We Lost A Court Case? What Do You Mean? I Don’t See Any Court Case Here

Who could have possibly seen this coming?

The Ford government is trying to use the new powers it buried in the budget bill to dismiss at least eight lawsuits against it, including ones that it’s losing or has already lost.

Tell us about the case of Adam Capay. This is a former inmate who was held in solitary confinement in a windowless cell in Thunder Bay for a long period of time. Tell us what’s at stake with that case?
Mr. Capay is a member of the class in a case called Francis, which is a case we brought on behalf of people who’ve been solitarily confined in jails in Ontario and whom have mental health issues. So that case was certified last year, on consent, I might add. The government agreed to that. And now they’re seeking to have this law used in order to retroactively dismiss the case.
Some of the other cases relate to people suffering from bail delays, claims by disabled adults whose funding was cut off, solitary confinement of children, Crown wards who were mistreated, abuse in provincial training schools or other provincially operated institutions — it’s a wide variety of cases, most of which, if not all, don’t relate to budgetary questions. They relate to negligent acts by the Ontario government over a period of many years.

And on that, I want to ask you about one of your cases, which is that the government’s argument will be tested in March in this case involving a 21-year-old woman named Briana Leroux. What’s that about?
Ms. Leroux’s case is being brought by her litigation guardian, who’s her father, Marc Leroux. And in Ontario, those with developmental disabilities have certain types of funding up to their 18th birthday. And then the day after that, that funding is cut off and they’re moved into a very badly run system.
There are numerous wait lists, and our allegation is that the wait lists are run in a negligent fashion. There are no objective criteria. It’s sort of a Kafkaesque situation where people are sent into a system that has no beginning and no end and changes every day.
So we had a motion to get that case certified. It was fully argued over three days. We were successful and the judge found that we had a claim in negligence and under the Charter of Rights and Freedoms. The government appealed that decision to the divisional court, and that’s being heard in March.
But, in the meantime, this law was passed and now they’re seeking to rely on it retroactively to get a case they already lost dismissed.
The government argues that the core issue is policy and funding, and so you can’t sue the government for policy and funding issues. This is something that they are saying they must protect. So how do you argue that?
The problem with that argument is that that’s what they said in front of the motions judge with respect to us being able to sue them in the first place — that it was a policy decision.
And our statement of claim, our lawsuit, is expressly framed to not be about the policy of funding adults or not who have disabilities with certain programs, but about the operation of the program once it is funded and passed by the legislature.
So the judge already found in the court below that this was not a case about policy, but about the management or mismanagement of this province-wide system. And so it’s a complete red herring to raise the policy question because our case was never about policy in the first place.

Hopefully Kirk Baert is right and there’s no way this ridiculousness will stand up in court, but regardless, there’s something very important here that would be good for governments and other organizations to keep in mind. It might seem like the cheaper and therefore better option to paper over incompetence, cruelty and generally poor decision making by abusing power, rules and regulations to cover it up or make it go away, but over the long-term it tends not to work out that way. You might get away with it for a while (sometimes a very long while), but eventually it’s going to come back around and you’ll end up on the hook for much more than you would have had you just done the right thing in the first place.

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