Crown and Government Liability - Crown Liability and Proceedings Act (Ont) (CLPA)
Ontario Crown liability was significantly altered by the passage of the Crown Liability and Proceedings Act, 2019 (Ont) (CLPA), and the repeal of the Proceedings Against the Crown Act (PACA).
. Francis v Ontario
In Francise v Ontario (Ont CA, 2021) the Court of Appeal considered the implications of the new Crown Liability and Proceedings Act, 2019 which came into force 01 July 2019 with retroactive effect, particularly on the policy/operational distinction:
 Lastly, the motion judge found that the claim was not precluded by the Proceedings Against the Crown Act, R.S.O. 1990, c. P.27, (“PACA”), or extinguished by virtue of the CLPA, which replaced the PACA on July 1, 2019 with retroactive effect. . Francis v Ontario
 On April 11, 2019, the provincial government tabled Bill 100, An Act to implement Budget measures and to enact, amend and repeal various statutes, 1st Sess., 42nd Parl., Ontario, 2019, its omnibus budget bill, the short title of which was “Protecting What Matters Most Act (Budget Measures), 2019”. In keeping with what appears to have become a practice in recent times, Bill 100 did not deal solely with budget matters. Rather, the Bill was 178 pages long, contained 61 schedules, and affected 199 separate statutes. Included in Bill 100, as schedule 17, was the CLPA. Bill 100 received Royal Assent on May 29, 2019.
 Sections 11(4) and 11(5) of the CLPA are of particular relevance to the issue in this case. They read:
(4) No cause of action arises against the Crown or an officer, employee or agent of the Crown in respect of any negligence or failure to take reasonable care in the making of a decision in good faith respecting a policy matter, or any negligence in a purported failure to make a decision respecting a policy matter. The legislation speaks to whether it applies to any current or future claim. Section 11(8) provides that a “proceeding that may not be maintained under subsection (7) is deemed to have been dismissed, without costs, on the day on which the cause of action is extinguished under subsection (1), (2), (3) or (4)”. Further, s. 31(4) provides that “[s]ection 11 and the extinguishment of causes of action and dismissal of proceedings under that section apply with respect to proceedings commenced against the Crown or an officer, employee or agent of the Crown before the day this section came into force”. Simply put, the legislation has immediate and retroactive effect.
(5) For the purposes of subsection (4), a policy matter includes,
(a) the creation, design, establishment, redesign or modification of a program, project or other initiative, including,
(i) the terms, scope or features of the program, project or other initiative,
(ii) the eligibility or exclusion of any person or entity or class of persons or entities to participate in the program, project or other initiative, or the requirements or limits of such participation, or
(iii) limits on the duration of the program, project or other initiative, including any discretionary right to terminate or amend the operation of the program, project or other initiative;
(b) the funding of a program, project or other initiative, including,
(i) providing or ceasing to provide such funding,
(ii) increasing or reducing the amount of funding provided,
(iii) including, not including, amending or removing any terms or conditions in relation to such funding, or
(iv) reducing or cancelling any funding previously provided or committed in support of the program, project or other initiative;
(c) the manner in which a program, project or other initiative is carried out, including,
(i) the carrying out, on behalf of the Crown, of some or all of a program, project or other initiative by another person or entity, including a Crown agency, Crown corporation, transfer payment recipient or independent contractor,
(ii) the terms and conditions under which the person or entity will carry out such activities,
(iii) the Crown’s degree of supervision or control over the person or entity in relation to such activities, or
(iv) the existence or content of any policies, management procedures or oversight mechanisms concerning the program, project or other initiative;
(d) the termination of a program, project or other initiative, including the amount of notice or other relief to be provided to affected members of the public as a result of the termination;
(e) the making of such regulatory decisions as may be prescribed; and
(f) any other policy matter that may be prescribed.
