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Bill 161, Smarter and Stronger Justice Act, 2020

Downey, Hon. Doug Attorney General

Royal Assent received. Statutes of Ontario 2020,

chapter 11

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Acts affected

Royal Assent

As Amended by Standing Committee

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Bill 161 Royal Assent (PDF)

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

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

Canadian Public Accountability Board Act (Ontario), 2006

The

Schedule makes two technical amendments to the Canadian

Public Accountability Board Act (Ontario), 2006 .

Schedule

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.

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

class Proceedings Act, 1992

The

Schedule makes various amendments to the Class Proceedings

Act, 1992 , including the following:

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

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.

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.

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.

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.

Section

39 addresses transition rules respecting existing and other proceedings

specified by the regulations.

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

of the Act.

Schedule

Courts of justice Act

The

Schedule makes various amendments to the Courts of Justice

Act .

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 be for a specified term, but that a case

management master must retire on reaching the age of 65, subject to

reappointment in accordance with the section. The change is made to apply to

existing case management masters whose appointments are subject to a term.

Masters

Section

87 of the Act is repealed, and consequential amendments made to other

provisions of the Act as well as to other Acts, to remove the judicial office

of master.

Schedule

Creditors’ Relief Act, 2010

The

Schedule re-enacts

section 15 of the Creditors’ Relief

Act, 2010 to give the authority to designate a bank in which a sheriff

is required to deposit money to the Deputy Attorney General and to the person

designated by the Deputy Attorney General under subsection 73 (2) of the Courts of Justice Act .

Schedule

crown Liability and Proceedings Act, 2019

The

Schedule re-enacts

section 17 of the Crown Liability and

Proceedings Act, 2019 . The re-enacted

section sets out rules that apply

with respect to proceedings brought against the Crown or an officer or employee

of the Crown that include a claim for misfeasance or bad faith. The

section

provides that such proceedings are stayed on commencement, subject to leave of

the court to proceed. If leave is not granted, the proceeding is rendered a

nullity. The Crown may waive the leave requirement. The

section also sets out

transition rules for existing proceedings, as well as rules as to the application

of limitation periods to the proceedings.

Section 30 of the Act is amended to

add a regulation-making authority respecting procedures that apply to a motion

for leave brought under

section 17.

Provisions

are added to sections 17 and 18 to state that proceedings for which leave is

not obtained in accordance with those sections are a nullity.

Schedule

Estates Act

The

Schedule makes various amendments to the Estates Act ,

including the following:

1. The

Schedule amends the Act with respect to small estates, which are estates that

do not exceed an amount to be prescribed by regulations made under the Act.

Section 36 of the Act is amended to provide that, except in specified

circumstances, a bond is not required in respect of a small estate.

2. The

Schedule removes the requirement that, unless a court orders otherwise, a

certificate under the hand of the Estate Registrar for Ontario must be received

by the local registrar before the granting of probate or administration.

Instead, the local registrar is required to confirm the matters that are

currently required to be confirmed by the Estate Registrar for Ontario before

probate or administration is granted.

3. The

Schedule repeals certain provisions that require local registrars to transmit by

mail specified information to the Estate Registrar for Ontario, such as a list

of the grants of probate and administration made by the local registrars’ courts.

4. The

Schedule repeals various provisions that impose obligations on the Estate

Registrar for Ontario, such as forwarding to a local registrar specified

information and filing and keeping all notices in respect of applications for

probate or administration.

5. Provisions

respecting caveats against a grant of probate or administration are repealed.

Schedule

Execution Act

The

definition of “sheriff” in

section 1 of the Execution Act

is amended to reflect that a sheriff means a sheriff under

section 73 of the Courts of Justice Act . In addition, the future repeal of

subsection 8 (1) of the Execution Act is itself

repealed.

Schedule

Judicial Review Procedure Act

The

Schedule makes various amendments to the Judicial Review

Procedure Act :

Section

2 of the Act is amended to provide the court with a generally applicable power

to refuse to grant relief on an application for judicial review.

Section

5 of the Act is re-enacted to establish new rules as to when an application for

judicial review may be brought. These rules apply with respect to any

application for judicial review of a decision that is made or of a matter that

occurs on or after the day on which the

Schedule comes into force.

3. Subsection

9 (1) of the Act is re-enacted to specify what is sufficient in respect of

information provided in an application for judicial review.

Schedule

Juries Act

The

Schedule amends the Juries Act respecting the

addresses of persons on the jury panel list:

1. Subsection

15 (3) of the Act is amended so that the address of a person selected to be on

a panel list is not included in the list.

Section

18 of the Act is amended to add a power of the court to order, in the

circumstances specified, that the disclosure by the sheriff of the panel list

under the

section include disclosure of the addresses of the persons on the

list.

well, subsection 3 (1) of the Act is amended to change the terminology of

“lock-up” to reflect recent legislation in the corrections context.

Schedule

Justices of the Peace Act

Sections

11 and 11.1 of the Justices of the Peace Act are

amended to provide that if a complaint against a justice of the peace results

in a formal hearing, it is the hearing panel that may make recommendations

respecting any compensation payable to the justice of the peace for legal costs

incurred in relation to both the investigation of the complaint and the resulting

hearing.

Section 11.1 is further amended to provide that if the hearing panel

recommends that the justice of the peace be removed from office, the justice of

the peace is not entitled to any such compensation.

Schedule

Law Society Act

The

Schedule makes various amendments to the Law Society Act .

The

Act is amended by adding sections 61.1.1 to 61.1.4, respecting the practice of

law or provision of legal services through a firm, as defined by a new

definition added to

section 1 of the Act.

Section 62 of the Act is amended to

give Convocation authority to make by-laws governing the practice of law or

provision of legal services through a firm.

Other

amendments to the Act include the following:

1. Subsection

35 (1) is amended to increase the maximum fine that may be imposed on a

licensee in the event of a contravention of

section 33 (prohibited conduct)

from $10,000 to $100,000.

2. Sections

42 (review: professional competence), 49.2 (audit of financial records) and

49.3 (investigations) are amended to permit a person conducting a review, audit

or investigation, as the case may be, to enter former business premises of a

licensee or group of licensees and require people who formerly worked with a

licensee or group of licensees to provide information.

3. Subsection

48 (1) is re-enacted to add to the circumstances in which a licensee’s licence

may be summarily revoked.

4. Amendments

are made to

section 49.12 to add to the circumstances in which specified

persons may disclose specified information respecting audits, investigations,

reviews, searches, seizures and proceedings. Subsections 49.12 (2.1) and

(2.2) are added to specify that certain information that is subject to

solicitor-client privilege or that may tend to criminate or establish a person’s

liability to civil proceedings may nevertheless not be disclosed in some of

those circumstances.

5. Clause

62 (3) (

a) of the Act, which requires that copies of the by-laws made under the

Act be filed in the office of the Attorney General for Ontario, is repealed.

Schedule

Legal Aid Services Act, 1998

The

Schedule makes various amendments to the Legal Aid

Services Act, 1998 , including the following:

Section

5 is re-enacted and

section 6 is repealed to change the composition of the

board of directors of Legal Aid Ontario. The existing board members are

continued as members of the new board.

Section

36, which provides for a process by which clinics may request reconsideration

of funding decisions, is repealed. Under a new

section 72.4, any existing

reconsiderations are terminated.

3. A

new

section 39.1 provides for circumstances in which Legal Aid Ontario is

required to provide specific legal aid services.

Section 16 is consequentially

amended.

4. A

new

section 72.3 states that Legal Aid Ontario may at any time before April 1,

2021 attempt to enter into discussions with clinics and with deans of law

schools respecting new agreements for the provision of legal aid services by

the clinics and by student legal aid services societies. Any prior agreements

are cancelled on April 1, 2021, unless they are cancelled earlier. Under a new

section 72.4, any existing proceedings or processes under a cancelled agreement

are terminated.

Section 72.5 provides for immunity for the Crown and for Legal

Aid Ontario respecting the cancellations and terminations under sections 72.3

and 72.4, and additionally provides that no person is entitled to compensation

respecting the cancellations or terminations.

Schedule

Legal Aid Services Act, 2020

The

Schedule enacts the Legal Aid Services Act, 2020 ,

repeals the Legal Aid Services Act, 1998 and makes

complementary amendments to other Acts.

Purpose

and

interpretation

Sections

1 and 2 of the Legal Aid Services Act, 2020 set out

the purpose of the Act and

definitions.

Legal

aid services

Sections

3 to 15 address the provision of legal aid services under the Act by Legal Aid

Ontario (“the Corporation”). Sections 3 to 5 set out the legal aid services

that may be provided and the manner in which they may be provided, including by

the authorization of persons and entities who would provide the legal aid

services as service providers. The legal aid services that may be provided and

the areas of law in which they may be provided are subject to regulations made

by the Minister responsible for the Act.

Section 7 sets out the eligibility

requirements for receiving legal aid services which, under

section 8, are to be

provided without cost to an individual.

Section 9 sets out an exception to

this, as it authorizes the Corporation to require an individual or person

responsible for the individual to contribute to the cost of providing legal aid

services to the individual.

Section 15 addresses circumstances in which the

Corporation is obligated to provide specific legal aid services.

Legal

Aid Ontario

Sections

16 to 26 continue the Corporation, set out its objects and powers and provide

for its board of directors, as well as address other corporate matters.

Accountability,

finances and administration

Sections

27 to 33 set out various powers and duties of the Corporation in relation to

fiscal and administrative matters, including a requirement to submit an annual

budget (section 28) and to develop a public consultation policy (section 33).

Section 29 provides that the money required for the purposes of the Act shall

be paid out of money appropriated by the Legislature.

General

Sections

34 to 44 set out various provisions respecting the exercise and performance of

powers, duties and functions under the Act and the provision of legal aid

services, including provisions addressing personal immunity for Corporation

employees and others (section 37) and deeming specific communications to be

privileged (section 40).

Section 45 sets out offences for specified

contraventions of the Act.

Rules

and regulations

Section

46 sets out the rule-making authority of the board of directors of the

Corporation, which permits the board to make rules respecting a broad range of

matters, including governing the authorization of service providers and their

payment, setting out eligibility requirements to receive legal aid services and

governing the determination of eligibility, and governing contribution to the

cost of providing legal aid services. However, the board may not make a rule

without first posting the proposed rule on the Corporation’s website for a

specified period of time. As well, some rules do not become effective unless,

after they are made, they are submitted to the Minister responsible for the Act

and either approved or else not rejected or returned by the Minister before the

specified period expires. Once rules become effective, the board must make them

publicly available.

Section

47 provides for regulation-making authority, most of which, including

regulation-making authority relating to transitional matters, is given to the

Lieutenant Governor in Council. The Minister responsible for the Act may make

regulations respecting, among other things, the legal aid services the

Corporation may or must provide, and the areas of law in which it may or must provide

them.

ScheDule

Limitations Act, 2002

The

Schedule makes housekeeping amendments to the Limitations Act, 2002 . Subsection 16

(1.2) of the Act is amended to replace the description of a date with the

actual date. The

Schedule to the Act is amended to remove and update obsolete

references to provisions of other Acts.

Schedule

Marriage Act

The

Schedule amends the Marriage Act .

