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Torts - Negligence - Crown Liability

Torts - Negligence - Elements

Appeals - Standard of Review - Negligence

Walters v Ontario (Ont CA, 2017)

In this interesting jail liability case, where the province was sued for injuries resulting when members of two opposing gangs were placed in the same unit, the court commented usefully on the appellate standards of review applicable to the separate elements of negligence:
[31] At the outset I can advise that I would dismiss Ontario’s appeal. The issues on appeal are three basic elements of a negligence action: duty of care; breach of the standard of care; and causation of damage. The first issue, the determination of a duty of care, is a question of law. Appellate courts review such determinations for their correctness: Ryan v. Victoria (City), 1999 CanLII 706 (SCC), [1999] 1 S.C.R. 201, at para. 21; Housen v. Nikolaisen, 2002 SCC 33 (CanLII), [2002] 2 S.C.R. 235, at para. 8. The second issue, application of the relevant standard of care, and the third issue, causation of damage, are questions of mixed law and fact. On those matters, this court must not interfere with the trial judge’s findings absent any “palpable and overriding error” or error concerning an “extricable question of law”: Housen, at paras. 29-37, 70, 159.
The court also commented as follows on the nature of Crown liability in the specific jail context, and generally:
[34] Generally, the provincial Crown can be liable in tort to inmates of correctional facilities only in the form of vicarious liability for torts that specific Crown employees or agents commit, and only if the plaintiff could have sued the employee or agent for that tort: Proceedings Against the Crown Act, R.S.O. 1990, c. P.27, ss. 5(1)(a), 5(2); MacLean, at p. 7; but see Iwanicki v. Ontario (Minister of Correctional Services), [2000] O.T.C. 181 (S.C.), at paras. 14, 19-26, contemplating liability under s. 5(1)(c) of the Proceedings Against the Crown Act. Thus, in this case, Ontario’s liability, if any, must derive from actionable negligence of specific COs.


[38] The Supreme Court of Canada has held a public authority generally should be liable when the authority’s employees or agents are negligent in carrying out prescribed duties: R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42 (CanLII), [2011] 3 S.C.R. 45, at para. 72. Furthermore, corrections officials generally owe a duty of care to inmates under their supervision: Timm, at p. 178; MacLean, at p. 7. However, “core” or “true” public policy decisions are non-justiciable as long as they are “neither irrational nor taken in bad faith”, so an employee or agent of a public authority owes no common-law duty of care in making such a decision: Imperial Tobacco, at para. 90. At trial, Ontario argued that the decision to put Walters in the Unit with Riley was not reviewable by the court because the decision was reasonable and based on a “true” policy decision.

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