When is the government entitled to act without the possibility
of liability or subsequent second-guessing by the Courts? That was
the very issue in a recent decision of the Ontario Court of Appeal
that upheld a lower court's decision striking out a misfeasance
in public office claim against the Ontario Government relating to
the 2015 decision to privatize Hydro One.
In Canadian Union of Public Employees v
Ontario, the Canadian Union of Public Employees'
("CUPE") alleged that the Hydro One privatization plan
was made in bad faith, to reward past donors to the Ontario Liberal
Party and to obtain new donors.
Early in the action, the government brought a motion to strike
CUPE's Statement of Claim as not disclosing a reasonable cause
of action. Justice Cavanagh of the Superior Court of Justice struck
the action, finding that the claim was not justiciable, as it
concerned a matter of core policy. Matters of core policy are
immune from suit unless they concern decisions
