Section 5(1)(a) still has teeth: the Divisional Court holds Crown immunity precludes certification
In Leroux v. Ontario, 2021 ONSC 2269 (“Leroux”), a majority of the Ontario Divisional Court overturned two decisions certifying claims in negligence against the Crown on the grounds that the negligence claims did not satisfy section 5(1)(a) of the Class Proceedings Act, 1992 (“CPA”); which requires the plaintiff’s claim disclose a cause of action. Although the threshold is low, Leroux is a reminder that the “cause of action” criterion in s. 5(1)(a) still has teeth.
Leroux concerned a proposed class action against the Ontario government. The class action alleged “serious operational flaws” in the how the government managed the delivery of essential services and supports to eligible adults with developmental disabilities under the Services and Supports to Promote the Social Inclusion of Persons with the Developmental Disabilities Act (the “MCSSA”).
Section 11(4) of the Crown Liability and Proceedings Act, 2019 (“CLPA”) bars any claim related to good faith “policy decisions” of the Crown. However, the Crown may still be liable for “operational negligence” (i.e. the manner in which it carries out policy decisions).
On certification, the motion judge held that the plaintiff’s claims satisfied the relatively low threshold required by section 5(1)(a) of the CPA because, in his view, the claims were grounded in “operational negligence” (as opposed to an allegedly negligent policy decision(s)), and therefore did not attract Crown immunity. The motion judge certified the action in part. The government appealed to the Ontario Divisional Court.
The Ontario Divisional Court allows the Appeal
A three-judge panel of Justices Edwards, Corbett and Penny heard the appeal. Justices Corbett and Penny allowed Ontario’s appeal related to the negligence claims for two reasons:
1. The Crown is immune from common law claims in negligence. The majority reiterated the well-established principle that the Crown has no direct liability for common law claims in tort. Such claims are creatures of statute. As the majority determined the “devising, managing and implementing” of a benefits scheme (such as the MCSSA program) was a “core policy decision”, it held the Crown was immune from the plaintiff’s claim by virtue of the CLPA.
2. The Crown owes no common law private duty of care to the plaintiff. Following the Ontario Court of Appeal’s reasoning in J.B. v. Ontario (Child and Youth Services), 2020 ONCA 198, the majority held that any duty the MCSSA created would be owed “to the public as a whole, rather than to individual users of the program.” As such, the majority held that Ontario’s Eligibility Programs for developmentally disabled adults did not give rise to any private law duty owed to individual applicants such as the plaintiff.
Justice Edwards disagreed with the majority and would have certified the plaintiff’s claims in negligence. Giving the statement of claim its “widest possible reading”,  Edwards J. agreed with the motion judge that the plaintiff’s claims flowed from an operational failure as opposed to a policy decision and therefore did not attract the protection of Crown immunity. Edwards J. also agreed with the motion judge that it was plausible that a private law duty of care existed between the putative class members and the province given the plaintiff’s pre-existing relationship with the province, which included the receipt of youth services as well as formal approval from the province for continuing support and services.
For the time being, the majority’s reasons in Leroux restrict the types of claims that can be brought against the Crown.
From a class actions perspective, Leroux emphasizes that the “cause of action” criterion in section 5(1)(a) remains an essential requirement for certification. In circumstances where a representative plaintiff seeks to certify an action against a government entity(s), counsel will be wise to consider carefully whether the putative class in fact has a viable cause of action against the Crown, which does not attract Crown immunity – it may just make or break certification.
 The class action was first certified in December 2018 [Leroux v. Ontario, 2018 ONSC 6452]. The government appealed. However, before the appeal could be argued, Ontario repealed and replaced the legislation at issue. The Divisional Court therefore declined to hear the appeal, instead sending the matter back to the motion judge to reconsider. The motion judge certified the action a second time in Leroux v. Ontario, 2020 ONSC 1994. The government appealed.
 R v Imperial Tobacco Canada Ltd., 2011 SCC 42 (CanLII),  3 SCR 45 at para 72. Whether a decision is ultimately characterized as a policy decision or an operational decision has to be determined based on the nature of the decision and not on the identity of the individuals concerned.