A recent 2:1 decision of the Court of Appeal for Ontario raises an important constitutional question that could have implications beyond Ontario: how far can a provincial legislature go in shielding governments and public officials from civil liability for unlawful or bad-faith conduct?

In Minotar Holdings Inc. v. Ontario (Municipal Affairs and Housing), released August 28, 2026, the Ontario Court of Appeal upheld legislation that retrospectively extinguished claims against Ontario and public officials, including claims for misfeasance in public office and bad faith.

The majority held that s. 96 of the Constitution Act, 1867 protects the superior courts’ institutional role and core jurisdiction, but does not create an individual right to have any particular cause of action adjudicated. In its view, legislatures remain entitled to change or eliminate substantive rights and causes of action, provided they do not impair the superior courts’ constitutionally protected powers and jurisdiction:

… [Section 96] does not block legislatures from retrospectively or retroactively targeting a specific party’s pending claims by repealing causes of action, even where claims alleging bad faith executive branch conduct have been extinguished for undisclosed reasons. Absent a violation of the division of powers or a right under the Charter of Rights and Freedoms, or an absence of clear and unambiguous language, none of which is alleged here – such legislation is valid if it does not impair the protected inherent powers or subject matter jurisdictions of the superior courts.

The dissent took a very different approach. Justice Monahan held that s. 96 protects the superior courts’ role in supervising the legality of the exercise of public power. In his view, legislation that eliminates claims for misfeasance in public office and bad faith can impermissibly undermine that role by shielding deliberate unlawful conduct from effective legal redress.

Potential implications for British Columbia municipalities

The implications for British Columbia municipalities are, at present, more limited, but potentially significant. B.C.’s existing statutory scheme provides municipal and public-official immunity in some respects, but it also already includes an exception to that immunity for serious misconduct such as dishonesty, gross negligence, and malicious or willful misconduct. Accordingly, the legislation does not currently attempt to bar such claims and the majority decision in Minotar supporting a legislature’s ability to bar such claims is not immediately germane.

Rather, Minotar could become important in B.C. if the B.C. legislature were to amend the local government statutory scheme to remove or narrow those exceptions, particularly in relation to misfeasance in public office, bad faith, or intentional misconduct.

For example, if legislation were enacted providing that municipal officials could not be sued personally for conduct undertaken in the exercise of statutory powers, even where the conduct was alleged to constitute deliberate unlawful or bad-faith misconduct, Minotar would provide potentially persuasive authority for the proposition that such a legislative choice is constitutionally permissible. The Ontario majority’s reasoning emphasizes that s. 96 does not guarantee an individual right to have any particular cause of action adjudicated and that legislatures may alter substantive rights without necessarily intruding on the superior courts’ protected core jurisdiction.

The dissent in Minotar, however, points toward the opposite conclusion. On that approach, eliminating a civil remedy for deliberate unlawful conduct by public officials could raise a s. 96 issue because it would interfere with the superior courts’ role in providing judicial oversight of the exercise of public power.

This distinction could become particularly important in the municipal context. Municipalities exercise extensive statutory powers over matters such as zoning, land use, development, permitting, and enforcement. If the legislature were to strengthen statutory immunity for municipal decision-makers while simultaneously eliminating the existing exceptions for intentional or bad-faith misconduct, a claimant could potentially argue that the legislation has crossed the constitutional line identified by the Minotar dissent.

The Supreme Court of Canada’s (SCC) quickly forthcoming consideration of another case, Ontario Place Protectors, could ultimately determine how persuasive that constitutional argument will be. The SCC will likely evaluate the majority and dissent from Minotar in its reasoning in Ontario Place Protectors. If the SCC endorses the Minotar majority’s approach, provincial legislatures may have considerable latitude to expand statutory immunities. If the SCC adopts some version of the dissent’s reasoning, however, there may be constitutional limits on legislation that removes the courts’ ability to provide an effective civil remedy for deliberate abuses of public power.

Josh Krusell

Josh Krusell is the Managing Partner of Litigation with SMS. He regularly acts on behalf of local governments in complex liability actions, construction and insurance claims, contractual and regulatory disputes, administrative proceedings, and land use and injunction-related matters.