Smarter and Stronger Justice Act, 2020, S.O. 2020, c. 11 - Bill 161

• Jurisdiction: Ontario
• Bill Number: 161
• Date: 08 July 2020

EXPLANATORY NOTE

This Explanatory Note was written as a reader’s aid to Bill 161 and does not form part of the law. Bill 161 has been enacted as Chapter 11 of the Statutes of Ontario, 2020.

Schedule 1
Administration of Justice Act

The Schedule amends the Administration of Justice Act by adding section 4.10, which provides a mechanism for revoking fee waiver certificates if a court determines that the certificate holder’s actions in a proceeding or enforcement are frivolous, vexatious or otherwise an abuse of process, and for limiting a person’s ability to request a further fee waiver. As well, the financial means condition for a fee waiver set out in subsections 4.4 (7) and 4.7 (3) of the Act is amended. The current financial means condition for a fee waiver is that a person lacks the financial means to pay court or enforcement fees. This is replaced by a condition that a person cannot, without hardship, afford to pay the fees. Finally, references to case management masters in the French version of the Act are corrected.

Schedule 2
Canadian Public Accountability Board Act (Ontario), 2006

The Schedule makes two technical amendments to the Canadian Public Accountability Board Act (Ontario), 2006.

Schedule 3
Civil Remedies Act, 2001

The Schedule amends the Civil Remedies Act, 2001. The major elements of the Schedule are described below.

The Schedule adds a new Part I.1 to the Act. This Part sets out a procedure for the administrative forfeiture of property that the Attorney General has reason to believe is proceeds of unlawful activity or an instrument of unlawful activity.

The Attorney General is required to provide notice of administrative forfeiture proceedings through personal service to specified persons, including any person that the Attorney General believes may have an interest in the property that is subject to forfeiture. Notice must also be published on a website of the Government of Ontario.

If the Attorney General receives a notice of dispute from any person in respect of the property within a 120-day deadline, the Attorney General must choose to withdraw from seeking forfeiture of the property under the Act or commence a proceeding under Part II, III, III.1 or IV in relation to the property. If no notice of dispute is received by the 120-day deadline, the property is forfeited to the Crown in right of Ontario.

The proceeds of administratively forfeited property must be deposited into a special purpose account in the Consolidated Revenue Fund for limited uses.

Section 1.10 establishes a procedure for persons to commence an action against the Crown to recover damages if they failed, without a reasonable excuse, to provide a notice of dispute within the 120-day deadline. In the event of a successful action, damages are to be limited to the fair market value of the person’s interest in the property or the liquidated value of the person’s interest in the property, whichever is greater.

Part I.1 also requires public bodies who receive a notice of administrative forfeiture to maintain the property until certain conditions are met.

Part II is amended to change the defined term “legitimate owner” so that it instead refers to an “uninvolved interest holder”.

Sections 6, 11, 11.4 and 15 are amended to allow for payments to be made to the estates of deceased persons who suffered pecuniary or non-pecuniary loss as a result of unlawful activity or vehicular unlawful activity.

New sections 3.1, 8.1, 11.2.1 and 13.1 allow the Attorney General to make a motion to the Superior Court of Justice requesting an order for the disclosure of information or records that are reasonably required by the Attorney General in order to exercise the Attorney General’s powers or perform the Attorney General’s functions and duties under the Act.

The special purpose account provisions in Parts II, III, III.1 and IV are amended to allow for payments to the Crown for costs incurred in conducting proceedings under Part I.1.

Section 18.1 is amended to clarify that the power to approve a settlement includes the power to approve a settlement that provides for payment of a monetary amount instead of forfeiture of the property.

New section 18.2 authorizes public bodies to maintain possession of property in order to allow the Attorney General to determine whether a proceeding should be commenced under the Act and, if necessary, for the Attorney General to obtain an interlocutory order under the Act in respect of the property. Possession is not authorized under this section after 75 days have passed following the receipt of a written request or demand for the return of the property or the commencement, or receipt of notice respecting, a legal proceeding seeking the return of the property.

