5Ms. Havercroft is a teacher who is not Roman Catholic. She therefore cannot be employed to teach in the separate school system in Ontario. She submits that by funding non-Catholic students and high school students to attend separate schools, the law has decreased the number of public schools needed. This has unfairly limited her employment opportunities. She therefore suffered difficulties in obtaining full-time employment (and gaining access to full benefits) in the early part of her career.
6Mr. Sutton is the parent of two school-aged children. The family is bilingual at home. The parents want their children educated in French-language schools.
7Mr. Sutton does not accept aspects of the Roman Catholic faith. He cannot in good conscience send his children for education in the separate school system where they would be taught and required to practice Roman Catholicism.
8The nearest public French school is a one-hour bus ride from the Suttons’ home.
9Mr. Sutton submits that if the government did not fund non-Catholic students and high school students to attend separate schools, the increase in funding and enrollment in public schools would lead to the public board being able to open a French school nearer to his home and thereby reduce his children’s’ burden of riding a bus for two hours a day.
10Both applicants submit that providing public funding in the Roman Catholic separate school system for non-Roman Catholic students and for high school students was not part of the minority religious education rights entrenched in the constitution. As the Province of Ontario has added those features after the enactment of the constitution in 1867, they are subject to Charter scrutiny and violate the applicants’ rights.
Minority Education Rights
11Section 93 of the Constitution Act, 1867, 30 & 31 Victoria, c. 3 (UK) provides:
Legislation respecting Education
In and for each Province the Legislature may exclusively make Laws in relation to Education, subject and according to the following Provisions:
Nothing in any such Law shall prejudicially affect any Right or Privilege with respect to Denominational Schools which any Class of Persons have by Law in the Province at the Union;
All the Powers, Privileges, and Duties at the Union by Law conferred and imposed in Upper Canada on the Separate Schools and School Trustees of the Queen's Roman Catholic Subjects shall be and the same are hereby extended to the Dissentient Schools of the Queen's Protestant and Roman Catholic Subjects in Quebec;
Where in any Province a System of Separate or Dissentient Schools exists by Law at the Union or is thereafter established by the Legislature of the Province, an Appeal shall lie to the Governor General in Council from any Act or Decision of any Provincial Authority affecting any Right or Privilege of the Protestant or Roman Catholic Minority of the Queen's Subjects in relation to Education;
In case any such Provincial Law as from Time to Time seems to the Governor General in Council requisite for the due Execution of the Provisions of this Section is not made, or in case any Decision of the Governor General in Council on any Appeal under this Section is not duly executed by the proper Provincial Authority in that Behalf, then and in every such Case, and as far only as the Circumstances of each Case require, the Parliament of Canada may make remedial Laws for the due Execution of the Provisions of this Section and of any Decision of the Governor General in Council under this Section.
12The opening words of s. 93 (highlighted in yellow) assign legislative authority to the provinces to make laws concerning education. The provinces’ general authority to legislate concerning education in the opening words is limited however by the four provisos that follow.
13Subsection 93 (1) (highlighted in green) entrenches in the constitution minority education rights as they existed when Canada was created. The subsection prevents any province from taking away any right or privilege concerning denominational schools that anyone had under the law of a province as of July 1, 1867.
14The parties agree that this section was a key part of the compact that led to the creation of Canada. Without the agreement of Protestant-majority Ontario and Roman Catholic-majority Quebec to protect the religious education rights of their compatriots’ minority populations in each other’s provinces, there might not have been a deal to unite Canada. Other provinces too had similar concerns.
15The Supreme Court of Canada has held that the minority education rights entrenched in s. 93 of the constitution are not susceptible to attack or scrutiny under the Charter. They are every bit as much a feature of the constitution as the equality rights and freedom of religion relied upon by the applicants.
