Crown and Government Liability - Crown Immunity. Leroux v. Ontario
In Leroux v. Ontario (Ont CA, 2023) the Court of Appeal considered an appeal of a class action certification refusal from the Divisional Court, here regarding SSPSIPDDA applicants. The alleged causes of action were negligence and s.7 Charter.
In these quotes the court considers CLPA provisions [SS: s.11(4-5)] that the Crown argues defeat the class action on the negligence issue, those being immune 'policy decisions':
 Ontario made two additional submissions about why the appellant’s negligence claim is doomed to fail. First, the claim impugns actions that are said to be immune under the CLPA. Second, the claim is deficient because it does not advance specific allegations of tortious conduct by individual Crown servants, for whom Ontario would be vicariously liable. Ontario cannot be directly liable for negligence − it can only be liable for acts of its servants under s. 5(2) of the Proceedings Against the Crown Act, R.S.O. 1990, c. P.27.. Ontario (Attorney General) v. Clark
 In my view, Francis v. Ontario, 2021 ONCA 197, 154 O.R. (3d) 498, stands as an answer to both arguments.
 With respect to the first argument, Ontario points to ss. 11(4)-(5) of the CLPA [SS: "Extinguishment of causes of action respecting certain governmental functions - Policy decisions"]. Section 11(4) of the CLPA provides that there is no cause of action against the Crown “in respect of any negligence … in the making of a decision in good faith respecting a policy matter”. Section 11(5) includes in the definition of policy matter “the creation, design, establishment, redesign or modification of a program, project or other initiative” and “the manner in which a program, project or other initiative is carried out”.
 The courts below did not decide whether the CLPA applied to this action which was commenced before the CLPA was enacted. Ontario argues in this court that the CLPA applies. Even if Ontario is right on that point, which I need not decide, it does not change the analysis since this court has held that the CLPA merely codifies existing law.
 In Francis, at para. 127, this court held that the CLPA did not give the government broader immunity to that which it enjoyed for core policy decisions at common law. As such, it did not immunize the government for operational matters such as the implementation of a core policy. In light of Francis, it is not plain and obvious that statutory immunity would apply under the CLPA.
 With respect to the second argument, this court in Francis stated, at paras. 144-146:
On a fair reading of the amended statement of claim, it is clear that the allegations being made against Ontario arise from its vicarious liability for the negligent acts of its servants … It is also clear from the amended statement of claim that the negligent acts are those of servants of Ontario. It is axiomatic to point out that Ontario can only operate through the actions of individuals. In my view, these quoted passages are a complete answer to Ontario’s second argument.
There is no absolute requirement that the individual servants of the Crown, who undertake the negligent acts, must be named in the proceeding. Section 5(2) of the PACA simply says that no proceeding can be brought against the Crown "unless a proceeding in tort in respect of such act or omission may be brought against that servant or agent" (emphasis added). The section does not require that the proceeding must be brought against that servant or agent.
We accept that best practices in pleadings might suggest that the negligent individual, from whom vicarious liability arises, be named as a party, at least in a case where only one event or individual is involved. However, this is a class proceeding in which collective claims are made … it is impractical to expect a representative plaintiff … to name all of the individuals involved in the collectively negligent acts. [Emphasis in original.]
In Ontario (Attorney General) v. Clark (SCC, 2021) the Supreme Court of Canada maintains prosecutorial immunity in a unique case where several Toronto police officers sued the Ontario Crown for 'misfeasance in public office' (negligence was dismissed in a lower court). The court essentially denied the possibility of Crown Attorney liability for the reason that it would give the police such influence in prosecutorial discretion, and all the bias that would create in criminal cases down the road:
 The question before us, then, in light of the accused-centered policy thread woven through the authorities, is whether we should further encroach on prosecutorial immunity to allow police officers to sue the Crown in misfeasance for decisions prosecutors make in the course of criminal proceedings. In my view, allowing police officers to initiate such causes of action would raise profound risks to the rights of the accused and to prosecutorial independence and objectivity, and it would undermine the integrity of the criminal justice system.. Rebello v. Ontario
 One of the critical dimensions of a prosecutor’s independence that is protected by immunity is, in fact, independence from the police. The police role is to investigate crime. The Crown prosecutor’s role, on the other hand, is to assess whether a prosecution is in the public interest and, if so, to carry out that prosecution in accordance with the prosecutor’s duties to the administration of justice and the accused. Police and Crown prosecutors are expected to “act according to their distinct roles in the process, investigating allegations of criminal behaviour, and assessing the public interest in prosecuting, respectively” (Regan, at para. 87; see also Smith, at para. 72).
