Section 17 of the Crown Liability and Proceedings Act, 2019 Declared Unconstitutional

  • March 16, 2022
  • Katrina Crocker, Norton Rose Fulbright Canada LLP / S.E.N.C.R.L., s.r.l.

The saga of constitutional challenges to Ontario’s Crown Liability and Proceedings Act, 2019 (the CLPA)[i] continues with the Ontario Superior Court of Justice’s recent decision in Poorkid Investments Inc v HMTQ.[ii]

In a motion to pursue a class action against the Ontario Provincial Police by Caledonia residents, the Superior Court invalidated the mandatory stay arising from section 17 of the CLPA due to its inconsistency with section 96 of the Constitution Act, 1867 (the Constitution).[iii]


The applicants are the named representative plaintiffs in a proposed class action, arising from Caledonia’s road and rail blockade by protestors in 2020. The claim seeks damages against the Crown, on behalf of all affected businesses and residents, for alleged misfeasance in public office, nonfeasance, negligence, and nuisance. This claim was automatically stayed in 2021 by virtue of section 17 of the CLPA.

Section 17 provides that a proceeding brought against the Crown, or a Crown officer or employee, which includes claims for misfeasance in public office or those based on bad faith, is automatically stayed. Such claims may proceed only with leave of the court.[iv] Leave shall not be granted unless the court is satisfied the matter is: (i) brought in good faith; and (ii) there is a reasonable possibility it will succeed.[v]

On a motion for leave to lift the automatic stay, the claimant must file affidavit evidence and productions to support the material facts on which it intends to rely.[vi] The defendant may file an affidavit, but is not required to do so.[vii] While any affiant can be examined, section 17 expressly provides that the “defendant shall not be subject to discovery or the inspection of documents, or to examination for discovery, in relation to the motion for leave”.[viii]