The Rule of Law: Bad Faith, Limitations, And The Prison System

August 24, 2021
Nancy Sarmento Barkhordari
JD Barrister & Solicitor

We represent a number of inmates who allege to have been abused in the federal and provincial prison system. 

Inmate plaintiffs face various challenges when making claims against the provincial government. Statutory barriers make it difficult for plaintiffs who wish to conduct a claim alleging bad faith or conduct that is rooted in bad faith against Her Majesty the Queen in the Right of Ontario. 

As lawyers, we help clients navigate plaintiffs through these barriers. Of course, we need to first understand why these barriers exist, and how they impact the life cycle of such claims. 

What Is a Bad Faith Claim?

Conduct rooted in bad faith involves some element of knowledge and/or intent. If an individual commits an act with the knowledge or intent that it would hurt another individual, that would point towards bad faith.

Some examples of claims that are rooted in bad faith conduct include fraud, conversion, battery, as well as other intentional torts. 

In the context of crown liability, many claims rooted in bad faith include misfeasance of public office or battery.  Misfeasance of public office involves a misuse of the office or privileges of an office. 

In contrast, battery often refers to physical assault. In the context of the prison system, a claim alleging battery on the part of a Correctional Officer against an inmate plaintiff is probably going to get flagged for bad faith. 

These kinds of claims are often subject to statutory hurdles under the Ontario CPLA.

The Provincial CLPA

The CLPA is the Crown Liability and Proceedings Act. The act regulates claims that may be brought against the Provincial Crown; the act touches on the liability and adjudication of claims against Her Majesty the Queen and the Right of Ontario and its agents in the court system.

Although no one is above the law – including the government –  there are statutes that present certain hurdles when bringing a claim against the provincial government. 

Section 17 of the CLPA authorizes the Ontario Crown to induce a stay of any action alleging bad faith. A stay of action essentially halts the claim. Once the  action is stayed, it can can only proceed once leave to lift the stay is granted.

Essentially, plaintiffs who wish to maintain their claims alleging bad faith on the part of Ontario must file an Affidavit of Documents and evidence on a motion to have the stay lifted. To be successful in their motion, the plaintiff must establish that the action rooted in bad faith is likely to succeed.  If the plaintiff is unsuccessful, the entire action — not just the provisions of the claim alleging bad faith — is stayed.

Simply put, this provision makes it far more onerous on plaintiffs who assert that the crown is liable for actions rooted in bad faith. The barrier can be expensive, risky, and time-consuming and may ultimately prolong the litigation process. 

Access to Evidence

As with any other civil claim, Plaintiffs making civil claims against the provincial government must produce evidence that they were wronged and that the action resulted in damages.

Once the compiled evidence has been reviewed, the trier will determine on a balance of probabilities whether the plaintiff was wronged, how the plaintiff was wronged if they were, and how much in damages are due.

For some inmates alleging claims against the provincial government, the gathering of evidence in support of their claims can be challenging because a lot of the evidence that they need to help support their claims is not readily available to them. 

In fact, for many cases, the necessary evidence is in the possession of the Crown, who has the power to redact certain records, and is in control of its own record keeping processes.  

The challenges around evidence gathering can increase the complexity of dealing with a motion to lift a stay under section 17 of the CPLA.

How Can We Help?

As illustrated in this post, there is a lot of red tape in crown liability claims. 

Having a skilled lawyer by your side can help you navigate some of the challenges inherent in the process of these claims. 

If you have any questions about a crown liability claim, or question regarding the CPLA, get in touch with either or

We’re here to help.

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