 In Regan, this Court emphasized the importance to the administration of justice of prosecutorial independence from the police. The issue in Regan concerned prosecutorial involvement in the pre-charge stage of an investigation. Ultimately, LeBel J. held for the majority that Crown involvement in pre-charge interviews did not constitute a per se abuse of process. He observed, however, that the “need for a separation between police and Crown functions has been reiterated in reports inquiring into miscarriages of justice which have sent innocent men to jail” (para. 66).
 Most pertinently, he concluded that “Crown objectivity and the separation of Crown from police functions are elements of the judicial process which must be safeguarded” (para. 70). This sentiment was echoed by Binnie J., when he said:
. . . Crown prosecutors must retain objectivity in their review of charges laid by the police, or their pre-charge involvement, and retain both the substance and appearance of even-handed independence from the police investigative role. This is the Crown Attorney’s “Minister of Justice” function and its high standards are amply supported in the cases. . . . [para. 137, dissenting on other grounds] The importance of prosecutorial objectivity in the review of charges laid by the police is driven by the fact that “prosecutors provide the initial checks and balances to the power of the police”. They act as a “buffer between the police and the citizen” in deciding how to proceed once a charge has been laid (paras. 159-60, per Binnie J.). Independent prosecutorial review of the police’s investigative process and decisions helps “ensure that both investigations and prosecutions are conducted more thoroughly, and thus more fairly” (para. 160, per Binnie J., quoting the Martin Report, at p. 39).
 In R. v. Beaudry, 2007 SCC 5 (CanLII),  1 S.C.R. 190, the Court made it clear that prosecutorial independence from police is not a one way street. The police “have a particular role to play in the criminal justice system . . . and it is important that they remain independent of the executive branch”. Accordingly, the relationship between prosecutors and the police is not a “hierarchical” one. In discharging their respective duties, both the police and the prosecutor have a “discretion that must be exercised independently of any outside influence” (para. 48). Cooperation is encouraged, but independence is mandatory.
 In Smith, Tulloch J.A. characterized the relationship between the prosecutor and the police as one of “mutual independence”, which “provides a safeguard against the misuse of both investigative and prosecutorial powers and can ensure that both investigations and prosecutions are conducted more thoroughly and fairly” (para. 86, citing the Martin Report, at p. 39).
 Making prosecutors liable to police officers for misfeasance is fundamentally incompatible with this “mutually independent” relationship. Prosecutors do not owe specific legal duties to the police with respect to how they carry out a prosecution. To use misfeasance to get around this reality would be to permit a police officer to take a prosecutor to court to challenge the prosecutor’s compliance with his or her public duties (Odhavji, at para. 29). Such a relationship of legal accountability between the prosecutor and the police is irreconcilable with their critically “separate and distinct” roles (Smith, at para. 65).
 The problem is not merely theoretical. As previously noted, the courts’ increased willingness to take a more active role in scrutinizing decisions of the Attorney General and its agents, including through the exceptions to prosecutorial immunity, has been driven by the realization that failing to provide appropriate checks and balances on Crown conduct, including the relationship with the police, can lead to gross injustices, including wrongful convictions.
