Section 5(1)(a) Still Has Teeth: The Divisional Court Holds Crown Immunity Precludes Certification

• Published date: 21 July 2021
• Subject Matter: Litigation, Mediation & Arbitration, Class Actions, Professional Negligence
• Law Firm: McCarthy Tétrault LLP
• Author: Canadian Class Actions Monitor, Madeleine Brown and Alison Bond

In Leroux v. Ontario, 2021 ONSC 2269 ("Leroux"),¹ a majority of the Ontario Divisional Court overturned two decisions² certifying claims in negligence against the Crown on the grounds that the negligence claims did not satisfy section 5(1)(a) of the Class Proceedings Act, 1992 ("CPA");³ which requires the plaintiff's claim disclose a cause of action. Although the threshold is low, Leroux is a reminder that the "cause of action" criterion in s. 5(1)(a) still has teeth.

Background

Leroux concerned a proposed class action against the Ontario government. The class action alleged "serious operational flaws" in the how the government managed the delivery of essential services and supports to eligible adults with developmental disabilities under the Services and Supports to Promote the Social Inclusion of Persons with the Developmental Disabilities Act (the "MCSSA").⁴

Section 11(4) of the Crown Liability and Proceedings Act, 2019 ("CLPA")⁵ bars any claim related to good faith "policy decisions" of the Crown. However, the Crown may still be liable for "operational negligence" (i.e. the manner in which it carries out policy decisions).⁶

On certification, the motion judge held that the plaintiff's claims satisfied the relatively low threshold required by section 5(1)(a) of the CPA because, in his view, the claims were grounded in "operational negligence" (as opposed to an allegedly negligent policy decision(s)), and therefore did not attract Crown immunity. The motion judge certified the action in part. The government appealed to the Ontario Divisional Court.

The Ontario Divisional Court allows the Appeal

A three-judge panel of Justices Edwards, Corbett and Penny heard the appeal. Justices Corbett and Penny allowed Ontario's appeal related to the negligence claims for two reasons:

1. The Crown is immune from common law claims in negligence. The majority reiterated the well-established principle that the Crown has no direct liability for common law claims in tort. Such claims are creatures of statute.⁷ As the majority determined the "devising, managing and implementing" of a benefits scheme (such as the MCSSA program) was a "core policy decision", it held the Crown was immune from the plaintiff's claim by virtue of the CLPA.

2. The Crown owes no common law private duty of care to the plaintiff. Following the Ontario Court of Appeal's reasoning in J.B. v. Ontario (Child and Youth Services), 2020 ONCA 198, the majority held that any duty the MCSSA created would be...