CITATION: Leroux v. Ontario, 2021 ONSC 2269

DIVISIONAL COURT FILE NO.: DC 003/19

DATE: 20210326

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

M.L. EDWARDS R.S.J., D.L. CORBETT and M.A. PENNY JJ.

B E T W E E N:

MARC LEROUX AS LITIGATION GUARDIAN OF BRIANA LEROUX

Plaintiff / Respondent

• and -

HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ONTARIO

Defendant / Appellant

Counsel:

Kirk M. Baert and Celeste Poltak, for the Plaintiff / Respondent

Robert Ratcliffe, Zachary Green, D. Brent McPherson, Vanessa Glasser and Ravi Amarnath, for the Appellant

Jennifer L Hunter and Jacqueline Palef, for the Intervenor Canadian Civil Liberties Association

Heard by Videoconference: June 17-18, 2020

REASONS FOR DECISION

M.L. Edwards R.S.J. (dissenting):

Overview

[1] This is an appeal of two decisions of Belobaba J. certifying, in part, this action as a class proceeding pursuant to s. 5 of the Class Proceedings Act, 1992 (“CPA”) (2018 ONSC 6452 and 2020 ONSC 1994, 2020 ONSC1994).

[2] The proposed action relates to allegations of serious operational flaws in the delivery of essential services and supports to eligible adults with developmental disabilities as prescribed under the Services and Supports to Promote the Social Inclusion of Persons with the Developmental Disabilities Act, which for ease of reference I will refer to as the Disabilities Act and the Ministry of Community and Social Services Act (“MCSSA”).

[3] From the time that they are born to when they reach the age of 18, children who have developmental disabilities are provided with their basic needs to assist with their developmental disability. However, once children with disabilities reach the age of 18, they are essentially “aged out” from their previous services and supports and their needs are addressed under the Disabilities Act and the MCSSA.

[4] In this class action, the purported class claims that the pre-existing services that Her Majesty the Queen in Right of Ontario (“Ontario”) undertook to provide should be provided in a reasonable, fair and rational manner. It is alleged in the statement of claim that when the class members turn 18 years of age and “age out” from their previous services and support, they have been placed on indeterminate waitlists which has resulted in many of the families facing substantial financial distress. In the statement of claim, the plaintiff raises three sets of issues:

a. common law negligence;

b. breach of s.7 of the Canadian Charter of Rights and Freedoms; and

c. breach of fiduciary duty.

[5] In his reasons, Belobaba J. found that the Plaintiff’s claim was not about inadequate funding or the need for a greater allocation of government resources. To the contrary, Belobaba J. determined the Plaintiff’s claim was about the negligent utilization and administration of existing resources in a program where eligibility had already been determined. As such, Belobaba J. found that the negligence claim was “probably viable”, and that a claim made under s. 7 of the Charter of Rights and Freedoms (the “Charter”) was “possibly viable”. Belobaba J. found that the claim for breach of fiduciary duty was bound to fail, a conclusion that is not challenged before us by way of cross-appeal. Ontario appeals certification of both the negligence claims and the claims arising under s.7 of the Charter.

[6] These reasons explain why I would allow Ontario’s appeal as it relates to s. 7 of the Charter and dismiss those claims, but why I would uphold the decision of Belobaba J. certifying the common law negligence claims.

Structure of this Decision

[7] My reasons set out the background facts, the claims as pleaded, the decision of the motion judge, my reasons for concluding that the motion judge did not err in certifying claims in common law negligence, and my reasons why the motion judge erred in certifying the Charter claims. My colleagues agree with me about the Charter claims, and therefore those claims are dismissed. My colleagues do not agree with me in respect to the common law negligence claims, and their reasons for their conclusions follow my own reasons.

[8] Therefore, for the reasons that follow, the appeal is allowed, the decision of the motion judge is set aside, and the action is dismissed:

a. In respect to the Charter claims, by unanimous decision of this court, for the reasons I give below, concurred in by my colleagues; and

b. In respect to the common law negligence claims, for the reasons of D.L. Corbett and Penny JJ., below, with which I respectfully disagree.

The Facts

[9] Marc Leroux is the father of and the litigation guardian of Briana Leroux (“Briana”). When Briana was two years of age, she was diagnosed with a rare birth defect known as agenesis of the corpus callosum. Tragically, Briana is non-verbal and functions at the level of a three year-old and requires constant daily care for all of her activities of daily living which include eating, basic mobility and hygiene. There does not appear to be any factual dispute that Briana’s developmental disability will remain with her for the rest of her life.

[10] Briana received support from the Ministry of Children and Youth Services (“MCYS”) until her 18th birthday. When Briana turned 18, the services that she had received from the MCYS were discontinued. Briana, like all other adults with severe developmental disabilities, required a determination of and funding for services pursuant to the Disabilities Act and the MCSSA. Children whose services were provided by the MCYS, upon reaching the age of 18, are required to apply to the MCSS for continued support.

[11] Ontario funds a number of discretionary programs to assist families who have children with developmental disabilities. Children under the age of 18 and their families receive financial assistance for a child with a developmental disability through the Assistance for Children with Severe Disability Program (“ACSD”), which is defined as an entitlement program that provides varying levels of funding for families that are financially eligible based on the family’s particular circumstances. In addition, families are also entitled to apply for the Special Services at Home Program (“SSAH”), which is a capped discretionary funding program assisting families in payment for discretionary services outside of a child’s basic needs.

[12] While a child may have reached the age of 18, nonetheless, despite being classified as an adult, in the case of Briana she remains a person with the developmental age of 3. Briana remains disabled.

[13] When a disabled child becomes an adult at age 18, families responsible for the care of someone with a developmental disability may apply for a combination of entitlement and discretionary supports and services which are available exclusively to adults. One of the well- known programs is an income support program which provides funding through the Ontario Disabilities Support Program (the “ODSP”). The ODSP is an entitlement program which provides an individual with direct funding that will provide for payment of basic needs such as food, clothing and shelter. The calculation of the monthly amount of ODSP is based on the family size, age of the dependant, the geographic location and the individual circumstances of an individual.

[14] Adults like Briana with a developmental disability may also apply for discretionary services and supports for funding pursuant to the Disability Act and the MCSSA. Unlike the ODSP, the services and supports available through the Disability Act and the MCSSA are discretionary. In essence this means that while someone may be eligible, such eligibility does not necessarily give rise to a right to receive such services and supports and/or funding. Rather, having been found eligible, the discretionary services and supports and/or funding are provided on a triage basis within available resources. At the present time, Ontario funds a number of discretionary programs which assist approximately 47,000 Ontario adults with varying levels of developmental disability.

[15] Pursuant to s. 8(1) of the Disabilities Act, Developmental Services Ontario (“DSO”) has been established and manages services for developmentally disabled adults. There are nine DSO offices across Ontario which maintain “service registries”. The service registries have been variously described as waiting lists for those who have been approved for support under the Disabilities Act. Through the services registries, the MCSS scores and prioritizes applications and then allocates available resources to the highest priority applicants.

[16] At the heart of this class action is the allegation made by the Plaintiff that the service registries are managed in an arbitrary and unreasonable manner, making those who have been approved for benefits wait interminably. The services which someone like Briana (and the other purported class members) requires are very much needed, and the deprivation of such services causes her harm, pain, suffering, emotional distress, impairment of dignity and loss of enjoyment of life. As it relates specifically to Briana, she has applied for and has been approved for support under the Disabilities Act, but as of the date of the issuance of her statement of claim she has never received any of the financial support for which she has been approved.

Statement of Claim

[17] Ontario argues that the Plaintiff’s negligence claim is barred by common law Crown immunity because the claim concerns “core policy decisions”. Policy decisions, it is acknowledged by the Plaintiff, are non-justiciable. Ontario argues that the operation or management of the waitlists are properly understood as “policy” matters, because they concern resource allocation and the management of a discretionary program.

[18] With these arguments in mind, it is important to understand the statement of claim as pleaded as it is beyond dispute that a motion judge is required to accept the facts as set forth in the statement of claim as pleaded.

[19] In order to succeed in a negligence claim, it is well accepted that the court must find the following:

a) a duty of care;

b) a breach of the standard of care;

c) causation; and

d) that as a result of the negligence the plaintiff has suffered damages.

[20] For ease of reference, reproduced below are the relevant extracts from the statement of claim. Subsequent to the filing of the initial statement of claim that was before Belobaba J. and upon release of his certification decision, the statement of claim was amended to conform with his reasons. The paragraphs reproduced below are drawn from the amended statement of claim.

The Crown’s Duty of Care

The Crown created, administered, supervised and managed the DSO service registries Waitlists during the class period.

Amongst other things, the Crown was solely responsible for:

(a) the management, operation and administration of MCSS during the class period;

(b) the administration of the 2008 Disabilities Act as well as any regulations relating to the assessment for and provision of Developmental Services;

(c) directing the criteria by which an individual may be assessed and provided Developmental Services prescribed by the 2008 Disabilities Act;

(d) directing the criteria by which individuals may be prioritized for eligible Developmental Services; and

(e) providing the necessary directions or resources to ensure the reasonable and effective operation of DSO service registries Waitlists for Developmental Services which have been approved.

