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Crown Liability - Policy Decisions (1) [CLPA s.11(4-5)]
MORE CASES
Part 2
. Cirillo v. Ontario
In Cirillo v. Ontario (Ont CA, 2021) the Court of Appeal considered issues under the then-new Crown Liability and Proceedings Act (CLPA):[18] Ms. Cirillo appealed the motion judge’s certification decision to the Divisional Court. The week after she served her notice of appeal, the CLPA came into force. The Crown relied on ss. 11(4) and (5) of the CLPA in its responding factum on appeal to argue that certification of the negligence claims was now statute barred. Section 11(4) provides:(4) No cause of action arises against the Crown or an officer, employee or agent of the Crown in respect of any negligence or failure to take reasonable care in 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. Section 11(5) defines the term “policy matter”:(5) For the purposes of subsection (4), a policy matter includes,
(a) the creation, design, establishment, redesign or modification of a program, project or other initiative, including,
(i) the terms, scope or features of the program, project or other initiative,
(ii) the eligibility or exclusion of any person or entity or class of persons or entities to participate in the program, project or other initiative, or the requirements or limits of such participation, or
(iii) limits on the duration of the program, project or other initiative, including any discretionary right to terminate or amend the operation of the program, project or other initiative;
(b) the funding of a program, project or other initiative, including,
(i) providing or ceasing to provide such funding,
(ii) increasing or reducing the amount of funding provided,
(iii) including, not including, amending or removing any terms or conditions in relation to such funding, or
(iv) reducing or cancelling any funding previously provided or committed in support of the program, project or other initiative;
(c) 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;
(d) the termination of a program, project or other initiative, including the amount of notice or other relief to be provided to affected members of the public as a result of the termination;
(e) the making of such regulatory decisions as may be prescribed; and
(f) any other policy matter that may be prescribed. [19] The Crown also relied on s. 31(4) of the CLPA, which provides for the retroactive extinguishment of claims under s. 11. This would have caused the claim to have failed at the first requirement for certification in s. 5(1)(a) of the CPA.
[20] The Divisional Court remitted the question of whether the CLPA was a bar to certification of the negligence claims to the motion judge so that all the issues could eventually be considered together by the same panel on appeal.
(c) Re-hearing on Crown Immunity
[21] Relying on his original findings of fact, the motion judge held that the impugned decisions were “core policy decisions” and, as a result, ss. 11(4) and (5) of the CLPA applied to the appellant’s certification motion.
[22] During the hearing, both parties agreed that ss. 11(4) and (5) do not represent a substantial change in the common law on Crown immunity. However, the respondent submitted that the new sections “codify and more clearly define” the types of decisions for which the Crown is immune.
[23] The motion judge chose not to opine on whether the CLPA broadened the scope of Crown immunity from the common law and whether ss. 11(4) and (5) of the CLPA violate s. 96 of the Constitution Act, 1867, because it was unnecessary to do so. He already concluded that the impugned decisions were policy decisions under the common law before the enactment of the CLPA, and nothing in the CLPA affected this conclusion. . Francis v Ontario
In Francise v Ontario (Ont CA, 2021) the Court of Appeal considered the implications of the new Crown Liability and Proceedings Act, 2019 which came into force 01 July 2019 with retroactive effect, particularly on the policy/operational distinction:[26] Lastly, the motion judge found that the claim was not precluded by the Proceedings Against the Crown Act, R.S.O. 1990, c. P.27, (“PACA”), or extinguished by virtue of the CLPA, which replaced the PACA on July 1, 2019 with retroactive effect. [1]
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[112] On April 11, 2019, the provincial government tabled Bill 100, An Act to implement Budget measures and to enact, amend and repeal various statutes, 1st Sess., 42nd Parl., Ontario, 2019, its omnibus budget bill, the short title of which was “Protecting What Matters Most Act (Budget Measures), 2019”. In keeping with what appears to have become a practice in recent times, Bill 100 did not deal solely with budget matters. Rather, the Bill was 178 pages long, contained 61 schedules, and affected 199 separate statutes. Included in Bill 100, as schedule 17, was the CLPA. Bill 100 received Royal Assent on May 29, 2019.
[113] Sections 11(4) and 11(5) of the CLPA are of particular relevance to the issue in this case. They read:(4) No cause of action arises against the Crown or an officer, employee or agent of the Crown in respect of any negligence or failure to take reasonable care in 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.