New section 20.1 requires the Director of Asset Management – Civil to prepare and publish an annual report in respect of activities conducted under the Act in the previous fiscal year.

Schedule 4
class Proceedings Act, 1992

The Schedule makes various amendments to the Class Proceedings Act, 1992, including the following:

1. Section 2 is amended to add a requirement to register proceedings commenced under the Act in accordance with the regulations made under the Act.

2. The Act is amended to take into account multi-jurisdictional class proceedings and proposed multi-jurisdictional class proceedings commenced in Ontario or elsewhere in Canada.

3. A new section 13.1 addresses carriage motions, in which the court may, if there are multiple proceedings under the Act involving the same or similar subject matter and some or all of the same class members, permit one to proceed and stay the others, as well as bar new proceedings under the Act involving the same or similar subject matter and some or all of the same class members from being commenced without court leave. In addition, if there is an existing proceeding under the Act, a proceeding involving the same or similar subject matter and some or all of the same class members may not be commenced under the Act without court leave if more than 60 days have passed since the existing proceeding was commenced.

4. Changes are made to sections 17 to 19 respecting the requirements of notices under the Act, and section 20 is changed to require the notices to be written in English and in French, and in a plain language manner. Section 22 is amended to provide that the costs of a notice of certification may be awarded to a representative plaintiff only in the event of success in the class proceeding, except to the extent the defendant consents to their payment in whole or in part at an earlier time.

5. Section 26 is amended to require the person or entity administering the distribution of an award under section 24 to file a report respecting the distribution with the court.

6. A new section 27.1 addresses settlements, and specifies new requirements respecting the seeking of court approval of the settlement of a proceeding under the Act or in relation to the common issues affecting a subclass. The section authorizes the court to appoint a person or entity to administer the distribution of settlement funds. The person or entity who administers the distribution of settlement funds is required to file a report respecting the distribution with the court.

7. A new section 27.2 addresses distribution of awards under section 24 and of settlement funds on a cy-près basis, including providing for when the court may make an order authorizing such distribution and specifying to whom the distribution may be made.

8. A new section 27.3 sets out requirements that apply if a proceeding under the Act includes or may include a subrogated claim, as defined by the regulations made under the Act.

9. A new section 29.1 provides for a process for dismissing a proceeding commenced under the Act for delay, if the specified criteria are met.

10. Section 30 is amended to change the appeal route or monetary threshold for a number of appeals of decisions under the Act, as well as to restrict the ability of an appellant to materially amend materials on an appeal.

11. Section 32 of the Act is amended to provide that a court shall not approve an agreement respecting fees and disbursements between a solicitor and a representative party without determining that the fees and disbursements are fair and reasonable, and to specify factors to consider in making that determination. The same factors inform a determination of the court respecting the amount owing to a solicitor for fees and disbursements if the agreement is not approved. The court may order that all or part of the amount owing to a solicitor in fees and disbursements be held back from payment until the specified conditions are met.

12. A new section 33.1 addresses rules respecting third-party funding agreements, which are contingent on court approval.

13. Section 39 addresses transition rules respecting existing and other proceedings specified by the regulations.

In addition, a number of corrections in terminology are made to the French version of the Act.

Schedule 5
Courts of justice Act

The Schedule makes various amendments to the Courts of Justice Act.

No compensation for costs if removal from office following complaint

Section 33.1 of the Act is amended by providing that deputy judges who are removed from office following a complaint against them are not entitled to compensation for any part of the legal costs incurred by them in relation to the complaint. Section 51.7 of the Act is amended to provide for the same consequence if the Judicial Council recommends that a provincial judge be removed from office following a complaint, and section 86.2 of the Act is amended to provide for the same consequence if a case management master is removed from office following a complaint.

Appointment of case management masters

Various amendments are made to section 86.1 of the Act to provide that the appointment of case management masters not...