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Silver lining for prospective pandemic-related claims against Ontario

As the pandemic continues, claims against the Ontario government are sure to become more numerous. Those effected by COVID-19 and the resulting economic shutdown may have any number of grievances against the province, and many will turn to the courts.

The silver lining for those looking to sue the province is that it is in one sense a good time to do so. In 2019, the province introduced a new statute, the Proceedings Against the Crown Act. Section 11 of the statute represented a significant departure from its predecessor legislation, the Crown Liability and Proceedings Act. The section completely disallowed claims against the provincial government or any officer, employee, or agent thereof respecting any act of negligence in exercising legislative duties. This was to include the introduction of a bill, the enactment of an Act, or the making of a regulation.

This statute would have made it far more difficult to succeed in a claim against the province, even one for which there was substantial evidence of negligence resulting in illness or financial loss. However, two recent judgments, Francis v. Ontario and Leroux v. Ontario, have changed that.

Francis v. Ontario is a decision on a motion for summary judgment in a class action. The plaintiff class consisted of inmates who claimed that the province was negligent in placing them in solitary confinement. While the province argued that solitary confinement is a government program and therefore cannot be the subject of a claim in negligence, the plaintiff characterized the province’s actions as operational misconduct. Justice Perell agreed with the plaintiff, ruling at paragraph 508 of his judgment that “as a matter of statutory interpretation… Ontario is not protected by s. 11 of the Crown Liability and Proceedings Act, 2019” and that “[h]owever it might be dressed up by policy documents, Ontario’s conduct was operational”. This decision may well provide a precedent for many future findings that s. 11 of the Crown Liability and Proceedings Act is inapplicable.

In Leroux v. Ontario, Justice Belobaba focused on s. 11(4) of the Crown Liability and Proceedings Act, which provides that there can be no cause of action against the province in respect of negligence for failure to take care in making a decision in good faith respecting a policy matter. Justice Belobaba drew attention in his judgment to the difficulty of determining whether something truly involved the “making of a decision”, stating at paragraph 15 of his judgment:

“In other words, given the “decision” requirement in s. 11(4), it is possible that the CLPA may not even apply on the facts herein. Or, the defendant may still plead that the alleged instances of operational negligence were in fact the result of specific decisions (or of failures to make a decision) by certain individuals. At this stage of the proceeding, however, it cannot be said that the operational negligence claim does not disclose a cause of action”.

Taken together, Francis v. Ontario and Leroux v. Ontario suggest that when it comes to claims of negligence against Ontario, courts will not assume it is plain and obvious that the Crown Liability and Proceedings Act limits the province’s liability.

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