CITATION: Leroux v. Ontario, 2021 ONSC 4468
DIVISIONAL COURT FILE NO.: DC 003/19
DATE: 20210623
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, Brent McPherson, Vanessa Glasser, Zachary Green and Ravi Amarnath, for the Defendant / Appellant
Jennifer L Hunter and Jacqueline Palef, for the Intervenor Canadian Civil Liberties Association
Heard: In Chambers, In Writing
REASONS FOR DECISION
The Court:
[1] This court released its decision in this appeal on March 26, 2021 (2021 ONSC 2269). Five days later, the Court of Appeal released its decision in Francis v. Ontario, 2021 ONCA 197 (per Doherty and Nordheimer JJ.A., Harvison-Young J.A. concurring) (“Francis”), upholding the decision of Perrell J., finding Ontario liable for breach of Charter rights and in negligence and awarding $30 million on damages.
[2] Counsel for the plaintiffs/respondents in the case at bar wrote to this court following the Court of Appeal’s decision in Francis, requesting the opportunity to address the decision in Francis and other issues arising from this court’s decision. The decision of this court had not yet been embodied in an issued and entered order, and so this court was not yet functus officio. We agreed to hear further submissions, as requested. A schedule was agreed between counsel, and the court received supplementary written submissions from both sides. We did not invite the intervenor to participate in making supplementary submissions because the issues to be addressed did not include the issue to which the intervenor’s submissions on appeal had been directed.
[3] After receipt of the supplementary written submissions, but before this court released its supplementary reasons, on May 26, 2021 the Court of Appeal released another decision bearing on the law related to the respondent/appellant’s potential liability in negligence: Cirillo v. Ontario, 2021 ONCA 353 (per Benotto J.A., Rouleau and Thorburn JJ.A. concurring). On May 31, 2021, at this panel’s direction, the Registrar wrote to counsel as follows:
The court has received supplementary written submissions from the parties following the Court of Appeal decision in Francis.
The court is aware of the Court of Appeal decision released May 26, 2021 in Cirillo v. Ontario, 2021 ONCA 353.
The court expects to address both Francis and Cirillo in its supplementary reasons.
The court does not require, but will permit, additional supplementary submissions from the parties respecting Cirillo.
The parties are directed to confer and to advise the court by email by June 3, 2021 as to (a) whether the parties wish to make supplementary submissions respecting Cirillo; and (b) if the answer to (a) is yes, the date by which these supplementary submissions will be provided to the court.
[4] The parties advised the court by email that they did not seek to make further submissions on the decision in Cirillo.
Supplementary Submissions
[5] Ordinarily, once a court has rendered a decision, it is not open to the parties to return to the court to make further arguments. Judicial decision-making is not a reiterative process. Where parties consider that the court has made a mistake, the proper course is to pursue further appeal rights.
[6] There are exceptions to this principle. Where the court has made typographical or other “slip” in its decision, the parties may seek to correct this with the court before the formal order has been issued and entered. This may be done by bringing the error to the court’s attention during the process of settling the formal order, or by way of reappearance (in person or in writing) before the order has been issued and entered.
[7] In asking us to consider post-decision submissions in this case, counsel for the respondent argued that the Court of Appeal’s reasons in Francis make it clear that this court’s majority decision is in error in failing to find that the claim concerns “operational” rather than “policy” questions. On the basis of this argument, we concluded that we would entertain the post-decision submissions.
Francis and Cirillo
[8] In Francis, the case concerned claims arising from Ontario’s use of segregation of prisoners in Ontario correctional facilities. This segregation, sometimes called “solitary confinement”, had been the subject-matter of considerable prior judicial comment. The technique had been widely practised and had caused substantial psychological damage to some inmates. Despite the prior jurisprudence, Ontario correctional facilities had continued to use “solitary confinement” in a way that continued to cause substantial damage to some inmates.
[9] At first instance on a motion for summary judgment, Perrell J. found Ontario liable to the plaintiffs both for violating their constitutional rights and in negligence. The Court of Appeal upheld Perrell J.’s decision respecting the constitutional claims, including a $30 million damage award. It then noted as follows in respect to the negligence issues:
While it is not technically necessary to consider the negligence claim in light of our conclusions regarding the Charter claim, we do so for the sake of completeness, recognizing that the matter was analyzed in detail by the motion judge and was fully argued before us. We are also conscious of the fact that another court might reach a different conclusion on the Charter issues and would then need to address the claim in negligence. It may also transpire that another court would take a different view of whether the damages award for Charter breaches should or should not subsume the damages award for negligence. (para. 94)
The court upheld Perrell J.’s decision on the basis that it is not precluded by the Brezeau/Reddock line of authority.[^1]
[10] In Cirillo, the plaintiff’s alleged negligence in Ontario’s administration and operation of bail hearings with the result that accused persons do not receive timely bail hearings and remain incarcerated for undue periods of time. The motions judge found that these allegations related to policy matters, not operational matters. The Court of Appeal agreed. The Court of Appeal went on to quote from Hinse v. Canada to caution against an overly categorical approach to distinguishing “operational” and “policy” matters.[^2]
[11] We conclude that Francis and Cirillo apply settled law and do not extend it in any way material to the case before this court. What is clear from Francis and Cirillo is that the assessment of a negligence claim against the state involves close examination of the underlying facts and the nature of the claims. The reasons of this court – both for the majority and the dissent – were based on such assessments, and our reasoning is unchanged by these recent decisions from the Court of Appeal.
Remedy
[12] As the parties were advised by the Registrar at our direction on May 31, 2021:
The panel will amend the decision rendered in March 2021 to delete the order that the proceeding be dismissed and in its place order that the appeal is allowed and the order certifying the proceeding as a class proceeding is set aside.
[13] In its factum on the appeal, Ontario asked this court to dismiss the action if it succeeded on the main points in the appeal. We agree with Ontario that it would be within the court’s discretion to grant this remedy even though the certification motion judge did not have a dismissal motion before him respecting the plaintiff’s personal claims. However, we would not grant that remedy in these circumstances without giving the respondent an opportunity to address the point with us. This not having been done, we consider that the fairest thing to do is to leave it to the parties to address this issue between themselves or to pursue it as they see fit in the court below.
[14] We will issue an amended decision reflecting the language in para. 12, above.
[15] There shall be no costs associated with these supplementary reasons
Edwards R.S.J.
D.L. Corbett J.
Penny J.
Released: June 23, 2021
CITATION: Leroux v. Ontario, 2021 ONSC 4468
DIVISIONAL COURT FILE NO.: DC 003/19
DATE: 20210623
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: June 23, 2021
[^1]: Brazeau v. Attorney General of Canada, 2020 ONCA 184. [^2]: Cirillo v. Ontario, 2021 ONCA 353, para. 39, quoting Hinse v. Canada, 2015 SCC 35, para. 23.