 In support of its submissions on the proper interpretation, Ontario points to one case that has since been decided under the CLPA, namely, Seelster Farms v. Her Majesty the Queen and OLG, 2020 ONSC 4013, 68 C.C.L.T. (4th) 104, where Emery J. said, at para. 117:
The CLPA removes the distinction between decisions that are policy decisions, and decisions that are operational in nature, made for the purpose of implementing or carrying out a government policy or program. The language used in [subsection 11(5)(c)] extends the traditional immunity afforded to policy decisions to those decisions made to implement a policy matter to decisions that include the termination of that policy, and any notice or other relief claimed by affected parties. The lines of analysis have been moved by the CLPA for the purpose of determining Crown immunity from questioning whether the decision was one of policy or if it was operational in nature, to whether it was made in good faith. With respect, the above language does not clarify the policy/operational dichotomy; it eliminates it.
 We approach our analysis of this issue with two specific principles of statutory interpretation in mind. They are:
• The words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament: Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC),  1 S.C.R. 27, at para. 21. In considering the proper interpretation of the statute, we are also mindful of the genesis of statutes that address the issue of Crown immunity from suit. That genesis was explained in Just v. British Columbia, 1989 CanLII 16 (SCC),  2 S.C.R. 1228, where Cory J. said, at p. 1239:
• There is a presumption that the common law remains unchanged absent a clear and unequivocal expression of legislative intent: Canada (Attorney General) v. Thouin, 2017 SCC 46,  2 S.C.R. 184, at para. 19.
The early governmental immunity from tortious liability became intolerable. This led to the enactment of legislation which in general imposed liability on the Crown for its acts as though it were a person. However, the Crown is not a person and must be free to govern and make true policy decisions without becoming subject to tort liability as a result of those decisions. On the other hand, complete Crown immunity should not be restored by having every government decision designated as one of "policy". In our view, Ontario’s submission as to the proper interpretation of the CLPA comes perilously close to adopting precisely what Cory J. cautioned against, that is, characterizing every government decision as policy. This results from the interpretation that Ontario asks be given to s. 11, and, more particularly, to these words from s. 11(5)(c): “the manner in which a program, project or other initiative is carried out”.
 Ontario’s interpretation would give those words almost limitless application which would, in turn, dramatically change the current state of the law. Indeed, Ontario accepts that, at common law, decisions as to how government programs are to be “carried out” might well have been characterized as “operational” decisions to which no immunity applies. However, Ontario submits that the intent of s. 11(5)(c) is to reverse that situation. That result would give a rather expansive meaning to the word “clarify”.
 Ontario then attempts to limit the consequences of this submission by saying that it does not seek to immunize all government action from negligence claims “as many government acts and omissions do not fall within its ambit”. Ontario does not, though, explain how its submission as to the proper interpretation of the statute would allow for that result.
 It is s. 11(5)(c) of the CLPA that is at the heart of the interpretive issue. We would not give it the broad interpretation that Ontario urges in this case. We reach that conclusion for a number of reasons. First and foremost is the principle, that we set out above, that there is a presumption that the common law remains unchanged absent a clear and unequivocal expression of legislative intent. In our view, the combination of ss. 11(4) and (5) fails to achieve that clear and unequivocal expression. Sub-section 11(4) expressly references matters of policy. Sub-section 11(5) then purports to define what a policy matter may include. It follows that this definition must be predicated on maintaining the policy/operational separation. Had the intention been to do otherwise, the legislation could have expressly said so. For example, s. 11(5)(c) could have opened with “…the manner in which a program, project or other initiative is carried out, including operational decisions regarding,…” if the intent had been to expand the policy label to the extent that Ontario now submits.
 Second, to adopt Ontario’s expansive meaning of s. 11(5)(c) of the CLPA would directly offend the purpose behind statutes limiting Crown immunity, as explained by Cory J. in Just. There is, in fact, no limitation to the effect of the expansive meaning urged by Ontario in this case. Its logical conclusion would include virtually any step taken by the provincial government in carrying out any “program, project or other initiative”. Indeed, this is precisely the conclusion reached in Seelster Farms. The difficulty with that approach is aptly expressed by McLachlin C.J.C. in R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42,  3 S.C.R. 45, at para. 76: “[e]xempting all government actions from liability would result in intolerable outcomes.”