16Subsection 93 (3) also needs to be considered. It provides that where separate minority religion schools existed on July 1, 1867, or are “thereafter established”, if a province tries to change or affect an educational right or privilege of the Protestant or Roman Catholic minority, an appeal is available to the federal cabinet. It was apparently assumed in 1867 that the federal government would protect minority education rights against a tyranny of the local majority. This is referred to as the “political appeal” section.
17What is more significant about s. 93 (3), for the purposes of this application, is that it confirms that the provinces have the authority to legislate concerning minority education rights after the date of confederation. The discussion of separate schools “thereafter established” (highlighted in purple) shows that additional minority education rights can be created or established by the provinces. Minority education rights cannot be diminished below what was entrenched in s. 93 (1) in 1867 and any effort to diminish minority education rights, existing or added under s. 93 (3), is subject to the pollical appeal to cabinet.
Reference re Bill 30, An Act to Amend the Education Act (Ont.), 1987 65 (SCC)
18In 1985, the government of Ontario proposed to amend the education laws to fully-fund Roman Catholic separate schools in Ontario. The proposed law included government funding for non-Catholic students and for high school students in the Roman Catholic separate school system.
19The provincial government used the reference procedure to ask the Ontario Court of Appeal and then the Supreme Court of Canada to advise if the proposed law was within the province’s authority under the constitution.
20On appeal from the Court of Appeal, the Supreme Court of Canada advised the government that the proposed law was constitutionally permissible. It is principally this holding that stands in the way of the applicants’ lawsuit today.
21At para. 23 of her majority reasons, Wilson J. confirmed that the province has the authority to augment minority education rights that existed at the time of confederation and are entrenched by s. 93 (1). She wrote:
In my view, s. 93(3) in no way limits the exercise of the province's plenary power. Rather, it expressly contemplates that after Confederation a provincial legislature may, pursuant to its plenary power, pass legislation which augments the rights or privileges of denominational school supporters. It would be strange, indeed, if the system of separate schools in existence at Confederation were intended to be frozen in an 1867 mold.
22Wilson J. then reviewed the importance of minority education rights to the compromises and compact that became the constitution. She summed up her conclusion in para 29 of her reasons:
While due regard must be paid not to give a provision which reflects a political compromise too wide an interpretation, it must still be open to the Court to breathe life into a compromise that is clearly expressed. The contextual background of s. 93 is being reviewed in these reasons not for the purpose of enlarging upon the compromise but in order to confirm its precise content. The contextual background suggests that part of the compromise was that future legislation on the part of the province with respect to separate denominational schools was permissible. The province was to be able to grant new rights and privileges to denominational schools after Union in response to new conditions but that subsequent repeal of those post-Union rights or privileges would be subject to an appeal to the Governor General in Council. This is apparent from the very text of s. 93. I would therefore conclude, subject to the comments that follow concerning the applicability of the Charter of Rights to Bill 30, that Bill 30 is a valid exercise of the provincial power to add to the rights and privileges of Roman Catholic separate school supporters under the combined effect of the opening words of s. 93 and s. 93(3) of the Constitution Act, 1867.
23As will become more relevant below, Wilson J. was careful to limit her review of the initial compact or deal among the provinces to allow her to discern the content of the rights and privileges entrenched in 1867. She confirmed that each province has the authority to change its own legislation subject to s. 93 (3). The initial deal has no enduring role.
24After concluding that Ontario had the right under the initial words of s. 93 (in yellow) combined with the provisions of s. 93 (3) (in purple) to add full funding for Roman Catholic separate schools under Bill 30, Wilson J. went further and considered if full funding was actually part of the initial rights and privileges entrenched in 1867 (in green). And she held that it was.
25So, not only was Ontario entitled to fully fund Roman Catholic separate school education, but Wilson J. also found that it had been positively required to do so since 1867.
26Wilson J. reached this conclusion by looking at the situation in 1867 to discover exactly which separate school educational rights and privileges existed for the Roman Catholic minority in Ontario at confederation. It was those rights and privileges that were entrenched in the constitution under s. 93 (1).
