Searching for Smarter, Stronger — and Better? Justice

On December 9, 2019, Ontario’s Smarter and Stronger Justice Act, 2019 (Bill 161) received first reading. Bill 161 includes many housekeeping and substantive amendments that will bring welcome changes to the law. But to what extent will it improve access to justice?

Bill 161 is an omnibus bill encompassing many areas of law, including civil remedies, class proceedings, crown liability, estates, practice of law and provision of legal services, along with more minor or technical amendments to particular statutes. Many of the proposed amendments have been greeted positively by stakeholders and others (see, for example, the Law Society of Ontario’s positive response to changes to the Law Society Act in Schedule 14, and the Law Commission of Ontario’s (LCO) response to the proposed amendments to small estates, which relied on the LCO’s report on small estates).

Nevertheless, some substantive changes have been criticized for diminishing access to justice, not enhancing it. Here I raise some of the more significant changes to legislation governing class actions and provision of legal services and query whether they will likely result in better access to justice for those requiring redress for wrongs, or whether they will impede it. Specifically, although other actors may benefit from these revisions, there are changes in these two areas that may make it more difficult to hold government to account.

The purpose of class actions has been to provide a vehicle by which persons seeking redress for perceived wrongs of some kind who could not bring a lawsuit as individuals because of the cost (and certainly originally) because the damages recoverable by an individual would be relatively small can join with others with a similar injury by the same entity to make a lawsuit economically feasible. Class actions also have a benefit for the legal system, which does not have to use resources in dealing with many smaller lawsuits.

Class actions are often brought against automobile, pharmaceutical and other corporations with regard to product liability, consumer protection, false advertising, price-fixing, privacy, competition and other grounds, as well as Crown liability. All of these types of class actions are intended to satisfy access to justice considerations, but some class actions may be particularly characterized as access to social justice (for example, with regard to residential schools, experiments at the Allan Memorial Institute and inmates held in solitary confinement) and many of these have been brought against government.

There is widespread agreement that the Class Proceedings Act, 1992 requires amending and Bill 161 addresses many of the concerns that have arisen since its enactment over 25 years ago, such as inclusion of processes to govern multi-jurisdictional class actions, a requirement for plain language notices and rules about third party funding, among other amendments. (The proposed amendments can be found in Schedule 4 to Bill 161.) Many of the provisions relating to class actions were recommended by the LCO in their final report on class actions. However, one change in particular will have a significant impact on plaintiffs: the establishment of a higher standard to obtain certification.

The LCO had recommended that “courts interpret the existing elements of s. 5(1)(d) (“preferable procedure”) of the certification test more rigorously” (Class Actions Final Report, recommendation 16). In line with a more rigorous application of the preferable procedure test, the LCO also stated, “Encourage courts interpret[ing] s.5(1)(d) of the Act (“preferable procedure”) to give considerable weight to alternative options, especially where a regulatory or remedial scheme exists, a reimbursement procedure is completed and class members have largely been compensated” (Class Actions Final Report, p.37).

However, the proposed amendment to section 5 of the CPA in Schedule 4 to Bill 161 would effectively replace the preferable procedure test with one that requires a class action to be superior to other procedures and one in which the issues common to the class predominate over those relevant to individual members of the class.

Currently, section 5 of the Class Proceedings Act, 1992 establishes as a criterion for certification that “a class proceeding would be the preferable procedure for the resolution of the common issues”. Bill 161 amends section 5 to bring a higher bar to certification by establishing minimum preconditions for whether a class proceeding would be the “preferable procedure”:

(a) it is superior to all reasonably available means of determining the entitlement of the class members to relief or addressing the impugned conduct of the defendant, including, as applicable, a quasi-judicial or administrative proceeding, the case management of individual claims in a civil proceeding, or any remedial scheme or program outside of a proceeding; and
(b) the questions of fact or law common to the class members predominate over any questions affecting only individual class members.