 Third, to adopt Ontario’s expansive meaning would require a conclusion either that the Attorney General, at the time, did not understand the effect of the legislation being introduced, or that she misled the Legislature as to its intention and effect. Neither of those conclusions should be drawn absent there being no alternative explanation. In contrast, an interpretation of the CLPA that maintains the existing separation between policy decisions and operational decisions takes the Attorney General at her word.
 This line between policy and operational matters may be illustrated by adapting an example used by counsel for the Canadian Civil Liberties Association. If the provincial government decides that it wishes to provide public transit between two towns in Ontario, that is a policy decision. If the provincial government decides that it is going to provide that public transit through buses rather than trains, that is also a policy decision. However, how those buses actually transport people is an operational matter.
 This conclusion is, in our view, consistent with the prevailing authorities on the distinction between policy and operation – admittedly a distinction that courts have found “notoriously difficult to decide”: Imperial Tobacco, at para. 78.
 A review of the case law demonstrates that government immunity from tort claims relates only to what is referred to as “true” or “core” policy decisions. The rationale for this immunity was to allow governments ample scope to make decisions based upon social, political and economic factors, without being exposed to tort liability for those decisions.
 In discussing this point in his reasons in Just, at pp. 1241-42, Cory J. references the decision of the High Court of Australia in Sutherland Shire Council v. Heyman, 1988 ABCA 234 (CanLII),  HCA 41, 157 C.L.R. 424, at paras. 38-39, per Mason J., which also discussed the policy/operation distinction. In that decision, it was noted that budgetary allocations and constraints cannot be the subject of a tort claim. However, the court noted that it would be different when a court is called upon to review “action or inaction that is merely the product of administrative direction”.
 The decision in Just went on to consider other situations, including the inspections of lighthouses or aircraft manufacturing, and the difference between decisions regarding the funding of such inspections (policy) and the conduct of those inspections (operation). In applying these principles to the facts of the case before him, which was the inspection of a rock slope beside a highway, Cory J. found that the inspections were “manifestations of the implementation of the policy decision to inspect and were operational in nature”: at p. 1246.
 The policy/operation distinction was also discussed in Imperial Tobacco. In explaining the distinction, McLachlin C.J.C. again focussed on whether the decision in question was the result of “social, economic, and political” considerations: at para. 87. McLachlin C.J.C. concluded on the issue of policy as follows, at para. 90:
I conclude that "core policy" government decisions protected from suit are decisions as to a course or principle of action that are based on public policy considerations, such as economic, social and political factors, provided they are neither irrational nor taken in bad faith. McLachlin C.J.C. also repeated the observation, from U.S. case law, that “employees working at the operational level are not usually involved in making policy choices”: at para. 89.
In Francise v Ontario (Ont CA, 2021) the Court of Appeal considered the point that Ontario is not directly liable in tort but rather must 'act through' it's servants [under s.5(1) of the Proceedings Against the Crown Act], and pleadings in relation to that:
(viii) The Proceedings Against the Crown Act. Francis v Ontario
 One last technical point needs to be addressed with respect to this issue. Ontario asserts that the respondent’s claim is fundamentally flawed because it does not advance specific allegations of tortious conduct by individual Crown servants, for whom Ontario would be vicariously liable. Rather, Ontario says that the claim advanced is effectively one of direct liability from which Ontario is immune under s. 5 of the PACA. Ontario is only liable for indirect claims, under s. 5(1), which reads, in part:
[T]he Crown is subject to all liabilities in tort to which, if it were a person of full age and capacity, it would be subject, The motion judge addressed this argument in his reasons and rejected it. He said, at para. 485:
(a) in respect of a tort committed by any of its servants or agents;
The discussion above shows that the case at bar is about the operational decisions of Ontario's civil servants not about core policy decisions, which is another way of saying that the case at bar is not a direct negligence claim precluded by Crown immunity. The discussion above about systemic negligence reveals that it is not necessary to name the individual civil servants whose collective conduct led to a system-wide breach of the duty of care and system-wide harm to the collective of inmates. We agree with the motion judge’s determination of this issue. On a fair reading of the amended statement of claim, it is clear that the allegations being made against Ontario arise from its vicarious liability for the negligent acts of its servants. The amended statement of claim expressly references Regulation 778, by which administrative segregation decisions are left to the individual Superintendents. It is also clear from the amended statement of claim that the negligent acts are those of servants of Ontario. It is axiomatic to point out that Ontario can only operate through the actions of individuals.