The Crown owed a common law duty to the Class Members as a result of its relationship of proximity. The harm and damages suffered by the Class Members were reasonably foreseeable as a result of the Crown’s acts and omissions, constituting a reach of common law duty.

The Crown’s Negligence

The Crown breached its duty of care to Class members in its administration, management or supervision of the DSO service registries Waitlists.

The Crown breached its common law duties to the Class through its negligent failure to properly administer, supervise and manage DSO service registries Waitlists for approved services.

In particular, the Crown acted negligently by breaching its duty of care in its operation or management of services registries by:

(a) failing to have a consistent and rational scheme of prioritization for Class Members on the service registries.

(b) failing to provide Developmental Services to Class members upon request after reaching the age of eighteen years old; or

(c) failing to establish a maximum time period for which Class members would remain on the service registries for Developmental Services.

(d) failing to act to reduce unreasonably long waitlist times which serve as an effective denial of approved Developmental Services;

(e) creating service registries Waitlists of indeterminate length for Developmental Services which are essential to the Class Member’s basic human needs, safety and security;

(f) failing to have a consistent and rational scheme of prioritization for Class Members on the DSO service registries Waitlists;

(g) failing to create a cohesive system to rationally and efficiently allocate pre-existing resources to Class Members on DSO service registries Waitlists;

(h) failing to provide Class Members with Developmental Services which Class Members are eligible and approved for pursuant to the 2008 Disabilities Act;

(i) arbitrarily cutting off existing Developmental Services to individuals when they reach the age of 18, regardless of pre-approval for such services and their continuing developmental disability;

(j) returning Class Members to a DSO service registry Waitlists when Developmental Services are discontinued;

(k) failing to properly exercise discretion in determining an appropriate length of time for Class Members be subjected to a DSO service registry Waitlists for approved Developmental Services; and

(l) failing to respond adequately, or at all, to complaints or recommendations which were made concerning the administration of DSO service registries Waitlists.

The Class Members suffered damages as a result of the Crown’s negligence, the particulars of which are set out further below.

[21] The allegations respecting alleged breaches of s. 7 of the Charter are set out in paras. 55-58 of the amended statement of claim. It is not necessary to quote these paragraphs in full because the plaintiff cannot meet one fundamental aspect of the test under s. 7: she has not been “deprived” of anything by Ontario.

The Decision of the Motion Judge

[22] The motion for certification was first heard in late October 2018. The decision of Belobaba J. was released on December 14, 2018. At the time of the hearing of the motion, the Plaintiff advanced three causes of action arising out of Ontario’s Operation of Social Services for Developmentally Disabled Adults. As referenced in the extract from the Plaintiff’s statement of claim set forth in paragraph 16 above, the Plaintiff alleged that Ontario was negligent in operating these services; that it breached a fiduciary duty owed to putative class members and that the program delays deprived the putative class members of some measure of security of the person as protected by s. 7 of the Charter. This portion of this court’s reasons focus on the Plaintiff’s negligence allegation against Ontario and the findings of Belobaba J.

[23] The well known first component of the test for certification as set forth in s. 5(1)(a) of the CPA requires that a plaintiff’s statement of claim disclose a cause of action. Belobaba J. concluded that it was not plain and obvious that the negligence claim was doomed to fail.

[24] In coming to this conclusion, Belobaba J. began his analysis acknowledging that the existence of a duty of care owed by the Crown must be determined by application of the two-part test set forth by the House of Lords in Anns v. Merton London Borough Council [1977] 2 All ER 492 (H.L.) as refined by the Supreme Court of Canada in Cooper v. Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537. It was accepted by both sides that the Anns/Cooper test requires the plaintiff to establish a) the presence of foreseeability and proximity and b) the absence of any policy considerations that would negate the imposition of a duty of care.

[25] The issue of proximity was dealt with by Belobaba J. at para. 31 as follows:

It is not plain and obvious that foreseeability and proximity cannot be established given the relationship that developed between the parties herein on the facts as pleaded. As the Court of Appeal noted in Taylor v. Canada (Attorney General), 2012 ONCA 479;

…certain factors will routinely take a central role in the proximity analysis. These include any representations made by the defendant, especially if made directly to the plaintiff, reliance by the plaintiff on the defendant’s misrepresentations, the nature of the plaintiff’s property or other interest engaged, the specific nature of any direct contact between the plaintiff and the defendant and the nature of the overall relationship existing between the plaintiff and the defendant [Emphasis in original.]

[26] Ultimately, Belobaba J. came to the conclusion that because the Plaintiff and every proposed class member had directly interacted with Ontario through the receipt of developmental services both prior to turning age 18 and thereafter and received formal support for continuing support and services, that representations had obviously been made over the course of the relationship and that there was direct contact and reliance. As such, Belobaba J. came to the conclusion in para. 32 of his reasons that there was at least a chance that the requisite level of proximity could be established as the matter proceeded. In coming to this conclusion, Belobaba J. also referred to the decision of the Supreme Court of Canada in R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42 at para. 47, where the Supreme Court held that “where the asserted basis for proximity is grounded in specific conduct and interactions, ruling a claim out at the proximity stage may be difficult”.

[27] Both in its argument before Belobaba J. and before this court, Ontario emphasized the principle that where policy considerations are at issue, no duty of care can arise. In that regard, Ontario relies heavily on the decision of Cullity J. in Wareham v. Ontario (Community and Social Services), 2008 1179 (ON SC), 2008 O.J. No. 166, and the decision of the Court of Appeal in Wynberg v. Ontario, 2006 22919 (ON CA), 2006 O.J. No. 2732.

[28] As noted by Belobaba J. in para. 35 of his reasons, Wynberg was a case involving Ontario’s refusal to fund autistic children beyond age six. The Court of Appeal, at para. 254, concluded that policy concerns would not negate a duty of care where the negligence claim is about “operational failures and the implementation of a government program”. In that regard, Belobaba J. noted:

This make sense. It would not be a legitimate government policy to promulgate or condone ongoing negligence or other operational failures in the implementation of a social assistance program.

[29] Ultimately, Belobaba J. distinguished Wareham and Wynberg on the basis of allegations made by the Plaintiffs in this case that were not advanced in either Wareham or Wynberg. Specifically, in his reasons Belobaba J. referred to the following distinguishing facts in this case that were not found in either Wareham or Wynberg:

1. the waitlists were not being operated in accordance with the statutory scheme;

2. the delays are the result of defaults of Crown employees who administer the program in question;

3. the program as enacted is capable of being administered more effectively without a further allocation of resources; and

4. the focus of the complaint are the operational failures in the implementation of a government program.

[30] Fundamentally as it relates to the Plaintiff’s negligence claim, Belobaba J. came to the conclusion that it was not plain and obvious that the negligence claim had no prospect of success. While acknowledging that Ontario could not be liable in negligence for policy and funding choices per se, Belobaba J. did find that the Plaintiff’s claims went to the core operation of the programs rather than the higher level decisions relating to the funding for, and scope of those programs.

[31] Subsequent to the release of the decision of Belobaba J., the Divisional Court granted Ontario’s motion for leave to appeal on May 24, 2019. Subsequent to the successful motion for leave to appeal, Bill 100 (The Protecting What Matters Most Act (Budget Measures)), 2019, received Royal Assent. Of relevance to this appeal is Schedule 17 to Bill 100, being the new Crown Liability and Proceedings Act, 2019 S.O. 2019, c.7, Sched. 17 (the “CLPA”) which repealed its predecessor the Proceedings against the Crown Act, R.S.O. 1990, c. P. 27 (the “PACA”). The CLPA introduced new provisions regarding the liability of the Crown. Section 11 of the CLPA, in essence, provides that no cause of action lies against the Crown in respect of legislative acts, regulatory decisions or policy decisions. Section 11(5) of the CLPA provides a detailed list of policy decisions which include, as set forth in s. 11(5)(c), the following:

the manner in which a program, project or other initiative is carried out, including,

(i) the carrying out, on behalf of the Crown, of some or all of a program, project or other initiative by another person or entity, including a Crown agency, Crown corporation, transfer payment recipient or independent contractor,

(ii) the terms and conditions under which the person or entity will carry out such activities,

(iii) the Crown’s degree of supervision or control over the person or entity in relation to such activities, or

(iv) the existence or content of any policies, management procedures or oversight mechanisms concerning the program, project or other initiative.

[32] When this appeal initially came before the Divisional Court on March 2, 2020, the court remitted the issue of whether the Plaintiff’s negligence claim was barred by the CLPA to Belobaba J. “for a decision at first instance”.

[33] As a result of referring this matter back to Belobaba J., the parties appeared before him for further argument on March 24, 2020. Belobaba J. released further reasons on April 6, 2020, describing his task as determining whether under the cause of action requirement in s. 5(1)(a) of the CLPA it was plain and obvious that the Plaintiff’s negligence claim had no chance of success, as well as determining whether the Plaintiff’s constitutional argument as further developed by the CLPA had no chance of success.

[34] Ultimately, Belobaba J. determined that it was not plain and obvious that the Plaintiff’s negligence claim was barred by the CLPA.