This change, because it is more stringent, would benefit defendants, including government, which has often been the defendant in class actions and has been met with approval by defendant law firms (see, for example, here and here).

The former Chair of the LCO Board of Governors advised the attorney general of the LCO’s disagreement with the proposed new tests for certification, which, he said, “fundamentally restructure class action law and policy in Ontario by shifting the CPA’s longstanding certification test strongly in favour of defendants.” He pointed out that “the ‘superiority’ and ‘predominance’ requirements were specifically rejected by the LCO” for several articulated reasons and pointed out that some major class actions might not have been certified had this been the standard, including “Indian Residential Schools, environmental tragedies (such as Walkerton), tainted blood supplies (such as hepatitis C), and/or price-fixing”.

The new certification test will benefit all defendants (and the LCO’s own recommendation suggests some balancing needed to be done in applying the preferability standard), but in applying to government, it must be viewed in the context of other changes that directly or indirectly have the potential to insulate government from legal challenge.

Amendments to the Legal Aid Services Act, 1998 (LASA, 1998) are more about potential checks on the opportunity for low-income individuals and disadvantaged communities to seek government benefits, as well as seeking access to justice from other defendants. Here I focus on the scope of Legal Aid Ontario’s authority and the new authority in the Attorney General to make regulations in the proposed Legal Aid Services Act, 2019 (LASA, 2019) (Schedule 16 to Bill 161).

Community legal aid clinics have been a significant deliverer of poverty law services in Ontario since 1971 and there are now over 70 legal aid clinics across Ontario and clinics at all Ontario law schools. Some of the clinics are speciality clinics serving, for example, injured workers, older Ontarians, persons living with disabilities, persons living with HIV/AIDS, francophones, Indigenous peoples, racialized communities and others, or specializing in income security or environmental issues, for instance (for a full list, see here). Other clinics are general clinics serving a particular geographical community. Persons seeking legal aid must satisfy eligibility criteria. The importance of the clinics is that they are familiar, through long institutional experience, with the needs and realities of low-income people and with the areas of law that particularly affect them.

The proposed LASA, 2019 evidences less appreciation for the special role played by community legal clinics. I consider a few, but not all, of the changes that lead to this conclusion.

Section 1 sets out the purpose of LASA, 1998, as “promot[ing] access to justice throughout Ontario for low-income individuals” through several means, including “providing consistently high quality legal aid services in a cost-effective and efficient manner to low-income individuals”; encouraging innovation “while recognizing the private bar as the foundation for the provision of legal aid services in the areas of criminal law and family law and clinics as the foundation for the provision of legal aid services in the area of clinic law” and “identifying, assessing and recognizing the diverse legal needs of low-income individuals and of disadvantaged communities in Ontario”.

Under section 1 of LASA, 2019, the purpose does not acknowledge “access to justice”, diversity, low-income individuals or disadvantaged communities and their diverse legal needs. It states its purpose “is to facilitate the establishment of a flexible and sustainable legal aid system that provides effective and high-quality legal aid services throughout Ontario in a client-focused and accountable manner while ensuring value for money”. While some of the same factors that appear in the LASA, 1998 purpose section are found elsewhere in the 2019 proposed statute, the purpose section tells us why this legislation matters, what it is meant to achieve, how it fits into our society.

Access to justice in the context of legal aid requires attention not only to some standard areas of law, but also those that affect low income individuals and disadvantaged communities disproportionately. That is, it is not only not being able to afford legal assistance that matters, but also that low income individuals and disadvantaged communities face legal problems that others are less likely to face. Under the 1998 Act, “clinic law” is defined as “the areas of law which particularly affect low-income individuals or disadvantaged communities” and includes housing and shelter, income maintenance, social assistance and other similar government programs, and human rights, health, employment and education (LASA, 1998, s.2). Under subsection 13, LAO was required to provide services in criminal law, family law, clinic law and mental health law, and could provide services in other areas.