 There is no absolute requirement that the individual servants of the Crown, who undertake the negligent acts, must be named in the proceeding. Section 5(2) of the PACA simply says that no proceeding can be brought against the Crown “unless a proceeding in tort in respect of such act or omission may be brought against that servant or agent” (emphasis added). The section does not require that the proceeding must be brought against that servant or agent.
 We accept that best practices in pleadings might suggest that the negligent individual, from whom vicarious liability arises, be named as a party, at least in a case where only one event or individual is involved. However, this is a class proceeding in which collective claims are made. As the motion judge pointed out, it is impractical to expect a representative plaintiff, advancing a claim covering a class period of almost three and one-half years, with class members in 32 correctional institutions, to name all of the individuals involved in the collectively negligent acts.
 As an alternative, best practices in pleadings might suggest naming a John and Jane Doe to represent all of those individuals in such situations, but the failure to do so is not fatal to the claim. On this point, we repeat the often-cited principle that a statement of claim is to be read “as generously as possible and to accommodate any inadequacies in the form of the allegations which are merely the result of drafting deficiencies”: Operation Dismantle Inc. v. The Queen, 1985 CanLII 74 (SCC),  1 S.C.R. 441, at p. 451.
In Francise v Ontario (Ont CA, 2021) the Court of Appeal set out the principles of negligence in a claim against the government of Ontario in relation to the treatment of prisoners in a correctional institution:
 As we have said, the motion judge engaged in a lengthy analysis of whether a duty of care arose in this case. We generally agree with that analysis. On the first branch of the test from Cooper v. Hobart, 2001 SCC 79,  3 S.C.R. 537, the prima facie duty test, there is clearly a close relationship between Ontario and the inmates (i.e. proximity) that would support a basis for finding a duty of care. It is well-established that governments owe a duty of care to individuals while they are in custody: MacLean v. The Queen, 1972 CanLII 124 (SCC),  S.C.R. 2, at p. 7. Ontario does not dispute that is the case.. Leroux v. Ontario
 It follows, from the nature of the relationship, that actions taken which result in injury to an inmate could be reasonably foreseeable. Again, that is accepted to be the case on an individual basis, and we see no principled reason why that could not be the case on a class basis. If identical action is taken regarding the inmate population, or a subset of that population, and harm results, it is as foreseeable on a group-wide basis as it is on an individual basis.
 That then leads to the second branch of the Cooper v. Hobart test, which is whether there are residual policy considerations that would militate against a finding of a duty of care. Those considerations lead to the issue of policy versus operational matters, about which we will have more to say when we come to the next issue, that is, the application of the CLPA. At the risk of foretelling our conclusion on that issue, we will say that we view the actions taken in this case, that form the basis of the negligence claim, to be tied to operational as opposed to policy matters.
