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

• Published date: 25 September 2020
• 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,¹CLAPA 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...