 We have seen deplorable examples of injustice when the roles are integrated. The Report of the Royal Commission on the Donald Marshall Jr. Prosecution concluded that a distinct boundary between the function of the police and the Crown is essential to the proper administration of justice (Regan, at para. 66, citing Royal Commission on the Donald Marshall, Jr., Prosecution, vol. 1, Findings and Recommendations (1989), at p. 232). And in the 1998 Report of the Commission on Proceedings Involving Guy Paul Morin, the Commissioner concluded that the Crown’s failure to maintain objectivity throughout the process, which contributed to Morin’s wrongful conviction, was caused in part by too close contact with the police:
The prosecutors showed little or no introspection about these contaminating influences upon witnesses for two reasons: one, the evidence favoured the prosecution; this coloured their objectivity; two, their relationship with the police which, at times, blinded them, and prevented them from objectively and accurately assessing the reliability of the police officers who testified for the prosecution. This reality was reinforced by the Court of Appeal in this case in its duty of care analysis rejecting the officers’ negligence claim. The court recognized that imposing a duty of care on Crown prosecutors toward investigating police officers could interfere with the prosecutors’ ability to act independently of police interests. It would “encourage Crown attorneys to focus on extraneous factors during the course of a prosecution” and “have a deleterious effect on the administration of justice by undermining the public’s faith in the integrity of independent Crown decision-making” (paras. 87-88).
(The Commission on Proceedings Involving Guy Paul Morin: Report (1998), vol. 2, at p. 911, cited in Regan, at para. 69.)
 It would “tend to distort principled decision-making”, which the court explained as follows:
The decision of Crown attorneys to initiate, continue, or terminate a prosecution should be based on whether there is a reasonable prospect of conviction and whether the prosecution is in the public interest. The possibility of civil claims by the police would distort these venerable twin duties. It would have a deleterious effect on the administration of justice by undermining the public’s faith in the integrity of independent Crown decision-making. Moreover, exposing Crown attorneys to negligence claims by the police may result in prolonged court proceedings in which Crown attorneys make untenable prosecutorial decisions on Charter motions for fear of being sued. It would encourage the litigation of collateral issues, which does not sit well with the realities of finite criminal justice resources and the pressures of firm constitutional time constraints. [citation omitted; para. 88] The motions judge similarly recognized the risks to the prosecutors’ integrity and independence if they were exposed to negligence claims from police officers:
An expansion of the responsibilities of Crown Attorneys to include such a duty could result in cases proceeding to trial merely to resolve the concerns of the police. It would alter what should be a co-operative relationship between the police and Crown Attorneys into a potentially adversarial one, in which police would become not just investigators and witnesses, but also litigants with a stake in the outcome, as well as potential claimants against the Crown Attorneys. The potential for conflict and disruption to the relationship is apparent. [para. 135] These policy concerns are no less critical when considering whether prosecutorial immunity should yield to misfeasance claims against a prosecutor by investigating police officers. Being at risk of civil liability for reputational harm to police officers means considering irrelevant considerations and risking independence and objectivity, the core of the prosecutor’s role. Police suing prosecutors for decisions they make in the course of a criminal prosecution is a recipe for putting prosecutors in conflict with their duty to protect the integrity of the process and the rights of the accused.
 Beyond the risk of actual conflict between the prosecutors’ core duties and their risk of liability to the police, the appearance of such a conflict would be equally damaging to the integrity of the administration of justice. As the joint interveners the Canadian Association of Crown Counsel and the Ontario Crown Attorneys’ Association put it, permitting police lawsuits against Crown prosecutors would suggest to the public and to accused persons that police were “policing prosecutions” through the use of private law, imperiling public confidence in the independent and objective ability of prosecutors to conduct fair trials.
 This stands in stark contrast to the public interest in making prosecutors accountable for malicious prosecution, such as in Nelles, where Lamer J. recognized that public confidence in the system would be damaged if a prosecutor, “in a position of knowledge in respect of the constitutional and legal impact of his conduct”, were shielded from liability to the accused when he “abuses the process through a malicious prosecution” (p. 195). Here, the public interest argues against, not in favour of piercing prosecutorial immunity.