(5) For the purposes of subsection (4), a policy matter includes,
(a) the creation, design, establishment, redesign or modification of a program, project or other initiative, including,
(i) the terms, scope or features of the program, project or other initiative,
(ii) the eligibility or exclusion of any person or entity or class of persons or entities to participate in the program, project or other initiative, or the requirements or limits of such participation, or
(iii) limits on the duration of the program, project or other initiative, including any discretionary right to terminate or amend the operation of the program, project or other initiative;
(b) the funding of a program, project or other initiative, including,
(i) providing or ceasing to provide such funding,
(ii) increasing or reducing the amount of funding provided,
(iii) including, not including, amending or removing any terms or conditions in relation to such funding, or
(iv) reducing or cancelling any funding previously provided or committed in support of the program, project or other initiative;
(c) 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;
(d) the termination of a program, project or other initiative, including the amount of notice or other relief to be provided to affected members of the public as a result of the termination;
(e) the making of such regulatory decisions as may be prescribed; and
(f) any other policy matter that may be prescribed. [114] The legislation speaks to whether it applies to any current or future claim. Section 11(8) provides that a “proceeding that may not be maintained under subsection (7) is deemed to have been dismissed, without costs, on the day on which the cause of action is extinguished under subsection (1), (2), (3) or (4)”. Further, s. 31(4) provides that “[s]ection 11 and the extinguishment of causes of action and dismissal of proceedings under that section apply with respect to proceedings commenced against the Crown or an officer, employee or agent of the Crown before the day this section came into force”. Simply put, the legislation has immediate and retroactive effect.
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[117] In support of its submissions on the proper interpretation, Ontario points to one case that has since been decided under the CLPA, namely, Seelster Farms v. Her Majesty the Queen and OLG, 2020 ONSC 4013, 68 C.C.L.T. (4th) 104, where Emery J. said, at para. 117:The CLPA removes the distinction between decisions that are policy decisions, and decisions that are operational in nature, made for the purpose of implementing or carrying out a government policy or program. The language used in [subsection 11(5)(c)] extends the traditional immunity afforded to policy decisions to those decisions made to implement a policy matter to decisions that include the termination of that policy, and any notice or other relief claimed by affected parties. The lines of analysis have been moved by the CLPA for the purpose of determining Crown immunity from questioning whether the decision was one of policy or if it was operational in nature, to whether it was made in good faith. [118] With respect, the above language does not clarify the policy/operational dichotomy; it eliminates it.
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[122] We approach our analysis of this issue with two specific principles of statutory interpretation in mind. They are:• The words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament: Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, at para. 21.
• There is a presumption that the common law remains unchanged absent a clear and unequivocal expression of legislative intent: Canada (Attorney General) v. Thouin, 2017 SCC 46, [2017] 2 S.C.R. 184, at para. 19. [123] In considering the proper interpretation of the statute, we are also mindful of the genesis of statutes that address the issue of Crown immunity from suit. That genesis was explained in Just v. British Columbia, 1989 CanLII 16 (SCC), [1989] 2 S.C.R. 1228, where Cory J. said, at p. 1239:The early governmental immunity from tortious liability became intolerable. This led to the enactment of legislation which in general imposed liability on the Crown for its acts as though it were a person. However, the Crown is not a person and must be free to govern and make true policy decisions without becoming subject to tort liability as a result of those decisions. On the other hand, complete Crown immunity should not be restored by having every government decision designated as one of "policy". [124] In our view, Ontario’s submission as to the proper interpretation of the CLPA comes perilously close to adopting precisely what Cory J. cautioned against, that is, characterizing every government decision as policy. This results from the interpretation that Ontario asks be given to s. 11, and, more particularly, to these words from s. 11(5)(c): “the manner in which a program, project or other initiative is carried out”.
[125] Ontario’s interpretation would give those words almost limitless application which would, in turn, dramatically change the current state of the law. Indeed, Ontario accepts that, at common law, decisions as to how government programs are to be “carried out” might well have been characterized as “operational” decisions to which no immunity applies. However, Ontario submits that the intent of s. 11(5)(c) is to reverse that situation. That result would give a rather expansive meaning to the word “clarify”.
[126] Ontario then attempts to limit the consequences of this submission by saying that it does not seek to immunize all government action from negligence claims “as many government acts and omissions do not fall within its ambit”. Ontario does not, though, explain how its submission as to the proper interpretation of the statute would allow for that result.
[127] It is s. 11(5)(c) of the CLPA that is at the heart of the interpretive issue. We would not give it the broad interpretation that Ontario urges in this case. We reach that conclusion for a number of reasons. First and foremost is the principle, that we set out above, that there is a presumption that the common law remains unchanged absent a clear and unequivocal expression of legislative intent. In our view, the combination of ss. 11(4) and (5) fails to achieve that clear and unequivocal expression. Sub-section 11(4) expressly references matters of policy. Sub-section 11(5) then purports to define what a policy matter may include. It follows that this definition must be predicated on maintaining the policy/operational separation. Had the intention been to do otherwise, the legislation could have expressly said so. For example, s. 11(5)(c) could have opened with “…the manner in which a program, project or other initiative is carried out, including operational decisions regarding,…” if the intent had been to expand the policy label to the extent that Ontario now submits.