27Wilson J. made two important conclusions. First, the relevant “rights and privileges” were defined by what the law said at the time. At para. 32 of her reasons, Wilson J wrote:
It must be remembered, however, that s. 93(1) only protects rights and privileges guaranteed by law. Our task therefore is to examine the laws in force prior to Confederation to see what rights or privileges they gave. Whether various bodies or officials were in fact exercising the powers statutorily conferred upon them is irrelevant to our inquiry.
28The constitutional issue was driven by what the law allowed in 1867 rather than by considering the facts of what any specific county, city, town, hamlet, or school board actually did. Therefore, the evidence adduced by the applicants in this proceeding about what was actually done or not done in 1867 is of no consequence in this inquiry.
29The second important conclusion drawn by Wilson J. by analyzing the scope of the entrenched separate school rights and privileges of the Roman Catholic minority in Ontario at confederation, was that in 1867, Ontario’s Roman Catholic minority had the right to separate school education for children from ages 5 to 21. This included the right to receive an education right through high school.
30At para. 58, she found expressly:
I would therefore conclude that Roman Catholic separate school supporters had at Confederation a right or privilege, by law, to have their children receive an appropriate education which could include instruction at the secondary school level and that such right or privilege is therefore constitutionally guaranteed under s. 93(1) of the Constitution Act, 1867.
31Wilson J. then considered whether, at the time of confederation, the Roman Catholic minority had a right to funding for their children’s’ education to high school. She concluded, in accordance with earlier precedent, that the right to education must include the right to funding. At para. 59, she wrote:
It is clear that if the foregoing right was to be meaningful an adequate level of funding was required to support it. This Court held unanimously in Attorney General of Quebec v. Greater Hull School Board, 1984 29 (SCC), [1984] 2 S.C.R. 575, that the right of dissentient schools in Quebec to a proportionate share of government funding was a right protected by s. 93 of the Constitution Act, 1867. Likewise, in my view, the right of separate schools in Ontario. They were entitled to the proportionate funding provided for in s. 20 of the Scott Act. This conclusion, it seems to me, is fully consistent with the clear purpose of s. 93, namely that the denominational minority's interest in a separate but suitable education for its children be protected into the future. I would therefore conclude (subject to the comments that follow on the applicability of the Charter of Rights) that Bill 30, which returns rights constitutionally guaranteed to separate schools by s. 93(1) of the Constitution Act, 1867, is intra vires the Provincial Legislature.
32Although Wilson J. upheld the proposed provincial law that allowed full funding not only to high school students, but to non-Catholic students who attend the separate schools, she did not expressly say anything about the funding of the education of the non-Catholic students.
33I agree with Mr. Ryan however, that it is implicit in the court’s ruling that funding of all students is required. If more students are allowed to attend than are funded, the result is a reduction in per capita spending on each child including the Roman Catholic minority. The court already found that proportionate funding of public and private school students was entrenched in law at the time of confederation. If the government could force students on separate schools without funding them, it could deprive the Roman Catholic minority of the proportionate funding that existed by law at confederation and is entrenched in s. 93 (1). Moreover, taken to an extreme, this could make the separate schools uneconomical and bring an end to the separate school system.
34So, while there was apparently no right for non-Catholic student to attend Roman Catholic separate schools in 1867, the right to proportionate per capita funding is an entrenched right. However, as discussed below, even if the right to funding for non-Roman Catholic students is an added right or privilege under s. 93 (3), it makes no difference to the outcome as discussed in the next three paragraphs.
35After having decided that Ontario had the authority (indeed the constitutional obligation) to fund separate schools in Ontario through to high school, the Supreme Court considered the applicability of the Charter of Rights.