The

amendments permit a person to be registered as authorized to solemnize marriage

if the person belongs to a band located in whole or in

part in Ontario, a First

Nation, Métis or Inuit organization or community located in whole or in

part in

Ontario or a permanently established Indigenous entity located in whole or in

part in Ontario, and is duly recognized by the band, First Nation, Métis or

Inuit organization or community or Indigenous entity as entitled to solemnize

marriage according to its customs and traditions.

The

amendments provide that judges of any court in Canada, as well as Ontario case

management masters, may solemnize marriages in Ontario. The ability of Ontario

justices of the peace and persons prescribed by the regulations to solemnize

marriages is continued.

Amendments

related to the administration of the Act, and consequential amendments to other

Acts, are also made.

Schedule

Public Guardian and Trustee Act

The

Schedule re-enacts subsection 10 (3) of the Public

Guardian and Trustee Act (exception to listed requirements for

delivering up of property) to change the threshold amount in that subsection

from a maximum of $20,000 to a maximum of an amount prescribed by regulations

made by the Lieutenant Governor in Council under the Act.

Section 14 of the Act

is amended to add the necessary regulation-making authority.

Bill 161 2020

Act to enact the Legal Aid Services Act, 2020 and to make various amendments to

other Acts dealing with the courts and other justice matters

CONTENTS

Contents

of this Act

Commencement

Short

title

Schedule 1

Administration

of Justice Act

Schedule 2

Canadian

Public Accountability Board Act (Ontario), 2006

Schedule 3

Civil

Remedies Act, 2001

Schedule 4

Class

Proceedings Act, 1992

Schedule 5

Courts

of Justice Act

Schedule 6

Creditors’

Relief Act, 2010

Schedule 7

Crown

Liability and Proceedings Act, 2019

Schedule 8

Estates

Act

Schedule 9

Execution

Act

Schedule 1 0

Judicial

Review Procedure Act

Schedule 1 1

Juries

Act

Schedule 1 2

Justices

of the Peace Act

Schedule 1 3

Law

Society Act

Schedule 1 4

Legal

Aid Services Act, 1998

Schedule 1 5

Legal

Aid Services Act, 2020

Schedule 16

Limitations

Act, 2002

Schedule 1 7

Marriage

Act

Schedule 18

Public

Guardian and Trustee Act

Her

Majesty, by and with the advice and consent of the Legislative Assembly of the

Province of Ontario, enacts as follows:

Contents

of this Act

1 This Act consists of this section, sections 2 and 3 and

the Schedules to this Act.

Commencement

(1) Subject to subsections (2) and (3), this

Act comes into force on the day it receives Royal Assent.

(2) The

Schedules to this Act come into force as provided in each Schedule.

(3) If

a

Schedule to this Act provides that any of its provisions are to come into

force on a day to be named by proclamation of the Lieutenant Governor, a

proclamation may apply to one or more of those provisions, and proclamations

may be issued at different times with respect to any of those provisions.

Short

title

3 The

short title of this Act is the Smarter

and Stronger Justice Act, 2020 .

Schedule 1

Administration of Justice Act

Section 4.1 of the Administration of Justice Act is

repealed and the following substituted:

Purpose

4.1 The purpose of sections

4.2 to 4.10 is to provide a mechanism for fee waivers that is fair and

proportionate, so that individuals who might otherwise be denied access to

justice because of their financial circumstances can be excused from paying

fees.

Section 4.2 of the Act is amended by adding the following subsection:

Subject

to revocation

(2) Subsection

(1) is subject to the revocation of the certificate under

section 4.10.

Paragraph 1 of subsection 4.4 (7) of the Act is amended by striking out “The

person lacks the financial means to pay fees” at the beginning and substituting

“The person cannot, without undue hardship, afford to pay fees”.

Subsection 4.7 (3) of the Act is amended by striking out “the person lacks the

financial means to pay fees” and substituting “the person cannot, without undue

hardship, afford to pay fees”.

The Act is amended by adding the following section:

Revocation of fee waiver

4.10

(1) A

certificate given to a person under

section 4.3 or 4.4 respecting a court

proceeding or enforcement in a proceeding may, despite anything to the contrary

in those sections, be revoked by order of a judge, deputy judge or case

management master of the court in which the proceeding was commenced, if the

judge, deputy judge or case management master is of the opinion that the

person’s actions in the proceeding or enforcement are frivolous, vexatious or

otherwise an abuse of the process of the court.

Same

(2) A

certificate given to a person under

section 4.5 or 4.7 respecting the

enforcement of an order may, despite anything to the contrary in those

sections, be revoked by order of a judge, deputy judge or case management

master of the court in which the order was made or filed, as the case may be,

if the judge, deputy judge or case management master is of the opinion that the

person’s actions in the enforcement are frivolous, vexatious or otherwise an

abuse of the process of the court.

Submissions

(3) Before

making an order under subsection (1) or (2), the judge, deputy judge or case

management master shall give the person an opportunity to make submissions.

Same

(4) Submissions

shall be made in the manner and form specified by the judge, deputy judge or

case management master.

Restriction

on further fee waivers

(5) In

making an order under subsection (1) or (2), the judge, deputy judge or case

management master may make an order that the person may not, despite anything

contrary in this Act, make any further requests for a fee waiver under this Act

with respect to the same proceeding or any related proceeding or with respect

to the same enforcement, without permission obtained in advance from a judge,

deputy judge or case management master, as applicable.

Decision

final

(6) The

decision of the judge, deputy judge or case management master is final.

Rules

of court and Statutory Powers Procedure Act do not

apply

(7) The

rules of court and the Statutory Powers Procedure Act

do not apply to this section.

fee

(8) No

fee is payable for anything done in connection with this section.

(1) The French version of the following provisions of the Act is

amended by striking out “protonotaire responsable de la gestion de la cause”

wherever it appears and substituting in each case “protonotaire chargé de la

gestion des causes”:

1. Subsections

4.4 (1), (5) and (9).

2. Clause

4.7 (1) (

b) and subsections 4.7 (3) and (5).

(2) The

French version of the following provisions of the Act is amended by striking

out “protonotaire de la gestion de la cause” wherever it appears and

substituting in each case “protonotaire chargé de la gestion des causes”:

1. Subsection

4.4 (4).

2. Subsection

4.7 (2).

Commencement

(1) Subject to subsection (2), this

Schedule

comes into force on the day the Smarter and Stronger

Justice Act, 2020 receives Royal Assent.

(2) Sections

1 to 5 come into force on the day that is 30 days after the day the Smarter and Stronger Justice Act, 2020 receives Royal

Assent.

Schedule 2

Canadian Public Accountability Board Act (Ontario), 2006

The French version of subsection 11 (5) of the Canadian

Public Accountability Board Act (Ontario), 2006 is amended by striking

out “de nier l’existence d’un privilège ni de constituer” and substituting

“d’invalider un privilège ni ne constitue”.

after “information based on privileged information”.

Commencement

This

Schedule comes into force on the day the Smarter and

Stronger Justice Act, 2020 receives Royal Assent.

Schedule 3

Civil Remedies Act, 2001

(1) The Civil Remedies Act, 2001 is

amended by adding the following Part:

Part

I.1

Administrative Forfeiture

Definitions

1.1 In this Part,

“deadline

date” means, in respect of an administrative forfeiture proceeding under this

Part, the day that is 120 days after the later of,

(

a) the

day on which every person who is entitled to receive written notice of the

proceeding under clause 1.3 (1) (

b) has either,

(

i) received

the notice or been deemed to have received the notice, or

(ii) been

the subject of a final attempt to serve the person under clause 1.3 (4) (b),

and

(

b) the

day the notice required by subsection 1.3 (7) is published on a website of the

Government of Ontario; (“date limite”)

“Director”

means the Director of Asset Management – Civil appointed under

section 15.1;

(“directeur”)

“instrument

of unlawful activity” has the same meaning as in

section 7; (“instrument

d’activité illégale”)

“notice

of dispute” means a notice of dispute described in

section 1.5; (“avis de

contestation”)

“proceeds

of unlawful activity” has the same meaning as in

section 2; (“produit

d’activité illégale”)

“property”

means real or personal property, and includes any interest in property;

(“bien”)

“public

body” means,

(

a) an

entity with which the Director has an agreement under subsection 19 (1.1),

(

b) an

institution belonging to a class of institutions prescribed by the regulations

made under this Act for the purposes of paragraph 1 of subsection 19 (4), or

(

c) a

chief of police as defined in subsection 2 (1) of the Police

Services Act ; (“organisme public”)

“unlawful

activity” means

an act or omission that,

(

a) is

an offence under

an Act of Canada, Ontario or another province or territory of

Canada, or

(

b) is

an offence under

an Act of a jurisdiction outside Canada, if a similar act or

omission would be an offence under

an Act of Canada or Ontario if it were

committed in Ontario,

whether

the act or omission occurred before or after this

Part came into force.

(“activité illégale”)

Property

eligible for administrative forfeiture

1.2

(1) Property

may be the subject of an administrative forfeiture proceeding under this

Part

if,

(

a) it

is personal property that is located in Ontario;

(

b) it

is held by or on behalf of a public body;

(

c) no

person has a prior registered interest in the property; and

(

d) the

property is not the subject of a proceeding under

Part II, III, III.1 or IV.

Grounds

to seek administrative forfeiture

(2) The

Attorney General may commence an administrative forfeiture proceeding against

property if he or she has reason to believe that the property is proceeds of

unlawful activity or an instrument of unlawful activity.

Commencing

administrative forfeiture proceeding

1.3

(1) In order

to commence an administrative forfeiture proceeding, the Attorney General must,

(

a) file

notice of the administrative forfeiture proceeding against the property in the

registration system established under the Personal

Property Security Act ; and

(

b) give

written notice of the administrative forfeiture proceeding to,

(

i) the

person from whom the property was seized,

(ii) the

public body that is holding the property or on whose behalf the property is

being held, and

(iii) any

other person whom the Attorney General has reason to believe may have an

interest in the property.

Manner

of giving notice

(2) Subject

to subsections (3) to (6), the Attorney General must make reasonable efforts to

personally serve the notice required by subclauses (1) (b) (

i) and (iii) on the

person.

person not available

(3) If

the person is not available to be served a notice required by subclause (1) (b)

(

i) or (iii), the Attorney General shall make two additional attempts to serve

the person over the course of the next 14 days.

Final

service

(4) If

the two additional attempts to serve the person are not successful,

(

a) the

notice shall be left at the person’s last known address; or

(

b) if

there is no last known address associated with the person, the Attorney General

shall make one more final attempt to serve the person.

Deemed

receipt of notice

(5) A

notice that has been left at a person’s last known address in accordance with

clause (4) (

a) is deemed to have been served personally on the person on the

day it was left at that address.

Exception

(6) The

Attorney General is not required to give notice to a person referred to in

subclause (1) (b) (

i) or (iii) if the Attorney General does not have any

information respecting the person’s location.

Notice

to the public

(7) The

Attorney General shall give public notice of the administrative forfeiture

proceeding against the property by publishing notice of the proceeding on a

website of the Government of Ontario.

