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Torts - Negligence - Prisoners. Francis v Ontario
In Francise v Ontario (Ont CA, 2021) the Court of Appeal set out the principles of negligence in a claim against the government of Ontario in relation to the treatment of prisoners in a correctional institution:[102] As we have said, the motion judge engaged in a lengthy analysis of whether a duty of care arose in this case. We generally agree with that analysis. On the first branch of the test from Cooper v. Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537, the prima facie duty test, there is clearly a close relationship between Ontario and the inmates (i.e. proximity) that would support a basis for finding a duty of care. It is well-established that governments owe a duty of care to individuals while they are in custody: MacLean v. The Queen, 1972 CanLII 124 (SCC), [1973] S.C.R. 2, at p. 7. Ontario does not dispute that is the case.
[103] It follows, from the nature of the relationship, that actions taken which result in injury to an inmate could be reasonably foreseeable. Again, that is accepted to be the case on an individual basis, and we see no principled reason why that could not be the case on a class basis. If identical action is taken regarding the inmate population, or a subset of that population, and harm results, it is as foreseeable on a group-wide basis as it is on an individual basis.
[104] That then leads to the second branch of the Cooper v. Hobart test, which is whether there are residual policy considerations that would militate against a finding of a duty of care. Those considerations lead to the issue of policy versus operational matters, about which we will have more to say when we come to the next issue, that is, the application of the CLPA. At the risk of foretelling our conclusion on that issue, we will say that we view the actions taken in this case, that form the basis of the negligence claim, to be tied to operational as opposed to policy matters. . Bruno v. Dacosta
In Bruno v. Dacosta (Ont CA, 2020) the Court of Appeal considered principles of Proceedings Against the Crown Act (PACA) and negligence law with respect to harm to an inmate:(a) The Law on Liability for Inmate Assaults
[33] With respect to harm to an inmate, the applicable law is that Ontario can only be held liable for the negligent acts or omissions of an individual correctional officer who, in the course of employment by Ontario, did or failed to do something, thereby creating a foreseeable risk of harm to the inmate: Proceedings Against the Crown Act, R.S.O. 1990 c. P.27, ss. 5(1)(a) and 5(2); MacLean v. R., 1972 CanLII 124 (SCC), [1973] S.C.R. 2; Timm v. R., [1965] 1 Ex. C.R. 174; Walters v. Ontario, 2017 ONCA 53, at para. 34; Iwanicki v. Ontario, [2000] O.T.C. 181, O.J. No. 955 at para. 15. In Walters, this court held, at para. 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 … [Citations omitted.] [34] In inmate assault cases, “Ontario’s liability, if any, must derive from actionable negligence of specific [correctional officers]” under subsections 5(1)(a) and 5(2) of the Proceedings Against the Crown Act: Walters, at para. 34. The federal law is to the same effect: see the federal Crown Liability and Proceedings Act, R.S.C., 1985 c. C-50, and Hinse v. Canada (Attorney General), 2015 SCC 35, [2015] 2 S.C.R. 621, where the trial judge found liability based on “institutional inertia and indifference.” The Supreme Court held, at para. 92 of Hinse, that the trial judge “should instead have analyzed the individual conduct of each of the successive Ministers acting in his or her capacity as a servant of the federal Crown.” . Walters v Ontario
In the interesting liability case of Walters v Ontario (Ont CA, 2017) the province was sued for injuries resulting when members of two opposing gangs were placed in the same unit. The court 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.
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[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. . Richard v. Canada (Attorney General)
In Richard v. Canada (Attorney General) (Ont CA, 2025) the Ontario Court of Appeal dismissed a Crown appeal, here brought against a motion judge's certification of a class proceeding where "the Canada Border Services Agency (“CBSA”) placed some immigration detainees ... in provincial prisons instead of Immigration Holding Centers (“IHCs”)".
Here the court considers the duty of care owed by the government to immigration detainees, here in a class action certification appeal context:[40] The motion judge found that the pleaded facts were capable of sustaining a claim in negligence on the basis alleged: Canada has a duty to exercise care in administering the IRPA detention regime and that by holding immigration detainees in provincial prisons it breached that duty and caused reasonably foreseeable damages.
[41] Canada submits that the straightforward duty of care owed by prison authorities and the Crown to prisoners established in MacLean v. R., 1972 CanLII 124 (SCC), [1973] S.C.R. 2 does not apply and that this court’s decision in Brazeau v. Canada (Attorney General), 2020 ONCA 184, 149 O.R. (3d) 705, precludes a finding that Canada owes a class-wide duty of care in this case. I disagree.
[42] Brazeau was a class action claiming Charter breaches and systemic negligence arising from Canada’s practice of administrative segregation in federal correctional institutions. On appeal, this court, while upholding the Charter award, found at para. 120 that the negligence claim was bound to fail because a class-wide duty of care “can only be made out if the duty relates to the avoidance of the same harm for each class member.”
[43] However, this court in Brazeau clearly limited its finding that no commonality could be found to the specific pleadings in that case. As explained at para. 120, the “primary negligence claim in the amended statement of claim [was] negligence at the policy-making level” with respect to the management of prisons. This court properly concluded that that policy was immunized from liability in tort pursuant to Mackin v. New Brunswick (Minister of Finance); Rice v. New Brunswick, 2002 SCC 13, [2002] 1 S.C.R. 405, at para. 79 and Vancouver (City) v. Ward, 2010 SCC 27, [2010] 2 S.C.R. 28, at paras. 39-40. The argument that authorities were operationally negligent, which was argued in the alternative, was bound to fail as well because the pleading of “operational negligence” essentially amounted to criticism of the immunized policy and in any case “would turn on individual circumstances.” See Brazeau, at paras. 119-20.
[44] The pleadings in this case are unlike Brazeau and are more akin to Francis v. Ontario, 2021 ONCA 197, 154 O.R. (3d) 498, which Canada also relies on. Francis is not helpful for Canada. As it does here, Canada argued in Francis that a systemic negligence claim related to the practice of administrative segregation in provincial correctional institutions was precluded by the standard of care position set out in Brazeau. This court disagreed, concluding that Brazeau “turned principally on the way in which the plaintiff had pleaded his case”: para. 98. It held at para. 106:[T]he actions alleged in this case do not constitute different acts in different circumstances. Rather, what is challenged, at the very core of this claim, is the same act being undertaken, that is, placing inmates in administrative segregation in two specific circumstances where it is said that injury will naturally result. [45] The pleadings in Francis were about the “operation” of provincial correctional facilities in a way that Brazeau was not. Based on those pleadings, the claim was certified and on a summary judgment motion the court concluded that “Ontario was systemically and routinely negligent in the operation of administrative segregation”: Francis, at paras. 99-101.
[46] The pleadings in this case allege the detention of immigration detainees in provincial prisons – the same wrongful act – across an entire class. The pleadings are based on the CBSA’s administration of immigration detention in prisons and not the IRPA. Having regard to these pleadings, the respondents’ negligence claim was properly certified by the motion judge. It is true that a judge will ultimately have to determine whether Canada in fact owed a duty of care and breached it, but these are fact-intensive issues to be determined at a merits hearing: Carcillo v. Ontario Major Junior Hockey League, 2025 ONCA 652, at para. 37. At this stage it cannot be said that the claim is destined to fail.
[47] The appellant’s argument that Canada’s impugned practice cannot be the subject of a negligence claim because it is protected by policy immunity must fail. Applying the principles set out in Leroux, at paras. 45-47, the motion judge found that the respondents’ claim, properly characterized, does not challenge core policy decisions. As in Francis, the respondents’ case here is pregnant with allegations of negligence at the operational level.
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