36Wilson J. held first that s. 29 of the Charter expressly provides that rights and privileges entrenched under s. 93 (1) of the Constitution Act 1867 are not subject to the Charter. At para. 60 of her reasons, she wrote:
…Section 29 provides:
- Nothing in this Charter abrogates or derogates from any rights or privileges guaranteed by or under the Constitution of Canada in respect of denominational, separate or dissentient schools.
This section, the respondents argued, makes Bill 30 immune from Charter review because Bill 30 deals with "rights or privileges guaranteed ... under the Constitution of Canada". The respondents are no doubt correct if Bill 30 is supported under s. 93(1) of the Constitution Act, 1867. It would then fall fairly and squarely within the language of s. 29. The Charter cannot be applied so as to abrogate or derogate from rights or privileges guaranteed by or under the Constitution.
37Wilson J. next held that s. 29 also renders immune from Charter scrutiny all minority education rights and privileges added after 1867. At para. 63 she wrote:
The Confederation compromise in relation to education is found in the whole of s. 93, not in its individual parts. The section 93(3) rights and privileges are not guaranteed in the sense that the s. 93(1) rights and privileges are guaranteed, i.e., in the sense that the legislature which gave them cannot later pass laws which prejudicially affect them. But they are insulated from Charter attack as legislation enacted pursuant to the plenary power in relation to education granted to the provincial legislatures as part of the Confederation compromise.
38I take the following conclusions to have been made by the Supreme Court of Canada in this case:
a. Ontario’s Roman Catholic minority has the entrenched constitutional right to separate school education of their children through high school;
b. Ontario’s Roman Catholic minority has the entrenched right to have their children’s education fully and proportionately funded;
c. Bill 30 proposing full funding to Ontario’s Roman Catholic separate schools was within the province’s power to enact; and
d. The Charter does not apply to minority education rights and privileges whether entrenched under s 93 (1) or added under s 93 (3) of the Constitution Act, 1867.
39The applicants’ first claim, that funding Roman Catholic high school is unconstitutional, was expressly rejected by the court. In my view, the applicants’ second claim, that funding the education of non-Catholic students who attend separate schools is unconstitutional, must be taken to have been implicitly rejected by the entrenched obligation to fund Catholic students fully and proportionately. I accept that the latter question was not specifically opined upon. But that does not make it a new or different question. In light of the findings made by the Supreme Court of Canada, in my respectful view, there is no other conclusion possible but that (a) the province had the authority to allow others to attend Roman Catholic separate schools under its plenary authority to legislate concerning education; and (b) the province must fund others whom it allows to attend separate schools to maintain the Roman Catholic students’ entrenched entitlement to proportionate funding.
40Bill 30 was upheld as both a grant of new rights and privileges and the return to Ontario’s Roman Catholic minority of their entrenched rights and privileges. Even if allowing extra students to attend and be funded was a new right or privilege to benefit and support the Roman Catholic separate school system, it is immune from Charter scrutiny.
41It follows therefore that if I am bound to follow the Supreme Court’s teachings, this application is doomed to fail.
Can this Court Depart from Supreme Court of Canada Precedent?
(a) Is a Constitutional Reference Binding?
42In our system of law, lower courts are bound by the legal findings in precedent cases decided by courts that sit above them in the judicial pecking order. This is called the principle of stare decisis.
43Typically, a judge is only bound by the narrowest technical holding of the senior court (called the “ratio decidendi”). But it has long since been recognized that lower courts are bound by all of the teachings of the Supreme Court of Canada whether technically identified as ratio decidendi or just comments made in passing (referred to as “obiter dicta”).
44The applicants submit that because the decision discussed above was a special reference, it is not a regular precedent. So, they submit, I am not bound by it. Once again, that may have been technically true once. However, the Court of Appeal has confirmed that the holdings of the Supreme Court of Canada on a reference are sufficiently persuasive to set precedents that form a basis to strike claims as being doomed to fail. See: Jayco Inc. v. Canada (Revenue Agency), 2022 ONCA 277.