[35] At para. 7 of his reasons, Belobaba J. noted that the provisions of the CLPA relied upon by Ontario to establish Crown immunity in relation to “the making of a decision in good faith respecting a policy matter, or any negligence in a purported failure to make a decision respecting a policy matter” were distinguishable from the Plaintiff’s claim. In that regard, Belobaba J. noted that the claims advanced by the Plaintiff in the statement of claim were not that Ontario’s decisions were negligent, but rather that the operation of the programs were negligent. As it relates to s. 5(1)(a) of the test set forth in the CLPA, Belobaba J. concluded at para. 14 of his reasons:

…I cannot assume that the listed instances of operational negligence - the indeterminate waitlists, the bad databases, the flawed computer programs and the faulty prioritization and matching processes – were the result of specific governmental decisions or specific failures to make a decision and not just the result of, say, benign neglect or systemic indifference that cannot be attributed to any one person.

Policy Decision Versus Negligent Operation of a Government System – The Position of Ontario and the Position of the Plaintiff

The Position of Ontario

[36] At the core of Ontario’s argument is the submission that the Plaintiff’s negligence claim is barred by common law Crown immunity because the Plaintiff’s claim concerns “core policy decisions” which are non-justiciable.

[37] Ontario argues that the operation or management of the waitlists, which are at issue in this lawsuit, should be properly construed as “policy” matters because at their core they concern the allocation of resources and the management of a discretionary program. Ontario argues that resource allocation and how resource allocation is managed falls outside of this court’s competence to review.

[38] As it relates to the operation and management of the program, Ontario argues that this is entirely discretionary given that there are no statutory requirements for the immediate provision of services, specific wait times or the prescription of the manner in which an applicant must be assessed to determine priority for services. To the contrary, it is argued by Ontario that the availability of the services and supports for the proposed class members is “entirely dependent” on the provisions of the Disability Act and the MCSSA and the budgets that are assigned by Ontario to such legislation.

[39] In support of its argument, Ontario relies on both Wynberg and Wareham together with the recently released decision in Cirillo v. Ontario, 2020 ONSC 3983, where E.M. Morgan J. confirmed that funding and resource allocation do not establish a duty of care because the relationship they engage lacks sufficient proximity.

The Position of the Plaintiff

[40] In order to succeed in responding to this appeal, the Plaintiff argues that the negligence claim as pleaded does not pertain to policy decisions. Rather, it is argued on behalf of the Plaintiff that a careful review of the statement of claim clearly demonstrates that the claims are not about “funding”, “government resource allocation”, nor the propriety of governmental decisions. Rather, it is argued on behalf of the Plaintiff that the negligence claim relates to the operation of an existing and implemented system.

[41] On behalf of the Plaintiff, it is argued that Ontario’s alleged failures relate to Ontario’s conduct in operating the provision of developmental services for the Plaintiff which include:

i.failing to rationally and efficiently allocate pre-existing resources to class members on DSO waitlists;

ii.failing to have a consistent and rational scheme of prioritization for class members on the DSO waitlist;

iii.failing to properly exercise discretion in determining an appropriate length of time for class members be subjected to a DSO waitlist for approved developmental services.

[42] While the Plaintiff makes the concession that a policy decision would preclude a negligence claim, it is emphasized that this action - adopting the words of Belobaba J., relates to “the allegedly deficient and negligent operation of a social assistance system within existing resources”. What is at the core of the Plaintiff’s negligence claim is the complaint about “problems in the operation and administration of a social assistance system, not funding”.

[43] Plaintiff’s counsel distinguishes the Wareham and Wynberg decisions, which Ontario heavily relies upon, on the basis that neither case involved a pleading where eligibility for a government program had already been determined and was not contested. In neither case did the Crown make representations to the individuals affected. In that regard, counsel for the Plaintiff argues that Belobaba J. properly distinguished the facts of this case from Wareham and Wynberg, specifically by referencing that the focus of the complaint lies in operational failures in the implementation of a government program.

[44] Ontario argues that the Plaintiff’s negligence claim as pleaded must fail because of the Plaintiff’s failure to plead material facts, specifically the “who, when, where, how and what” that give rise to liability.

[45] In response to the position advanced by Ontario as it relates to the question of whether or not the statement of claim raises a tenable cause of action in negligence, counsel for the Plaintiff argues that taken as a whole and read generously - and assuming the facts pleaded to be true, that the statement of claim raises a reasonable prospect of establishing a claim in negligence, specifically by reference to the paragraphs set forth in para. 17 above.

Standard of Review

[46] The decision of the motion judge is reviewable on a standard of correctness respecting questions of law and a standard of palpable and overriding error on questions of fact: Housen v. Nikolaisen, 2002 SCC 33, paras. 26, 36-37. The certification decision of a class actions judge is entitled to deference in the balancing of the factors to be considered on certification: Fehr v. Sun Life Assurance Co., 2018 ONCA 718, para. 39.

[47] In this appeal the central issues are legal questions: whether the plaintiff’s claims are doomed to fail because they are not legally tenable. Thus, the core issues on appeal are questions of law, reviewable on a correctness standard in this court.

The Legal Principles

[48] It is only where it is plain and obvious that the statement of claim discloses no cause of action that the court should refuse to certify an action pursuant to s. 5(1)(a) of the CPA: Cloud v. Canada (Attorney General), 2004 45444 (ONCA), para. 41.

[49] While this is an appeal in relation to a certification motion, in essence the principles relating to a motion to strike a pleading under Rule 21 of the Rules of Civil Procedure equally apply. On a motion to strike a claim where it is alleged the claim discloses no cause of action, it is well settled that the court must accept the facts alleged as proven and must read the statement of claim generously with allowance for inadequacies for drafting deficiencies: see Nash v. Ontario, 1995 2934 (ONCA) and Lysko v. Braley, 2006 11846.

[50] As it relates to the negligence claim, the law is clear that the claim as pleaded must disclose that the respondent has a reasonable cause of action against the province, which distilled to its essence means that the pleadings must provide a basis upon which the province can be said to owe a private law duty of care to the respondent: see Taylor v. Canada (Attorney General), 2012 ONCA 479, paras. 21-22.

[51] Ultimately, the question in this appeal as it relates to the negligence claim can be framed as whether the province has successfully demonstrated that the respondent does not have a reasonable prospect on the facts as alleged in the statement of claim, of establishing that the province owed the respondent and other members of the class a private law duty of care. In the event that there are any factual or real legal uncertainties that cannot be properly answered at this stage, the matter should proceed to trial on a fulsome record.

[52] In his reasons, at para. 29, Belobaba J. came to the conclusion that there was enough in the statement of claim “generously interpreted” to support at least a “possibility of success” for both the negligence claim and the s. 7 Charter claim.

[53] Both before Belobaba J. and before this court, the appellant and the respondent accept that the existence of a duty of care owed by the province must be determined by application of the two-part test set forth in the decision of the House of Lords in Anns and the Supreme Court of Canada decision in Cooper. In that regard, it is accepted that the Anns/Cooper test requires a respondent to establish the presence of foreseeability and proximity in the absence of any policy considerations that would negate the imposition of a duty of care.

[54] The Court of Appeal in Taylor defines proximity as describing a relationship between a plaintiff and a defendant that is sufficiently close and direct to render it fair and reasonable to require the defendant in its conduct to be mindful of the plaintiff’s legitimate interests.

[55] As part of its analysis the Court of Appeal in Taylor, at para. 67, referred to proximity and foreseeability as two aspects of the inquiry which must concern the court in its determination as to whether the facts disclose a relationship that gives rise to a prima facia duty of care.

[56] In determining whether a duty of care exists as it relates to a public authority, as in this case, the case law directs the application of a three-step test involving:

i.foreseeability from the perspective of whether the defendant (the province) should have contemplated that the plaintiff would be affected by the province’s conduct;

ii.sufficient proximity from the perspective that the relationship between the plaintiff and the province is sufficiently close to give rise to a duty of care;

iii.the absence of any overriding policy considerations that would negate any prima facia duty established by foreseeability and proximity: see Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, at para. 4.

[57] When it comes to the proximity analysis the focus should be on the nature of the relationship between the victim and the alleged wrongdoer, and the focus of the inquiry should be on whether the relationship is such that the imposition of legal liability for the wrongdoer’s actions under the circumstances would be appropriate: see Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, at para. 23.

[58] Ultimately, if the Plaintiff is successful in establishing a prima facia duty of care, the burden shifts to the defendant to establish counter-veiling policy considerations which must be something more than speculative, with a real potential for negative consequences apparent from the evidence: see Hill, at paras. 47-48.

[59] As it relates to the issue of policy concerns, the court must ask the question as to whether or not there are broad policy considerations which would make the imposition of a duty of care unwise; this despite the fact that harm might be a reasonably foreseeable consequence of the conduct, together with the fact that there might be a sufficient degree of proximity between the Plaintiff and the defendant to impose a duty of care in Cooper.

[60] Ultimately, coming to the final stage of the analysis which is at the core of the province’s argument, is the effect of recognizing the duty of care on other legal obligations, the legal system and society in general. As the Supreme Court of Canada in R. v. Imperial Tobacco Canada Ltd. makes clear, if the recognition of a novel duty of care comes in conflict with an overarching pubic duty and raises a real and substantial potential for negative policy consequences, then the duty of care may be negated: see Taylor, at paras. 70-72.

