Disabilities lawsuit scores win over Ford government’s shield law

The Court of Appeal made it clear a Ford government law can’t block the claims of vulnerable people who’ve been ‘harmed by the government’s stupidity’: lawyer

EDITOR’S NOTE: This article originally appeared on The Trilliuma new Village Media website devoted to covering provincial politics at Queen’s Park.

A law passed by the Ford government to immunize the province from lawsuits has suffered a blow from the Court of Appeal.

And the group of Ontarians at the heart of the court victory couldn’t be more deserving, says a lawyer was involved in the case.

Kirk Baert, a partner at Koskie Minsky, is handling a class-action lawsuit on behalf of Ontarians who were approved for developmental services and then placed on wait lists instead of receiving the residential services and supports, caregiver respite and self-directed funding they qualify for.

On Thursday, the class was certified by the court, an initial step before a class-action lawsuit can proceed. It took five years: the Court of Appeal overturned a Divisional Court ruling that had overturned an initial ruling certifying the class in 2018.

The representative plaintiff is Marc Leroux, as litigation guardian for his daughter Briana Leroux, of Timmins, who has a developmental disability and requires constant care. The class includes anyone who was approved for developmental services through a Developmental Services Ontario office and subsequently placed on wait-list services between July 1, 2011, and Dec. 14, 2018, when the class was first certified.

“It’s the most vulnerable group in society,” Baert told The Trillium. “And so our claim is that the government has these programs that are allegedly meant to help the people I represent. But they’re run so poorly, and designed so poorly, and operated so poorly, that they actually harm the group rather than help them.”

Baert described that harm as a bureaucratic nightmare where families’ lives are put on “permanent hold” as they wait for the support, being told it’s coming one day and it’s not the next, and to wait for a call that never comes, day after day, year after year.

“For families who are trying to take care of these disabled adults, their life is just complete chaos, and it is completely impossible to plan, either financially or just in terms of your day-to-day life,” said Baert.

The claim alleges that the province was negligent and breached the Charter right to security of the person.

It’s taken so long to get to this point, said Baert, because in 2019 the Ford government passed the Crown Liability and Proceedings Act to protect the province against negligence claims, and made it retroactive. As a result, all three courts had to contend with the application of the novel law.

Baert said his side won for two reasons: the shield law didn’t apply to the Charter claim in the case, which survived the government’s appeal, and the court ruled that the negligence claim, which also survived, concerning the implementation of a government policy , rather than a policy decision itself, and therefore is not covered by the Ford government’s law.

Proving that before the Court of Appeal was a major win that weakened the application of the controversial law, said Baert.

He took aim at the Ford government for rushing to pass the law in 2019 without consultation, under what he argued were false pretensions. The law wasn’t intended to prevent frivolous cases from going forward, as the attorney general was accused, but meritorious ones, he said.

According to Baert, if the government had been forthright about the law, it would have campaigned on a platform that said: “No matter how we screw up, you can’t sue us.”

“But they tried to hide it. And they tried to mislead the public about what this law really was. And now they’ve been caught,” he said.

“The Court of Appeal made it clear to them, that they’re not going to countenance this type of legislation being used to block the claims of vulnerable people who’ve been harmed by the government’s stupidity.”

The Court of Appeal’s ruling, where it concerns the shield law, will benefit not only the developmental disabilities class action but other cases against the Ontario government, he said.

“This legislation has now been given a very narrow reading, which means it’s not as useful to the government as they thought it would be for blocking claims against them.”

The government now has the right to seek leave to appeal the latest decision to the Supreme Court of Canada.

The time period at issue in the class-action ends within the Ford government’s first year in office, when the claim was first certified. Since then, according to Baert, the government has not significantly changed how it delivers developmental services, which Baert called “distressing.”

“I guess they need a lawsuit to make them improve because they don’t seem to want to do it voluntarily,” he said. “I guess we’ll have, you know, our law firm, go through all their records to explain why it is they keep bugling this. That, to me, isn’t the best way to solve this problem, but if they insist, then, you know, we’ll give them what they’re asking for.”

However, the government has signaled it intends to make changes.

A spokesperson for the new Social Services minister, Michael Parsa, recently told The Trillium the government is “working to develop a new, evidence-based funding approach that will determine funding for adult developmental services supports based on a person’s assessed needs.”

In March, the new assistant deputy minister of Children, Community and Social Services wrote to partners in the sector to say the government is in the “design phase of reform” and has engaged the consulting firm KPMG to lead a study of “the real costs of services, including where and why they vary across the province.”

The reform was initiated when Todd Smith was Social Services minister, but he was shuffled to the Energy file after a planning document called “Journey to Belonging: Choice and Inclusion,” was released. He was replaced by Merrilee Fullerton, who resigned in March. Parsa, her successor, is the fourth Progressive Conservative in the post since the party took power in 2018.

Meanwhile, the province has given itself more time to implement changes.

An omnibus bill before the legislature aimed at reducing “red tape” would repeal unproclaimed sections of provincial legislation that pertain to the funding of developmental services that were to come into effect in July, and re-enacting them to come into force on a day chosen by cabinet and in a more gradual manner, with more control given to the government through regulation-making authority.

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