In Leroux v. Ontario (Div Ct, 2021) the Divisional Court (the majority) sets out the Crown's common law immunity in tort:
 At common law, the Crown has no direct liability in tort. Tort claims against the Crown are creatures of statute, and generally require a cognizable claim against a Crown servant or agent for which the Crown is vicariously liable: Proceedings Against the Crown Act, R.S.O. 1990, c. P.27 s. 5(1)(a); Hinse v Canada (Attorney General), 2015 SCC 35; Ontario v. Phaneuf, 2010 ONCA 901. This immunity is “deeply entrenched” in Canadian law and can only be overcome by “clear and unequivocal language” in a statute: Canada (Attorney General) v Thouin, 2017 SCC 46, at para. 1. There is no such statutory language in Ontario law.. Bruno v. Dacosta
In Bruno v. Dacosta (Ont CA, 2020) the Court of Appeal considered principles of Proceedings Against the Crown Act (PACA) and negligence law with respect to harm to an inmate:
(a) The Law on Liability for Inmate Assaults. Walters v Ontario
 With respect to harm to an inmate, the applicable law is that Ontario can only be held liable for the negligent acts or omissions of an individual correctional officer who, in the course of employment by Ontario, did or failed to do something, thereby creating a foreseeable risk of harm to the inmate: Proceedings Against the Crown Act, R.S.O. 1990 c. P.27, ss. 5(1)(a) and 5(2); MacLean v. R., 1972 CanLII 124 (SCC),  S.C.R. 2; Timm v. R.,  1 Ex. C.R. 174; Walters v. Ontario, 2017 ONCA 53, at para. 34; Iwanicki v. Ontario,  O.T.C. 181, O.J. No. 955 at para. 15. In Walters, this court held, at para. 34:
Generally, the provincial Crown can be liable in tort to inmates of correctional facilities only in the form of vicarious liability for torts that specific Crown employees or agents commit, and only if the plaintiff could have sued the employee or agent for that tort … [Citations omitted.] In inmate assault cases, “Ontario’s liability, if any, must derive from actionable negligence of specific [correctional officers]” under subsections 5(1)(a) and 5(2) of the Proceedings Against the Crown Act: Walters, at para. 34. The federal law is to the same effect: see the federal Crown Liability and Proceedings Act, R.S.C., 1985 c. C-50, and Hinse v. Canada (Attorney General), 2015 SCC 35,  2 S.C.R. 621, where the trial judge found liability based on “institutional inertia and indifference.” The Supreme Court held, at para. 92 of Hinse, that the trial judge “should instead have analyzed the individual conduct of each of the successive Ministers acting in his or her capacity as a servant of the federal Crown.”
In the interesting liability case of Walters v Ontario (Ont CA, 2017) the province was sued for injuries resulting when members of two opposing gangs were placed in the same unit. The court commented as follows on the nature of Crown liability in the specific jail context, and generally:
 Generally, the provincial Crown can be liable in tort to inmates of correctional facilities only in the form of vicarious liability for torts that specific Crown employees or agents commit, and only if the plaintiff could have sued the employee or agent for that tort: Proceedings Against the Crown Act, R.S.O. 1990, c. P.27, ss. 5(1)(a), 5(2); MacLean, at p. 7; but see Iwanicki v. Ontario (Minister of Correctional Services),  O.T.C. 181 (S.C.), at paras. 14, 19-26, contemplating liability under s. 5(1)(c) of the Proceedings Against the Crown Act. Thus, in this case, Ontario’s liability, if any, must derive from actionable negligence of specific COs.. Daoust-Crochetiere v. Ontario (Natural Resources)
 The Supreme Court of Canada has held a public authority generally should be liable when the authority’s employees or agents are negligent in carrying out prescribed duties: R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42 (CanLII),  3 S.C.R. 45, at para. 72. Furthermore, corrections officials generally owe a duty of care to inmates under their supervision: Timm, at p. 178; MacLean, at p. 7. However, “core” or “true” public policy decisions are non-justiciable as long as they are “neither irrational nor taken in bad faith”, so an employee or agent of a public authority owes no common-law duty of care in making such a decision: Imperial Tobacco, at para. 90. At trial, Ontario argued that the decision to put Walters in the Unit with Riley was not reviewable by the court because the decision was reasonable and based on a “true” policy decision.
In Daoust-Crochetiere v. Ontario (Natural Resources) (Ont CA, 2014) the Court of Appeal demonstrates how harsh the operation of PACA's (Proceedings Against the Crown) short notice periods can be. They are nasty and in my opinion amount to protective measures for the government (and I say that as a lawyer who has not ever missed one):
The motion judge made no error in granting summary judgment dismissing the appellant’s action in tort because he failed to give the ten day notice required by s. 7(3), or the sixty day notice required by s. 7(1) of PACA.