 Claims brought by the police against prosecutors risk not only the independence and objectivity of the prosecutor, but the accused person’s fair trial rights. Those obligations to the accused are jeopardized by accountability to the police whose interests are adverse to those of the accused. As Moldaver J. noted in Henry:
The public interest is undermined when prosecutorial decision-making is influenced by considerations extraneous to the Crown’s role as a quasi-judicial officer. [para. 73] The police certainly have a legitimate expectation and interest in their reputations not being unfairly impaired. But the solution cannot be to make prosecutors accountable to them in a way that obliterates the independence between the police and prosecutors and is inconsistent with the Crown’s core public duties to the administration of justice and to the accused.
 The same holds true for third parties in general. Liability to third parties can be expected to raise the “chilling” concerns for prosecutors and distracting them from their public duty to promote the administration of justice. On the other hand, as previously noted, our immunity cases have recognized the particular need for remedies to protect accused persons, a concern that is lessened for third parties. In almost all cases of third-party claimants, the balance of these factors will tilt toward immunity.
 Piercing the immunity of Crown prosecutors to make them accountable to police officers puts them in perpetual potential conflict with their transcendent public duties of objectivity, independence and integrity in pursuit of ensuring a fair trial for the accused and maintaining public confidence in the administration of justice. Since prosecutorial immunity is preserved in these circumstances, it is “plain and obvious” that the officers’ misfeasance claim would not succeed.
In Rebello v. Ontario (Div Court, 2022) the Divisional Court considered the liability of provincial Ministers and Ministries:
 The Associate Justice dismissed the Appellant’s motion to add the Proposed Defendants. The Associate Justice held that the Ministries and Ministers were not proper parties to the amended claim. The Associate Justice adopted the reasoning in Deep v. Ontario, 2004 CanLII 14527 (Ont. S.C.), which held that Ministries cannot be sued and that Ministers are not vicariously liable for the tortious conduct of other Crown servants since they themselves are servants of the Crown.. Bowman v. Ontario
 In respect of the Appellant’s motion for leave to amend to add the Ministries and Ministers, although the Associate Justice did not apply Rule 5.04(2), he did not err in finding that they were not proper parties. The Associate Justice correctly applied the principles articulated in Deep v. Ontario, at paras. 82-83, that Ministries are not suable entities at law and that Ministers cannot be vicariously liable for the tortious conduct of other Crown servants.
In Bowman v. Ontario (Ont CA, 2022) the Court of Appeal considered policy immunity under the CLPA in a class action certification appeal:
Analysis: Policy matter immunity under the CLPA. Canada (Attorney General) v. Thouin (SCC, 2017)
 The appellants advance a further argument: if the application of the common law leads this court to conclude that the appellants’ negligence claim is not doomed to fail, then the immunity from suit found in CLPA s. 11(4) is not available to Ontario by reason of the decision of this court in Francis v. Ontario, 2021 ONCA 197, 154 O.R. (3d) 498. Since I have concluded the certification judge did not err in holding that the government decision which is the subject of the appellants’ negligence claim involved a matter of pure policy, thereby attracting immunity from liability in tort, the premise upon which the appellants rest their CLPA argument is not present. Nevertheless, as the certification judge addressed the parties’ CLPA arguments, I will comment briefly on the application of that Act to this case.
 The CLPA came into force after the appellants’ action was commenced. Nonetheless, CLPA s. 31(4) provides that s. 11 of the Act applies to proceedings commenced against the Crown before s. 31 came into force, which was May 29, 2019.
 As mentioned, CLPA s. 11(4) provides that no cause of action arises against the Crown in respect of any negligence in the making of a decision in good faith respecting a policy matter. Section 11(5) provides that a “policy matter” includes:
• The funding of a program, project or other initiative, including ceasing to provide such funding (s. 11(5)(b)(i)); andCLPA s. 11(7) states that no proceeding may be brought or maintained against the Crown in respect of a matter referred to in s. 11(4). Section 11(8) deals with proceedings, such as the appellants’, that were commenced before the CLPA came into force, by providing that a proceeding that may not be maintained under s. 11(7) “is deemed to have been dismissed, without costs, on the day on which the cause of action is extinguished” under s. 11(4). Finally, CLPA s. 11(9) states that nothing in s. 11 shall be read as abrogating any defence or immunity which the Crown may raise at common law.
