Core Values: Ontario Court Of Appeal Rejects Core Policy Immunity Defence And Permits Certification Of Class Action Against Crown

• Law Firm: Norton Rose Fulbright Canada LLP
• Subject Matter: Government, Public Sector, Litigation, Mediation & Arbitration, Constitutional & Administrative Law, Class Actions, Trials & Appeals & Compensation, Professional Negligence
• Author: Mr Ted Brook
• Published date: 18 May 2023

In Leroux v Ontario, released earlier this month, the Ontario Court of Appeal overturned a 2021 Ontario Divisional Court decision that had allowed appeals from two Superior Court decisions certifying a class action against the Crown for alleged operational negligence in relation to the Ontario government's management of delivering essential services and supports to statutorily eligible adults with developmental disabilities.¹

The Court of Appeal's decision in Leroux serves as yet another reminder that the cause of action test in s. 5(1)(a) of Ontario's Class Proceedings Act, 1992 (the CPA) is a low bar to clear for class action plaintiffs. Leroux also contains an important lesson for federal and provincial Crown defendants in both class actions and ordinary civil proceedings: the "core policy immunity" doctrine does not extend to operational negligence.

The Leroux saga

The appellant in Leroux had a severe developmental disability. Represented by her father, acting as litigation guardian, the appellant commenced a proposed class action against the provincial government alleging that it had been negligent in operating a social assistance program for developmentally disabled persons. In the words of the certification judge "[t]he complaint, in a nutshell, is about the negligent operation of a social assistance system that has approved the delivery of much-needed support and services but then fails to follow up."²

The appellant also alleged a breach of s. 7 of the Charter.³ This constitutional claim asserted that the developmental services to which the class members were entitled are essential to their life and security of the person, and that the unreasonable and indeterminate administration of the government's waitlists had deprived them of their s. 7 rights.

The appellant's class action was certified in 2018.⁴ The government appealed the certification decision to the Divisional Court, but before the appeal could be heard, the government enacted the Crown Liability and Proceedings Act (the CLPA), a statute that altered decades of caselaw that would have allowed the appellant's claim to proceed based on the distinction between true policy decisions and their implementation. In light of the CLPA's enactment, the Divisional Court remitted the matter back to the certification judge for reconsideration.

In 2020, the appellant's class action was certified for a second time.⁵ The certification judge held that notwithstanding the CLPA, the appellant had cleared the...