Ontario Court Of Appeal Upholds $30-million Charter Damages Award Against Ontario For Its Policy Of Solitary Confinement In Jails

Published date21 April 2021
Subject MatterGovernment, Public Sector, Litigation, Mediation & Arbitration, Constitutional & Administrative Law, Class Actions, Trials & Appeals & Compensation, Professional Negligence
Law FirmBennett Jones LLP
AuthorSakina Babwani and Ranjan K. Agarwal

The Ontario Court of Appeal's decision in Francis v Ontario, 2021 ONCA 197, is a significant new development in the law of Crown liability. The Court unanimously upheld a summary judgment ruling in a class proceeding finding that Ontario was liable to the class consisting of certain provincial inmates for breaching their Charter rights by placing them in solitary confinement. The Court also held that the recently amended Crown Liability and Proceedings Act (CLPA) does not protect Ontario from the actual results that flow from the operational implementation of the province's policy on solitary confinement.


Ontario appealed the decision of the motion judge, Justice Perell, who on a summary judgment motion found that Ontario owed a duty of care in negligence to the plaintiff and his fellow class members arising from the system of administrative segregation, commonly known as solitary confinement, used in Ontario's correctional institutions between April 2015, and September 2018.

The plaintiff, who was a seriously mentally ill inmate, was placed in administrative segregation twice for refusing to take his mental health medication. The plaintiff's experience in administrative segregation was excruciating-his anxiety was out of control, he felt terrorized, and was in a state of delirium and shock.

In 2017, the plaintiff commenced a class action, seeking declarations that his and his class members' rights under the Charter had been infringed by Ontario's system of solitary confinement and that Ontario was liable in negligence. The plaintiff sought damages in negligence and under section 24 of the Charter, as well as punitive damages.

The motion judge found: (i) that Ontario had breached its duty of care in negligence to the plaintiffs, and (ii) that Ontario's system of administrative segregation breached the plaintiffs' section 7 and 12 Charter rights. As a result, Justice Perell awarded Charter damages against Ontario in the amount of $30 million. He declined to separately assess damages for negligence, other than to say that any amount for damages for negligence would be subsumed in the award of aggregate damages for the Charter breaches.

On appeal, Ontario argued that the motion judge had erred in: (a) holding Ontario liable in negligence; (b) finding that detaining seriously mentally ill inmates in administrative segregation violated their Charter rights; and (c) awarding Charter damages.

Charter Breaches and Damages

The Court of Appeal began its...

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