[61] There is no dispute between the parties that what are often described as legislative and core policy decisions are not actionable in negligence as against the province or any other government. However, as noted by the Supreme Court of Canada in Imperial Tobacco Canada Ltd., at para. 72:

The question of what constitutes a policy decision that is generally protected from negligence liability is a vexed one, upon which much judicial ink has been spilled. There is general agreement in the common law world that government policy decisions are not judiciable and cannot give rise to tort liability. There is also general agreement that governments may attract liability in tort where government agents are negligent in carrying out prescribed duties. The problem is to devise a workable test to distinguish these situations.

[62] The appellant relies heavily on the decisions of the Ontario Court of Appeal in Wareham and Wynberg. The province argues that Wareham and Wynberg provide a complete answer to the policy/operational characterization. In Wynberg, the Ontario Court of Appeal reversed the decision of the trial judge which involved a specific policy decision that excluded funding for autistic children who were over the age of six from a school program. In coming to the decision that it did, the Court of Appeal emphasized the distinction between operational failures and the implementation of a government program. The core of the Plaintiff’s claim related to fundamental government decision-making about the scope of the services to be provided within the special education system. The fundamental distinction between policy and operational decision-making and implementation within the government lies at the heart of this appeal.

[63] If the decision made by a government authority arises as a matter of policy, the decision is exempt from the traditional tort law duty of care. Whether a decision is ultimately characterized as a policy decision or an operational decision has to be determined based on the nature of the decision and not on the identity of the individuals concerned. It is widely accepted that decisions that concern budgetary allotments for a government department or agency will be classified as a policy decision, and that a policy decision will not be open to challenge on the basis that it has not been made in the bona fide exercise of discretion: see Just v. British Columbia, 1989 16, [1989] 2 S.C.R. 1228.

[64] In Just, as in Imperial Tobacco, the Supreme Court acknowledged that “the dividing line between policy and operation is difficult to fix”. The Supreme Court goes on to indicate that what constitutes a policy decision “may vary infinitely and may be made at different levels although usually at a high level”.

[65] In coming to its ultimate decision as to whether a duty of care existed as it relates to a policy decision versus an operational decision, the Supreme Court provided a number of examples in Just to demonstrate the core distinction between policy and operation. As it related to the specific facts before the court, the court made clear that the manner and quality of an inspection system was clearly part of the operational aspect of a governmental activity and thus fell to be assessed as part of the standard of care issue.

[66] Ultimately, this court has to decide whether the facts as pleaded in the statement of claim bring this case within the category of operational negligence referenced in Just, where the Supreme Court reversed the decision of the trial judge and came to the conclusion that where the government has made a policy decision to provide a service, then the negligent failure to implement that policy at the operational level may be an actionable claim where an individual member of the public suffers a loss and damages.

Analysis

The Negligence Issue

[67] The fundamental question this court has to answer is whether the motion judge erred in law in concluding what he did. Was it wrong in law to conclude that on a Rule 21 motion the Plaintiff’s negligence claim had no chance of success because the claim involved a policy decision of the government?

[68] Ontario argues that it is plain and obvious that the negligence claim asserted by the Plaintiff is barred by Crown immunity. It follows, if this argument is correct, that the motion judge would have erred in law by certifying the Plaintiff’s claim that Ontario was negligent in the operation or management of the waitlists which are at issue in this action.

[69] There is no dispute between the parties that core policy decisions of a government are immune from liability at common law - see R. v. Imperial Tobacco at paras. 284-285. Where the parties disagree is whether the operation and management of the waitlists are, at their core a policy decision, or whether they are the operationalization of an existing and implemented system as argued by the Plaintiff and as accepted by the motion judge at para. 14 of his reasons.

[70] If the case against Ontario was one where the claim involved nothing but issues arising out of government resource allocation and the management of a discretionary program, it is clear such claims are outside of this court’s jurisdiction. There is good reason why the jurisprudence precludes such a claim. It is for the government to decide how the resources of the government are to be allocated. The public may disagree with how a government may allocate its resources, and the remedy then is for a disaffected public to vote that government out of office at the next election. It is not for the courts to determine policy. Judges are not elected officials, and as such judges should leave core policy decisions to the politicians.

[71] The governmental decision to fund or not to fund a particular program and the governmental decision as to how resources within a program should be allocated are also not the proper subject matter of judicial scrutiny - see Cirillo v. Ontario, 2019 ONSC 3066, at paras. 24 and 25. Put differently, the determination of how a government decides to allocate resources does not establish a duty of care because the relationship lacks proximity.

[72] Ontario relies on both Wareham and Wynberg in support of its argument that the running of the DSO waitlists is nothing more than an extension within the province’s exclusive policy and operations bailiwick. If the province is correct in its assertion, these cases would be a complete answer to the Plaintiff’s claim.

[73] Wareham involved a claim on behalf of individuals who had applied for ODSP and who had experienced delays in the processing of their claims. What distinguishes Wareham from the facts of the case before this court is the fact that unlike the Plaintiff whose eligibility for benefits is not in dispute, the claim in Wareham was made on behalf of all individuals regardless of whether they had been approved for ODSP. The Plaintiff before this court is indisputably eligible for the benefits available under the Disabilities Act and the MCSSA, and given her medical condition will regrettably, in all likelihood, be eligible for those same benefits for the rest of her life. As someone entitled to the benefits at issue, the Plaintiff’s claim is quite different from the Plaintiffs in Wareham where the issue of eligibility had not been determined.

[74] Wynberg, which is a decision of the Court of Appeal, is relied upon by the province to support its argument that the Plaintiff’s claim cannot succeed, as it is a claim that in essence attacks a core policy decision of the province in terms of how persons over the age of 18 may access funding that they required as children, and which they continue to require as adults. The court in Wynberg reversed the decision of the trial judge that would have allowed autistic children over the age of 6 years old to receive benefits that other autistic children could receive, but only between the ages of 6 months and 6 years old. The program is funded by the province and is known as the Intensive Early Intervention Program (the IEIP).

[75] What differentiates Wynberg from the case before this court, is that the Plaintiffs in Wynberg ceased to have any entitlement to benefits under the IEIP once they reached the age of 6. The province made no representation to the Plaintiffs in Wynberg that they were entitled to benefits. Fundamentally, the Court of Appeal in Wynberg followed the direction of the Supreme Court of Canada and acknowledged at paras. 184 and 185 that:

The Supreme Court of Canada has held repeatedly that where the government has made a difficult policy choice regarding the claims of competing groups, or the evaluation of complex and conflicting research, or the distribution of public resources, or the promulgation of solutions which concurrently balance benefits and costs for many different parties, then the proper course of judicial conduct is deference. In Irwin Toy, supra, at pp. 993-94, 989-90 S.C.R., the majority held that when the legislature is mediating between claims of competing groups, it is forced to strike a balance without absolute knowledge about how balance is best struck. For the court to choose a different option than that selected by the legislature would be to replace one imprecise evaluation with another. In such cases, greater deference is to be afforded the choice of the legislature because an evaluation of what constitutes "as little as possible" is impossible to determine and often based on complex and conflicting social evidence. There are certain choices that the legislature is better suited to make, such as those based on policy judgments, competing claims between groups, or evaluation of complex and conflicting social science research. See also M. v. H., supra, at para. 79, where the Supreme Court reiterated these principles, explaining that the amount of deference accorded to the legislature's choice is "intimately tied up with the nature of the particular claim 2006 22919 (ON CA) or evidence at issue".

The age limit in the IEIP is the product of a difficult policy choice that engages each of those factors. In our view, the policy choices made by the government when it established and developed the IEIP fell within the range of reasonable alternatives to provide an effective program across the province that balanced the needs of all autistic children. The age limit fits squarely within the framework of government action that mediates among competing interests and, accordingly, warrants deference by this court.

[76] While the Court of Appeal in Wynberg ruled against the Plaintiffs’ claim, it is clear from a close reading of the court’s reasons that core policy concerns do not negate a duty of care as it relates to government decisions where the negligence alleged is about operational failures in the implementation of a government program. Specifically, the Court of Appeal stated at para. 255:

We conclude that, rather than being a claim for operational failures in the implementation of a government program, the Deskin plaintiffs' claim relates to government decision-making about the scope of the IEIP and the services to be provided within the special education system. Viewed from that perspective, this case is not analogous to the cases on which the Deskin plaintiffs rely where a duty of care arose on the part of government actors in favour of users of government services. (emphasis added)

[77] In the case before this court the province could have, as a matter of policy, determined that children who were eligible for support from the MCYS were no longer eligible for benefits once they reached the age of 18. If things went no further some might think such a policy would have been grossly unfair, as someone like Briana at age 17 is medically the same person at age 18. However, such a policy (if, hypothetically, that was the policy of the province and it is not), viewed objectively could be seen as unfair, nonetheless, such a hypothetical policy could not ground a claim in negligence.

[78] The province did not, however, simply adopt a policy that a child entitled to benefits from the MCYS ages out of benefits at age 18 without further assistance from the government. Rather, the province adopted a policy requiring someone like Briana to apply for further assistance from a different arm of the government once she turned 18. Not surprisingly, Briana and others like her having turned 18, then applied for assistance for discretionary services and support pursuant to the provisions of the Disability Act and the MCSSA.

