Francis v Ontario: When is the Government liable for its misconduct?

By: Lyann Ordenes

The Ontario Court of Appeal’s (ONCA) recent holding in Francis v Ontario confirms that baseline damages under the Canadian Charter of Rights and Freedoms can be sought in class actions as a measure of compensation, vindication and deterrence. In this case, Charter damages were awarded due to the Ontario Government’s unconstitutional system of administrative segregation, better known as solitary confinement. Damages of this kind refer to a remedy available under section 24 of the Charter, if the test established in Vancouver (City) v Ward is met. What is unique to this decision, however, is that the systemic negligence tort claim was upheld where it had previously been struck down in similar cases. The Court’s reasoning regarding systemic negligence provides important guidance on how to properly interpret the Crown Liability Proceedings Act [CLPA], which was passed by the Ontario Government in 2019 to replace the now repealed Proceedings Against the Crown Act.

This successful outcome for class members hinged on a few important findings:

(1)       The Ontario government owed prison inmates a duty of care, on a collective basis, to not operate a regime of solitary confinement in a way that caused harm to inmates;

(2)       The Ontario government breached that duty of care and therefore acted negligently by operating this regime in a way that caused unnecessary harm to inmates;

(3)       The solitary confinement regime could not be classified as mere “policy” decision making which would have precluded a finding of liability, but rather constitutes “operational” conduct for which the government does not enjoy immunity.

What happened in the Francis Decision?

The Francis decision is an unsuccessful appeal by the Ontario government of a decision granting summary judgment to a class of two defined groups: (A) prisoners of Ontario correctional institutions with serious mental illness who were subjected to administrative segregation for any length of time; and (B) inmates who were subjected to administrative segregation for periods of 15 or more consecutive days. Prior to Francis, the Brazeau/Reddock and Canadian Civil Liberties Association decisions established that solitary confinement violates Charter rights provided in section 7 to life, liberty and security of the person, and section 12 not to be subjected to any cruel and unusual treatment or punishment, and that such violations could not be saved under section 1 of the Charter. In line with this reasoning, the ONCA in Francis upheld Justice Perell’s finding of Charter breaches under sections 7 and 12 of the Charter, as well as his award of $30 million dollars in aggregate damages payable to the class.

The Ward Test

In order to award damages as a remedy for an alleged breach of Charter rights, the party seeking them (the plaintiff) bears the burden of demonstrating to the Court that (i) a Charter right has indeed been breached, and (ii) the damages sought are an “appropriate and just” remedy, and (iii) the state actor (the government) is unable to establish countervailing factors, including the existence of alternative remedies, which would render damages inappropriate or unjust. The plaintiff in Francis easily passed step one with respect to Group B’s Charter rights considering past decisions and the Ontario government’s concession that sections 7 and 12 were violated. With respect to Group A, the ONCA did not interfere with the lower court’s finding of a breach due to its justified legal reasoning and the evidence available. Regarding step two, the Court found that Ontario correctional officials were wilfully ignorant of the unconstitutionality of solitary confinement. At the third step, the Ontario government advanced the good governance defence but was unsuccessful. This defence refers to the principle established by the Supreme Court of Canada in Mackin that good governance requires state actors be able to carry out their responsibilities under the law without fear of damages should that law be later declared unconstitutional. The Court was not persuaded by this defence in Francis since Ontario continued the operation of solitary confinement in Ontario prisons knowing that the regime violated the constitutional rights of inmates.

Novel Duty Of Care Owed To Class Members In Francis

In addressing the systemic negligence claim, Justice Perell distinguished his reasoning in Francis from that in another solitary confinement class action, Reddock, which was overturned by the ONCA. He did so by establishing a novel duty of care and characterizing the solitary confinement regime as operational decisions, rather than policy decision making. The policy and operational distinction was of particular significance due to CLPA provisions which address the scope of each. The Ontario government advanced the argument that the CLPA immunizes the government from liability for all decisions regarding the manner in which programs are carried out. Justice Perell and the ONCA rejected that interpretation of the CLPA. The ONCA accepted that the provincial government can adopt a policy of using administrative segregation in its correctional facilities, but found that how Superintendents of prisons implement the policy day-to day is an operational decision. Superintendents exercised their discretion as to who would be subjected to this regime and for how long. “If a Superintendent applies the policy on administrative segregation to an inmate in a negligent manner, that is, in a manner that causes injury or harm, then Ontario is liable for that injury or harm” (para. 141).

What This Means For Crown Liability Class Actions

The availability of aggregate Charter damages on a class-wide basis is an important remedy that promotes access to justice and behavioural modification in class proceedings, particularly those brought on behalf of marginalized individuals. Rumley and Cloud, two landmark institutional abuse cases, firmly set the precedent that individual circumstances will not necessarily prevent a finding of collective harm where there has been systemic abuse. Significantly, the ONCA in Francis followed this reasoning and clarified the range of government conduct that can trigger liability in tort and under the Charter. While the ONCA did not disturb Justice Perell’s judgment that any compensation for negligence would be subsumed within the Charter damages award, the ONCA left open the possibility that Charter damages could be awarded in addition to tort damages in other cases.