Apart from a list of areas for which provision of legal aid is legally required (introduced in Schedule 15 of Bill 151 amending LASA, 1998 and continuing in section 15 of LASA, 2019) (for example, where a court or LAO decides an individual is entitled to a lawyer under the Canadian Charter of Rights and Freedoms, among other circumstances), the issue is the degree to which LAO has discretion in the determination of which legal aid services to provide and the means by which it is to provide them.

LAO had considerable discretion under LASA, 1998 to decide the areas of law in which it would provide services and the kinds of services it would provide, as well as determine the legal needs of low-income individuals and disadvantaged communities (see ss.12(2)).

Under section 14 of LASA, 1998, LAO has discretion with respect to the method of providing services, taking into account certain factors, but in providing services in clinic law, which it is required to provide, it is to recognize that “clinics are the foundation for the provision of legal aid services in that area”. It also is to recognize that the private bar is the foundation for providing services in the areas of the mandatory criminal and family law.

However, the proposed 2019 Act gives LAO more discretion in providing services. For example, section 4 of the 2019 Act states LAO may (subject to the regulations) provide legal aid services in criminal, family, poverty law (being law in relation housing and shelter, income maintenance or social assistance [with no reference to other government programs]), child protection, human rights, health (including mental health), employment, education and immigration and refugee law. Thus the 2019 poverty law is less encompassing than the 1998 clinic law.

In determining how to provide poverty law services, LAO must “have regard to” “the foundational role of community legal clinics in providing services in that area of law” and the clinics’ “determinations…of the legal needs of the communities they serve” in clinic law. (See section 5 of LASA, 2019.) It is not clear whether clinics as “the foundation” of “clinic law” in section 14 of LASA, 1998 and “the foundational role” clinics play in poverty law in section 5 of LASA, 2019 are different and if so, in what way. (There are analogous provisions in the 2019 Act regarding criminal and family law and the private bar.)

Although there are several other provisions in the proposed LASA, 2019 worthy of comment, I refer to only two other provisions.

One is the LAO board’s authority under section 46 of LASA, 2019 “to make rules respecting the provision of legal aid services, including rules” about anything under LASA, 2019 “that … may or must be provided for in the rules”. Under section 97 of LASA, 1998, LAO’s authority to make “regulations” relates to “its administration of the system for providing legal aid services”. The new wording for LAO’s authority appears to encompass more substantive matters than did the wording under LASA, 1998, although the latter authority is broad.

Again it is not clear whether the different wording is intended to give greater discretion to LAO than it had under LASA, 1998. (I note, in particular, that under LASA, 1998, LAO has authority to make regulations relating to “prescribing other methods by which lawyers and service-providers may be paid for providing legal aid services and governing such payment methods”; however, section 2 of LASA, 1998 defines “clinic” [for all purposes in the Act] in part by stating that it provides services “on a basis other than fee for service”. This method of funding permits clinics to provide services (not necessarily individual representation) appropriate to the community they serve and the particular circumstances to be addressed, including services that are not amenable to the fee for services approach. The reference to “on a basis other than fee for service” does not appear in the definition of “community legal clinic” under section 5 of LASA, 2019.)

In addition, LASA, 2019 provides for the Attorney General to make regulations under section 47. Among other regulations the AG may make are three identifying “legal or other services” LAO may or not provide and areas of law in which LAO may or must provide legal aid services and defining any “word or expression used in section 4 that has not already been expressly defined”. As I already indicated, section 4 lists the areas of law in which LAO may provide legal aid services; none of these are actually defined, although “health law” explicitly includes “mental health law”, except possibly “poverty law”, which is specified as “being law in relation to housing and shelter, income maintenance or social assistance”.

This provision appears to reflect another way in which the Attorney General has indicated an interest in being more directly involved in the justice system, that is, in the selection of judges (see article in The Globe and Mail and more recently a strong opinion against greater involvement by the AG in the Hamilton Spectator). And both are indicative of greater control by the government over the legal system more generally, including the change in the tests for certification of class action proceedings.

