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Preliminary Observations - Crown Liability and Proceedings Act, 2019 Schedule 17 of Bill 100, 1st Session, 42nd Legislature

In Ontario, regulatory negligence claims may be brought against the government by aggrieved persons seeking compensation for loss, injury or damages arising from careless conduct by provincial officials, agents and servants. The standard of care, harm, and causation elements of regulatory negligence do not differ significantly from a standard negligence claim against non-governmental defendants.

However, schedule 17 of Bill 100 proposes to replace the current Proceedings Against the Crown Act with the Crown Liability and Proceedings Act, 2019 (CLPA). If enacted, this new legislation would bar certain actions against the Crown and its agents in the course of carrying out their duties as public regulators.

Under the CLPA, causes of action (rights to sue) will be restricted in certain types of cases, including those related to regulatory decisions. For example, subsection 11(2) of the CLPA prohibits civil actions against the Crown, or an officer, employee or agent of the Crown, with respect to a regulatory decision which is made in good faith where a person (“claimant”) suffers any form of harm or loss as a result of an act or omission, and the claimant claims that the harm or loss resulted from negligence or failure to take reasonable care in the making of the regulatory decision.

Subsection 11(6) of the CLPA broadly defines the various kinds of regulatory decisions that would be immune from a civil action pursuant to subsection 11(2). These decisions include regulatory decisions related to: 

  • whether the requirement of an Act have been met;
  • whether there has been a contravention of a duty or obligation under an Act;
  • whether a decision regarding a licence, permission, certificate or other authorization (“approvals”) should be issued, and whether any conditions or limitations tied to such approvals should be amended or removed; 
  • whether an investigation, inspection or other assessment, or enforcement action should be conducted under an Act, and the manner in which it is conducted.

The following summary identifies some previous regulatory negligence cases in Ontario involving environmental harm, but which may have been barred if brought by plaintiffs under the proposed CLPA regime.

In Swaita v Her Majesty the Queen in the Right of Ontario (Environment), a homeowner in Ottawa brought a negligence claim against the Ministry of the Environment (MOE) concerning soil contamination on the plaintiff’s property which resulted from an oil spill that originated on a neighbouring property.

The Ontario Superior Court of Justice refused Ontario’s preliminary motion to dismiss the action, and noted that “the MOE decided to get involved in the oil spill on the Shell property, made the decision regarding excavation, and failed to ensure that the contaminants were controlled; as a result, the plaintiff’s property became contaminated and the plaintiff sustained damages.” Further, the judge held that “I can see no policy reasons that ought to negate a finding of a duty of care to the plaintiff at this pleadings stage.”

Under the CLPA, this claim would likely be barred by subsections 11(6)(b),(e) and (f), as the court noted that the MOE had: failed to inspect, or adequately inspect, the Shell property after becoming aware of the gasoline spill; failed to order or require that the gasoline leak on the Shell property be remediated to the standards set out by the Environmental Protection Act; failed to order or implement testing to trace the extent or movement of the contaminants; failed to ensure that adequate or proper steps had been taken to ensure that the contamination was contained to the affected (Shell) property; and failed to ensure that adequate or proper steps were taken in order to prevent the spread of the contamination Into the soil underneath Bank Street and onto the neighbouring properties.

CELA is not aware of further proceedings on this matter.

Heighington v Ontario involved negligence (and breach of contract) claims by plaintiffs who were owners and former owners of residences in a Scarborough subdivision where refining of radioactive materials had taken place during a prior use of the property. Elevated levels of radioactivity - up to 20 times above the standard - were found. The legislation that governed the dispute in this case imposed a duty on the Department of Health to take necessary measures to abate conditions injurious or dangerous to health. Although officials were aware of the situation, no conditions were imposed for the safe disposal of the radioactive material or the decontamination of the soil.

At trial, Ontario was found negligent for failing to ensure that radioactive materials were safely removed from the site.This ruling was upheld on appeal.

If a similar case was commenced under the CLPA, then it may be barred by subsections 11(6)(b) and (f), which prohibit causes of action arising from a decision regarding contravention of duty or other obligation set out in an Act as well as a decision related to the carrying out of an enforcement action.

In another case, the government was held liable in negligence in the context of a gasoline leak from a service station into the plaintiffs’ basement. In Bisson v. Brunette Holdings Ltd, the plaintiffs detected strong gasoline fumes emanating from their home, and observed raw gasoline which had pooled in a depth of 18 inches in their basement. Thus, the plaintiffs and their tenants were forced to evacuate the building for excavation and remediation operations. The MOE became involved pursuant to its mandate under the Environmental Protection Act.

The on-site excavation took place with Ministry supervision, but without instructions from a structural engineer which subsequently resulted in substantial damage to the building foundation. The plaintiffs’ action was successful and the MOE was held liable for damages incurred by the plaintiffs after the Ministry had made the decision to undertake clean-up and restoration.

However, if a similar action was initiated under the CLPA, it will likely be unsuccessful in light of the prohibition in subsection 11(6)(e) of the Act. This provision prohibits a cause of action against the Crown, or an officer, employee or agent of the Crown, arising from an investigation, inspection or other assessment.

In Gauvin v Ontario, the plaintiffs were homeowners who brought a claim against the MOE for improper approval of their septic sewage system, which had been installed by a private contractor. They began to experience problems with the system, and it was only when they dug up the area that they discovered that no filter sand had been installed, contrary to what was required by law. According to the court, the Environmental Protection Act sets out detailed methods to control and contain raw sewage from entering into the environment. The MOE’s approval of the deficient system was considered by the court to be a breach of duty by the approval authority, and the plaintiffs were successful in their claim against the MOE.

A similar action may be barred pursuant to subsections 11(6)(b) and (c) of the CLPA because it appears to fall within the definition of an enumerated regulatory decision, which is prohibited as the basis for a civil claim against the Ontario government.

In light of these and other cases, it is deeply concerning that the government is now proposing to substantially limit (if not largely exclude) its potential civil liability where Ontarians have been harmed by negligent decisions or activities by provincial representatives, particularly in the environmental context. In many pollution cases, a negligence claim against the government may be the best (or only) option available to plaintiffs who have been wronged by a regulatory agency that has the mandate of protecting the public and the environment.

With thanks to Ecojustice for sharing their research with us in preparation of this blog.