Contents

of notice

(8) A

notice required by clause (1) (

b) or subsection (7) must include,

(

a) a

file number assigned to the forfeiture by the Attorney General;

(

b) a

description of the property that is subject to forfeiture;

(

c) the

name of the public body or police force that seized the property;

(

d) the

date the property was seized and the place of seizure;

(

e) a

statement that the property is either a proceed of unlawful activity or an

instrument of unlawful activity;

(

f) a

statement that the property may be forfeited to the Crown in right of Ontario;

(

g) a

procedure for submitting a notice of dispute to the Attorney General, and a

statement that a person who wishes to oppose forfeiture of the property may

submit a notice of dispute to the Attorney General in accordance with that

procedure; and

(

h) a

statement that a notice of dispute must be submitted to the Attorney General

within 120 days after receipt of the notice of proceeding.

Public

body to maintain possession of property

1.4

(1) Subject

to subsection (2) and to any orders made under this Act, a public body that

receives a notice of administrative forfeiture from the Attorney General shall

maintain the property that is subject to forfeiture and ensure that it is not

released to any person, despite any other claim, interest or right of

possession in the property, until,

(

a) the

Attorney General notifies the public body that the Attorney General is

withdrawing from seeking forfeiture of the property under this Act;

(

b) the

Attorney General notifies the public body in accordance with subsection 1.8

(2) that the property has been forfeited; or

(

c) the public body receives notice of an

order made pursuant to

Part II, III, III.1 or IV that forfeits the property to

the Crown in right of Ontario or otherwise deals with possession of the

property.

Exception,

perishable or rapidly depreciating property

(2) Despite

subsection (1), a public body may take any action in relation to perishable or

rapidly depreciating property that is subject to forfeiture if it has received

prior authorization from the Attorney General.

Disputing

administrative forfeiture

1.5

(1) A person

who claims to have an interest in property may oppose the forfeiture of that

property by submitting a notice of dispute to the Attorney General in

accordance with this section.

Notice

of dispute requirements

(2) The

notice of dispute must include,

(

a) either,

(

i) the

file number specified in the notice issued under

section 1.3, or

(ii) a

description that identifies the property;

(

b) the

name of the person claiming an interest in the property;

(

c) the

particulars of the person’s interest in the property;

(

d) the

basis upon which the person disputes forfeiture of the property; and

(

e) the

address for service of the person opposing forfeiture of the property.

Deadline

(3) A

notice of dispute must be received by the Attorney General on or before the

deadline date.

Attorney General receives notice of dispute

1.6

(1) Within

45 days after receiving a notice of dispute in respect of property, the

Attorney General shall,

(

a) either

commence proceedings against the property under

Part II, III, III.1 or IV or

withdraw from seeking forfeiture of the property under this Act; and

(

b) give

notice of the commencement of the new proceedings, or the withdrawal from

seeking forfeiture of the property under this Act, to,

(

i) every

person and public body that received notice of the administrative forfeiture

proceeding under clause 1.3 (1) (b), and

(ii) each

person who submitted a notice of dispute in respect of the property.

Discharge

of notice

(2) After

receiving a notice of dispute in respect of property, the Attorney General

shall discharge the notice registered pursuant to clause 1.3 (1) (

a) as soon as

is practicable.

Attorney

General’s power to withdraw or convert to other proceedings

1.7

(1) The Attorney

General may, at any time and on his or her own initiative,

(

a) withdraw

from seeking forfeiture of property under this Act; or

(

b) discontinue

an administrative forfeiture proceeding and commence proceedings under

Part II,

III, III.1 or IV.

Notice

(2) If

the Attorney General takes either of the actions described in subsection (1),

(

a) the

notice registered pursuant to clause 1.3 (1) (

a) shall be discharged by the

Attorney General as soon as is practicable; and

(

b) the

Attorney General shall give notice of the action to each person and public body

that received notice of the administrative forfeiture proceeding under clause

1.3 (1) (b).

Forfeiture

if no notice of dispute

1.8

(1) If the

Attorney General does not receive a notice of dispute on or before the deadline

date, the property specified in the notice of administrative forfeiture

proceeding published under subsection 1.3 (7) is forfeited to the Crown in

right of Ontario on the day after the deadline date.

Notice

to public body

(2) The

Attorney General shall prepare a notice of forfeiture that confirms the

property has been forfeited to the Crown in right of Ontario and give a copy of

the notice to the public body in possession of the property.

Release

of property

(3) The

public body shall release the property to the Director upon receipt of the notice

of forfeiture.

Special

purpose account

1.9

(1) If

property forfeited to the Crown in right of Ontario under this

Part is money or

is converted to money, the money shall be deposited in a separate, interest

bearing account in the Consolidated Revenue Fund.

Same

(2) For

the purpose of the Financial Administration Act ,

money deposited under subsection (1) shall be deemed to be money paid to

Ontario for a special purpose.

Payments

out of account for Crown’s costs

(3) If

money is deposited in an account under subsection (1), the Minister of Finance

shall make payments out of the account, at the request of the Director and in

the amounts determined by the Director under subsection (8), to compensate the

Crown in right of Ontario for its costs incurred in,

(

a) conducting

the proceeding under this Part with respect to the property;

(

b) determining

whether the proceeding under this Part should be commenced; and

(

c) preserving,

managing or disposing of the property under this Part.

Other

payments out of account

(4) Subject

to the regulations made under this Act and after making the payments, if any,

out of the account under subsection (3), the Minister of Finance may make

payments out of the account described in subsection (1) for the following

purposes:

1. To

compensate persons, or the estates of deceased persons, who suffered pecuniary

or non-pecuniary losses, including losses recoverable under

Part V of the Family Law Act , as a result of the unlawful activity that

the property was used to engage in or that resulted in the acquisition of the

property.

2. To

assist victims of unlawful activities or the estates of deceased victims of

unlawful activities or to prevent unlawful activities that result in

victimization.

3. To

compensate the Crown in right of Ontario for costs incurred in respect of any

proceeding under this Part that relates to the property, other than the costs

described in subsection (3), and for pecuniary losses suffered as a result of the

unlawful activity that the property was used to engage in or that resulted in

the acquisition of the property, including costs incurred in remedying the

effects of the unlawful activity.

4. To

compensate a municipal corporation, or a public institution that belongs to a

class prescribed by the regulations made under this Act, for pecuniary losses

that were suffered as a result of the unlawful activity that the property was

used to engage in or that resulted in the acquisition of the property, and that

are costs incurred in remedying the effects of the unlawful activity.

5. If,

according to the criteria prescribed by the regulations made under this Act,

the amount of money in the account is more than is required for the purposes

referred to in paragraphs 1 to 4, such other purposes as are prescribed by the

regulations.

Director’s

election to give priority to persons who suffered loss

(5) The

Director may elect not to request payment out of the account under subsection

(3) if, in his or her opinion, all or substantially all of the money in the

account is needed to compensate the persons who are entitled to compensation

under paragraph 1 of subsection (4).

Payment

for Crown’s costs after payment to persons who suffered loss

(6) If

the Director elects not to request payment under subsection (3), the Minister of

Finance shall, at the request of the Director and in the amounts determined by

the Director under subsection (8), make payments to compensate the Crown in

right of Ontario for its costs incurred as described in subsection (3) out of

the account, after the payments are made to compensate the persons who are

entitled to compensation under paragraph 1 of subsection (4).

Payment

for Crown’s costs out of other accounts

(7) If

the amount of money in the account is insufficient to satisfy the Crown’s costs

pursuant to a request made by the Director under subsection (3) or (6), the

Minister of Finance shall make payments to compensate the Crown in right of

Ontario for its unsatisfied costs out of another account into which money is

deposited under subsection (1) as a result of another proceeding, after

payments have been made out of that account to compensate the persons who are

entitled to compensation out of that account under paragraph 1 of subsection

(4) and to compensate the Crown for its costs incurred in respect of that

account.

Determination

of Crown’s costs

(8) The

amount of the Crown’s costs under subsection (3) or (6) shall be determined by

the Director on any basis, or combination of them, that he or she considers

appropriate in the circumstances, including,

(

a) a

flat rate for every forfeiture;

(

b) a

flat rate for every step taken;

(

c) an

hourly rate;

(

d) the

actual costs; or

(

e) a

percentage of the value of the property forfeited.

Related activities

(9) If

money is required to be deposited under subsection (1) in respect of two or more

unlawful activities and the Minister of Finance is of the opinion that the

unlawful activities are related, the money may be deposited into a single

account and, for the purpose of payments out of the account, a reference in

subsection (4) to “the unlawful activity” that the property was used to engage

in or that resulted in the acquisition of the property shall be deemed to be a

reference to any of the unlawful activities.

Failure

to deliver notice of dispute

1.10

(1) A person

who claims to have had an interest in the property at the time it was forfeited

under

section 1.8 but who failed to submit a notice of dispute on or before the

deadline date may commence an action for damages against the Crown in right of

Ontario.

Onus

on plaintiff

(2) The

plaintiff in an action commenced under this

section must establish that,

(

a) he

or she has an interest in the property; and

(

b) he

or she had a reasonable excuse for the failure to submit a notice of dispute to

the Attorney General on or before the deadline date.

Same,

proceeds of unlawful activity

(3) If

the Crown in right of Ontario establishes that the property was proceeds of

unlawful activity, the plaintiff’s action will be unsuccessful unless the

plaintiff establishes that he or she is an uninvolved interest holder, as

defined in

section 2, of the property.

Same,

instrument of unlawful activity

(4) If

the Crown in right of Ontario establishes that the property was an instrument

of unlawful activity, the plaintiff’s action will be unsuccessful unless the

plaintiff establishes that he or she is a responsible owner, as defined in

section 7, of the property.

Exception,

forfeiture clearly not in interests of justice

(5) Subsections

(3) and (4) do not apply if the court is satisfied that the forfeiture of the

property to the Crown in right of Ontario was clearly not in the interests of

justice.

Owner

(6) If

an action under this

section is successful, the court shall order the Crown in

right of Ontario to pay to the plaintiff the greater of,

(

a) the

fair market value of the plaintiff’s interest in the property, as determined by

the court, on the day the Attorney General published notice of the

administrative forfeiture proceeding on a website of the Government of Ontario;

and

(

b) the

liquidated value of the plaintiff’s interest in the property that was realized

on the forfeiture or disposition of the property.

Payment

or settlement

(7) The

Minister of Finance shall, at the request of the Director, make payments out of

a special purpose account in which property, or the proceeds from selling

property, is deposited in order to,

(

a) comply

with an order of the court made under subsection (6) in respect of the

property; or

(

b) settle

a proceeding or an anticipated proceeding under this

section in respect of the

property which, in the Director’s opinion, could result in a judgment against

the Crown.

money insufficient

(8) If

the amount of money in the special purpose account is insufficient to satisfy a

request made by the Director under subsection (7), the Minister of Finance

shall make payments to satisfy the request for the unsatisfied amount out of

another account into which money is deposited under subsection 1.9 (1) as a

result of another proceeding, after payments have been made out of that account

to compensate the persons who are entitled to compensation out of that account

under paragraph 1 of subsection 1.9 (4).