• The termination of a program, project or other initiative (s. 11(5)(d)).
 The plain language of those statutory provisions provides clear support for the certification judge’s conclusion that Ontario’s decision to terminate the BI Program and cease making BI Payments constituted a “policy matter” in respect of which no cause of action arose by reason of CLPA s. 11(4), with the consequence that the claim for negligence was deemed to have been dismissed under s. 11(8).
 The decision in Francis does not affect that conclusion. In Francis, the motion judge granted summary judgment against Ontario on the basis that it had breached a duty of care to class members arising from the operation of the system of administrative segregation in correctional institutions. This court dismissed the appeal from that judgment. The motion judge held that the government decisions in issue were operational, not policy, decisions, a finding with which this court agreed: at para. 104. Although CLPA s. 11(5)(c) included within the statutory definition of “a policy matter” (immunized from suit by s. 11(4)) the “manner in which a program, project or other initiative is carried out”, in Francis this court concluded that s. 11(5)’s definition of “a policy matter” was predicated on maintaining the common law policy/operational separation: at para. 127. As a result, this court agreed with the motion judge that the government decisions in respect of which summary judgment was granted were not policy matters that enjoyed the immunity from suit provided by s. 11(4).
 The tension identified in Francis between the statutory language of CLPA s. 11(5)(c) and the unimpeached finding that the government decisions at issue in that negligence claim were operational simply does not arise in the present case. The inclusion in CLPA s. 11(5)’s definition of “a policy matter” of “the funding of a program…including…ceasing to provide such funding” (s. 11(5)(b)(i)) and “the termination of a program” (s. 11(5)(d)) fits snugly with the common law’s conception of a pure policy decision, as I explained in paras. 68 to 71 above.
In Canada (Attorney General) v. Thouin (SCC, 2017) the Supreme Court of Canada sets out the basics of when crown immunity may be overriden by statute (here the federal Crown Liability and Protection Act interpreted in acordance with the federal Interpretation Act), in the context of a party's attempt to examine for discovery the non-party chief investigator of the Competition Bureau within an otherwise private civil action. In this specific statutory context, the court denied the party the right to examine as sought, with the following broad comments:
 Crown immunity is deeply entrenched in our law. The Court has held that to override this immunity, which originated in the common law, requires clear and unequivocal legislative language. Over the years, both Parliament and the provincial legislatures have gradually placed limits on this immunity in order to draw the legal position of the Crown and its servants closer to that of other Canadian litigants. This is true in, among other areas, that of civil liability. Ultimately, it is up to the courts to give meaning to legislative provisions that narrow the limits of the immunity and to determine its scope, where necessary.
A. Crown Immunity
 Crown immunity has evolved over time in English and Canadian legislation and case law. At common law, the Crown could in times past be sued in contract or on a proprietary claim (G. Morley, in K. Horsman and G. Morley, eds., Government Liability: Law and Practice (loose‑leaf), at p. 1‑40). However, it had “a number of prerogatives that rendered civil litigation against it very difficult” (ibid.). This was because the Crown was exempt from several obligations that applied to ordinary litigants, including the obligation to provide documentary or oral discovery (ibid.).
