Court File and Parties

COURT FILE NO.: CV-17-578059-00CP DATE: 2020-06-26 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Robin Cirillo, Plaintiff – AND – Her Majesty the Queen in Right of Ontario, Defendant

BEFORE: Justice E.M. Morgan

COUNSEL: Kirk Baert and Celeste Poltak, for the Plaintiff Christopher Wayland, Jeffrey Claydon, and Zachary Green, for the Defendant

HEARD: June 22, 2020

Re-Hearing on Crown Immunity

[1] On May 23, 2019, I released my judgment denying the Plaintiff’s request for certification under section 5 of the Class Proceedings Act, 1992 (“CPA”): Cirillo v Ontario, 2019 ONSC 3066. The case involves a claim by a Plaintiff who alleges that she was denied her right to a timely bail hearing, and generally challenges the administration of justice and procedures involved in getting bail hearings before the courts in a timely fashion. The Amended Statement of Claim contains an allegation of systemic negligence on the part of the Crown in Right of Ontario.

[2] The Plaintiff has appealed to Divisional Court and served a Notice of Appeal dated June 24, 2019. The following week, on July 1, 2019, the Crown Liability and Proceedings Act, 2019 (“CLPA”) came into force. In its responding factum on the appeal, the Crown relied on ss. 11(4)-(5) of the new CLPA. Crown counsel submits that those subsections place the Plaintiff’s claim in negligence within the scope of Crown immunity; further, the Crown relies on s. 34(1) of the CLPA which provides that any such claim is retroactively extinguished from the date it is made. If that is correct and the cause of action is statute barred, it will have necessarily failed the first requirement for certification in s. 5(1)(a) of the CPA.

[3] Given this new issue, the parties attended before Corbett J. sitting as a judge of Divisional Court. I am advised by counsel that it was thought preferable by Justice Corbett for the CLPA question to be addressed first by me so that all legal issues will be put on an equal footing before any eventual appeal panel. Justice Corbett’s Order of March 12, 2020 provides:

THIS COURT ORDERS THAT the issue of whether the Crown Liability and Proceedings Act, 2019, S.O. 2019, c.7 Sched. 17 is a bar to certification of the Appellant’s negligence claim is hereby remitted to the motion judge below, the Honourable Justice Morgan, for his consideration.

[4] As a preliminary matter, I acknowledge that this question is arguably moot. After all, in my judgment I declined to certify any of the Plaintiff’s claims separate and apart from the CLPA. As a result, whether the Plaintiff is right that the negligence claim is not statute barred, or the Crown is right that it is now statute barred, the result will be the same.

[5] That said, the case was remanded to me by a judge of the Divisional Court to address a question now posed by my judgment. Moreover, the issue has been fully briefed by both sides and argued over the course of a day in motions court. In light of all that, it is incumbent on me to at least address the issue one way or another. If I do not do so, it may cause further complexity and delay when it gets to a full panel of the Divisional Court, who may nevertheless want to have reasons of the motions judge before considering the full appeal. This case is about allegedly inordinate delays in the judicial system when it comes to bail hearings; I would not want my refusal to address the new CLPA to be the cause of yet more delay in an action designed to remedy the injuries caused by delay.

[6] In addition, counsel for the Plaintiff points out that s. 11(8) of the CLPA provides that if a claim is barred as falling within Crown immunity as defined by the statute, it is deemed dismissed without costs. That means that the Plaintiff’s own negligence claim – not only in her capacity as representative Plaintiff, but as a personal claimant – will be at an end. That is not something that was decided in my judgment on certification. Accordingly, the fate of the Plaintiff’s personal claim is not a moot point.

[7] The task at hand is a narrow one. The parties have submitted no evidence on this motion as there is no fact finding to be done. Rather, I am to take the facts as I found them in my judgment and address whether the same facts fall within the terms of ss. 11(4) and (5) of CLPA. While the factual matrix of the claim provides the context in which I am to consider CLPA, I have not been asked by Justice Corbett or by either party to reconsider the fact finding that I did in my judgment.

[8] Accordingly, counsel have proceeded on the basis that the factual record and findings of fact in my judgment are fixed. All that remains is to analyze how CLPA applies to those facts. The question at hand is whether it is plain and obvious that, on the facts as found in my May 29, 2019 judgment, the negligence claim would have been barred by the CLPA?