(2) Clause

(

c) of the definition of “public body” in

section 1.1 of the Act, as enacted by

subsection (1), is repealed and the following substituted:

(

c) a

chief of police as defined in subsection 2 (1) of the Community

Safety and Policing Act, 2019 ; (“organisme public”)

(3) Clause

1.3 (8) (

c) of the Act, as enacted by subsection (1), is amended by striking

out “police force” and substituting “police service”.

(1) The definition of “legitimate owner” in

section 2 of the Act is

repealed.

(2) Section

2 of the Act is amended by adding the following definition:

“uninvolved

interest holder” means, with respect to property that is proceeds of unlawful

activity, a person who did not, directly or indirectly, acquire the property as

a result of unlawful activity committed by the person, and who,

(

a) was

the rightful owner of the property before the unlawful activity occurred and

was deprived of possession or control of the property by means of the unlawful

activity,

(

b) acquired

the property for fair value after the unlawful activity occurred and did not

know and could not reasonably have known at the time of the acquisition that

the property was proceeds of unlawful activity, or

(

c) acquired

the property from a person mentioned in clause (

a) or (b); (“détenteur innocent

d’un intérêt”)

(1) Subsection 3 (3) of the Act is amended by,

(

a) striking

out “a legitimate owner” and substituting “an uninvolved interest holder”; and

(

b) striking

out “legitimate owner’s interest” and substituting “uninvolved interest

holder’s interest”.

(2) Clause

3 (4) (

a) of the Act is amended by striking out “legitimate owner’s interest”

and substituting “uninvolved interest holder’s interest”.

(3) Clause

3 (4) (

b) of the Act is amended by striking out “legitimate owner” at the end

and substituting “uninvolved interest holder”.

The Act is amended by adding the following section:

Disclosure

order

3.1

(1) On

motion of the Attorney General in a proceeding or intended proceeding under

section 3, the Superior Court of Justice may make an order requiring a person

to disclose to the Attorney General information or records in the custody or

control of the person if the Court is satisfied that the information or records

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 this Act.

Timing

(2) The

Attorney General may apply for an order under subsection (1) before, at the

time of or after,

(

a) commencing

proceedings under

section 3; or

(

b) applying

for an order under

section 4.

Motion

made without notice

(3) An

order under subsection (1) may be made on motion without notice for a period

not exceeding 60 days.

Costs

(4) The

Attorney General must pay to a person who is subject to an order under

subsection (1) the reasonable costs of producing, reproducing or delivering the

information or records.

(1) Clauses 6 (2.1) (a), (

b) and (

c) of the Act are amended by

striking out “this Part” wherever it appears and substituting in each case

“this Part or

Part I.1”.

(2) Paragraphs

1 and 2 of subsection 6 (3) of the Act are repealed and the following

substituted:

1. To

compensate persons, or the estates of deceased persons, who suffered pecuniary

or non-pecuniary losses, including losses recoverable under

Part V of the Family Law Act , as a result of the unlawful activity.

2. To

assist victims of unlawful activities, or the estates of deceased victims of

unlawful activities, or to prevent unlawful activities that result in

victimization.

(3) Paragraph

4 of subsection 6 (3) of the Act is repealed and the following substituted:

4. To

compensate a municipal corporation, or a public institution that belongs to a

class prescribed by the regulations made under this Act, for pecuniary losses

that were suffered as a result of the unlawful activity and that are costs

incurred in remedying the effects of the unlawful activity.

The Act is amended by adding the following section:

Disclosure

order

8.1

(1) On

motion of the Attorney General in a proceeding or intended proceeding under

section 8, the Superior Court of Justice may make an order requiring a person

to disclose to the Attorney General information or records in the custody or

control of the person if the Court is satisfied that the information or records

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 this Act.

Timing

(2) The

Attorney General may apply for an order under subsection (1) before, at the

time of or after,

(

a) commencing

proceedings under

section 8; or

(

b) applying

for an order under

section 9.

Motion

made without notice

(3) An

order under subsection (1) may be made on motion without notice for a period

not exceeding 60 days.

Costs

(4) The

Attorney General must pay to a person who is subject to an order under

subsection (1) the reasonable costs of producing, reproducing or delivering the

information or records.

(1) Clauses 11 (2.1) (a), (

b) and (

c) of the Act are amended by

striking out “this Part” wherever it appears and substituting in each case

“this Part or

Part I.1”.

(2) Paragraphs

1 and 2 of subsection 11 (3) of the Act are repealed and the following

substituted:

1. To

compensate persons, or the estates of deceased persons, who suffered pecuniary

or non-pecuniary losses, including losses recoverable under

Part V of the Family Law Act , as a result of unlawful activity that the

property was used to engage in.

2. To

assist victims of unlawful activities, or the estates of deceased victims of

unlawful activities, or to prevent unlawful activities that result in

victimization.

(3) Paragraph

3 of subsection 11 (3) of the Act is amended by striking out “this Part” and

substituting “this Part or

Part I.1”.

(4) Paragraph

4 of subsection 11 (3) of the Act is repealed and the following substituted:

4. To

compensate a municipal corporation, or a public institution that belongs to a

class prescribed by the regulations made under this Act, for pecuniary losses

that were suffered as a result of unlawful activity that the property was used

to engage in and that are costs incurred in remedying the effects of the

unlawful activity.

The Act is amended by adding the following section:

Disclosure

order

11.2.1

(1) On

motion of the Attorney General in a proceeding or intended proceeding under

section 11.2, the Superior Court of Justice may make an order requiring a

person to disclose to the Attorney General information or records in the custody

or control of the person if the Court is satisfied that the information or

records 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 this Act.

Timing

(2) The

Attorney General may apply for an order under subsection (1) before, at the

time of or after,

(

a) commencing

proceedings under

section 11.2; or

(

b) applying

for an order under

section 11.3.

Motion

made without notice

(3) An

order under subsection (1) may be made on motion without notice for a period

not exceeding 60 days.

Costs

(4) The

Attorney General must pay to a person who is subject to an order under

subsection (1) the reasonable costs of producing, reproducing or delivering the

information or records.

(1) Clauses 11.4 (3) (a), (

b) and (

c) of the Act are amended by

striking out “this Part” wherever it appears and substituting in each case

“this Part or

Part I.1”.

(2) Paragraphs

1 and 2 of subsection 11.4 (4) of the Act are repealed and the following

substituted:

1. To

compensate persons, or the estates of deceased persons, who suffered pecuniary

or non-pecuniary losses, including losses recoverable under

Part V of the Family Law Act , as a result of the vehicular unlawful activity

that gave rise to the forfeiture.

2. To

assist victims of vehicular unlawful activities, or the estates of deceased

victims of vehicular unlawful activities, or to prevent vehicular unlawful

activities that result in victimization.

(3) Paragraph

3 of subsection 11.4 (4) of the Act is amended by striking out “this Part” and

substituting “this Part or

Part I.1”.

(4) Paragraph

4 of subsection 11.4 (4) of the Act is repealed and the following substituted:

4. To

compensate a municipal corporation, or a public institution that belongs to a

class prescribed by the regulations made under this Act, for pecuniary losses

that were suffered as a result of the vehicular unlawful activity that gave

rise to the forfeiture and that are costs incurred in remedying the effects of

that vehicular unlawful activity.

Clause (

c) of the definition of “injury to the public” in

section 12 of the Act

is repealed and the following substituted:

(

c) any

expenses or increased expenses incurred by the public, including any expenses

or increased expenses incurred by the Crown in right of Ontario, a municipal

corporation or a public institution that belongs to a class prescribed by the

regulations made under this Act;

The Act is amended by adding the following section:

Disclosure

order

13.1

(1) On

motion of the Attorney General in a proceeding or intended proceeding under

section 13, the Superior Court of Justice may make an order requiring a person

to disclose to the Attorney General information or records in the custody or

control of the person if the Court is satisfied that the information or records

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 this Act.

Timing

(2) The

Attorney General may apply for an order under subsection (1) before, at the

time of or after,

(

a) commencing

proceedings under

section 13; or

(

b) applying

for an order under

section 14.

Motion

made without notice

(3) An

order under subsection (1) may be made on motion without notice for a period

not exceeding 60 days.

Costs

(4) The

Attorney General must pay to a person who is subject to an order under

subsection (1) the reasonable costs of producing, reproducing or delivering the

information or records.

(1) Clauses 15 (2.1) (a), (

b) and (

c) of the Act are amended by

striking out “this Part” wherever it appears and substituting in each case

“this Part or

Part I.1”.

(2) Paragraph

1 of subsection 15 (3) of the Act is repealed and the following substituted:

1. To

assist victims of unlawful activities, or the estates of deceased victims of

unlawful activities, or to prevent unlawful activities that result in

victimization.

(3) Paragraph

2 of subsection 15 (3) of the Act is amended by striking out “this Part” and

substituting “this Part or

Part I.1”.

(4) Paragraph

3 of subsection 15 (3) of the Act is repealed and the following substituted:

3. To

compensate a municipal corporation, or a public institution that belongs to a

class prescribed by the regulations made under this Act, for pecuniary losses

that were suffered as a result of unlawful activity that the proceeding related

to and that are costs incurred in remedying the effects of the unlawful

activity.

(1) Subsection 15.5 (1) of the Act is amended by adding the

following paragraph:

4.1 Where

the property that is the subject of the proceeding or intended proceeding was

previously the subject of a proceeding under

Part I.1, every person who

submitted a notice of dispute under that

Part in respect of the property.

(2) Paragraph

5 of subsection 15.5 (1) of the Act is amended by striking out “the legitimate

owner” and substituting “an uninvolved interest holder”.

(3) Paragraph

9 of subsection 15.5 (1) of the Act is amended by striking out “4, 5” and

substituting “4, 4.1, 5”.

Section 18.1 of the Act is amended by adding the following subsection:

Payments

in lieu

(3) For

greater certainty, the power to approve a settlement under subsection

(1) includes a power to approve a settlement that provides for payment of a

monetary amount instead of the full or partial forfeiture of the property that

is the subject of the proceeding.

(1) The Act is amended by adding the following section:

Maintenance

of property by public body

18.2

(1) A public

body may maintain possession of property in order to allow the Attorney General

to determine whether a proceeding should be commenced under this Act in respect

of the property and, if the Attorney General deems it necessary, obtain an

interlocutory order under this Act in respect of the property.

Same

(2) Subsection

(1) does not authorize the possession of property by a public body after the

earlier of the following:

1. The

day that is 75 days after the day the public body receives a written request or

demand for the return of the property.

2. The

day that is 75 days after the day the public body commences or receives notice

of a legal proceeding seeking the return of the property.

Definition

(3) In

subsection (1),

“public

body” means,

(

a) an

entity with which the Director of Asset Management – Civil has an agreement

under subsection 19 (1.1),

(

b) an

institution belonging to a class of institutions prescribed by the regulations

made under this Act for the purposes of paragraph 1 of subsection 19 (4), or

(

c) a

chief of police as defined in subsection 2 (1) of the Police

Services Act .

(2) Clause

(

c) of the definition of “public body” in subsection 18.2 (3) of the Act, as

enacted by subsection (1), is repealed and the following substituted:

(

c) a

chief of police as defined in subsection 2 (1) of the Community

Safety and Policing Act, 2019 .