45There are two situations when a judge is free to reconsider a decision of a senior court. The first occurs when a new legal issue is raised that was not considered before. The second occurs when there has been a change in circumstances that fundamentally shift the parameters of the debate. See: Carter v. Canada (Attorney General), 2015 SCC 5, at para. 44.
(b) Is there a New Issue of Law?
46The applicants submit that the question of whether the Charter applies to full funding of rights or privileges added after 1867 is a new legal issue. I disagree. Wilson J. dealt with that issue expressly as quoted above. As I noted, she did not say expressly that full funding of non-Catholic students who attend Roman Catholic separate schools is beyond Charter scrutiny. But that is not a new issue. It is the same legal issue on different or differently nuanced facts. As I have already found, I do not see how that question can possibly be answered in the applicants’ favour. There is no new legal analysis to be performed.
(c) Has there been a Fundamental Change in the Legal Circumstances?
47The applicants make two submissions on this point. First, they submit that our understanding of what was actually happening on the ground at the time of confederation has changed fundamentally. They delivered an affidavit of a history professor to try to set the historical record straight.
48The fundamental change referred to in Carter, that is needed to allow a court to re-visit a precedent, is not a change in the facts as found in the prior case. I cannot sit on appeal from the findings of fact or law made by the Supreme Court of Canada. Moreover, if all that was necessary to re-hear a case was to allege that the judge(s) got the facts or the applicable law wrong, every case could be re-litigated endlessly.
49When the court speaks of “fundamental change” it is not talking about the facts that were the subject matter of the precedent case. Rather, they are looking for a change in society during the time between the pronouncement of the binding precedent and today. I am not trying to correct history in 1867 as found by the Supreme Court of Canada. Rather, I am looking to see if something fundamental has changed in our cultural or legal norms between 1987 and today that could undermine the continued legitimacy of the Supreme Court of Canada’s precedent.
50In R. v. Comeau, 2018 SCC 15, the Supreme Court of Canada reversed a trial judge’s finding that he was no longer bound by a prior decision of the Supreme Court of Canada called Gold Seal Ltd. v. Attorney- General for the Province of Alberta (1921), 1921 25 (SCC). The court discussed:
36The trial judge accepted the expert's evidence in question on two points - one of history, the other of law. He accepted (1) the expert's description of the drafters' motivations for including s. 121 in the Constitution Act, 1867, and (2) the expert's opinion that those motivations drive how s. 121 is to be interpreted. Neither class of evidence constitutes evidence, for example, of evolving legislative and social facts; the evidence is simply a description of historical information and one expert's assessment of that information. This does not evince a profound change in social circumstances from the time Gold Seal was decided. It is evidence of one perspective of events that occurred decades before the Gold Seal company brought its case to the courts and a century before this Court's discussion of s. 121 in Murphy. Historical evidence can be helpful for interpreting constitutional texts: R. v. Big M Drug Mart Ltd ., 1985 69 (SCC), [1985] 1 S.C.R. 295, at p. 344; R. v. Blais, 2003 SCC 44, [2003] 2 S.C.R. 236. However, a re- discovery or re-assessment of historical events is not evidence of social change.
37Because the historical evidence accepted by the trial judge is not evidence of changing legislative and social facts or some other fundamental change, it cannot justify departing from vertical stare decisis. Differing interpretations of history do not fundamentally shift the parameters of the legal debate in this case. While one's particular collection of historical facts or one's view of that historical evidence may push in favour of a statutory interpretation different from that in a prior decision, the mere existence of that evidence does not permit the judge to depart from binding precedent. [Emphasis added.]
51Changing views of history then are not a basis to depart from a binding precedent. What is needed (as bolded in the quotation above) is a “profound change in social circumstances from the time [the precedent] was decided”.
52The applicants submit that there has been a profound change in social circumstances after 1987. They submit that the circumstances changed fundamentally in 1997 when Quebec changed the deal on which s. 93 of the Constitution Act, 1867 was based.
