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Crown Liability

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:
[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: 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), [2000] 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.


[38] 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), [2011] 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.
. Daoust-Crochetiere v. Ontario (Natural Resources)

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.

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