Law Times

LAW TIMES 6 COVERING ONTARIO'S LEGAL SCENE | APRIL 29, 2019 www.lawtimesnews.com COMMENT I t's been a long campaign for those running in #Bencher- Election2019, with the end in sight. Part of the ongoing discus- sion (and controversy) that has emerged is around voter turn- out. As of April 22, more than 7,000 lawyers and 900 parale- gals had cast a vote, with a total of 8,156 people voting. The Law Society of Ontario says there were around 54,000 lawyers and 9,000 paralegals who were eli- gible to vote. By my calculation — with days left in voting, admittedly — that means only about 12.8 per cent of people eligible to vote have participated so far. That number could stand to be im- proved considerably. The low voter turnout is sur- prising considering the record number of lawyers and parale- gals running, with a total of 145 people competing for 45 spots. But is it surprising? A piece by Law Times in Feb- ruary noted that turnout had de- clined in Law Society of Ontario elections, decreasing to 33.84 per cent in 2015 from 56 per cent in 1987. However, the same piece noted that the number of total ballots cast had risen to 16,040 in 2015 from 10,287 in 1987 and that the voting pool had doubled, rising to 47,396 from 18,369. In this election, the voting pool is 63,285 lawyers and para- legals, an increase of almost 16,000 people. The low voter turnout is also puzzling if one looks at the pro- digious online traffic around the election. Low voter turnout can be seen to be a sign of disengagement or apathy (or, perhaps, discontent with the regulatory body, the Law Society of Ontario), which is not a trait for which lawyers are known. Part of the low turnout may be attributable to the learning curve around how to cast a vote and understanding the impor- tance the act of voting has on the future of the profession at large. This campaign has been no- table for the enthusiasm and vigour of its candidates, so hope- fully, the turnout will improve by the finish. LT BY IAN HARVEY T here are an awful lot of troublesome details in Bill 100: Protecting What Matters Most Act (Budget Mea- sures), 2019, aka the budget act. The scope of this second omnibus bill is staggering. There are 61 schedules impacting more than 100 different acts spread over nearly 200 pages. For those practising law, of note is the 30-per-cent cut to Legal Aid Ontario's $456-million funding and an end to im- migration case support. Also of note for personal injury litiga- tors is the restoration of the default benefit limit of $2 million for catastrophically in- jured automobile victims, jettisoning the $1-million cap introduced in 2016. Further, the Juries Act is amended to widen the geography from which jurors are selected, drawing from a list created by the Ministry of Health and Long-Term Care to create more diverse and represen- tative juries. However, perhaps the sleeper in all these changes is the repeal of the Pro- ceedings Against the Crown Act and its replacement, Crown Liability and Pro- ceedings Act, 2019. It sets limits on liability, invokes new procedural rules involving the Crown and re- quires a judge to approve any case before it can move for- ward. It's also, perhaps not so cu- riously, retroactive. Ontario Attorney General Caroline Mulroney says the changes codify jurisprudence since inception in 1963. Former attorney general and Liberal MPP Michael Bry- ant, now executive director of the Canadian Civil Liberties Association, sees something much more ominous, however. "The premier himself revealed the im- petus for this bill was his outrage and the frequency at which his government gets sued and so this is all not part of a codi- fication of case law as the AG said, so we were misled by the AG," he says. "Secondly, it's the most audacious effort to shrink Crown liability in the history of Canada. Never has any government tried to do this much in a bill with these powers and worse, hide them in a budget bill." He called the changes "despotic" in that cabinet can go back and retroactively cover themselves if a matter is brought forward with any kind of success and that it's also retroactive to cases already launched. From the government's per- spective, the legislation seeks to stem what it sees as 1,000 "nui- sance" suits brought against the Crown annually, such as the City of Toronto's attempt to overturn downsizing of council, the human rights case around suspension of the up- dated sex-ed curriculum and Greenpeace's attacks over envi- ronmental law changes. Most are unsuccessful, the govern- ment holds, and a waste time and mon- ey. As Bryant notes, Schedule 17 of the budget act "requires court leave to bring a proceeding against the Crown or an officer or employee of the Crown in re- spect of a tort of misfeasance in public office or based on bad faith exercise or performance, or intended exercise of performance, of powers, duties or func- tions." Proving malicious intent becomes even harder without evidence to get leave to proceed from the court, says Bryant, because there's no discovery and no pro- duction. "It means the premier could com- mit tort of corruption that fell short of crime but no one could sue them for it," he says. "[This government's legislation] is pushing together a long-held distinction of policy and operations." Moving forward, the CCLA is in talks with parties already engaged in litigation against the Ford government and whose actions might evaporate under the new provisions. As such, the CCLA is looking to act as an intervener, he says. "We'd like to get in front of the legis- lative committee to alert them, but the chances are slim to none there," he says, noting it will likely come down to a judi- cial review that, ironically, is a court battle the Ford government was seeking to avoid with this legislation. LT Ian Harvey has been a journalist for more than 42 years, writing about a diverse range of issues including legal and political affairs. His email address is ianharvey@rogers.com. 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