[79] Briana and the other members of the purported class are eligible for the services they have applied for. Briana does not argue that she falls within a class of persons whose needs require the provision of government funding. Rather, Briana argues on behalf of the class that she has been found eligible for support and that the claim is one relating to the operational failure in the implementation of a government program.

[80] We agree with the submissions made by the Plaintiff that Wareham and Wynberg are factually different cases. It follows that I agree with the following as determined by the motion judge:

The allegations that were not advanced in Wareham or Wynberg are being advanced herein: (i) the waitlists are not being operated in accordance with the statutory scheme; (ii) the delays are a result of the defaults of Crown employees who administer the program in question herein; (iii) the program as enacted is capable of being administered more effectively without a further allocation of resources; and (iv) the focus of the complaint are the operational failures in the implementation of a government program.

[81] Whether the Plaintiffs will succeed in their claim at trial is, of course, an issue very much in the future. The matter before this court is an appeal in the context of what is, in essence, a pleadings motion. Giving the pleading its widest possible meaning, I agree with the motion judge that the alleged failures asserted against the province relate to the province’s provision of developmental services - specifically:

a) Failing to rationally and efficiently allocate pre-existing resources to the class members on the DSO waitlists;

b) Failing to have a consistent and rational scheme of prioritization for class members on the DSO waitlists; and

c) Failing to properly exercise discretion in determining an appropriate length of time for class members to be subjected to a DSO waitlist for approved developmental services.

[82] The jurisprudence is very clear that policy decisions of the government preclude a negligence claim. The case advanced by the Plaintiffs in this class action is not one where the Plaintiffs argue the province has provided insufficient funding and resources to adults with disabilities. Rather, it is a claim as described by the motion judge that involves the “allegedly deficient and negligent operation of a social assistance system within existing resources.” [Emphasis added].

[83] The motion judge was correct in his determination that the Plaintiff’s claim relates to the operational failures of a government program. The motion judge was correct in distinguishing the application of both Wynberg and Wareham. The ultimate determination by the motion judge in this case reflected the Supreme Court of Canada’s analysis dating back to 1989 in Just where Cory J. stated:

It may be convenient at this stage to summarize what I consider to be the principles applicable and the manner of proceeding in cases of this kind. As a general rule, the traditional tort law duty of care will apply to a government agency in the same way that it will apply to an individual. In determining whether a duty of care exists the first question to be resolved is whether the parties are in a relationship of sufficient proximity to warrant the imposition of such a duty. In the case of a government agency, exemption from this imposition of duty may occur as a result of an explicit statutory exemption. Alternatively, the exemption may arise as a result of the nature of the decision made by the government agency. That is, a government agency will be exempt from the imposition of a duty of care in situations which arise from its pure policy decisions.

In determining what constitutes such a policy decision, it should be borne in mind that such decisions are generally made by persons of a high level of authority in the agency, but may also properly be made by persons of a lower level of authority. The characterization of such a decision rests on the nature of the decision and not on the identity of the actors. As a general rule, decisions concerning budgetary allotments for departments or government agencies will be classified as policy decisions. Further, it must be recalled that a policy decision is open to challenge on the basis that it is not made in the bona fide exercise of discretion. If after due consideration it is found that a duty of care is owed by the government agency and no exemption by way of statute or policy decision-making is found to exist, a traditional torts analysis ensues and the issue of standard of care required of the government agency must next be considered.

The manner and quality of an inspection system is clearly part of the operational aspect of a governmental activity and falls to be assessed in the consideration of the standard of care issue. At this stage, the requisite standard of care to be applied to the particular operation must be assessed in light of all the surrounding circumstances including, for example, budgetary restraints and the availability of qualified personnel and equipment.

[84] Having determined that the Plaintiff’s claim in negligence flows from an operational failure as opposed to a core policy decision of the province. there still remains the question of whether the claim pleaded gives rise to a duty of care. The province argues that the Plaintiffs have failed to provide the so-called “who, what, where and when” required to establish a claim in negligence. While it is beyond dispute that the complete absence of a pleading containing the material facts to support a claim can be fatal on a Rule 21 motion, it is worth repeating some of the fundamental principles applicable to the type of pleadings motion before this court.

[85] The applicable principles that should guide the court in a motion to strike were recently summarized by Monahan J. in Thelwell v. Toronto Police Services Board, 2020 ONSC 1803, as follows:

i. the test for determining whether a pleading should be struck is whether, assuming the facts as stated in the statement of claim can be proved, it is plain and obvious that no reasonable cause of action is disclosed. The pleading should not be struck if there is a chance that the plaintiff might succeed. Only if the action is “certain to fail” because it contains a radical defect should the relevant portions of the statement of claim be struck out. The purpose of the motion to strike is to eliminate “hopeless claims” and it is “a tool that must be used with care;

ii. the statement of claim must disclose a cause of action founded in law, by pleading the necessary legal elements of an otherwise recognized cause of action. A cause of action is not “disclosed” simply by naming it or providing a bald and conclusory statement based on assumptions or speculation. The plaintiff must put forward a set of material facts that, assuming they could be proved, would establish the claim.

[86] While the statement of claim could, perhaps, have been more tightly drafted to plead all of the essential ingredients of a negligence claim, I do not agree that the motion judge made any error of law in his conclusion that:

It is not plain and obvious that foreseeability or proximity cannot be established given the relationship that developed between the parties herein on the facts as pleaded. As the Court of Appeal noted in Taylor: [C]ertain factors will routinely take a central role in the proximity analysis. These include any representations made by the defendant, especially if made directly to the plaintiff, reliance by the plaintiff on the defendant's representations, the nature of the plaintiff's property or other interest engaged, the specific nature of any direct contact between the 4 Cloud v. Canada (Attorney General) (2004) 2004 45444 (ON CA), 73 O.R. (3d) 401 (C.A.) at para. 41. 5 Anns v. Merton London Borough Council [1977] 2 All E. R. 492 (H.L.). 6 Cooper v. Hobart 2001 SCC 79, [2001] 3 S.C.R. 537. 7 Ibid. at para. 30. 8 Taylor v. Canada (Attorney General), 2012 ONCA 479. 2018 ONSC 6452 - Page 7 - plaintiff and the defendant, and the nature of the overall relationship existing between the plaintiff and the defendant. [Emphasis added.]

[87] The Plaintiff pleads that every proposed class member directly interacted with the defendant through the receipt of developmental services before turning 18, and had further and direct contact after turning 18 and receiving formal approval for continuing support and services. Representations were obviously made over the course of this relationship and there was direct contact and reliance. There is, therefore, at least a chance that the requisite level of proximity can be established as this matter proceeds. In any event, as the Supreme Court noted in Imperial Tobacco "…where the asserted basis for proximity is grounded in specific conduct and interactions, ruling a claim out at the proximity stage may be difficult".

[88] As the motion judge was required to do, he read the statement of claim generously and assumed the facts and particulars as pleaded to be true. The core ingredients of a negligence claim include:

a) a duty of care,

b) a breach of the standard of care,

c) causation and remoteness, and

d) damages.

I am satisfied, as was the motion judge, that the statement of claim properly pleads the essential ingredients of a negligence claim.

[89] I am also satisfied that there was no error of law in the motion judge’s determination that there is a direct and proximate relationship between the Plaintiffs and the province, given the pre-existing receipt of what are described as youth services and the approval for services, and thereafter the placement on waitlists. The province manages and controls the DSO process from the point when someone like Briana ages out at age 18, to the processing of applications and the waitlists.

[90] The motion judge properly applied the principles laid down by the Supreme Court in both Imperial Tobacco and Taylor. It is not plain and obvious that the Plaintiffs will not succeed at trial. The approach adopted by the motion judge may have been generous, but that is precisely what he was required to do on the motion before him. I see no error in the conclusion reached by the motion judge as it relates to the negligence claim asserted by the Plaintiffs.

The Charter Issue

[91] Section 7 of the Charter provides that: “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”

[92] The statement of claim in this matter seeks a declaration that Ontario has violated the Plaintiff’s s. 7 rights and seeks damages under s. 24 of the Charter. The claim pleads that the developmental services to be offered under the 2008 Disabilities Act by the DSO are essential to meeting the Plaintiff’s basic daily living needs, including hygiene, sustenance, shelter and safety. The claim further pleads that, by finding the Plaintiff eligible for the legislated benefits but then consigning her to unreasonable and indeterminate waiting lists, the government has violated her basic human needs and, therefore, interfered with the Plaintiff’s life, liberty and security of the person.

[93] The motion judge acknowledged that in light of the Crown’s “compelling” submissions, the Plaintiff’s s. 7 claim “will probably not succeed on the merits”. Nevertheless, the motion judge found that the Plaintiff had pleaded a “possible pathway” to “some chance of success” and found that it was not plain and obvious that the Plaintiff’s s. 7 claim would fail. He therefore concluded that the hurdle under s. 5(1)(a) of the CPA had been met with respect to this claim.

[94] It is common ground that in order to establish that there has been a violation of a s. 7 right, the plaintiff must show:

(a) state conduct;

(b) deprival of a right (to life, liberty or security of the person); and

(c) the deprivation is contrary to a principle of fundamental justice.