16 (1) Subsection 19 (5) of the Act

is amended by striking out “the person who disclosed the information to”.

(2) Subsection

19 (5.1) of the Act is amended by striking out “a person who discloses

information to the Attorney General” in the portion before clause (

a) and

substituting “a person who disclosed information to a reviewing authority under

subsection (4) that was subsequently disclosed to the Attorney General”.

(3) Subsection

19 (6) of the Act is amended by striking out “Subsections (4) and (5) do” at

the beginning and substituting “Subsection (4) does”.

(4) Subsection

19 (7) of the Act is amended by striking out “(5) or”.

(5) Subsection

19 (8) of the Act is amended by striking out “(5) or”.

Subsection 19.1 (1) of the Act is amended by striking out “Part II” and

substituting “Part I.1, II”.

The Act is amended by adding the following section:

Annual

Report

20.1

(1) On or

before July 1 in each year, the Director of Asset Management – Civil shall

prepare a report on the activities conducted under this Act in the previous

fiscal year.

Contents

of report

(2) The

report must contain,

(

a) general

information respecting the activities conducted under this Act in the previous

fiscal year;

(

b) statistics

respecting proceedings under this Act in the previous fiscal year, including,

(

i) the

number of proceedings commenced under each of Parts I.1, II, III, III.1 and IV,

(ii) the

number of proceedings under

Part I.1 in which a notice of dispute was filed,

(iii) the

number of ongoing proceedings under each of Parts II, III, III.1 and IV,

(iv) the

number of forfeitures that occurred under each of Parts I.1, II, III, III.1 and

IV,

(

v) the

total value of all forfeitures under each of Parts I.1, II, III, III.1 and IV,

(vi) the

total amount paid out to compensate the Crown in right

of Ontario for its incurred costs,

(vii) the

total amount paid out to compensate victims of unlawful activities,

(viii) the

total amount paid in grants under this Act to assist victims of unlawful

activities and to prevent unlawful activities that result in victimization, and

(ix) the

total number of actions commenced under

section 1.10 of the Act and the total

amount paid out under that section; and

(

c) any

other information that the Attorney General believes should be made available

to the public.

Provision

of report and publication

(3) The

Director of Asset Management – Civil shall provide the report to the Attorney

General on or before July 1 of each year and make it available to the public on

a website of the Government of Ontario.

Definition

of fiscal year

(4) In

this section,

“fiscal

year” means the period commencing on April 1 in each year and ending on March 31

of the following year.

Clause 21 (1) (

b) of the Act is repealed and the following substituted:

(

b) governing payments out of accounts

referred to in

section 1.9, 6, 11, 11.4 or 15, including governing the

circumstances in which payments may be made, governing the amounts of payments,

governing procedures for determining what payments are made, prescribing

classes of public institutions for the purpose of paragraph 4 of subsection 1.9

(4), paragraph 4 of subsection 6 (3), paragraph 4 of subsection 11 (3), paragraph

4 of subsection 11.4 (4) and paragraph 3 of subsection 15 (3);

Commencement

(1) Subject to subsections (2) and (3), this

Schedule comes into

force on the day the Smarter and Stronger Justice Act, 2020

receives Royal Assent.

(2) Section

1, subsections 5 (1), 5 (3), 7 (1), 7 (3), 7 (4), 9 (1), 9 (3) and 9 (4),

section 10, subsections 12 (1), 12 (3), 12 (4), 13 (1), 13 (3) and 15 (2) and

sections 17 and 19 come into force on a day to be named by proclamation of the

Lieutenant Governor.

(3) Section

18 comes into force on the later of April 1, 2021 and the day the Smarter and Stronger Justice Act, 2020 receives Royal

Assent.

Schedule 4

class Proceedings Act, 1992

(1) Section 1 of the Class Proceedings Act,

1992 is amended by adding the following

definitions:

“Minister”

means the Attorney General or such other member of the Executive Council to

whom the administration of this Act is assigned under the Executive

Council Act ; (“ministre”)

“multi-jurisdictional

class proceeding” means a proceeding,

(

a) brought

on behalf of a class of persons that includes residents from two or more

provinces or territories of Canada, and

(

b) certified

as a class proceeding under this Act or under the law of another Canadian

jurisdiction, as the case may be; (“recours collectif multiterritorial”)

“prescribed”

means prescribed by the regulations; (“prescrit”)

“regulations”

means the regulations made under this Act. (“règlements”)

(2) Section

1 of the Act is amended by adding the following subsections:

Interpretation,

proceeding under this Act

(2) For

greater certainty, unless the context requires otherwise, a reference to a

proceeding under this Act includes reference to,

(

a) a

proceeding commenced under

section 2, regardless of whether it has been

certified as a class proceeding; and

(

b) a

proceeding or proceedings referred to in

section 3 or 4, once a motion for

certification is made in respect of the proceeding or proceedings.

Interpretation,

representative party, etc.

(3) If

the context so requires, a reference in this Act to a representative plaintiff,

defendant or party, or to a class or subclass member, includes a reference to a

person who would, if a proceeding under this Act were certified as a class

proceeding, be a representative plaintiff, defendant or party or class or

subclass member, as the case may be.

Interpretation,

success in a class proceeding

(4) For

the purposes of this Act, success in a class proceeding includes,

(

a) a

judgment on common issues in favour of some or all class members; and

(

b) a

settlement that benefits one or more class members.

The Act is amended by adding the following section:

Determining

same or similar subject matter

1.1 A determination under

this Act as to whether two or more proceedings involve the same or similar

subject matter shall include consideration of whether the proceedings involve

the same or similar causes of action and the same or affiliated defendants.

(1) Section 2 of the Act is amended by adding the following

subsection:

Registration

of proceeding

(1.1) A

person who commences a proceeding under subsection (1) shall register the

proceeding in accordance with the regulations.

(2) The

French version of subsection 2 (2) of the Act is amended by striking out

“certifiant que l’instance est un recours collectif” and substituting

“certifiant l’instance comme recours collectif”.

(3) Subsection

2 (3) of the Act is repealed and the following substituted:

Proof

of registration

(3) The

person shall, in an affidavit filed for use on the motion for certification,

provide proof that the proceeding was registered in accordance with subsection

(1.1).

Notice

of certification motion to others

(4) In

addition to giving notice of a motion for certification in accordance with the

rules of court, the person shall give notice of the motion to the

representative plaintiff of any class proceeding or proposed class proceeding,

including a multi-jurisdictional class proceeding or proposed

multi-jurisdictional class proceeding, that,

(

a) was

commenced in a Canadian jurisdiction other than Ontario; and

(

b) involves

the same or similar subject matter and some or all of the same class members.

Submissions

(5) A

person to whom notice is given under subsection (4) is entitled to make

submissions at the hearing of the motion for certification.

The French version of

section 3 of the Act is amended by striking out

“certifiant que les instances sont un recours collectif” and substituting

“certifiant les instances comme recours collectif”.

The French version of

section 4 of the Act is amended by striking out

“certifiant que l’instance est un recours collectif” and substituting

“certifiant l’instance comme recours collectif”.

The Act is amended by adding the following section:

Early

resolution of issues

4.1 If, before the hearing

of the motion for certification, a motion is made under the rules of court that

may dispose of the proceeding in whole or in part, or narrow the issues to be

determined or the evidence to be adduced in the proceeding, that motion shall

be heard and disposed of before the motion for certification, unless the court

orders that the two motions be heard together.

(1) Subsection 5 (1) of the Act is amended by striking out the

portion before clause (

a) and substituting the following:

Certification

(1) The

court shall, subject to subsection (6) and to

section 5.1, certify a class

proceeding on a motion under

section 2, 3 or 4 if,

. . . .

(2) Section

5 of the Act is amended by adding the following subsections:

Same

(1.1) In

the case of a motion under

section 2, a class proceeding is the preferable

procedure for the resolution of common issues under clause (1) (

d) only if, at

a minimum,

(

a) it

is superior to all reasonably available means of determining the entitlement of

the class members to relief or addressing the impugned conduct of the

defendant, including, as applicable, a quasi-judicial or administrative proceeding,

the case management of individual claims in a civil proceeding, or any remedial

scheme or program outside of a proceeding; and

(

b) the

questions of fact or law common to the class members predominate over any

questions affecting only individual class members.

. . . .

Existence

of other class proceeding

(6) If

a class proceeding or proposed class proceeding, including a

multi-jurisdictional class proceeding or proposed multi-jurisdictional class

proceeding, has been commenced in a Canadian jurisdiction other than Ontario

involving the same or similar subject matter and some or all of the same class

members as in a proceeding under this Act, the court shall determine whether it

would be preferable for some or all of the claims of some or all of the class

members, or some or all of the common issues raised by those claims, to be

resolved in the proceeding commenced in the other jurisdiction instead of in the

proceeding under this Act.

Same,

considerations

(7) In

making a determination under subsection (6), the court shall,

(

a) be

guided by the following objectives:

(

i) ensuring

that the interests of all parties in each of the applicable jurisdictions are

given due consideration,

(ii) ensuring

that the ends of justice are served,

(iii) avoiding

irreconcilable judgments where possible,

(iv) promoting

judicial economy; and

(

b) consider

all relevant factors, including,

(

i) the

alleged basis of liability in each of the proceedings, and any differences in

the laws of each applicable jurisdiction respecting such liability and any

available relief,

(ii) the

stage each proceeding has reached,

(iii) the

plan required to be produced for the purposes of each proceeding, including the

viability of the plan and the available capacity and resources for advancing

the proceeding on behalf of the class,

(iv) the

location of class members and representative plaintiffs in each proceeding,

including the ability of a representative plaintiff to participate in a

proceeding and to represent the interests of class members,

(

v) the

location of evidence and witnesses, and

(vi) the

ease of enforceability in each applicable jurisdiction.

Motion

for determination under subs. (6)

(8) The

court, on the motion of a party or class member made before the hearing of the

motion for certification, may make a determination under subsection (6) with

respect to a proceeding under this Act, and, in doing so, may make any orders it

considers appropriate respecting the proceeding, including,

(

a) staying

the proceeding; and

(

b) imposing

such terms on the parties as the court considers appropriate.

(3) The

French version of subsection 5 (2) of the Act is amended by striking out

“certifier qu’il s’agit d’un recours collectif” in the portion before clause

(

a) and substituting “certifier le recours collectif”.

(4) The

French version of subsection 5 (5) of the Act is amended by striking out

“certifiant qu’il s’agit d’un recours collectif” and substituting “certifiant

un recours collectif”.

The Act is amended by adding the following section:

Motion

to certify, multi-jurisdictional class proceeding

5.1

(1) The

court may make any order it considers appropriate on a motion to certify a

multi-jurisdictional class proceeding, including,

(

a) certifying

the proceeding if,

(

i) the

conditions set out in subsection 5 (1) are met, and

(ii) the

court determines, having regard to subsections 5 (6) and (7), that Ontario is

the appropriate venue for the proceeding;

(

b) refusing

to certify the proceeding if the court determines that it should proceed as a

multi-jurisdictional class proceeding or proposed multi-jurisdictional class

proceeding in another jurisdiction; or

(

c) refusing

to certify the proceeding with respect to class members that the court

determines may be included as class members in a class proceeding or proposed

class proceeding in another Canadian jurisdiction.