53In 1997, Quebec and the federal Parliament made an amendment to the constitution to add section 93A. That section excludes Quebec from the reach of s. 93. It ends constitutionally entrenched minority education rights for Protestants in Quebec.
54The applicants submit that Quebec has extinguished the compact on which s. 93 was based. Therefore, the meaning of the section in Ontario should no longer be based on the existence or implementation of that preconfederation agreement.
55There are several problems with this submission. First, when the constitution was repatriated from England in 1982, it added a new formula for future amendments to the Constitution Act, 1867. Section 43 of the Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11, allows amendments to be made to the provisions of the constitution that solely apply to one province by an agreement between that province and the federal government alone. It was on that basis that Quebec and the federal government were able to agree in 1997 to exclude Quebec from the s. 93 minority education rights provision of the 1867 constitution.
56For the amendment to have been made under s. 43, it can only apply to residents of Quebec. But, if the elimination of Quebec from s. 93 affects how s. 93 is to be interpreted for Ontario residents going forward, that would mean that Quebec and the federal government were able to change the constitutional rights and privileges of residents of Ontario without any input or assent from Ontario. That cannot be correct.
57Moreover, it was the change in the amending formula in 1982 that undermined the contractual basis for s. 93 from that point forward. Despite whatever agreement may have been made in 1867, all the provinces knew that their agreement inter se and with the federal government in 1982 gave each province the ability to alter the constitutional rights of its own residents without affecting anyone elsewhere.
58The Reference decision above was decided in 1987 five years after the repatriation of the constitution. As I mentioned above, the discussion of the preconfederation compact in that case did not turn at all on there continuing to be any inter-provincial or contractual element to minority education rights in 1987.
59Moreover, in Adler v. Ontario, 1996 148 (SCC), the Supreme Court of Canada reaffirmed its understanding of the workings of s. 93 in Ontario while noting expressly that Quebec was already working on the amendment that became s. 93A. Similarly, in English Catholic Teachers' Répertorié : Ontario English Catholic Teachers' Assn. v. Ontario (Attorney General) Général) 2001 SACC 15 () the court again confirmed its approach to s. 93 of the Constitution Act, 1867 in Ontario, many years after Quebec had seceded from the original compact.
60It cannot be said therefore, that the enactment in 1997 of s. 93A of the Constitution Act, 1867, changed the legal landscape in relation to the analysis of s. 93 rights and privileges in Ontario.
Denominational Scope of s. 93 (3) amendments
61The applicants quite fairly point out that it is not every law in relation to education that is exempt from Charter scrutiny. Adler and two more recent Ontario cases have noted that laws that relate to education but not to the obligation of the provinces to set up and fund denominational schools will be subject to Charter review like all other laws passed under ss. 91 and 92 of the Constitution Act, 1867. Laws passed outside the special mandate toward denominational schools in s. 93 are not immune from the Charter.
62This is all well and good but of no consequence in this application. The law in issue providing full funding for Roman Catholic separate schools in Ontario is premised upon and supported by the special mandate of ss. 93 (1) and (3).
Motion to Strike
63In other contexts, I could (and have) discussed at some length the general inaptness of motions to strike in the context of applications as opposed to actions under the Rules of Civil Procedure. A notice of application is not a pleading. It is not required to contain specific allegations of fact to make out a cause of action. I had 3,000 pages of evidence to be deemed true for the purpose of this motion. This is not regular fare for a motion to strike.
64Moreover, one can readily see the risk of inefficient duplication in this process. For example, had I held that any single argument of the applicants might not be doomed to fail, then the entire exercise would have to be repeated some months from now once the government’s evidence is in, cross-examinations are conducted, and a full fact base is before the court.
65The process before me actually looked uncomfortably like a motion for summary judgment. There was evidence. There was discussion of whether the applicants had a burden to put their “best foot forward”. There was a real risk of partial judgment.