Finally, I return to legislation enacted last year, which is consistent with the government’s apparent desire to restrict access to the legal system: The Crown Liability and Proceedings Act, 2019, the successor to the Proceedings Against the Crown Act, came into force in July 2019. (I discussed the CLPA in a Slaw post last May when reference to it was included in the Budget.)

The restricts the ability of people to sue the government. The previous Attorney General described the CLPA as “housekeeping”, while Premier Doug Ford suggested it addressed a particular problem for government: “You even look sideways and some special-interest groups out there trying to sue you … I want to clear up the courts until real lawsuits can go through, for real people, for things that really matter. There’s a lot of frivolous nonsense going on right now in the courts.” (See report in The Globe and Mail.) The current Attorney General’s press secretary explained,

“What these changes accomplish is to ensure that the government can make good faith legislative, regulatory and policy decisions without fear of being sued by deep-pocketed lawyers, and to ensure that the courts are not evaluating the legislative, regulatory or policy decisions of a government – that is what the ballot box is for….

The CLPA makes it more difficult to sue government and it also retroactively terminates ongoing proceedings that could not be launched under the CLPA.

Section 11(1) of the CLPA provides,

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 while exercising or intending to exercise powers or performing or intending to perform duties or functions of a legislative nature, including the development or introduction of a bill, the enactment of an Act or the making of a regulation.

Section 11(4) provides,

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.

The important point here is that “policy matter” is broadly defined under section 11(5) to include “the creation, design, establishment, redesign or modification of a program, project or other initiative”, including the terms of the program, eligibility for it and how long it will last; all aspects of funding a program; its implementation and its termination. In case this list (more specific than these general terms) does not cover whatever may occur, the definition also includes decisions about the program made through regulation and “any other policy matter that may be prescribed”.

Subsection 11(7) of the CLPA is explicit that a claim relating to government policy may not be brought against the Crown. Furthermore, the legislation is retroactive: an existing proceeding now barred under the new statute “is deemed to have been dismissed, without costs, on the day on which the cause of action is extinguished” by the provisions of the new statute (CLPA, ss.11(8)).

Citizens seeking to bring an action against the Crown are disadvantaged by the CLPA in other ways. For example, leave of the court is required to bring a claim and the application for leave must include “an affidavit setting out a concise statement of the material facts on which the plaintiff intends to rely for the claim”, along with all relevant documents over which the individual has control. However, the Crown can choose whether to provide the individual with a statement of facts on which it intends to rely in its defence and is not subject to discovery. (CLPA, s.17).

The changes to the provision of legal aid and class proceeding and the significant constraints imposed on suing the provincial government all diminish or threaten to diminish access to justice for Ontario residents. Because the CLPA operates retroactively, it will terminate ongoing class action lawsuits.

Although LASA, 1998 is vulnerable to reduction in services (and legal aid has always been vulnerable to decreases in funding), it reflected a greater appreciation for the relationship of persons with low income and the legal system; LASA, 2019 reflects a more nebulous understanding and response to that relationship, more easily diminished because of the discretion permitted LAO and the large scope of authority given to the Attorney General to make regulations, more easily and potentially quietly accomplished than amendments to legislation.

The change in the standard for certification of a class action (something different from interpreting the current standard more rigorously) means it will be harder for groups of Ontarians to seek remedies when they cannot easily bring a lawsuit as individuals. The CLPA is clearly meant to pose barriers to suing government and to ending cases already in the system.

What is common to all of these is that they involve potential proceedings against government (as well as others). Many, although not all, legal aid cases involve government programs; class actions are often directed at government wrongdoing; the CLPA is, of course, entirely about procedings against the Crown. It is not uncommon for governments to enact legislation or provisions in legislation that make it difficult to sue government one way or another. In all these cases, however, government has restricted existing access to justice for ordinary citizens (or at least has made it possible to restrict it), making it more difficult potentially for people to achieve government assistance and explicitly erecting barriers to holding government to account.