Same

(2) In

making an order under clause (1) (a), the court may,

(

a) divide

the class into Ontario resident and non-resident subclasses;

(

b) appoint

a separate representative plaintiff for each subclass; and

(

c) specify,

for the purposes of

section 9, the manner and time of opting out of the multi-jurisdictional

class proceeding with respect to each subclass.

The French version of

section 6 of the Act is amended by striking out

“certifier qu’une instance est un recours collectif” in the portion before

paragraph 1 and substituting “certifier une instance comme recours collectif”.

Section 7 of the Act is repealed and the following substituted:

Refusal

to certify

(1) If

the court refuses to certify a proceeding as a class proceeding, the court

shall consider whether notice of the refusal should be given under

section 19, and whether such notice should include,

(

a) an

account of the conduct of the proceeding;

(

b) a

statement of the result of the proceeding;

(

c) any

other prescribed information; and

(

d) any

other information the court considers appropriate.

Proceeding

may continue in altered form

(2) If

the court refuses to certify a proceeding as a class proceeding, the court may

permit the proceeding to continue as one or more proceedings between different

parties and, for the purpose, the court may,

(

a) order

the addition, deletion or substitution of parties;

(

b) order

the amendment of the pleadings or notice of application; and

(

c) make

any further order that it considers appropriate.

(1) The French version of subsection 8 (1) of the Act is amended by

striking out “certifiant que l’instance est un recours collectif” in the

portion before clause (

a) and substituting “certifiant l’instance comme recours

collectif”.

(2) The

French version of subsection 8 (3) of the Act is amended by striking out

“certifiant qu’une instance est un recours collectif” at the end and

substituting “certifiant une instance comme recours collectif”.

The French version of

section 9 of the Act is amended by striking out

“l’ordonnance certifiant le recours collectif” at the end and substituting

“l’ordonnance de certification”.

(1) The French version of subsection 10 (1) of the Act is amended by

striking out “modifier ou annuler l’ordonnance certifiant le recours

collectif,” and substituting “modifier l’ordonnance de certification de

l’instance, révoquer la certification de l’instance”.

(2) The

French version of subsection 10 (2) of the Act is amended by striking out

“ordonnance d’annulation de l’ordonnance certifiant le recours collectif” and

substituting “ordonnance révoquant la certification”.

Section 12 of the Act is repealed and the following substituted:

Court

may determine conduct of proceeding

The

court, on its own initiative or on the motion of a party or class member, may

make any order it considers appropriate respecting the conduct of a proceeding

under this Act to ensure its fair and expeditious determination and, for the

purpose, may impose such terms on the parties as it considers appropriate.

Section 13 of the Act is amended by striking out “the class proceeding before

it” and substituting “the proceeding under this Act before it”.

The Act is amended by adding the following section:

Carriage

motions

13.1

(1) In this

section,

“carriage

motion” means a motion for an order under this section.

Stay

of other proceedings

(2) Where

two or more proceedings under this Act involve the same or similar subject

matter and some or all of the same class members, the court may, on the motion

of a representative plaintiff in one of the proceedings, order that one or more

of the proceedings be stayed.

Timing

(3) A

carriage motion shall be made no later than 60 days after the day on which the

first of the proceedings was commenced, and shall be heard as soon as is

practicable.

Considerations

(4) On

a carriage motion, the court shall determine which proceeding would best

advance the claims of the class members in an efficient and cost-effective

manner, and shall, for the purpose, consider,

(

a) each

representative plaintiff’s theory of its case, including the amount of work

performed to date to develop and support the theory;

(

b) the

relative likelihood of success in each proceeding, both on the motion for

certification and as a class proceeding;

(

c) the

expertise and experience of, and results previously achieved by, each solicitor

in class proceedings litigation or in the substantive areas of law at issue;

and

(

d) the

funding of each proceeding, including the resources of the solicitor and any

applicable third-party funding agreements as defined in

section 33.1, and the

sufficiency of such funding in the circumstances.

Decision

final

(5) The

decision of the court on a carriage motion is final and not subject to appeal.

Bar

on proceedings without leave

(6) In

making an order under this section, the court shall also bar the commencement,

without leave of the court, of any proceeding under this Act involving the same

or similar subject matter and some or all of the same class members.

Costs

(7) Solicitors

for the representative plaintiffs who are parties to the carriage motion shall

bear the costs of the motion, and shall not attempt to recoup any portion of

the costs from the class or any class member, or from the defendant.

Bar

on proceedings without leave following motion period

(8) Despite

section 2, a proceeding may not be commenced under that

section without leave

of the court if,

(

a) the

proceeding would involve the same or similar subject matter and some or all of

the same class members as an existing proceeding under this Act; and

(

b) more

than 60 days have passed since the existing proceeding was commenced.

Subsection 14 (1) of the Act is amended by striking out “at any time in a class

proceeding” and substituting “at any time in a proceeding under this Act”.

(1) The French version of subsection 17 (1) of the Act is amended by

striking out “un avis les informant que le recours collectif est certifié” and

substituting “un avis de certification du recours collectif”.

(2) The

French version of the following subsections of the Act is amended by striking

out “points” wherever it appears and substituting in each case “facteurs”:

1. Subsection

17 (2).

2. Subsection

17 (3).

(3) Subsections

17 (4) to (6) of the Act are repealed and the following substituted:

Means

of giving notice

(4) The

court may, for the purposes of subsection (3), order that notice be given by

any of the following means or combination of the following means, and may order

that notice be given to different class members by different means:

1. Personally

or by mail.

2. By

posting, advertising, publishing or leafleting.

3. By

individual notice to a sample group within the class.

4. By

any electronic means the court considers appropriate.

5. By

any means that may be prescribed.

6. By

any other means the court considers appropriate.

Contents

of notice

(5) Unless

the court orders otherwise, notice under this

section shall,

(

a) describe

the proceeding, including the names and addresses of the representative parties

and the relief sought;

(

b) state

the manner by which and time within which class members may opt out of the

proceeding;

(

c) describe

the possible financial consequences of the proceeding to class members;

(

d) summarize

any agreements between representative parties and their solicitors respecting

fees and disbursements;

(

e) indicate

whether there is a third-party funding agreement as defined in

section 33.1 between

the representative plaintiff and a funder and, if so, provide a description of

the payment to which the funder is entitled under the agreement;

(

f) describe

any counterclaim being asserted by or against the class, including the relief

sought in the counterclaim;

(

g) state

that the judgment, whether favourable or not, will bind all class members who

do not opt out of the proceeding;

(

h) describe

the right of any class member to participate in the proceeding;

(

i) provide

contact information for a person or entity to whom class members may direct

inquiries about the proceeding;

(

j) include

the prescribed information; and

(

k) include

any other information the court considers appropriate.

Court

to consider circumstances

(6) The

court shall make such orders under subsections (3), (4) and (5) as are

necessary to ensure that the notice given is the best notice that is

practicable in the circumstances.

(4) Section

17 of the Act is amended by adding the following subsection:

Public

Guardian and Trustee

(8) Notice

ordered to be given under this

section shall be served on the Public Guardian

and Trustee if there is a reasonable possibility that the Public Guardian and

Trustee is authorized to act on behalf of one or more class members.

Subsections 18 (2) and (3) of the Act are repealed and the following

substituted:

Order

respecting notice

(2) The

court shall make an order setting out when and by what means notice shall be

given under this section, and in so doing shall have regard to the factors set

out in subsection 17 (3).

Means

of giving notice

(3) The

court may, for the purposes of subsection (2), order that notice be given by

any of the following means or combination of the following means, and may order

that notice be given to different class members by different means:

1. By

any means referred to in paragraphs 1 to 4 of subsection 17 (4).

2. By

any means that may be prescribed.

3. By

any other means the court considers appropriate.

Contents

of notice

(4) Unless

the court orders otherwise, notice under this

section shall,

(

a) state

that common issues have been determined in favour of the class;

(

b) state

that class members may be entitled to individual relief;

(

c) describe

the steps to be taken to establish an individual claim;

(

d) state

that failure on the part of a class member to take those steps will result in

the member not being entitled to assert an individual claim except with leave

of the court;

(

e) provide

contact information for a person or entity to whom class members may direct

inquiries about the proceeding;

(

f) include

the prescribed information; and

(

g) include

any other information the court considers appropriate.

Court

to consider circumstances

(5) The

court shall make such orders under subsections (2), (3) and (4) as are

necessary to ensure that the notice given is the best notice that is

practicable in the circumstances.

Section 19 of the Act is repealed and the following substituted:

Notice

to protect interests of affected persons

(1) At

any time in a proceeding under this Act, the court may order any party to give

such notice as it considers necessary to protect the interests of any class

member or party, or to ensure the fair conduct of the proceeding.

Order

respecting notice

(2) The

court shall make an order setting out when and by what means notice shall be

given under this section, and in so doing shall have regard to the factors set

out in subsection 17 (3).

Means

of giving notice

(3) The

court may, for the purposes of subsection (2), order that notice be given by

any of the following means or combination of the following means, and may order

that notice be given to different class members by different means:

1. By

any means referred to in paragraphs 1 to 4 of subsection 17 (4).

2. By

any means that may be prescribed.

3. By

any other means the court considers appropriate.

Court

to consider circumstances

(4) The

court shall make such orders under subsections (2) and (3) as are necessary to

ensure that the notice given is the best notice that is practicable in the

circumstances.

Section 20 of the Act is repealed and the following substituted:

Notices,

general requirements

Plain

language

(1) A

notice under

section 17, 18 or 19 shall be written in a plain language manner.

Bilingual

(2) A

unless the court orders otherwise.

Court

approval

(3) A

notice under

section 17, 18 or 19 shall be approved by the court before it is

given.

Section 22 of the Act is amended by adding the following subsection:

Exception,

costs of notice of certification

(1.1) Despite

subsection (1), the costs of any notice under

section 17 may be awarded to the

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, and, for greater certainty, shall not be ordered to be

paid by the defendant at any earlier time in the proceeding absent the

defendant’s consent.

(1) Subsections 26 (4), (5) and (6) of the Act are repealed.

(2) Section

26 of the Act is amended by adding the following subsections:

Duty

of person, entity administering distribution

(11) A

person or entity administering the distribution of an award under

section 24 or

25 shall do so in a competent and diligent manner.

Report

(12) No

later than 60 days after the date on which an award made under

section 24 is

fully distributed, including any distribution under subsection (10) or

section

27.2, the person or entity who administered the distribution shall file with

the court a report containing their best information respecting the following:

1. The

amount of the award.

2. The

total number of class members.

3. Information

respecting the number of class members identified in each affidavit filed under

subsection 5 (3) in the motion for certification.

4. The

number of class members who received notice associated with the distribution,

and a description of how notice was given.

5. The

number of class members who made a claim for monetary relief and, of them, the

numbers of class members who did and who did not receive the relief.

6. The

amount of the award distributed to class members and a description of how the

award was distributed.

7. The

amount and recipients of any distribution under subsection (10) or

section

27.2.

8. The

number of class members who opted out of the class proceeding.

