Leroux v Ontario,1 is one of the first cases to consider the scope of s. 11 of the new Crown Liability and Proceedings Act, S.O. 2019, c. 7, Sched 17 (the “CLPA”), the legislation which repealed the Proceedings Against the Crown Act, R.S.O. 1990, c. P. 27 (the “PACA”) and came into force and effect July 2019, with retroactive application. The CLPA provides that “no cause of action arises” and “no proceeding may be brought or maintained” against the Crown or its officers, employees or agents for any negligence respecting a “policy matter.” The legislation modifies decades of common law jurisprudence by defining “policy matter” to include not only matters that are typically understood as policy matters (relating to the design or funding of a government program, policy or initiative) but also “the manner in which a program, project or other initiative is carried out.”2 The issue before the court was whether the newly enacted CLPA could now operate to bar, in whole or in part, the plaintiff’s certified claim in negligence. Lerners represented the intervener, the Canadian Civil Liberties Association (the “CCLA”), on the motion and argued that the expanded definition of policy matter contained in s. 11(5) is unconstitutional because it contravenes s. 96 of the Constitution Act, 1867.
Overview of the Proceedings
In December 2018, Belobaba J. certified a class action against Her Majesty the Queen in right of the Province of Ontario (“Ontario”), in its operation and administration of a social assistance program for adults with development disabilities.3 Among other things, Belobaba J. found that the allegations of negligence related to operational, not policy, matters and therefore the claims were not doomed to fail. Ontario subsequently sought and was granted leave to appeal the certification decision. After leave to appeal was granted, the CLPA was passed and came into effect on July 1, 2019. Thereafter, Ontario delivered an amended Notice of Appeal and sought to rely on s. 11 of the CLPA, arguing that the provision effectively extinguished the plaintiff’s claim, regardless of the finding on the common law.
Jennifer Hunter and Jacqueline Palef, represented the CCLA on the motion for intervener status, which was granted.4 In granting the motion, Favreau J. held that the CCLA’s argument with respect to s. 96 of the Constitution Act, 1867 did not raise a new issue but rather added an argument to the plaintiff’s position that s. 11(5) of the CLPA should be struck or read down because it provides for overly expansive Crown immunity, even though the plaintiff had not referred to s. 96 in either his factum or Notice of Constitutional Question. Favreau J. noted that the CCLA’s expertise and interest in the issue was not disputed and held that the CCLA would make a useful contribution by providing a legal argument relevant to the issue.
The appeal hearing did not proceed as scheduled. The Divisional Court panel instead determined that it would benefit from the views of the motion judge regarding certification with respect to the CLPA and s. 96 issue and remitted the matter back to Belobaba J. for a determination at first instance.5
The Re-Hearing Motion
At the re-hearing motion, Belobaba J. determined the appropriate focus was to consider the CLPA and constitutional issue as part of the s. 5(1)(a) analysis of the Class Proceedings Act, 1992, ("CPA") S.O. 1992, c. 6 as this was the motion originally before him in December 2018. He therefore considered two questions:
(1) Is it plain and obvious that the operational negligence claim is statute-barred by the CLPA and is thus doomed to fail?
The court determined that the operational negligence claim cleared the “cause of action” hurdle in s. 5(1)(a) of the CPA.6 The court considered ss. 11(4) and s. 11(5) of the CLPA noting that a reading of both these provisions at its essence was saying, “No cause of action arises against the provincial Crown in respect of any negligence in the making or failing to make a decision respecting the manner in which a program, project or initiative was carried out.”7 The court concluded that “given the “decision” requirement in s. 11(4), it is possible that the CLPA may not even apply on the facts herein…At this stage of the proceeding, however, it cannot be said that the operational negligence claim does not disclose a cause of action under s. 5(1)(a) of the CPA.”8
(2) Is it plain and obvious that the s. 96 constitutional challenge is doomed to fail?
The court concluded that at this stage of the proceeding the s. 96 constitutional challenge to the CLPA was not doomed to fail.9 The CCLA argued, with the support of the plaintiff, that ss. 11(4) and (5) of the CLPA deny access to superior courts for operational negligence10 claims against the provincial government by defining “policy matters” so broadly as to include operational negligence, the effect of which is to restore complete governmental immunity.11
The court confirmed that “the Supreme Court has made clear that s. 96 is intended to protect access to the country’s superior courts in order to preserve the rule of law and the notion of government accountability, both of which are central to a democratic system.”12 Belobaba J. referred to the Supreme Court of Canada’s decisions in Just v British Columbia13 and R v Imperial Tobacco14 which both emphasize that complete governmental immunity would be intolerable, specifically noting that “complete Crown immunity should not be restored by having every government decision defined as one of policy.”15 He concluded:
In my view, for purposes of constitutional argument, it is certainly possible to link (i) what the Court has said about the importance of the “access to the courts” component of s. 96 with (ii) what the Court has said about complete governmental immunity being intolerable and that it should not be restored by defining every government decision to be a policy matter. This linkage is at least constitutionally arguable and, if it succeeds, may lead to a “reading down” or some other appropriate measure.16
The court reiterated that the meaning and constitutionality of the CLPA should not be decided on a s. 5(1)(a) pleadings motion for two reasons.17 First, the court noted the potential impact of the CLPA may be enormous and the impact in the area of class actions will be profound observing that “on its face, the CLPA does not simply “codify and clarify” the common law as former Attorney General Caroline Mulroney told the legislature when it was being enacted. Section 11 alone radically alters the common law of Crown immunity as developed over the last six decades. On its face, s. 11 intends to close the courtroom door to any existing or future tort claims against the provincial government, full stop.”18
The court noted that the scope and content of the CLPA should be decided on a complete record with full argument on the certified common issues either at trial or on a motion for summary judgment.19 Second, the court reaffirmed that constitutional cases should not be decided in a factual vacuum and should be decided on a complete evidentiary record with full argument.20
Ultimately, the court determined that a new common issue must be added to address the CLPA and constitutionality issue. On consent, the parties agreed to the addition of the following common issue:
Does the Crown Liability and Proceeding Act, 2019, S.O. 2019, c. 7, Sched. 17 (the “CLPA”) bar, in whole or in part, the Plaintiff’s claim in negligence and is such claim deemed to have been dismissed under the provisions of the CLPA?21
Both the scope and the constitutionality of the CLPA continue to be live issues before the court. This case provides insight into how the court may approach the issues presented by the newly enacted CLPA and the constitutional implications that follow.
1Leroux v Ontario, 2020 ONSC 1994 [Leroux].
2Ibid at para 4.
3Leroux v Ontario, 2018 ONSC 6452.
4Leroux v. Her Majesty the Queen in Right of the Province of Ontario, 2020 ONSC 730.
5Leroux, supra note 1 at para 6.
6Ibid at para 9.
7Ibid at para 11.
8Ibid at para 15.
9Ibid at para 25.
10Ibid at para 22.
12Ibid at para 21.
13Just v British Columbia,  2 SCR 1228 at para 16.
14R v Imperial Tobacco Canada Ltd., 2011 SCC 41 at para 76.
15Leroux, supra note 1 at para 23.
16Ibid at para 24.
17Ibid at para 26.
18Ibid at para 27.
19Ibid at para 29.
20Ibid at para 30.
21Ibid at para 33.