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Torts - Negligence - Prisoners. Richard v. Canada (Attorney General)
In Richard v. Canada (Attorney General) (Ont CA, 2025) the Ontario Court of Appeal dismissed a Crown appeal, here brought against a motion judge's certification of a class proceeding where "the Canada Border Services Agency (“CBSA”) placed some immigration detainees ... in provincial prisons instead of Immigration Holding Centers (“IHCs”)".
Here the court considers the duty of care owed by the government to immigration detainees, here in a class action certification appeal context:[40] The motion judge found that the pleaded facts were capable of sustaining a claim in negligence on the basis alleged: Canada has a duty to exercise care in administering the IRPA detention regime and that by holding immigration detainees in provincial prisons it breached that duty and caused reasonably foreseeable damages.
[41] Canada submits that the straightforward duty of care owed by prison authorities and the Crown to prisoners established in MacLean v. R., 1972 CanLII 124 (SCC), [1973] S.C.R. 2 does not apply and that this court’s decision in Brazeau v. Canada (Attorney General), 2020 ONCA 184, 149 O.R. (3d) 705, precludes a finding that Canada owes a class-wide duty of care in this case. I disagree.
[42] Brazeau was a class action claiming Charter breaches and systemic negligence arising from Canada’s practice of administrative segregation in federal correctional institutions. On appeal, this court, while upholding the Charter award, found at para. 120 that the negligence claim was bound to fail because a class-wide duty of care “can only be made out if the duty relates to the avoidance of the same harm for each class member.”
[43] However, this court in Brazeau clearly limited its finding that no commonality could be found to the specific pleadings in that case. As explained at para. 120, the “primary negligence claim in the amended statement of claim [was] negligence at the policy-making level” with respect to the management of prisons. This court properly concluded that that policy was immunized from liability in tort pursuant to Mackin v. New Brunswick (Minister of Finance); Rice v. New Brunswick, 2002 SCC 13, [2002] 1 S.C.R. 405, at para. 79 and Vancouver (City) v. Ward, 2010 SCC 27, [2010] 2 S.C.R. 28, at paras. 39-40. The argument that authorities were operationally negligent, which was argued in the alternative, was bound to fail as well because the pleading of “operational negligence” essentially amounted to criticism of the immunized policy and in any case “would turn on individual circumstances.” See Brazeau, at paras. 119-20.
[44] The pleadings in this case are unlike Brazeau and are more akin to Francis v. Ontario, 2021 ONCA 197, 154 O.R. (3d) 498, which Canada also relies on. Francis is not helpful for Canada. As it does here, Canada argued in Francis that a systemic negligence claim related to the practice of administrative segregation in provincial correctional institutions was precluded by the standard of care position set out in Brazeau. This court disagreed, concluding that Brazeau “turned principally on the way in which the plaintiff had pleaded his case”: para. 98. It held at para. 106:[T]he actions alleged in this case do not constitute different acts in different circumstances. Rather, what is challenged, at the very core of this claim, is the same act being undertaken, that is, placing inmates in administrative segregation in two specific circumstances where it is said that injury will naturally result. [45] The pleadings in Francis were about the “operation” of provincial correctional facilities in a way that Brazeau was not. Based on those pleadings, the claim was certified and on a summary judgment motion the court concluded that “Ontario was systemically and routinely negligent in the operation of administrative segregation”: Francis, at paras. 99-101.
[46] The pleadings in this case allege the detention of immigration detainees in provincial prisons – the same wrongful act – across an entire class. The pleadings are based on the CBSA’s administration of immigration detention in prisons and not the IRPA. Having regard to these pleadings, the respondents’ negligence claim was properly certified by the motion judge. It is true that a judge will ultimately have to determine whether Canada in fact owed a duty of care and breached it, but these are fact-intensive issues to be determined at a merits hearing: Carcillo v. Ontario Major Junior Hockey League, 2025 ONCA 652, at para. 37. At this stage it cannot be said that the claim is destined to fail.
[47] The appellant’s argument that Canada’s impugned practice cannot be the subject of a negligence claim because it is protected by policy immunity must fail. Applying the principles set out in Leroux, at paras. 45-47, the motion judge found that the respondents’ claim, properly characterized, does not challenge core policy decisions. As in Francis, the respondents’ case here is pregnant with allegations of negligence at the operational level.
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