[9] Although the CLPA was newly brought into force a month or so after my judgment in May 2019, this re-hearing did not arise in entirely new and barren terrain. Before this matter could be heard by Divisional Court, the same question of law regarding the applicability of the CLPA arose in another class action, Leroux v Ontario, 2018 ONSC 6452, that came before the Divisional Court on March 2, 2020. The Divisional Court declined to hear the appeal, and remanded the matter back to Belobaba J. (who had determined the matter at first instance) for consideration of the CLPA issue.

[10] Justice Belobaba heard the motion on March 24, 2020 and issued his reasons for judgment for the re-hearing on April 6, 2020: Leroux v Ontario, 2020 ONSC 1994. In that case, certification had been granted on the first round. Belobaba J. determined on the re-hearing that the CLPA did not extinguish the claim and so would not change that result he had reached. As he described it, at para 3, the CLPA “arguably reversed almost six decades of case law that would have allowed the operational negligence claim to proceed against the Crown based on the well-developed distinction between a ‘true policy decision’ and its implementation.”

[11] Even with that view in mind, Belobaba J. declined the Crown’s invitation to find that the claim was barred by CLPA. He reasoned, at paras 12 and 14, that the negligence alleged in that claim were instances of non-decisions – e.g. benign neglect and inaction in respect of a faulty system – and that those operational matters did not amount to ‘decisions’ at all, let alone policy decisions. It therefore could not be said that it is plain and obvious that the negligence claims would inevitably fail.

[12] Within a short time after the Leroux decision, Perell J. issued a lengthy judgment in another class action where he likewise refused to dismiss a claim as extinguished by the CLPA: Francis v Ontario, 2020 ONSC 1644. Justice Perell reasoned that since the negligence that he had found was at the operational level rather than the policy level, there were no statutory grounds on which to find that the claim had been extinguished. He held, at para 479, that “s. 11 [of the CLPA] leaves intact the distinction between core policy matters, for which a government or public authority is not exposed to tort liability and non-core policy decisions and operation decisions for which the government or a public authority is exposed to liability.”

[13] Interestingly, in their argument before me, both sides’ counsel were of the view that ss. 11(4) and (5) of the CLPA do not represent a substantial change in the law. Counsel for the Plaintiff generally agrees with Justice Perell that the new statutory provisions do not change the policy/operational distinction that has long been the focus of Crown immunity cases. Counsel for the Crown is also of the view that these new sections codify and more clearly define the difference between a discretionary/policy decision for which the Crown is immune, and a non-policy decision for which it can be sued.

[14] This mutual understanding of the new CLPA provisions generally reflects the notion that “except in so far as they are clearly and unambiguously intended to do so, statutes should not be construed so as to make any alteration in the common law or to change any established principle of law”: Gonder v Gonder Estate, 2010 ONCA 172, at para 40. It also adopts the view of the legislature that enacted them. In fact, they closely reflect what the Attorney General of Ontario said about the law of Crown immunity when introducing the new legislation:

The Proceedings Against the Crown Act has been on the books since 1963, and case law has evolved significantly since then. Principles of law that have been emphasized over and over again by the Supreme Court of Canada are now being codified into our law… The proposal, if adopted, will enshrine the Supreme Court of Canada’s decision that government policy decisions cannot give rise to liability for negligence. This is an established principle of law. The purpose of our amendment and of our proposed legislation is simply to clarify and codify established principles of law.

In this case what the legislation does is it codifies existing case law set by the Supreme Court that states that good faith policy decisions by governments are not judiciable in this case.

Ontario, Legislative Assembly, Official Report of Debates (Hansard), 42nd Parl., 1st Sess., No. 94 (16 April 2019) at p. 4401; and 42nd Parl., 1st Sess., No. 97 (29 April 2019) at p. 4555 (Hon. C. Mulroney).

[15] The real difference between the parties is not so much how the CLPA defines Crown immunity in the abstract, but rather the breadth which they say the CLPA gives to the immunity on the practical level of government decision-making. The Plaintiff sees Crown immunity as narrowly applicable only to threshold policy decisions made at high levels of government. In setting out this understanding, Plaintiff’s counsel relies on the Supreme Court of Canada’s decision in Just v British Columbia, [1989] 2 SCR 1228, 1239-1241: “[C]omplete Crown immunity should not be restored by having every governing decision designated as one of ‘policy’… True policy decisions should be exempt from tortious claims so that governments are not restricted in making decisions based upon social, political or economic factors. However, the implementation of those decisions may well be subject to claims in tort.”

