Take It Or Leave It: Leave Requirement For Misfeasance Claims Against Ontario Is Constitutional

In 2019, Ontario overhauled the legislation governing the Crown's (i.e., the government's) liability to civil claims. The new legislation introduced a merits-based "screening" mechanism for misfeasance and other tort claims against the government—now, claimants must obtain leave of the court before they can pursue these claims.

In Poorkid Investments Inc. v. Ontario (Solicitor General)¹, the Court of Appeal concluded that this new leave requirement is constitutional. The Court explained that "there is no constitutional right to have one's civil trial governed by customary rules of civil procedure and evidence."

What you need to know

• Governments can adopt screening mechanisms and other procedural rules that deter claims against the Crown. Legislatures can amend substantive laws or customary rules of civil procedure—even in drastic ways—so long as the new laws do not prevent the superior courts from exercising their core jurisdiction under the Constitution