Shortly after Ontario repealed the longstanding Proceedings Against the Crown Act, RSO 1990, c P.27¸and announced its replacement, the Crown Liability and Proceedings Act, 2019, SO 2019, c 7, Sch 17 (“CLPA”), the legal community began ringing alarm bells. Lawyers and advocacy groups argued that this new statute represented a radical and wide-ranging constraint on Ontarians’ ability to recover damages resulting from governmental negligence. A recent decision of Ontario’s Superior Court, the first to consider a key provision of the CLPA, suggests that at least some of these concerns may have been overstated.
Leroux v. Ontario, 2020 ONSC 1994 (“Leroux”) is a recent reconsideration decision in an ongoing class action against the provincial government.
The plaintiffs are persons living with developmental disabilities who allege, among other things, that the government was negligent in its administration of a certain social assistance program. In particular, the plaintiffs allege that, once they had registered in the program, they faced “interminable delays” before receiving critical benefits, largely as a result of “bad databases, flawed computer programs, and faulty prioritization and matching processes.”
The class action was certified by the Superior Court in December 2018 (Leroux v. Ontario, 2018 ONSC 6452). In assessing the viability of the negligence claim, the motion judge found that the complaint targeted the government’s alleged operational negligence in administering the program, and was not an impermissible attack on a policy decision. In so holding, the motion judge relied on well-established principles of Crown liability, under which the government cannot be sued in negligence for “core policy decisions” (i.e. discretionary, high-level planning decisions which require balancing a range of economic, political, and/or social factors) but can be sued for “operational negligence” (i.e. the manner in which governmental policy decisions are carried out).
The government appealed the decision to the Divisional Court. Before the appeal could be argued, Ontario repealed the longstanding Proceedings against the Crown Act, RSO 1990, c P.27 (which for over 50 years had defined the circumstances under which the provincial government could be sued) and replaced it with the CLPA. The Divisional Court declined to hear the appeal, instead sending the matter back to the motion judge to consider how the new statute changed things.