[16] By contrast, the Crown sees its immunity as broadly applicable to any discretionary decision made on public policy considerations by any Crown employee or agent, regardless of where that person is located in the hierarchy of government authority. In setting out this understanding, Crown counsel relies on the Supreme Court of Canada’s decision in R v Imperial Tobacco, 2011 SCC 42, [2011] 3 SCR 45, at paras 86-7: “Even low-level state employees may enjoy some discretion related to how much money is in the budget or which of a range of tasks is most important at a particular time… Generally, policy decisions are made by legislators or officers whose official responsibility requires them to assess and balance public policy considerations. The decision is a considered decision that represents a ‘policy’ in the sense of a general rule or approach, applied to a particular situation.”

[17] Although each of Belobaba J. in Leroux and Perell J. in Francis provide their own interpretation of s. 11 of the CLPA, both cases illustrate that in order to make an intelligible decision on Crown immunity the court must look at the specific action being challenged. Perhaps not surprisingly, in their submissions before me each side presented a different perspective on how the facts play out in view of the existing and now codified law.

[18] Counsel for the Plaintiff focuses on paragraph 43 of the Amended Statement of Claim, which sets out the standard of care that the Plaintiff claims Ontario did not meet in running bail hearings. It is the Plaintiff’s position that none of these allegations regarding failure to live up to the requisite standard of care are policy decisions; rather, they are operational decisions which are done by persons on the ground putting the policies into action rather than making policy themselves. This part of the pleading addresses what might be called pedestrian, hands-on aspects of bail court management and transportation of accused persons to bail courts. As Plaintiff’s counsel puts it, these are anything but high-level policy decisions.

[19] Counsel for the Crown focuses on paragraphs 4-13 of the Statement of Defense, which sets out the actors whose decisions and actions are impugned by the claim. These include Crown prosecutors, police, defense counsel, Ontario Court of Justice judges, and various agents and servants of the Ministry of the Attorney General. More specifically, paragraph 5 of the Statement of Defense says that the challenge posed by the Plaintiff implicates not just daily decision-making in the bail courts, but the “constitution, maintenance, and organization of provincial courts, including the Ontario Court of Justice”, which are policy decisions and are not justiciable or actionable at common law. Since the Crown takes the position that the common law immunity has been better defined, but essentially incorporated into the CLPA, it views these decisions as falling within the immunity under ss. 11(4) and (5) of the CLPA.

[20] Perhaps more to the point, counsel for the Crown submits that I do not have to look to either of the pleadings or to the factual record for an answer to the characterization question. Instead, the answer is in the fact finding that I already did in my May 29, 2020 judgment, as follows:

[20] The essence of the Plaintiff’s claim necessarily addresses the provincial Crown in a capacity that is well beyond its role as prosecutor in bail proceedings. Despite protestations to the contrary by Plaintiff’s counsel, what the Amended Statement of Claim focuses on is the Crown in its capacity as government, wielding its executive authority to determine the allocation and the adequacy of resources devoted to the criminal justice system. Paragraph 119 of the Plaintiff’s pleading exemplifies this claim:

At all material times, it was within the control of Ontario to appropriately manage and otherwise resource the Bail Hearing System to minimize any delay caused by volume, staffing and other funding-related shortages. The Ministry has knowledge of how many people are required to staff the Bail Hearing System so it operates without illegal delay and it was within Ontario’s control to ensure that sufficient staff and resources were available. At all material times, Ontario was able to ensure that the Bail Hearing System was appropriately staffed to prevent staffing-related delays and resource-related delays.

[21] I followed up this observation about the executive-level decisions at stake in this claim with some observations about the type of evidence that would be required to properly evaluate the claim. In doing so, I noted that the claim seeks to impugn not only staffing issues but the budgetary and government real estate and construction decisions that underlie the actions challenged by the Plaintiff:

[21] To come to grips with the broad staffing and resource issues referenced in the Plaintiff’s pleading will require a wide-ranging inquiry with a type of evidence one rarely encounters in a judicial proceeding. Defendant’s counsel point out that even in the certification record, Plaintiff’s counsel have filed evidence relating to Ontario’s decision to build or expand court buildings in Brampton and in Halton Region. The materials go on to indicate that the Plaintiff takes issue with the Province’s decision to renovate and expand the Brampton court facility rather than to build a new building. The Plaintiff also supports its position by critiquing the decision not to build a new courthouse in Halton, and compares the policy in that region with Kitchener and Durham Region where new courthouses have been built.