9. The

smallest and largest amounts distributed to class members, the average and the

median of the amounts distributed to class members, and any other aggregate

data respecting the distribution that the person or entity who administered the

distribution considers to be relevant.

10. The

administrative costs associated with the distribution of the award.

11. The

solicitor fees and disbursements.

12. Any

amount paid to the Class Proceedings Fund established under the Law Society Act or to a funder under a third-party funding

agreement approved under

section 33.1.

13. Any

other information the court requires to be included in the report.

Same

(13) Once

the court is satisfied that the requirements of subsection (12) have been met

with respect to a filed report, the court shall make an order approving the

report and append the report to the order.

Same

(14) If

the regulations so provide, the person or entity who administered the

distribution, or such other person or entity as may be prescribed, shall

provide, in accordance with the regulations, a copy of the approved report to the

person or entity specified by the regulations.

The French version of subsection 27 (3) of the Act is amended by striking out

“l’ordonnance certifiant le recours collectif” wherever it appears and

substituting in each case “l’ordonnance de certification”.

The Act is amended by adding the following sections:

Settlement

27.1

(1) A

proceeding under this Act may be settled only with the approval of the court.

Subclass

(2) A

settlement may be concluded in relation to the common issues affecting a

subclass only with the approval of the court.

Not

binding without court approval

(3) A

settlement under this

section is not binding unless approved by the court.

Effect

of settlement

(4) If

a proceeding is certified as a class proceeding, a settlement under this

section that is approved by the court binds every member of the class or

subclass, as the case may be, who has not opted out of the class proceeding,

unless the court orders otherwise.

Settlement

must be fair and reasonable

(5) The

court shall not approve a settlement unless it determines that the settlement

is fair, reasonable and in the best interests of the class or subclass members,

as the case may be.

Differences

not a bar

(6) The

court may approve a settlement even if individual class or subclass members,

including a representative party, are subject to different settlement terms.

Evidentiary

requirements

(7) On

a motion for approval of a settlement, the moving party shall make full and

frank disclosure of all materials facts, including, in one or more affidavits

filed for use on the motion, the party’s best information respecting the

following matters, which the court shall consider in determining whether to

approve the settlement:

1. Evidence

as to how the settlement meets the requirements of subsection (5).

2. Any

risks associated with continued litigation.

3. The

range of possible recoveries in the litigation.

4. The

method used for valuation of the settlement.

5. The

total number of class or subclass members, as the case may be.

6. A

plan for allocating and distributing the settlement funds, including any

proposal respecting the appointment of an administrator under subsection (14),

and the anticipated costs associated with the distribution.

7. The

number of class or subclass members expected to make a claim under the

settlement and, of them, the numbers of class or subclass members who are and

who are not expected to receive settlement funds.

8. The

number of class or subclass members who have objected or are expected to object

to the settlement, and the nature or anticipated nature of the objections.

9. A

plan for giving notice of the settlement to class or subclass members in the

event of an order under

section 19, and the number of class or subclass members

who are expected to obtain the notice.

10. Any

other prescribed information.

Notice

of settlement hearing

(8) The

court shall consider whether notice of a hearing of a motion for approval of a

settlement should be given under

section 19, and whether such notice

should include,

(

a) a

statement of the purpose of the hearing;

(

b) the

process for objecting to the approval of the settlement;

(

c) any

other prescribed information; and

(

d) any

other information the court considers appropriate.

Public

Guardian and Trustee

(9) Notice

of a motion for approval of a settlement and other materials filed on the

motion, as well as any notice given under subsection (8), shall be served on

the Public Guardian and Trustee, if there is a reasonable possibility that the

Public Guardian and Trustee is authorized to act on behalf of one or more class

or subclass members.

Same

(10) An

entitlement to receive materials under subsection (9) includes an entitlement

to make submissions at the hearing of the motion, unless the court orders

otherwise.

Children’s

Lawyer

(11) If

there is a reasonable possibility that the class or subclass includes minors,

the court may direct that,

(

a) the

notice of motion and other materials filed on the motion be served on the

Children’s Lawyer; and

(

b) the

Children’s Lawyer make any recommendations it may have in connection with the

proposed settlement in writing to the court.

Notice

of settlement approval

(12) In

approving a settlement, the court shall consider whether notice of the

settlement should be given under

section 19, and whether such notice

should include,

(

a) an

account of the conduct of the proceeding;

(

b) a

statement of the result of the proceeding;

(

c) a

description of any plan for distributing settlement funds;

(

d) any

other prescribed information; and

(

e) any

other information the court considers appropriate.

Supervisory

role of the court

(13) The

court shall supervise the administration and implementation of the settlement.

Court-appointed

administrator

(14) The

court may appoint a person or entity to act as an administrator to administer

the distribution of settlement funds.

Duty

of administrator, other person or entity

(15) An

administrator appointed by the court or, if no administrator is appointed, the

person or entity who administers the distribution of the settlement funds,

shall administer the distribution in a competent and diligent manner.

Report

(16) No

later than 60 days after the date on which the settlement funds are fully

distributed, including any distribution under

section 27.2, the administrator

or other person or entity who administered the distribution shall file with the

court a report containing their best information respecting the following:

1. The

amount of the settlement funds before distribution.

2. The

total number of class or subclass members.

3. Information

respecting the number of class members identified in each affidavit filed under

subsection 5 (3) in the motion for certification.

4. The

number of class members who received notice associated with the distribution,

and a description of how notice was given.

5. The

number of class or subclass members who made a claim under the settlement and,

of them, the numbers of class or subclass members who did and who did not

receive settlement funds.

6. The

amount of the settlement funds distributed to class or subclass members and a

description of how the settlement funds were distributed.

7. The

amount and recipients of any distribution under

section 27.2, and the amount,

if any, that was subject to reversion or otherwise returned to the defendant.

8. The

number of class or subclass members who objected to the settlement and the

nature of their objections.

9. The

number of class or subclass members who opted out of the class proceeding.

10. The

smallest and largest amounts distributed to class or subclass members, the

average and the median of the amounts distributed to class or subclass members,

and any other aggregate data respecting the distribution that the administrator

or other person or entity who administered the distribution considers to be

relevant.

11. The

administrative costs associated with the distribution of the settlement funds.

12. The

solicitor fees and disbursements.

13. Any

amount paid to the Class Proceedings Fund established under the Law Society Act or to a funder under a third-party

funding agreement approved under

section 33.1.

14. Any

other information the court requires to be included in the report.

Same

(17) Once

the court is satisfied that the requirements of subsection (16) have been met

with respect to a filed report, the court shall make an order approving the

report and append the report to the order.

Same

(18) If

the regulations so provide, the administrator or other person or entity who

administered the distribution, or such other person or entity as may be

prescribed, shall provide, in accordance with the regulations, a copy of the

approved report to the person or entity specified by the regulations.

Distribution

on cy-près basis

Award

amounts

27.2

(1) The

court may order that all or part of an award under

section 24 that has not been

distributed to class or subclass members within a time set by the court be paid

to the person or entity determined under subsection (3) on a cy-près basis, if the court is satisfied that, using best

reasonable efforts, it is not practical or possible to compensate class or

subclass members directly.

Settlement

funds

(2) In

approving a settlement under

section 27.1, the court may approve settlement

terms that provide for the payment of all or part of the settlement funds to

the person or entity determined under subsection (3) on a cy-près

basis, if the court is satisfied that, using best reasonable efforts, it is not

practical or possible to compensate class or subclass members directly.

Recipient

(3) For

the purposes of subsections (1) and (2), payment may be made on a cy-près basis to,

(

a) a

registered charity within the meaning of the Income Tax

Act (Canada) or non-profit organization that is agreed on by the

parties, if the court determines that payment of the amount to the registered

charity or non-profit organization would reasonably be expected to directly or

indirectly benefit the class or subclass members; or

(

b) Legal

Aid Ontario, in any other case.

Subrogated claims

27.3

(1) In this

section,

“subrogated

claim” means a claim that is prescribed as a subrogated claim.

Notice

of subrogated claim

(2) No

later than 21 days after a proceeding that includes or may include a subrogated

claim is commenced under

section 2, the person who commenced the proceeding shall

serve the originating process on the person or entity specified by the

regulations in respect of the subrogated claim for the purposes of this

subsection.

Requirement

for settlement approval

(3) The

court shall not approve the settlement of a proceeding under this Act that

includes the settlement or release of a subrogated claim unless the person or

entity specified by the regulations in respect of the subrogated claim for the

purposes of this subsection has, before the hearing of the motion to approve

the settlement of the proceeding,

(

a) had

a reasonable opportunity to consider the proposed settlement or release of the

subrogated claim; and

(

b) given

approval in writing of the proposed settlement or release of the subrogated

claim.

Sections 28 and 29 of the Act are repealed and the following substituted:

Limitations

Suspension

in favour of class member

(1) Any

limitation period applicable to a cause of action asserted in a proceeding

under this Act is suspended in favour of a class member on the commencement of

the proceeding and, subject to subsection (2), resumes running against the

class member when,

(

a) the

court refuses to certify the proceeding as a class proceeding;

(

b) the

court makes an order that the cause of action shall not be asserted in the

proceeding;

(

c) the

court makes an order that has the effect of excluding the member from the

proceeding;

(

d) the

member opts out of the class proceeding;

(

e) an

amendment that has the effect of excluding the member from the class is made to

the certification order;

(

f) a

decertification order is made under

section 10;

(

g) the

proceeding is dismissed without an adjudication on the merits, including for

delay under

section 29.1 or otherwise;

(

h) the

proceeding is abandoned or discontinued with the approval of the court; or

(

i) the

proceeding is settled with the approval of the court, unless the settlement

provides otherwise.

Effect

of appeal

(2) If

there is a right of appeal in respect of an event described in subsection (1),

the limitation period resumes running as soon as the time for appeal has

expired without an appeal being commenced or as soon as any such appeal has

been finally disposed of.

Suspension

in favour of defendant

(3) Any

limitation period applicable to a claim by a defendant for contribution and

indemnity in a proceeding commenced under

section 2 is suspended in favour of

the defendant on the commencement of the proceeding, and resumes running

against the defendant as soon as the time for appeal of the court’s decision to

certify or refuse to certify the proceeding has expired without an appeal being

commenced or as soon as any such appeal has been finally disposed of.

Discontinuance,

abandonment and dismissal for delay

Court

approval required

(1) A

proceeding under this Act may be discontinued or abandoned only with the

approval of the court, on such terms as the court considers appropriate.

Notice

(2) In

approving a discontinuance or abandonment, or in dismissing a proceeding for

delay, other than under

section 29.1, the court shall consider whether notice

should be given under

section 19, and whether such notice should include,

(

a) an

account of the conduct of the proceeding;

(

b) a

statement of the result of the proceeding;

(

c) any

other prescribed information; and

(

d) any

other information the court considers appropriate.

Mandatory

dismissal for delay

29.1

(1) The

court shall, on motion, dismiss for delay a proceeding commenced under

section

2 unless, by the first anniversary of the day on which the proceeding was

commenced,

(

a) the

representative plaintiff has filed a final and complete motion record in the

motion for certification;

(

b) the

parties have agreed in writing to a timetable for service of the representative

plaintiff’s motion record in the motion for certification or for completion of

one or more other steps required to advance the proceeding, and have filed the

timetable with the court;

(

c) the

court has ordered that the proceeding not be dismissed and has established a

timetable for service of the representative plaintiff’s motion record in the

motion for certification or for the completion of one or more other steps

required to advance the proceeding; or

(

d) any

other steps, occurrences or circumstances specified by the regulations have

taken place.

