How Law Affects the Relationship Between the People and Government

Law is a significant factor in how the individual is able or is forced to interact with the state. It may be a force of oppression, it may protect people from each other and indeed, from the state itself. It may enable people to attain rights and benefits. Our nexus with law helps to define us as a society. When the opportunity to employ law to attain rights is diminished or when law is used as a threat to force particular conduct based on improper motives, the nature of that nexus changes. Cuts to legal aid and the expected repeal of the Crown Proceedings Act and enactment of the Crown Liability and Proceedings Act, 2019 diminish the potential of law as a way to obtain benefits, while penalties for those refusing to post anti-carbon tax stickers increase the reputation of law as a weapon.

There has been a great deal of coverage of the 30% cuts to the legal aid budget in the Ford government’s 2019 budget, and rightly so. These cuts will affect the most vulnerable members of our society in their receipt of benefits to which they are entitled, as well as allowing them to challenge private entities’ conduct. Doug Ferguson considered the impact of the cuts on those most affected, particularly about the effect on student legal aid clinics here. I wrote about the imp0rtance of legal clinics here and on how cuts to legal aid simply download costs to other parts of the system here.

There are already people who cannot afford to access the legal system except on their own, without legal assistance, because they cannot afford to retain a lawyer (or in some cases, a paralegal), on the one hand, but do not qualify for legal aid, on the other. The government has prohibited the use of legal aid funding for immigrant and refugee matters, except for limited services, because it wants to pressure the federal government to cover the cost. The cuts may also mean reduced assistance for women who have fled domestic violence, those seeking protection for children, and others living in poverty.

The government has justified the cuts on the need to put legal aid on a more sustainable footing; it also referred to a decrease in legal aid cases, a conclusion challenged by legal aid advocates who say that the government’s figures are based on a misreading of the information in Legal Aid Ontario’s Annual Report.

Although the lens through which cuts to legal aid have been mostly assessed has been the negative impact on the most vulnerable members of society, there is another perspective that tells us something about how government views the right of people to access benefits provided by government. Legal aid clinics, for example, help people dealing with Ontario Works and Welfare, the Ontario Disability Support Program, government pensions, workplace safety and insurance and Workers’ compensation, claims under human rights and similar programs: in short, programs provided by government. Clinics also engage in law reform, when repetition of a problem reveals a pattern that would be best tackled through a broader challenge. Cuts in legal aid mean less help available for people to make claims against government or, put another way, fewer claims against government.

This same motivation can also be seen in changes to the law governing claims against the Crown. The budget also provided for repeal of the Ontario Proceedings Against the Crown Act and replacement by the Crown Liability and Proceedings Act, 2019, changes which will make it harder for residents of Ontario to sue the government.The government’s notice that it would be repealing the Proceedings Against the Crown Act appears in the 2019 budget only in the appendix (“Annex”) detailing tax measures, on p.342. It is only here that that the impact or intention of the new Crown Liability and Proceedings Act, 2019 is identified:

The CLPA would clarify the scope of the Crown’s civil liability and the procedural rules that apply in civil proceedings in which the Crown is a party. The CLPA would eliminate the procedural requirement that a plaintiff must obtain formal permission from the government to sue the government for claims arising before September 1, 1963. The CLPA would also provide that the Crown is not liable for negligence for certain legislative, regulatory or policy decisions, and that the Crown itself is not liable for torts committed by Crown agencies, Crown corporations, transfer payment recipients or independent contractors. In addition, the CLPA would provide that plaintiffs must obtain leave of the court before bringing a
proceeding against the Crown for misfeasance or other tort claims based on bad faith.

While the attorney general of Ontario has characterized the Crown Liability and Proceedings Act, 2019 as “housekeeping”, the premier explained that its purpose is to deter lawsuits against the Crown by “special-interest groups” (see “Lawyers sound alarm over new law that could limit lawsuits against Ontario government“, Globe and Mail, April 16, 2019). Commentators have suggested that certain aspects of the proposed legislation are indeed housekeeping matters and updating in light of Supreme Court of Canada decisons, but that others are significant restrictions on the ability of people to sue government (see Lara Koerner Yeo and Stephen Moreau, “Ontario goes beyond common law in proposed Crown liability act“. The Lawyer’s Daily, May 13, 2019).

The proposed legislation has been criticized by individuals and groups as limiting the ability of people to sue government for damages for harm caused by government or its agents. One issue is that “Independent contractors”, defined as an “agent” of the Crown under section 1 of the Proceedings Against the Crown Act, would not be covered under the new statute by virtue of section 9. A major issue is that officers of the Crown would not be liable for actions taken “in good faith”. Section 11 bars decisions about policy or regulatory matters made in good faith and defines “policy” broadly. Under section 17,

No proceeding may, without leave of the court, be brought against the Crown or an officer or employee of the Crown in respect of a 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.

Someone bringing a claim subject to section 17 would have to provide the basis of the claim in an affidavit and be subject to cross-examination on the affidavit, as well as file all relevant documents in their possession, but would not necessarily have the opportunity to obtain documents or information from the Crown on which it might rely. Under section 31(4), the new Act would be retrospective with respect to certain actions and therefore would extinguish these matters ongoing at the time of the Act’s coming into force (also see section 11) without costs.

As the Globe and Mail reported, “‘What the government is trying to do is place itself beyond the reach of the courts and make it difficult, and in many cases impossible, to sue the government — even when it acts in bad faith or breaches the duties of office,'” said Amir Attaran, a law professor at the University of Ottawa.” The Canadian Environmental Law Association explains how particular environmental claims brought under the Proceedings Against the Crown Act might be barred under the new statute.

While cuts to legal aid and increased difficulty in bringing cases against the Crown are indicative of a desire to protect government from challenge, the government has intentions to use the law to require other residents to participate in their political fight against the federal carbon tax by using threats of severe sanctions for failure to post anti-carbon tax stickers on gas pumps. (I considered the constitutionality of this requirement here.) Apart from whether these stickers are misleading because they fail to provide the full information about the cost of the carbon tax for individuals, which is the focus of the stickers, gas station operators failing to post the stickers face unduly severe penalities, ranging from up to $500 a day for individuals for a first offence to $10,000 a day for corporations for subsequent offences. Here the law is being used to force residents to display a political slogan whether they agree with it or not or face severe penalties.

People will agree or disagree with cutting legal aid to the extent announced by the government; they will also agree or disagree with making it harder to bring claims against the Crown; and they may or may not agree with the government’s position on the carbon tax and with requiring that position to be posted on gas pumps. My concern here is with the way in which these three actions relate to the way law works to protect or threaten members of society. In the first two examples, extensive cuts to legal aid and imposing greater barriers on the ability to sue the government, the government has taken steps to insulate important government actions from challenge. Yet in the third case, the mandatory anti-carbon stickers, it has used the law to deliver its own message with the threat of severe penalties if gas station operators do not agree with them. In either case, one is compelled to ask whether the government has used law not in the public interest, but in its own.