[22] Paragraph 8 of the Amended Statement of Claim impugns the adequacy of ‘physical court space’ in the Province. It also questions the allocation of court time devoted to bail, the availability of video remand, the availability of interpreters provided by and paid by the Ministry of the Attorney General, the hiring and placement of Crown attorneys, and the planning process for local court facilities across the Province. Paragraphs 13-14 of the Amended Statement of Claim states that Ontario has authority to appoint Provincial Court judges and justices of the peace, putting in issue the question of whether Her Majesty in Right of Ontario has appointed “sufficient” judges to hear bail matters. Since the breach of fiduciary duties and duties of care in negligence cannot apply to the Crown’s actual handling of bail proceedings, those causes of action must logically be aimed at the overall resource allocation, staffing, building, and management of the system.

[22] Having reviewed the nature and magnitude of evidence that would be needed to make the inquiry that the Plaintiff seeks to put on trial, I concluded, at para 27, that the matters at issue are quintessentially policy matters of the provincial Crown: “…the way that the action is framed in the pleading, it challenges what the Supreme Court of Canada has labeled ‘core policy decisions’ – i.e. ‘the weighing of social, economic, and political considerations to arrive at a course or principle of action…[which are] the proper role of government, not the courts’” [citations omitted]. As previously indicated, I am not in a position to re-visit that finding now.

[23] The decisions and actions at issue in this case are performed at the highest levels of government, and are under any definition the type of discretionary decisions made on the basis of public policy considerations. As the Supreme Court put it in Imperial Tobacco, at para 90, they are “‘core policy’ government decisions…based on public policy considerations, such as economic, social or political factors [that are] neither irrational nor taken in bad faith.” They do not implement policy decisions: see Heslip Estate v Mansfield Ski Club, 2009 ONCA 594. Rather, they “represent a ‘policy’ in the sense of a general rule or approach applied to a particular situation”: Hinse v Canada (Attorney General), 2015 SCC 35, [2015] 2 SCR 621, at para 23.

[24] Having found that the government decisions and acts in issue are social, economic, and political in nature, the answer to whether they fall within the newly articulated Crown immunity in ss. 11(4) and (5) of the CLPA is obvious: they do. Whether the terms of the CLPA potentially broaden the scope of immunity for the Crown, as Belobaba J. suggested in Leroux, or leave the scope of immunity substantively unchanged from the common law, as Perell J. suggested in Francis, the matters challenged by the Plaintiff in the instant case fall within the CLPA’s terms. I need decide no more than that here; indeed, without a factual matrix to consider any other scenario, it would be unhelpful for me to do so.

[25] The Plaintiff also makes a number of alternative arguments. These raise an assortment of issues: conflict of the CLPA with the CPA, conflict of the CLPA with s. 96 of the Constitution Act, 1867, and conflict of the CLPA with the Plaintiff’s vested right of appeal. In my view, none of these are relevant to the present case as it now stands.

[26] I have determined that the matters in issue are non-justiciable policy matters under the CLPA in exactly the same way as they were non-justiciable policy matters under the pre-CLPA case law. Nothing has changed from the pre-CLPA state of the law, and so none of the newly raised challenges to Crown immunity allegedly contained in the CLPA are relevant here. If the law of Crown immunity was constitutional and in force before the CLPA’s enactment, nothing in the present case changes that. Whether the CLPA might be interpreted as extending beyond the pre-CLPA scope of immunity established in prior case law, and what might be the constitutional and other implications of such an extended immunity, must be saved for another case with facts that raise that question.

[27] The Plaintiff also claims that the decisions and acts here were done in bad faith, and that Crown immunity under the CLPA does not apply to such misfeasance in public office. The Plaintiff is free to continue making that claim, but nothing in my judgment on certification suggested that and nothing in the certification motion record was found to support such a claim. Accordingly, the enactment of the CLPA does not change my judgment in that regard.

[28] As indicated at the outset, s. 11(8) of the CPLA says that a proceeding against the Crown that falls within the scope of immunity under s. 11 is deemed to be dismissed ab initio, without costs. As both counsel have explained here, the purpose of that section is to eliminate such law suits without the need for a motion or a court order. I therefore do not need to make an order in this regard, and will simply note that the Plaintiff’s negligence claim is not justiciable and falls within the scope of s. 11 of the CLPA just as it was not justiciable and fell within the scope of Crown immunity prior to the CLPA’s enactment.

[29] There will be no costs of this re-hearing, as it was required by the Divisional Court rather than specifically sought by one party against the other.

Morgan J. Date: June 26, 2020