Notice

(2) If

a proceeding is dismissed for delay under subsection (1), the court shall order

that the solicitor for the representative plaintiff give notice of the

dismissal by,

(

a) publishing

the notice and a copy of the order on the website of the solicitor or of the

law firm or other entity through which the solicitor practices law;

(

b) sending

the notice and a copy of the order to every class member who has contacted the

solicitor to express an interest in the proceeding; and

(

c) taking

any other steps to give notice that the court may specify.

Same

(3) Section

20 applies, with necessary modifications, with respect to a notice required to

be given under subsection (2).

Costs

(4) The

solicitor for the representative plaintiff shall bear the costs of giving notice

under subsection (2), and shall not attempt to recoup any portion of the costs

from the class or any class member, or from the defendant.

(1) Subsections 30 (1) and (2) of the Act are repealed and the

following substituted:

Appeals

Appeals:

certification

(1) A

party may appeal to the Court of Appeal from an order,

(

a) certifying

or refusing to certify a proceeding as a class proceeding; or

(

b) decertifying

a proceeding.

amendments of materials on appeal

(2) The

appellant may not materially amend the notice of certification motion,

pleadings or notice of application on an appeal of an order refusing to certify

a proceeding as a class proceeding, except with leave of the court in

exceptional or unforeseen circumstances.

(2) Subsection

30 (4) of the Act is repealed and the following substituted:

Appeals

by class members on behalf of the class

(4) If

a representative party does not appeal as permitted by subsection (1), or if a

representative party abandons an appeal, any class member may make a motion to

the court for leave to act as the representative party for the purposes of an

appeal under that subsection.

(3) Subsections

30 (6), (7) and (8) of the Act are amended by striking out “and awarding more

than $3,000 to the member” wherever it appears and substituting in each case

“and awarding the member an amount that is equal to or greater than the

monetary jurisdiction of the Small Claims Court”.

(4) Subsections

30 (9), (10) and (11) of the Act are amended by striking out “and awarding

$3,000 or less to the member” wherever it appears and substituting in each case

“and awarding the member an amount that is less than the monetary jurisdiction

of the Small Claims Court”.

Subsection 31 (1) of the Act is amended by striking out “the class proceeding”

and substituting “the proceeding”.

(1) Section 32 of the Act is amended by adding the following

subsections:

Fees

must be fair and reasonable

(2.1) The

court shall not approve an agreement unless it determines that the fees and

disbursements required to be paid under the agreement are fair and reasonable,

taking into account,

(

a) the

results achieved for the class members, including the number of class or

subclass members expected to make a claim for monetary relief or settlement

funds and, of them, the number of class or subclass members who are and who are

not expected to receive monetary relief or settlement funds;

(

b) the

degree of risk assumed by the solicitor in providing representation;

(

c) the

proportionality of the fees and disbursements in relation to the amount of any

monetary award or settlement funds;

(

d) any

prescribed matter; and

(

e) any

other matter the court considers relevant.

Same

(2.2) In

considering the degree of risk assumed by the solicitor, the court shall

consider,

(

a) the

likelihood that the court would refuse to certify the proceeding as a class

proceeding;

(

b) the

likelihood that the class proceeding would not be successful;

(

c) the

existence of any other factor, including any report, investigation, litigation,

initiative or funding arrangement, that affected the degree of risk assumed by

the solicitor in providing representation; and

(

d) any

other prescribed matter.

Same

(2.3) In

determining whether the fees and disbursements are fair and reasonable, the

court may, by way of comparison, consider different methods by which the fees

and disbursements could have been structured or determined.

(2) The

French version of subsection 32 (3) of the Act is amended by striking out “les sommes

qui font l’objet d’une transaction” and substituting “les fonds de

transaction”.

(3) Section

32 of the Act is amended by adding the following subsections:

Considerations

(5) In

making an order under clause (4) (a), the court shall take into account the

factors set out in subsection (2.1), in accordance with subsections (2.2) and

(2.3).

Holdback

(6) The

court may determine and specify an amount or portion of the fees and

disbursements owing to the solicitor under this

section that shall be held back

from payment until,

(

a) the

report required under subsection 26 (12) or 27.1 (16), as the case may be, has

been filed with the court and the court is satisfied that it meets the

requirements of that subsection; and

(

b) the

court is satisfied with the distribution of the monetary award or settlement

funds in the circumstances, including the number of class or subclass members

who made a claim for monetary relief or settlement funds and, of them, the

number of class or subclass members who did and who did not receive monetary

relief or settlement funds.

(1) Subsection 33 (1) of the Act is amended by striking out “Despite

the Solicitors Act and

An Act

Respecting Champerty , being

chapter 327 of Revised Statutes of Ontario,

1897, a solicitor” at the beginning and substituting “A solicitor”.

(2) Subsection

33 (2) of the Act is repealed.

(3) Clause

33 (7) (

b) of the Act is repealed and the following substituted:

(

b) may

apply a multiplier to the base fee; and

(4) Subsection

33 (9) of the Act is repealed and the following substituted:

Same

(9) In

making a determination under clause (7) (b), the court shall take into account

the factors set out in subsection 32 (2.1), in accordance with subsections

(2.2) and (2.3) of that section.

The Act is amended by adding the following section:

Third-party

funding agreements

33.1

(1) In this

section,

“third-party

funding agreement” means an agreement in which a funder who is not a party to a

proceeding under this Act agrees to indemnify the representative plaintiff or

provide money to pursue the proceeding under this Act, in return for a share of

any monetary award or settlement funds or for any other consideration.

Contingent

on court approval

(2) A

third-party funding agreement is subject to the approval of the court, obtained

on a motion of the representative plaintiff made as soon as practicable after

the agreement is entered into, with notice to the defendant.

force or effect unless approved

(3) A

third-party funding agreement that is not approved by the court is of no force

or effect.

Agreement

to be provided to defendant and filed

(4) For

the purposes of the motion, the representative plaintiff shall serve on the

defendant, or provide in any other way the court orders, a copy of the

third-party funding agreement, and shall file the copy with the court.

Permissible

redaction

(5) The

representative plaintiff may, subject to the regulations, redact from the copy

of the third-party funding agreement provided and filed under subsection

(4) information that may reasonably be considered to confer a tactical advantage on

the defendant, but no other information shall be redacted from the copy.

Agreement

to be provided to judge

(6) The

representative plaintiff shall provide to the judge who will be presiding at

the hearing of the motion a copy of the complete and unredacted third-party

funding agreement, which shall not form part of the court file.

Requirement

to disclose

(7) The

court may order the representative plaintiff to disclose to a defendant any information

in the third-party funding agreement that has been redacted in accordance with

subsection (5).

Submissions

(8) The

defendant is entitled to make submissions at the hearing of the motion.

Factors

(9) The

court shall not approve a third-party funding agreement unless,

(

a) the

court is satisfied that,

(

i) the

agreement, including indemnity for costs and amounts payable to the funder under

the agreement, is fair and reasonable,

(ii) the

agreement will not diminish the rights of the representative plaintiff to

instruct the solicitor or control the litigation or otherwise impair the

solicitor-client relationship,

(iii) the

funder is financially able to satisfy an adverse costs award in the proceeding,

to the extent of the indemnity provided under the agreement, and

(iv) any

prescribed requirements and other relevant requirements are met; and

(

b) it

is a term of the agreement that the funder shall be subject to,

(

i) the

same confidentiality requirements in respect of confidential or privileged information

in the proceeding to which the representative plaintiff would be subject, and

(ii) the

deemed undertaking rules set out under the rules of court, as if the funder

were a party to the proceeding.

Same,

independent legal advice

(10) In

determining whether a third-party funding agreement meets the requirements of

clause (9) (a), the court shall consider whether the representative plaintiff

received independent legal advice with respect to the agreement.

Indemnity

for costs

(11) If

costs are ordered to be paid by the representative plaintiff, the defendant has

the right to recover the costs directly from the funder, to the extent of the

indemnity provided under an approved third-party funding agreement.

Security

for costs

(12) The

defendant is entitled, on motion, to obtain from the funder security for costs

to the extent of the indemnity provided under an approved third-party funding

agreement, if,

(

a) the

funder is ordinarily resident outside Ontario;

(

b) the

defendant has an order against the funder for costs in the same or another

proceeding that remain unpaid in whole or in part; or

(

c) there

is good reason to believe that the funder has insufficient assets in Ontario to

pay the costs.

Directions

(13) The

court may give any necessary directions respecting a dispute or question that

arises in relation to a third-party funding agreement.

Changes

to agreements

(14) This

section applies, with necessary modifications, with respect to any changes to

an approved third-party funding agreement that are agreed to by the parties to

it.

Notice

of termination

(15) The

representative plaintiff shall give notice to the court and to the defendant

if,

(

a) an

approved third-party funding agreement is terminated; or

(

b) the

funder becomes insolvent.

Non-application

(16) This

section does not apply with respect to funding provided out of the Class

Proceedings Fund established under the Law Society Act .

(1) Section 34 of the Act is amended by adding the following

subsection:

Exception

(1.1) Subsection

(1) does not apply with respect to a carriage motion under

section 13.1, which

shall be heard by a different judge unless the parties to the carriage motion

agree otherwise.

(2) Subsection

34 (3) of the Act is amended by striking out “subsection (1) or (2)” and

substituting “subsection (1), (1.1) or (2)”.

Section 35 of the Act is amended by striking out “class proceedings” at the end

and substituting “proceedings under this Act”.

Section 37 of the Act is amended by adding “and” at the end of clause (a), by

striking out “and” at the end of clause (

b) and by striking out clause (c).

Sections 38 and 39 of the Act are repealed and the following substituted:

Regulations

Minister

(1) The

Minister may make regulations,

(

a) respecting

any matter that, under this Act, may or must be prescribed or done by regulation,

other than by the Lieutenant Governor in Council under subsection (2);

(

b) governing

the registration of proceedings under this Act, including,

(

i) requiring

that documents relating to registered proceedings be provided to a registry

specified by the regulations, and governing the provision of those documents,

(ii) requiring

and governing proof of the provision of a document as required by regulation

under subclause (i);

(

c) providing

for the establishment of registries of class proceedings or classes of class

proceedings commenced in Canada, or of proposed class proceedings, and

governing the registries, including requiring and governing their use;

(

d) for

the purposes of subsection 26 (14), requiring the person or entity who

administered the distribution, or such other person or entity as the

regulations may specify, to provide a copy of the approved report to the person

or entity specified by the regulations, and governing the time and manner in

which the copy is required to be provided;

(

e) for

the purposes of subsection 27.1 (18), requiring the administrator or other

person or entity who administered the distribution, or such other person or

entity as the regulations may specify, to provide a copy of the approved report

to the person or entity specified by the regulations, and governing the time

and manner in which the copy is required to be provided;

(

f) specifying,

for the purposes of any provision of this Act or of the regulations m