66In addition, both sides advanced fallback arguments based on the application of ss. 2 and 15 of the Charter to the law in question. I told the parties during the hearing that I was not willing to engage in a full Charter analysis of specific laws on an untested and incomplete fact base. The actual legal and factual analysis is for the application hearing rather than a motion to strike. If the Charter applied to the funding law, then the application would have survived scrutiny under Rule 21.
67However, at the end of the day, none of the holdings that I make turn on evidence in the record or an analysis of the specific scope or application of ss. 2 or 15 of the Charter. Rather, my decision flows from the exclusion of the Charter as a result of a comparison of the holdings made on the Reference to the two fundamental claims made by the applicants.
68In Atlantic Lottery Corp. Inc. v. Babstock, 2020 SCC 19, the Supreme Court of Canada reiterated the importance of using motions to strike where appropriate to bring an end to claims that cannot succeed as a matter of law.
18Secondly, and since Microsoft was decided, this Court has recognized in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 the need for a culture shift to promote "timely and affordable access to the civil justice system" (para. 2). Where possible, therefore, courts should resolve legal disputes promptly, rather than referring them to a full trial (paras. 24-25 and 32). This includes resolving questions of law by striking claims that have no reasonable chance of success (S. G. A. Pitel and M. B. Lerner, "Resolving Questions of Law: A Modern Approach to Rule 21" (2014), 43 Adv. Q. 344, at pp. 351-52). Indeed, the power to strike hopeless claims is "a valuable housekeeping measure essential to effective and fair litigation" (Imperial Tobacco, at para. 19).
19Of course, it is not determinative on a motion to strike that the law has not yet recognized the particular claim. The law is not static, and novel claims that might represent an incremental development in the law should be allowed to proceed to trial (Imperial Tobacco, at para. 21; Das v. George Weston Ltd., 2018 ONCA 1053, 43 E.T.R. (4th) 173, at para. 73; see also R. v. Salituro, 1991 17 (SCC), [1991] 3 S.C.R. 654, at p. 670). That said, a claim will not survive an application to strike simply because it is novel. It is beneficial, and indeed critical to the viability of civil justice and public access thereto that claims, including novel claims, which are doomed to fail be disposed of at an early stage in the proceedings. This is because such claims present "no legal justification for a protracted and expensive trial" (Syl Apps Secure Treatment Centre v. B.D ., 2007 SCC 38, [2007] 3 S.C.R. 83, at para. 19). If a court would not recognize a novel claim when the facts as pleaded are taken to be true, the claim is plainly doomed to fail and should be struck. In making this determination, it is not uncommon for courts to resolve complex questions of law and policy (see e.g. Imperial Tobacco; Cooper v. Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537; Syl Apps; Alberta v. Elder Advocates of Alberta Society, 2011 SCC 24, [2011] 2 S.C.R. 261). 19 ().
69Ultimately, this application fits squarely within this analysis. The application is therefore dismissed.
70Ontario seeks costs of $10,000. This is about 40% of its partial indemnity costs and represents a very reasonable claim well below the costs incurred by the applicants. The applicants ask to be spared from paying costs in light of the constitutional subject matter of this lawsuit. In my view, the normative approach that costs follow the event should apply in this case. Both applicants were seeking economic and personal benefits for themselves and their families in this litigation. The applicants are not altruistic representatives advancing arguments solely in the public interest.
71The applicants shall therefore pay costs of $10,000 all-inclusive to the respondent.
72I close by expressing my sincere gratitude to both sets of counsel for the substantial and highly effective work of each to crystallize narrow questions for review in an esoteric area of law. I greatly appreciate the helpful presentation of material on Caselines as well. Material was effectively organized, generously hyperlinked, and supported by references to CaseLines page numbers. Counsel made the hearing and subsequent access to the material simple.
FL Myers J
Date: November 28, 2022