 Thus, because of its immunity, the Crown was historically exempt from the obligation to submit to discovery in proceedings in which it was a party. This was the case even though it could require the opposing party to be examined for discovery, and even where it was acting as plaintiff (Morley, at p. 1‑40; see also P. W. Hogg, P. J. Monahan and W. K. Wright, Liability of the Crown (4th ed. 2011), at p. 90). This particular immunity was recognized in Canadian court decisions that predated the statutory provisions on Crown liability. The Alberta Court of Appeal explained the immunity as follows in Canada Deposit Insurance Corp. v. Code (1988), 1988 ABCA 36 (CanLII), 49 D.L.R. (4th) 57:
In my view, the rule that the Crown and its agents are not subject to discovery does not arise from the assertion of a Crown prerogative but from an accident of history. Nevertheless, I am bound by precedent to require statutory authority, strictly construed, authorizing discovery of a Crown agent or officer. [p. 61] If this immunity meant that the Crown was not then required to submit to discovery in proceedings in which it was a party, it stands to reason that, at common law, the Crown was certainly not required to do so in proceedings in which it was not a party.
 That being said, there is a presumption that the common law remains unchanged absent a clear and unequivocal expression of legislative intent. In Lizotte v. Aviva Insurance Company of Canada, 2016 SCC 52 (CanLII),  2 S.C.R. 521, this Court summarized the case law on this point and noted “that it must be presumed that a legislature does not intend to change existing common law rules in the absence of a clear provision to that effect” (para. 56; see also Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42 (CanLII),  2 S.C.R. 157, at para. 39; Slaight Communications Inc. v. Davidson, 1989 CanLII 92 (SCC),  1 S.C.R. 1038, at p. 1077; and R. Sullivan, Sullivan on the Construction of Statutes (6th ed. 2014), at pp. 504‑5).
 In this regard, s. 17 of the Interpretation Act now serves as a starting point in each case in which the Crown might have immunity. It reads as follows: “No enactment is binding on Her Majesty or affects Her Majesty or Her Majesty’s rights or prerogatives in any manner, except as mentioned or referred to in the enactment.” In short, unless the immunity is clearly lifted, the Crown continues to have it. In Friends of the Oldman River Society v. Canada (Minister of Transport), 1992 CanLII 110 (SCC),  1 S.C.R. 3, the Court recognized that s. 17 is indeed the starting point for the analysis regarding immunity and that, as a result, where there are no express words in an Act to the effect that the Act applies to the Crown, “it . . . remains to be decided whether the Crown is bound by necessary implication” (p. 50).
 In the past, language similar to the words “except as mentioned or referred to” in s. 17 had been used in s. 16 of the Interpretation Act, R.S.C. 1970, c. I‑23, which provided that no enactment could bind the Crown, “except only as therein mentioned or referred to”. In Oldman River and in Alberta Government Telephones v. Canada (Canadian Radio‑television and Telecommunications Commission), 1989 CanLII 78 (SCC),  2 S.C.R. 225, the Court interpreted this wording and concluded that a legislature must use express language to lift Crown immunity unless it can be inferred that the purpose of the Act would be wholly frustrated if the Crown were not bound (see also H. Brun, G. Tremblay and E. Brouillet, Droit constitutionnel (6th ed. 2014), at para. IX. 90).
 With these principles in mind, it must therefore be determined whether, in the instant case, Parliament has lifted the common law Crown immunity from discovery and, if so, to what extent.
B. Limits on the Crown’s Immunity From Discovery
 In about 1950, Parliament, drawing on the Crown Proceedings Act, 1947 (U.K.), 10 & 11 Geo. 6, c. 44, that had been enacted in the United Kingdom, began to impose limits on the scope of the common law Crown immunity. In 1953, it passed the Crown Liability Act, S.C. 1952‑53, c. 30 (Morley, at p. 1‑41; Hogg, Monahan and Wright, at p. 9), which had the effect of expanding Crown liability and thus bringing the Crown’s legal position closer to that of ordinary litigants. That Crown Liability Act was the predecessor of the CLPA that is at issue in this appeal. Today, Crown immunity still exists at the federal level in the context of civil proceedings, but only within the limits set in the CLPA and the Federal Courts Act, R.S.C. 1985, c.F‑7, the scope of which Parliament remains free to change (Brun, Tremblay and Brouillet, at paras. IX. 72 to IX. 73). It follows that the Crown is not in exactly the same legal position as ordinary litigants, since it still retains certain residual privileges and immunities under the current legislation.