Suing leviathans, a.k.a. taxpayers

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Written by  Jim Middlemiss Posted Date: May 29, 2017
In case you haven’t noticed, there is a public law litigation boom in Canada currently underway.

Hardly a week goes by without a news story indicating some government or public institution is either being sued or has settled a big-ticket piece of litigation.

The cases are broad, touching on a wide range of institutions from the military to police forces, jails, detention centres and mental health facilities.

An alleged Charter or human rights breach often forms the central theme of the litigation, denoting the increased sophistication in the use of human rights legislation to address policy issues that governments have long ignored, such as jail overcrowding or sexual harassment in policing.

The cases will likely have an impact on public policy and change government habits, not to mention eventually impacting taxpayers’ pocketbooks. After all, it’s taxpayers who foot the bill in the end.

And that aggregate price tag is likely into the billions. The numbers are staggering. According to public account information for the prior fiscal year (2015-2016), the federal government paid out $711 million in court awards and ex gratia payments, covering a wide range of legal issues.

Moreover, the federal government has recorded “an allowance for claims and litigation where it is likely that there will be a future payment and a reasonable estimate of the loss can be made.” According to the government’s consolidated financial statements, where contingent liability is lumped in with other accounts payable and accrued liability, the total is $45.9 billion.
It’s not clear from the documents how much of that is related solely to litigation versus other payables, but the total is $5 billion more than 2015.

Moreover, the feds have identified an additional $8.6 billion in claims, where the outcome is not determinable.

The feds are so concerned that last August the Trudeau government created a new cabinet committee on litigation management chaired by Dominic LeBlanc. He told CBC last August that the potential liability of the federal government alone for the various 45,000 claims it faces is in the hundreds of billions of dollars.

However, it’s not just the feds who are feeling the litigator’s wrath.

Ontario, for example, notes in its 2015-2016 public account documents that there are 70 cases with claims likely exceeding $50 million each, up from 58 in the previous year. That’s $3.5 billion in possible liability.

In British Columbia, public accounts for 2015-2016 show that estimated accrued liability sits at $2.2 billion, which includes both pending litigation and guaranteed debt payout. It has another $547 million in claims where the likelihood of payment is uncertain.

Kevin Egan, a lawyer at McKenzie Lake LLP in London, Ont., is suing Ontario for overcrowding at the Elgin-Middlesex Detention Centre.

He calls it an “emerging area, which is Charter torts.”

It stems from the 2010 Supreme Court of Canada ruling in Vancouver (City) v. Ward, which opened the door to damages for Charter breaches under the s. 24 remedy provision.

He says governments have been claiming that they can’t be held liable over policy decisions and allocation of resources. However, he says, the Ward ruling “kind of pierced that armour.”

It’s now opened the doors for clever litigators to attack governments over their unwillingness to address or reform issues such as jail overcrowding.

“What [governments] are doing is wrong and somebody needs to step up and fix it,” Egan says.

Kirk Baert at Koskie Minsky LLP is also stepping into the fray, with more than 28 cases that have some form of public defendant, many focused on institutional abuse at places such as prisons or mental health facilities.

He says the problem of underfunding at public institutions, such as jails, is systemic and is leading to human rights violations through things such as lockdowns and solitary confinement.

He says he could hire 25 more lawyers yet not keep up with the potential number of cases that cross his desk.

One area ripe for attack, he says, is the “overburdened” bail system. He says in Ontario there are more people awaiting trial in jail than there are people convicted of offences. The system is not meeting its obligation to grant people bail in a timely manner.

Solitary confinement is also problematic and amounts to a form of torture, he says. It may be necessary in instances where a person is a “danger to themselves or other prisoners or guards, but you can’t use it as a regular means of punishing people.”

These cases come at a time when court rulings such as R. v. Jordan are increasingly calling out governments over their lack of resources for the justice system.

As the civil cases mount and more rulings come forward awarding damages against public institutions for ignoring Charter values, a day of reckoning is likely coming when governments will be forced to raise taxes to spend more on our public institutions.

It’s a day that politicians and taxpayers will likely regret, but one that increasingly seems likely given the direction that courts are heading.

Jim Middlemiss is a principal at WebNewsManagement.com.

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