[95] State conduct as such is really not in issue here. The motion judge examined the Plaintiff’s pleading, to the effect that the DSO offices were created and funded by the defendant, operated under written policy directives and guidelines from the defendant, have staffing qualifications dictated by the defendant and use information directly managed in the defendant’s proprietary computer system. He concluded that the DSO offices were set up as an instrument of government policy and that the government exercises a substantial degree of control over them, sufficient to subject the DSO enterprise to Charter scrutiny under s. 7.

[96] The s. 7 right said to be infringed is security of the person. The motion judge did not address this aspect of the s. 7 test independently but appears to have accepted, in the context of addressing the question of deprivation, that security of the person is engaged here by virtue of the Plaintiff’s plea that the services of which she is being deprived are essential to her basic human needs.

[97] Regarding deprivation, the motion judge acknowledged the “difficulty” faced by the Plaintiff in establishing this requirement. He found, however, relying on the dissenting judgment of Arbour J. in Gosselin, that deprival could involve both “taking away” and “keeping from” or both “positive” state action or state “inaction” and that “delay” in the provision of government services “might” constitute a deprival even if only in “exceptional” circumstances.

[98] Regarding fundamental justice, the motion judge found that both lack of procedural fairness and arbitrariness qualify as conduct which is contrary to principles of fundamental justice. He found, as the Plaintiff submitted, that the proposed class consists of people who were eligible for services as “youths”, had be found eligible for further services as “adults” but were subject to a procedurally unfair and arbitrary interruption of ongoing services by virtue of having “aged out” of the youth services. Age, the motion judge found, is arbitrary in this case because the Plaintiff’s disabilities and essential needs are unrelated to her age.

[99] Given these findings and conclusions, and the need to “safeguard a degree of flexibility” in the interpretation of s. 7, the motion judge was not prepared to find that it was plain and obvious that the Plaintiff’s s.7 claim was doomed to fail.

The Plaintiff’s Submissions

[100] The Plaintiff argues that the motion judge’s decision is unimpeachable on this issue. She submits that the case she has pleaded falls squarely within the Supreme Court of Canada’s decision in Chaoulli v. Quebec (Attorney General), 2005 SCC 35, which found: “where the government puts in place a scheme to provide health care, that scheme must comply with the Charter.”

[101] The Plaintiff further argues that in other similar factual situations, the Supreme Court of Canada has determined that analogous gross delays in the delivery of various health care services do in fact constitute Charter violations.

[102] The Plaintiff submits that there is ample support for the motion judge’s conclusion that governmental delay can sometimes constitute a deprivation under s. 7 of the Charter where the core complaint, as it is here, is not about the denial of anticipated benefits but about the indeterminate delay in the receipt of benefits which have already been authorized. She relies, among other things, on the dissenting judgment of Arbour J. in Gosselin v. Quebec (Attorney General) 2002 SCC 84, at para. 326:

State-caused delay might sometimes constitute a violation, even if ‘only in exceptional cases’ (Blencoe, at para. 83). In other words, Blencoe held that state-caused delay – the inertia (or lack of action) in moving a case forward – was not in itself incompatible with the s. 7 requirement that the impugned harm must result from ‘actions of the state’. Blencoe does not hold that all s. 7 protection is limited to cases in which one’s life, liberty or security of the person is violated by positive state action. Quite the contrary, it implies that such protection will sometimes be engaged by mere state inaction.

[103] While the defendant is correct when it says that there is no positive obligation on the state to ensure an individual enjoys life, liberty or security, this criticism wholly misapprehends the nature of the Plaintiff’s claim. The Plaintiff is not requesting services to which she is not yet eligible or for which there are insufficient resources. Rather, as the motion judge found, “she is requesting services that she has been receiving and that she ha been approved to continue to receive. Her complaint is about the administration and allocation of existing resources, not the failure to allocate new resources. State-inflicted barriers as well as state-inflicted delay in delivering government programs that provide basic necessaries of life, can amount to deprivation of life, liberty and security of the person under s. 7 of the Charter, Carter v. Canada (Attorney General), 2015 SCC 5 at para. 70.

[104] The Plaintiff is not a person with a disability at large nor is her interest identical to that of the public at large; she is a person who was receiving services, was assessed as eligible for further services but was then subjected to a procedurally unfair and arbitrary interruption of ongoing services by virtue of being placed on an indeterminate wait list. Like this case, Wareham v. Ontario (Ministry of Community and Social Services), 2008 ONCA 771, involved a motion to strike a claim by individuals whose social assistance benefit payments were delayed. The court found that it was not plain and obvious that delays in the provision of social services could not result in a deprival of a right to security of the person.

Analysis

Security of the Person

[105] The motion judge appears to have accepted that provision by the government of “basic essential human needs” is protected by “security of the person” under s. 7. This assumption, however, is in direct conflict with the Divisional Court’s decision in Masse v. Ontario (Ministry of Community and Social Services), 1996 12491 (ON SCDC), [1996] O.J. No. 363, para. 73, where the majority rejected the argument “that ‘security of the person’ includes and requires provision for the economic satisfaction of basic human needs.” The decision of the Superior Court of Justice in Barbra Schlifer Commemorative Clinic v. Canada, 2014 ONSC 5140 paras. 32-33, affirmed that Masse remains good law.

[106] Although the Plaintiff relies on the decision of Cullity J. in Wareham, it must be remembered that: a) Wareham concerned delay in the payment of ODSP benefits. Wareham, therefore, concerned benefits to which the Plaintiff was “entitled” not, as here, benefits to which the Plaintiff is merely “eligible”; and, b) Cullity J. ultimately dismissed the s. 7 claim comparable to the claim made in this case on the basis that the alleged delays were not contrary to any fundamental principle of justice. Thus, the Wareham analysis of the deprival of a s. 7 right is of limited precedential value.

Deprival

[107] Even assuming that a right to security of the person is engaged on the Plaintiff’s pleading, s. 7 requires that there be state action which results in a deprivation of this right. The Supreme Court has stated there is: “no positive obligation on the state to ensure that each person enjoys life, liberty or security of the person. Rather s. 7 has been interpreted as restricting the state’s ability to deprive people of these” Gosselin v. Quebec (Attorney General), 2002 SCC 84, [2002] 4 S.C.R. 429.

[108] While the motion judge appeared to agree that Ontario is not under an obligation to set up developmental service programs in the first place, he held that it could be a deprivation for the government, after providing the services and supports in the youth program, to thereafter prioritize delivery of these services and supports differently in the adult program, if it had the effect of delaying receipt or reducing the scope of services provided. The motion judge relied on the Supreme Court’s decision in Chaoulli, which involved delay in the provision of government funded hospital and physician services.

[109] The motion judge’s reasons, however, conflict with Ontario authorities which distinguish Chaoulli on the basis that the Quebec law in question law created a complete prohibition on the ability of Quebeckers to purchase private health insurance. In Wynberg v. Ontario, 2006 22919 (ON CA), [2006] O.J. No.2732, the Court of Appeal observed, in dismissing the Plaintiff’s s. 7 claim, that the applicants in Chaoulli were not asking the court to order that the government pay for their private health care: “on the contrary, they sought the right to spend their own money to obtain insurance to pay for private health care services.” In the case at bar there is no statutory prohibition that blocks or impairs the ability of Ontarians to obtain help or assistance for persons with developmental disabilities. Indeed, para. 30 of the statement of claim pleads that the Plaintiff’s daily living needs are being provided by her family.

[110] Moreover, the motion judge concluded at para. 50, that deprivation might be shown because the Plaintiff had already received youth services and been found eligible to receive adult services. This conclusion, however, is inconsistent with a long line of authorities which establish that the government is under no obligation to ensure that a claimant receives or continues to receive the same level of benefits or support before or after a certain age or following a policy decision to reduce or even eliminate that benefit. These include:

• Gosselin v. Quebec (Attorney General) 2002 SCC 84, holding that s. 7 does not prevent the government from imposing, in order to qualify for welfare, additional requirements (participation in educational or work experience programs) on persons who are under 30 years of age

• Wynberg v. Ontario at para. 220, holding that the government’s failure to provide intensive behavioural intervention consistent with the IEIP Guidelines after the age of five did not amount to depriving autistic children of a constitutionally protected right

• Sagharian (Litigation Guardian of) v. Ontario (Minister of Education), 2008 ONCA 411 at paras. 51-55, holding that the government is not under a positive obligation to ensure that every school aged child has access to autism services;

• Flora v. Ontario Health Insurance Plan, 2008 ONCA 538 at para. 108, holding that there is no positive obligation on the government to extend health care funding to cover out-of-country medical treatment, even when the treatment is “life-saving” in nature;

• Canadian Doctors for Refugee Care v. Canada (Attorney General), 2014 FC 651 at paras. 533-571, holding that s. 7 does not prohibit a reduction in the level of health care for refugees

• Abarquez v. Ontario, 2009 ONCA 374 at paras. 48-52, holding that it is not a deprivation to eliminate a requirement to use protective equipment during a SARS outbreak

• Tanudjaja v. Attorney General of Canada, 2013 ONSC 5410, holding that the government has no obligation to ensure that affordable, adequate, and accessible housing is available for all Ontarians and Canadians

• ETFO v. Her Majesty the Queen, 2019 ONSC 1308 at para. 139, holding that a change in the law or government policy alone does not constitute deprivation of a right even if the previous law provided greater life, liberty or security of the person.