[128] Second, to adopt Ontario’s expansive meaning of s. 11(5)(c) of the CLPA would directly offend the purpose behind statutes limiting Crown immunity, as explained by Cory J. in Just. There is, in fact, no limitation to the effect of the expansive meaning urged by Ontario in this case. Its logical conclusion would include virtually any step taken by the provincial government in carrying out any “program, project or other initiative”. Indeed, this is precisely the conclusion reached in Seelster Farms. The difficulty with that approach is aptly expressed by McLachlin C.J.C. in R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45, at para. 76: “[e]xempting all government actions from liability would result in intolerable outcomes.”
[129] Third, to adopt Ontario’s expansive meaning would require a conclusion either that the Attorney General, at the time, did not understand the effect of the legislation being introduced, or that she misled the Legislature as to its intention and effect. Neither of those conclusions should be drawn absent there being no alternative explanation. In contrast, an interpretation of the CLPA that maintains the existing separation between policy decisions and operational decisions takes the Attorney General at her word.
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[132] This line between policy and operational matters may be illustrated by adapting an example used by counsel for the Canadian Civil Liberties Association. If the provincial government decides that it wishes to provide public transit between two towns in Ontario, that is a policy decision. If the provincial government decides that it is going to provide that public transit through buses rather than trains, that is also a policy decision. However, how those buses actually transport people is an operational matter.
[133] This conclusion is, in our view, consistent with the prevailing authorities on the distinction between policy and operation – admittedly a distinction that courts have found “notoriously difficult to decide”: Imperial Tobacco, at para. 78.
[134] A review of the case law demonstrates that government immunity from tort claims relates only to what is referred to as “true” or “core” policy decisions. The rationale for this immunity was to allow governments ample scope to make decisions based upon social, political and economic factors, without being exposed to tort liability for those decisions.
[135] In discussing this point in his reasons in Just, at pp. 1241-42, Cory J. references the decision of the High Court of Australia in Sutherland Shire Council v. Heyman, 1988 ABCA 234 (CanLII), [1985] HCA 41, 157 C.L.R. 424, at paras. 38-39, per Mason J., which also discussed the policy/operation distinction. In that decision, it was noted that budgetary allocations and constraints cannot be the subject of a tort claim. However, the court noted that it would be different when a court is called upon to review “action or inaction that is merely the product of administrative direction”.
[136] The decision in Just went on to consider other situations, including the inspections of lighthouses or aircraft manufacturing, and the difference between decisions regarding the funding of such inspections (policy) and the conduct of those inspections (operation). In applying these principles to the facts of the case before him, which was the inspection of a rock slope beside a highway, Cory J. found that the inspections were “manifestations of the implementation of the policy decision to inspect and were operational in nature”: at p. 1246.
[137] The policy/operation distinction was also discussed in Imperial Tobacco. In explaining the distinction, McLachlin C.J.C. again focussed on whether the decision in question was the result of “social, economic, and political” considerations: at para. 87. McLachlin C.J.C. concluded on the issue of policy as follows, at para. 90:I conclude that "core policy" government decisions protected from suit are decisions as to a course or principle of action that are based on public policy considerations, such as economic, social and political factors, provided they are neither irrational nor taken in bad faith. [138] McLachlin C.J.C. also repeated the observation, from U.S. case law, that “employees working at the operational level are not usually involved in making policy choices”: at para. 89. . Cirillo v. Ontario
In Cirillo v. Ontario (Ont CA, 2021) the Court of Appeal reviewed the latest SCC doctrine on the 'policy versus operational' distinction as it immunizes government action from tort (eg. under municipal law and the Ontario CLPA):[38] The Supreme Court has described the type of policy decisions that cannot ground an action in tort in Imperial Tobacco, at para. 87:Instead of defining protected policy decisions negatively, as “not operational”, [they are defined] positively as discretionary legislative or administrative decisions and conduct that are grounded in social, economic, and political considerations. Generally, policy decisions are made by legislators or officers whose official responsibility requires them to assess and balance public policy considerations. The decision is a considered decision that represents a “policy” in the sense of a general rule or approach, applied to a particular situation. It represents “a course or principle of action adopted or proposed by a government”: New Oxford Dictionary of English (1998), at p. 1434. When judges are faced with such a course or principle of action adopted by a government, they generally will find the matter to be a policy decision. The weighing of social, economic, and political considerations to arrive at a course or principle of action is the proper role of government, not the courts. For this reason, decisions and conduct based on these considerations cannot ground an action in tort. [Emphasis added.] [39] In Imperial Tobacco, the court moved away from the stark dichotomy between policy/operational decisions in favour of a more principled test. Referring back to Imperial Tobacco, the court in Hinse v. Canada, 2015 SCC 35, [2015] 2 S.C.R. 621, at para. 23, confirmed the nature of core policy decisions that are protected from suit:… [I]t is not helpful to posit a stark dichotomy between policy decisions and operational decisions, or to define policy decisions negatively as decisions that are not “operational” decisions: paras. 84-86. Although it refrained from establishing a black-and-white test, the Court concluded that core policy government decisions that are protected from suit are “decisions as to a course or principle of action that are based on public policy considerations, such as economic, social and political factors, provided they are neither irrational nor taken in bad faith”.
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