The recent decision of the Court of Appeal for Ontario in Leroux v Ontario, 2023 ONCA 314 clarifies the test for whether core policy immunity applies to protect the government from liability in negligence. The decision sets aside the majority reasons of the Divisional Court, which would have refused certification of a class action. The decision also addresses how and when psychological distress can ground a claim under section 7 of the Charter, as well as the question of whether section 7 can impose an obligation on the government to provide services in special circumstances.
Background / Judicial History
The proposed class is comprised of adults with developmental disabilities who were assessed and approved for services under the Services and Supports to Promote the Social Inclusion of Persons with Developmental Disabilities Act, 2008, SO 2008, c 14, and who were subsequently placed on one of three specified waitlists. The plaintiffs allege that they have experienced significant delays in receiving essential care as a result of Ontario’s flawed administration of these waitlists. Accordingly, they seek damages for negligence and breaches of class members’ section 7 Charter rights.
Regarding the negligence claim, the plaintiffs asserted that Ontario had breached its duty of care in several respects, with the most significant breach being the alleged failure to rationally and efficiently allocate pre-existing resources. The section 7 claim alleged that the services for which class members had been approved were essential to their life and security of person and that the administration of the waitlists had therefore deprived them of their rights. The claim also alleged that the lengthy waitlists had themselves caused mental anguish and the development of new mental disorders.
The motion judge held that the criteria for certification were met for both causes of action. For the negligence claim, he referred to the two-stage Anns/Cooper test for identifying a duty of care and determined that it was not plain and obvious that proximity between Ontario and the class was lacking, nor was it plain and obvious that policy considerations negated a prima facie duty of care at the second stage of the test. The allegations targeted the management of waitlists and focussed on operational failures. They therefore did not necessarily engage matters of core policy and thus could potentially succeed. The motion judge also held that the section 7 claim had a chance of success. He held that it was possible to conclude that state-caused delay preventing claimants from receiving care to which they are entitled could constitute a deprivation of rights to security of person.
On appeal, a majority of the Divisional Court overturned the decision of the motion judge. The Court was unanimous in rejecting the viability of the section 7 claim. It found that the claimants had alleged a failure to provide a positive benefit and held that the jurisprudence foreclosed any possibility of success for a claim of this nature. The majority of the Court also held that the negligence claim was doomed to fail, finding that Ontario owed no duty of care to the class and, in any case, had core policy immunity from claims pertaining to the impugned decisions.