[111] These cases (and many others) establish a number of relevant general principles:

(i) the government has no positive obligation to ensure that anyone enjoys life, liberty or security of the person;

(ii) social assistance is an economic question which generally falls outside the purview of s. 7. This is particularly the case where the question is one of eligibility rather than entitlement;

(iii) if the government has no obligation under s. 7 to provide a social service benefit, being denied or made to wait for this benefit cannot be a breach of s. 7;

(iv) the concern of the plaintiff is not with a deprivation being imposed by the government but with the perceived inadequacy of a government program designed to ameliorate the situation of the plaintiff; and

(v) the plaintiff’s argument is essentially a critique of statutory social policy and therefore lacks a constitutional foundation.

[112] Finally, the motion judge’s reliance on Arbour J.’s dissenting judgment in Gosselin was, in light of the majority decision and a significant volume of subsequent jurisprudence, misplaced. The motion judge cited the dissenting opinion of Arbour J. in Gosselin (at para. 326):

[S]tate-caused delay — the inertia (or lack of action) in moving a case forward — was not in itself incompatible with the s. 7 requirement that the impugned harm must result from “actions of the state”. Therefore, Blencoe does not hold that all s. 7 protection is limited to cases in which one’s life, liberty or security of the person is violated by positive state action. Quite the contrary, it implies that such protection will sometimes be engaged by mere state inaction.

[113] In Gosselin, the majority said, however, at para. 81 and following, that even if s. 7 could be read to encompass economic rights, s. 7 concerns the right not to be deprived of life, liberty and security of the person. Nothing in the jurisprudence suggested that s. 7 places a positive obligation on the state to ensure that each person enjoys life, liberty or security of the person. Rather, s. 7 has been interpreted as restricting the state’s ability to deprive people of these. That said, the majority cautioned that it would be dangerous to freeze the development of this part of the law and that the Supreme Court should be alive to the need to safeguard a degree of flexibility in the interpretation and evolution of s. 7 of the Charter.

[114] It remains the case, almost twenty years later, that nothing in the jurisprudence places a positive obligation on the state to ensure the enjoyment of life, liberty or security of the person.

[115] Indeed, at least two Ontario Court of Appeal decisions (and many other courts in Ontario and elsewhere) have confirmed that Arbour J.’s dissent in Gosselin is not the law. In Wynberg, after referring to Arbour J.’s dissent, the Court of Appeal stated, at para. 220, “[h]owever, to date s. 7 of the Charter has been interpreted only as restricting the state’s ability to deprive individuals of life, liberty or security of the person.” In Flora, the Court of Appeal, at para. 108, likewise rejected an invitation to expand the reach of s. 7, holding, that it is constitutional for governments to place limitations on financial benefits that are not otherwise required by law.

[116] Furthermore, an approach similar to the motion judge’s analysis on this issue (that by virtue of the door having been “left open” by the Supreme Court in Gosselin and the possibility that, someday, the courts might recognize positive obligations and condemn mere inaction under s. 7, it is not plain and obvious the claim will fail) was specifically rejected by this court in Cosyns v. Canada (Attorney General), 1992 8529 at para. 18 and by Lederer J. in Tanudjaja at para. 59. This Court in Cosyns held that the mere possibility of a future change in the law is not an invitation for the lower courts to reconsider the issue every time it is pleaded. Similarly, Lederer J. held that the law on the scope of government obligation to ameliorate disadvantageous conditions is established. There is no positive obligation on Ontario to put in place programs to ameliorate the Plaintiff’s circumstance. This has been the law since the early days of the Charter and s. 7 jurisprudence. It is not for the lower courts to step outside this well-established line of precedent.

[117] In conclusion, I find that the first part of the test for the application of s.7, whether security of the person is engaged and whether there has been a deprivation, has not been established in law; the motion judge erred in concluding that the Plaintiff had pleaded a cause of action under s. 7 that has “some chance of success.” It is plain and obvious, on the existing state of s. 7 jurisprudence from the Supreme Court, the Court of Appeal for Ontario and this court, that the Plaintiff’s s. 7 claim cannot succeed. Given this conclusion, it is not necessary for this court to address “fundamental justice” issues within the meaning of s.7.

Conclusion

[118] For these reasons I would allow the appeal in part and dismiss the plaintiff’s Charter claims. I would dismiss the appeal from the motion judge’s decision to certify the claims in common law negligence.

M.L. Edwards R.S.J.

D.L. Corbett and Penny JJ.:

[119] We agree with our colleague that the motion judge erred in certifying the Charter claims. We do not agree with him that the negligence claims should have been certified:

a. Ontario is immune at common law to the negligence claims pleaded.

b. Ontario does not owe common law duties of care to the plaintiff.

We conclude that the motion judge erred in concluding that the common law negligence claims are arguable. Therefore, for the reasons that follow, we would allow the appeal and dismiss the action.

Background

[120] M.L. Edwards R.S.J. has set out the facts and the positions of the parties in detail. They do not require repetition here. We emphasize the following points central to our view of the case:

a. For the purposes of this case, there are two distinct kinds of benefits programs offered by Ontario to adult persons with developmental disabilities:

i. “Entitlement Programs” under which, if an applicant satisfies the test established to receive benefits, the applicant is “entitled” to receive prescribed benefits. The ODSP is such an Entitlement Program. Where an ODSP applicant meets the criteria, she is entitled to receive prescribed ODSP benefits.

ii.“Eligibility Programs” under which, if an applicant meets the test established to be eligible for benefits, she is placed on “waitlists” or “service registries” for benefits or services. The applicant is not “entitled” to these benefits or services; she is “eligible” for them. Available benefits or services are insufficient to meet the needs of all persons eligible to receive them. Ontario allocates the available benefits or services among eligible persons through a process of triage and “waitlists” it has designed to implement these Eligibility Programs.

b. One further distinction is material to the issues in this case:

i. One set of programs is available to support “Children” with developmental disabilities;

ii. A separate set of programs is available to support “Adults” with developmental disabilities.

[121] This case is not about the plight of developmentally disabled Children and Adults. It is about where authority lies to develop, design, implement and operate provincial benefits schemes for developmentally disabled persons, and the proper role of the courts in reviewing the actions of the Legislature and statutory delegates in exercising authority and making decisions respecting benefits for developmentally disabled persons.

[122] The principles involved here have even broader application and concern, for at their heart, they concern the proper role of the courts in a constitutional democracy to safeguard the Rule of Law, while according the Legislature and its delegates their proper and robust roles in addressing complex social problems with limited resources.

[123] We emphasize two points that are not in issue in this case:

a. Ontario may lawfully establish both Entitlement Programs and Eligibility Programs for persons with developmental disabilities. It is not alleged, in this case, that the plaintiff is “entitled” to benefits for which she is merely “eligible”. It is not alleged, in this case, that the plaintiff is not receiving benefits to which she is “entitled”.

b. Ontario may lawfully establish different benefits programs for Children and for Adults with developmental disabilities. The substantive benefits available under programs for Children and those for Adults need not be the same. In providing benefits and services to Children with developmental disabilities, Ontario does not create for itself a duty to provide the same, or indeed any, benefits or services to those Children when they become Adults. Once the Children “age out” of the programs available for Children, they then must qualify for benefits or services under the programs available to Adults, and their entitlement or eligibility for those benefits are assessed under the criteria for the Adult programs.

Crown Immune From the Common Law Claims in Negligence

[124] The Crown is immune from liability for core policy decisions at common law. This immunity is codified in respect to decisions respecting “policy matters” under the CLPA. This immunity applies to the claims in negligence in this case. R. v. Imperial Tobacco Ltd, 2011 SCC 42, paras. 84-90; Hill v Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, para. 46; Cirillo v. Ontario, 2019 ONSC 3066.

[125] The choice to provide Entitlement and Eligibility programs for Adults with developmental disabilities is a core policy choice, and in any event is not challenged in this litigation. The choice to provide different Entitlement and Eligibility programs aimed at Children and at Adults with developmental disabilities is a core policy choice and in any event is not challenged in this litigation.

[126] What is challenged in this case by way of a claim in common law negligence is the administration of discretionary benefits under Eligibility Programs for Adults who are “eligible” but not “entitled” to those benefits.

[127] Since the plaintiff does not challenge Ontario’s authority to establish an Eligibility Program, it is implicit that there may be, and likely will be, persons eligible for benefits who wait for those benefits, or who do not receive them at all. Ontario funds Eligibility Programs that assist about 47,000 adults with developmental disabilities: allocating scarce resources among competing eligible developmentally disabled Adults is a complex and substantial task. Devising and administering a system to do this is, at its core, public administration of a benefits program. The resulting system determines allocation of resources among competing benefits claimants to a limited pool of resources.

[128] The claim in negligence is premised on Ontario having a common law duty of care owed to the plaintiff in devising, managing and implementing its system for distribution of scarce resources to developmentally disabled Adults. Reduced to its essence, the claim alleges that if Ontario was not negligent in its administration of these programs, less money would be wasted, resources would be targeted better at eligible Adults, “waitlists” would be reduced and wait times would be shorter – in brief, if Ontario did a non-negligent job running this system, eligible Adults would receive benefits that they are not now receiving. The claim, in its very essence, is systemic.

