Much has been made about the Ontario government’s seemingly increasing inability to win a court case. After another loss, this time at the Ontario Superior Court over the government’s legislation to force prospective teachers to pass a math proficiency test to gain accreditation, the CBC published an article that simply laid out 14 different major rulings where the government ended up on the wrong end of the stick.
To those celebrating the losses, be careful what you wish for.
The Ontario government’s ability, especially in a majority context, to creatively enact their original policy goal is endless. The only real barrier stopping the government from achieving its original goal is a political one. Does the government want to publicly fight this fight again? In some cases, the juice won’t be worth the squeeze. In others, if core to their agenda or popular with the public, it may very well be worth any political fight.
Before discussing alternatives, it is worth noting how the Ontario civil service puts forward its legal risk assessments. First, each ministry has its own legal department that assesses constitutional risk. It really is worth asking if the government would be better served by procuring the services of a few more experienced, but likely higher paid, lawyers in the Ministry of the Attorney General rather than the current dispersal of expertise and funds across departments.
Second, for a reason unbeknownst to me, the legal teams throughout the civil service present their risk assessments on a scale from 0 to 7, with 7 being the largest potential risk. This format needs to be revised immediately. Not only is it subjective and unclear, especially when considering the difference between a 3 and a 4, it gives ministers and decision-makers a false sense of security.
The reality is every decision carries some legal risk and there are clearly ways to lower that risk. Consulting with the public first, as the government did with Bill 124, which capped wage increases for public sector workers, is a reliable way to lower risk. Other tried-and-true methods include giving longer lead times before cancellation or reversals or using pilot programs to test ideas that cabinet is not sure are going to be permanent. These options are often included in cabinet decks but are hidden behind a number that simplifies years of legal precedents into what amounts to a pass-fail.
That said, there are three politically appeasable options for the government moving forward to consider in nearly all of these 14 cases and, frankly, anytime they are considering something likely to be challenged: indemnify, exempt or adapt.
Indemnify
If the government wants to avoid the political embarrassment that comes with losing a legal case, they can simply prevent a legal case from being made. The Ford administration has already done this twice. One instance can be found in the piece of legislation that empowers the government to rip up the brewers’ Master Framework Agreement (MFA) and the other came in its inaugural legislation that reformed the salaries at Hydro One.
In these scenarios a court challenge under Ontario law is prohibited, leaving only challenges through the Supreme Court of Canada or through international tribunals. The MFA legislation hasn’t actually been implemented, meaning there is no reason for a court challenge yet, and not a single brave soul thought it worth suing the government on behalf of Hydro One executives.
If this method was employed in most of the 14 legal cases lost, the actual court ruling against Ontario would have been prohibited from doing so. The Ford administration can include these clauses in future legislation and be done with it, much like the Liberal government has done previously when declaring provincial interest in development proceedings barring any form of appeal. However, they are the most politically risky and require the most public agreement.
Exempt
The most interesting thing about a number of the legal cases lost is not that the Ontario government was found to have broken the law, but that they were found to have broken their own laws. The government lost two separate high profile cases (one dealing with municipal zoning orders and one about the cancellation of cap-and-trade) because of their failure to consult publicly as required under the Environmental Bill of Rights (EBR).
The EBR is, of course, a provincial statute. When introducing the legislation that made these respective policy changes, the government simply could have added a clause exempting themselves from the EBR, thereby ensuring this "slap on the wrist" legal action was invalid.
This, in fact, is a play out of the Liberal Party playbook. Be it the McGuinty or Wynne administrations, those governments never repealed the Taxpayer Protection Act, which requires a referendum be held anytime a new tax is introduced. Instead, they simply exempted themselves from this Ontario statute and introduced new taxes anyways. The Ontario Health Premium, HST, foreign home buyer’s tax, and more were all brought in this way.
Politically speaking, if the Liberals can exempt themselves from the law designed to delay the introduction of new taxes, surely the Conservatives can exempt themselves from the law designed to delay the repeal of them.
Adapt
Lastly, if the Ford government does not want to deal with any political headaches from pre-emptively avoiding the courts, they could also just adapt to the rulings put forward. In the most recent court loss over math requirements to become a teacher, the court ruled that the teacher’s college graduation requirement was unconstitutional, not that mastery of math itself was unconstitutional.
In fact, the court offered an alternative: the government could include math courses as an undergraduate pre-requisite to get into teacher’s college or require math courses in teacher’s college as compulsory credits to graduate. Both policies would be a larger barrier for prospective teachers to overcome and would actually do a better job of achieving the government’s intended policy of ensuring teachers are properly qualified to teach math.
By suing the government over this math test requirement, teaching candidates have actually ensured the legality of a more onerous and difficult process for aspiring teachers should government want to pursue that option.
Conclusion
Some may read this article and think that government should not be obfuscating the law in the first place. To that I say, of course. When the government uses these tools, it should make sure it is doing so to achieve proper, needed policy changes in the province that cannot be done otherwise.
That said, this is why citizens elect politicians in the first place: to make and change laws. They get to re-elect them, or not, based on how well they achieved that task. All using these tools does is ensure the people — rightfully so — are the final judge.
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Mitchell Davidson is the Executive Director of the StrategyCorp Institute of Public Policy and Economy. Mitchell was formerly the Executive Director of Policy for Premier Doug Ford and the policy lead on both of the Ontario PC Party’s most recent election platforms. You can follow the Institute’s written material or subscribe to its podcast, Intended Consequences, at <a href="https://strategycorp.com/institute/">strategycorp.com/institute/</a>.

Davidson: How the Ontario government can stop losing in court

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