This recent case provides a good illustration of some of the obstacles that face a litigant when attempting to advance a personal injury claim against Crown employees. In this case, the Plaintiff, who was seriously injured during a vicious attack by fellow inmates in a correctional facility, wanted to sue the correctional officers who the Plaintiff alleged caused the circumstances that lead to the attack (ie: poor monitoring) or that otherwise exacerbated his injuries (ie: long response time after the attack).
The lawsuit was started against the Crown who operated the correctional facility, and in the Statement of Claim the Plaintiff used placeholder names for the three correctional officers (“Correctional Officer A,” and so on). Once the Plaintiff learned of their correct identities, the Plaintiff brought a motion to substitute the “placeholder” names with the correct names. As the court pointed out, in most cases, these types of motions would be granted without too much fanfare, but this case was a little different. The Crown successfully opposed the motion, such that the personal claims against the correctional officers were struck.
To get to this result, the following factors came into play:
- In certain situations, the Crown Liability and Proceedings Act, 2019, O. 2019, c. 7 (“CLPA”) provides statutory immunity for Crown employees;
- The Ministry of Correctional Services Act R.S.O. 1990, c. M.22 , specifically gives correctional officers statutory immunity against personal liability for torts committed within the context of their employment, unless committed in bad faith;
- Section 17 of the CLPA allows civil claims to proceed against Crown employees if the claim is a tort claim based on misfeasance or bad faith, but only if leave of the Court is granted. Any actions commenced without leave are stayed unless and until leave is granted;
- Based on the foregoing, the claims against the correctional officers in this case, that were rooted in negligence, gross negligence, and recklessness, must be brought against the Crown, and not the individuals themselves. The correctional officers are effectively granted immunity pursuant to section 8(1) of the CLPA while undertaking employment-related obligations for the Crown;
- To obtain leave, and to lift the stay, the plaintiff must satisfy the two-part test outlined in section 17(7) of the CLPA;
- The first part of the test requires the Plaintiff to establish, on a balance of probabilities, that the claim was brought in good faith. “Good faith” in the commencement of legal proceedings has been interpreted to mean the plaintiff has an “honest belief that he or she has an arguable claim for reasons consistent with the statutory remedy, not for an oblique or collateral purpose, and with a genuine intention and capacity to prosecute the claim.” (Vecchio Longo Consulting Services Inc. v. Aphria Inc., 2021 ONSC 5405, at para. 83); and
- The second part of the test requires the Plaintiff to establish that there is a reasonable possibility the claim will be resolved in the plaintiff’s favour. Subsumed in the latter test, is the requirement to establish that there is evidence that the Crown employee acted in bad faith, or order to remove them from the immunity granted under the CLPA.
The Adjudication of the Two-Part Test for Leave
The court was satisfied that the plaintiff brought the claim against the correctional officers in good faith. The Plaintiff was seriously beaten, seriously injured, and had a genuine belief that the officers were responsible in whole or in part for that outcome. This was not an attempt to sue random employees, with nebulous roles in the outcome, for an ulterior purpose (ie: to apply settlement pressure on the Crown, etc). The court was also satisfied that the Plaintiff had a genuine intention and capacity to prosecute the claim, having retained counsel to pursue a case that had ample evidence of the attack (video) and ample evidence of the injuries (video and medical evidence).
The court, however, concluded that the Plaintiff was unable to satisfy the second part of the test: a case of bad faith or misfeasance vis-à-vis the correctional officers. The plaintiff himself gave evidence that he didn’t believe the correctional officers wanted to see him get hurt. Distilled to its core, the correctional officers may have done a terrible job monitoring the situation, or responding to the assault, but the point remained that they were doing their job (just poorly). There was nothing in the evidence that allowed to court to conclude that the actions of the correctional officers were deliberate or motivated by bad faith, even if bad faith is defined as reckless abandonment of the employee’s duties.
Perhaps things would have been very different had there been an unsavoury history between the Plaintiff and the correctional officers. Say, for example, a situation where the plaintiff may have lodged a complaint against one of the officers, which later lead to negative commentary from the officers (ie: “you will pay for this,” “you better sleep with one eye open,” etc). In this dynamic, a court may be more inclined to accept that the plaintiff had a decent chance to assert a bad faith claim against the officers, and allow the claim to proceed.
Cases Against the Crown and Crown Employees in General
Although this case was dealing with a very finite issue, there is a myriad of unique issues when suing the Crown in general. Indeed, any party planning to sue the provincial Crown in Ontario are strongly encouraged to carefully review the CLPA. Indeed, even something as subtle as not giving proper notice could have devasting consequences, as was the case in Corrigan v. Ontario, 2023 ONCA 39 (“Corrigan”) where a plaintiff’s wrongful dismissal case was summarily dismissed for failing to giver proper prior notice of her claim.
The CLPA creates many unique substantive and procedural elements governing claims against the Crown over a wide range of legal matters including tort, property, legislative, regulatory, and policy matters. Procedurally, there are special provisions that deal with notice (as reflected in the Corrigan decision above), service requirements, leave to bring proceedings for misfeasance or bad faith (as reflected in this recent decision), oral and documentary discovery, injunctions and specific performance, recovery of property, set-off and counterclaim, default judgment, and enforcement of judgments. These elements certainly add to the complexity of a civil proceeding that is already bound by many substantive legal and procedural requirements.
Phixaykoune v. Ontario, 2024 ONSC 3860
https://www.canlii.org/en/on/onsc/doc/2024/2024onsc3860/2024onsc3860.html