An Update On Tort Immunity Under The Crown Liability And Proceedings Act

• Published date: 25 September 2020
• Subject Matter: Litigation, Mediation & Arbitration, Court Procedure, Trials & Appeals & Compensation, Professional Negligence
• Law Firm: Rogers Partners LLP
• Author: Ms Erin Crochetière

The Ontario Crown Liability and Proceedings Act, 2019 ('CLAPA') came into force in July of 2019 replacing the Proceedings Against the Crown Act. CLAPA received industry-wide scrutiny based on the provisions limiting Crown liability.

Whereas the former Proceedings Against the Crown Act provided that the Crown was subject to all liabilities in tort as if it were a regular person,¹ CLAPA provides broad immunity for the Crown, or an officer, employee or agent of the Crown, in respect of actions brought against it arising out of acts of a legislative nature,² in the making of regulatory decisions³ and in the making of policy decisions.⁴

Moreover, CLAPA defines policy decisions and regulatory decisions broadly to include, among other things, the creation of and implementation of programs, the enforcement of legislation, and investigations carried out pursuant to an Act.

Finally, CLAPA also provides for a dismissal of any proceeding prohibited by operation of the Act.

Subsequent to its enactment, critics largely agreed that, as compared to the Proceedings Against the Crown Act CLAPA demonstrated a clear legislative intention to significantly restrict Crown liability in tort. However, it remained to be seen how the Courts would interpret and apply the Act and how broadly the immunity provisions would be applied.

In Francis v Ontario, 2020 ONSC 1644, Justice Perell, in the context of a motion of summary judgment in a class action case considered the application of CLAPA. The plaintiffs alleged negligence and breach of Charter rights in relation to the Government of Ontario's policies and procedures regarding administrative segregation of prison inmates.

The Crown advanced various arguments in respect of Crown immunity, including that s. 11 of CLAPA operated to dismiss the plaintiffs' claim. Section 11 reads in part:

Acts of a legislative nature

11 (1) 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 while exercising or intending to exercise powers or performing or intending to perform duties or functions of a legislative nature including the development or introduction of a bill, the enactment of an Act or the making of a regulation.

'

Policy decisions

(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.

Same, policy matters

(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,...