[129] At common law, the Crown has no direct liability in tort. Tort claims against the Crown are creatures of statute, and generally require a cognizable claim against a Crown servant or agent for which the Crown is vicariously liable: Proceedings Against the Crown Act, R.S.O. 1990, c. P.27 s. 5(1)(a); Hinse v Canada (Attorney General), 2015 SCC 35; Ontario v. Phaneuf, 2010 ONCA 901. This immunity is “deeply entrenched” in Canadian law and can only be overcome by “clear and unequivocal language” in a statute: Canada (Attorney General) v Thouin, 2017 SCC 46, at para. 1. There is no such statutory language in Ontario law.

[130] How would one express such a duty of care? That Ontario, having decided to provide benefits to developmentally disabled Adults, owes them a duty of care to run the benefits program competently? How would this duty of care be expressed? A duty to operate the benefits program to the standard of a competent public administrator? What remedies could there be? Damages, thereby reducing the funds available to those in need of benefits, or reducing funds available for other government priorities? Or perhaps a structural order to require the government to “fix” the system in accordance with the findings of a judge on the basis of the evidence led at a trial – or put another way – an order that has the effect of having a judge purport to design and oversee public administration of a benefits program?

[131] The answer, in our view, is that devising, implementing and administering a benefits program is a core policy decision of government. The government owes no private law duty of competent public administration to individual benefits claimants, just as it does not owe a private law duty of competent tax collection to taxpayers. Creation of such private law duties would fly in the face of basic principles of public law: the government is not responsible to private individuals in a court of law for competent public administration. It is responsible to voters in periodic elections for competent pubic administration. Recognizing such a private law duty would usurp unto the courts fundamental aspects of public administration and strike at the very heart of Crown immunity for core policy decisions.

[132] Ontario also raises the effect of the CLPA, which, it argues, precludes the common law negligence claims in this case. Subsection 11(4) of the CLPA bars any claim respecting good faith decisions respecting “policy matters”. Under s.11(5), “policy matters” include:

1. the creation, design, establishment, redesign or modification of a program, project or other initiative;

2. the funding of a program, project or other initiative; and

3. the manner in which a program, project or other initiative is carried out.

[133] We do not find it necessary to decide whether the quoted provisions of the CLPA codified Crown immunity principles or whether they added to them. We also do not find it necessary to address retrospective application of the CLPA. “Devising, managing and implementing” a benefits scheme is an aspect of public administration squarely within the realm of “core policy decisions” and is protected by common law Crown immunity.[^1]

The Crown Owes No Common Law Private Duty of Care to the Plaintiff

[134] In our view, this case cannot be distinguished from Wynberg in respect to the negligence issue. In Wynberg, the Court of Appeal affirmed the trial decision of Kiteley J. rejecting the negligence claim of the Deskin plaintiffs (paras. 256-257):

Given the nature of the Deskin plaintiffs' claim, we agree that the proper starting point for the analysis of whether a private law duty of care exists is to examine, as the trial judge did, the nature of any duties imposed under s. 7(1) (a) of the Child and Family Services Act and s. 8(3) of the Education Act. As already noted, s. 7(1)(a) of the Child and Family Services Act provided the Minister of Community and Social Services with the discretion to undertake the IEIP, whereas s. 8(3) of the Education Act sets out the scope of the Minister of Education's duty in relation to special education programs and services.

In our view, the trial judge was correct in concluding that, to the extent each section creates duties, the duty created in each case is to the public as a whole, rather than to individual users of a program. Both sections contemplate the allocation of public funds and the balancing of competing interests. Moreover, because the decisions in issue involve government policy, a private law duty of care is negated under the second step of the Anns analysis: Anns v. Merton London Borough Council, [1978] A.C. 728, [1977] All E.R. 492 (H.L.). See, for example, Cooper v. Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537, [2001] S.C.J. No. 76; Edwards v. Law Society of Upper Canada, 2001 SCC 80, [2001] 3 S.C.R. 562, [2001] S.C.J. No. 77.

[135] We note one other feature of Wynberg. It was not a certification decision in a class proceeding, but a decision following a lengthy trial. Both the trial and appellate decisions are long and complex. But this does not suggest that the negligence claims in Wynberg were arguable and not “doomed to fail” from the outset. The length and complexity of the trial and appellate decisions in Wynberg arose from claims of age discrimination under s.15 of the Charter, and not from the common law negligence claims. The trial decision is 869 paragraphs long. Discussion of the common law negligence issues comprises but 56 paragraphs, most of which are devoted to findings of fact. The appeal decision is 260 paragraphs long. The negligence issue is addressed as the seventh of seven issues before the Court of Appeal, and occupies 27 paragraphs, most of which sets out the facts, the trial judge’s reasons, and the appeal arguments of the parties. The Court of Appeal’s legal analysis of the common law negligence issue is set out in ten concise paragraphs: Wynberg, paras. 251-260. Wynberg was not a “close call” on the negligence issue and Wynberg is not authority for the proposition that such negligence claims are triable issues.

[136] In Wareham, Cullity J. concluded that no duty of care arises for a claim in negligence for failure to provide timely benefits under an Entitlement Program (ODSP benefits). Cullity J. found that the claims were essentially systemic in nature, which was not sufficient to establish proximity giving rise to a common law duty of care: Wareham v Ontario (Community and Social Services), 2008 1179 (ON SC), [2008] OJ No 166 (SCJ), paras. 23-24; rev’d on other grounds: 2008 ONCA 771. In Wareham the plaintiff was “entitled” to receive benefits and had no action in negligence for delayed receipt. In the case at bar the plaintiff is “eligible” but not “entitled” to benefits: her claim is weaker, in law, than was the plaintiff’s unsuccessful claim in Wareham.

[137] Our colleague distinguishes Wareham on the basis that the proposed class in that case included applicants who might not be “entitled” to benefits. We do not accept that distinction. The class in Wareham could have been refined to include only those “applicants” ultimately “entitled” to receive benefits. The essence of the claim in Wareham was premised on an argument that plaintiffs were delayed in receipt of benefits to which they were entitled in law because of incompetent administration of the program and consequent delay in processing their applications for benefits.

[138] The plaintiff pleads that her past receipt of benefits from Ontario under Programs for Children creates a relationship of sufficient proximity to give rise to a common law duty of care owed to her by Ontario as an eligible recipient of Adult benefits. In our view this argument cannot succeed. The programs for Adults and for Children are distinct. Entitlement and eligibility under programs for Children do not establish entitlement or eligibility for programs for Adults. Government provides many programs aimed at supporting children, and to import continuing duties based on past receipt of benefits as a Child would impugn the government’s authority to draw a line between programs aimed at Children and programs aimed at Adults. The plaintiff pleads that her dealings with government as a Child recipient of benefits, and as a Child and then an Adult transitioning from programs aimed at Children to programs aimed at Adults, establishes proximity. The motion judge relied on these allegations to conclude that “representations must have been made” and so proximity could not be ruled out. We reject this reasoning. The evidence of an ongoing relationship between a claimant, her family, and Ontario, was much better established between Brenda Deskin and Ontario in Wynberg than it is between the plaintiff, the proposed class members and Ontario. This line of reasoning was firmly rejected at trial and on appeal in Wynberg and is not available in the case at bar.

[139] The plaintiff’s negligence claims against Ontario are systemic on their face. Ontario’s Eligibility Programs for developmentally disabled Adults create no common law duties owed to individual applicants for benefits. Any duty created is owed “to the public as a whole, rather than to individual users of the program.” J.B. v. Ontario (Child and Youth Services), 2020 ONCA 198; Taylor v. Canada (Attorney General), 2012 ONCA 479.

Conclusion: No Tenable Claim in Negligence

[140] Ontario is immune from the negligence claim by operation of common law Crown immunity. The negligence claims do not satisfy either branch of the Anns test. They are doomed to fail and the motion judge erred in concluding otherwise.

Conclusion

[141] We do not wish to be seen as dismissive of the situation faced by the plaintiff and her family. Persons with serious developmental disabilities – be they Children or Adults – commend themselves to any caring society as needing public support to help them address the great challenges they face through no fault of their own. But, sympathetic as the plight of the plaintiff is, it does not give rise to a private common law duty of competent administration on the part of the government.

Disposition

[142] We would allow the appeal and dismiss the action, with costs to be agreed or addressed in writing on a schedule to be agreed among counsel provided that all costs materials reach this court within ninety days. We thank counsel for the parties and the intervenor for their helpful written and oral arguments.

D.L. Corbett J.

I agree _______________________________

Penny J.

Released: March 26, 2021

CITATION: Leroux v. Ontario, 2021 ONSC 2269

DIVISIONAL COURT FILE NO.: DC 003/19

DATE: 20210326

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BETWEEN:

MARC LEROUX AS LITIGATION GUARDIAN OF BRIANA LEROUX

Plaintiff/Respondent

– and –

HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ONTARIO

Defendant/Appellant

REASONS FOR DECISION

D.L. Corbett J.

Released: March 26, 2021

[^1]: The thoughtful submissions of the intervenor CCLA were focused on these arguments that we have concluded do not need to be decided in this case.