Skip to main content

Fridays With Rogers Partners

At our weekly meeting, Athina Ionita discussed the recent decision of the Ontario Court of Appeal in Francis v. Ontario, 2021 ONCA 197.

Francis is an appeal arising from a summary judgment motion in a class action commenced against the Province by inmates subject to administrative segregation in Ontario’s correctional institutions.

On the summary judgment motion, the motion judge had found that Ontario owed a duty of care to the plaintiff class members, and that Ontario had breached that duty of care. The motion judge had further concluded that Ontario’s system of administrative segregation breached the rights of the class members under ss. 7 and 12 of the Charter.

As a consequence of these breaches, the motion judge had awarded aggregate Charter damages against Ontario in the amount of $30 million. Ontario appealed the decision to the Court of Appeal, on the basis that, among other things, the motion judge erred in finding Ontario liable in negligence.

Athina has focused her analysis of this decision below on the Court of Appeal’s findings regarding Ontario’s liability in negligence.


The representative plaintiff, Mr. Francis, was an inmate at an Ontario correctional facility. Inmates across various facilities were subjected to administrative segregation (also known as solitary confinement) while incarcerated.

Mr. Francis himself was put into solitary confinement for refusing to take medication for his mental health condition. Mr. Francis has a severe mental illness and had refused medication because that medication had previously given him negative side effects.

Mr. Francis commenced a class action against Ontario, seeking declarations that that his, and the class members’, rights under the Charter had been infringed by Ontario’s system of administrative segregation, and that Ontario was liable in negligence.

The class action captures two groups of people:

  1. Individuals with severe mental illness that have been in administrative segregation; and
  2. Individuals who have been in administrative segregation for a prolonged period, specifically, over 15 days.

The legal authority for administrative segregation comes from the Ministry of Correctional Service Act. The jail superintendent is the individual responsible for administering the jail and making the decision to put an inmate in administrative segregation.

Court of Appeal’s Negligence Analysis

The Court of Appeal agreed with the motion judge’s reasons and analysis on the issue of negligence, and addressed further points raised on appeal, ultimately disagreeing with Ontario. On appeal, Ontario argued that systemic negligence was not established in this case. The Court of Appeal disagreed.

The class was clearly defined in this case, and did not include all other inmates who may have been subject to administrative segregation in different circumstances, or for different reasons.

In this case, what was challenged was the act of placing inmates in administrative segregation in two specific circumstances, where it was found that injury will naturally result. Further, the statement of claim focused on the implementation of administrative segregation in Ontario, and relied on decisions and actions that are operational in nature.

On the issue of whether the claim was barred by the Crown Liability and Proceedings Act, 2019, (“CLAPA”), Ontario argued that the motion judge erred in concluding that CLAPA simply codified the common law. The Court of Appeal again disagreed. It is presumed that the common law remains unchanged absent a clear and unequivocal expression of legislative intent and in this case, the Court found no such clear and unequivocal expression.

Further the Court of Appeal considered the distinction between policy matters and operational matters, and found that the issues raised by the class action dealt with operational matters, meaning the government was not immune from such a claim.

The Court noted that it is open to the provincial government to adopt a policy of using administrative segregation in its correctional facilities. It is also open to the government to decide who will implement administrative segregation, as that too is a policy matter.

However, how the policy is actually applied at the ground level is not a policy matter, and is instead an operational matter.

The Court provided a further example of the distinction between policy and operational matter: if the provincial government decided that it wished to provide public transit between two towns in Ontario, this would be a policy decision; however, how those buses actually transport people is an operational matter. The Court of Appeal acknowledged that this is a distinction that Courts have found notoriously difficult to decide.

In this case, the legislation reflects a policy of permitting administrative segregation. However, what the respondent challenged is how that policy is implemented. In deciding to place class members in administrative segregation, Superintendents were implementing policy and, thus, their decisions were operational.

The Court of Appeal recognized that policy matters are immune from tort claims arising from true or core policy decisions. However, because the plaintiff class challenged an operational decision, there was no immunity afforded to the government in this case.

In conclusion, the court upheld the lower court decision, agreeing that there was systemic negligence, that the issues raised by the class action relate to operation, not government policy, and that the government is not immune from claims related to operation. The Court of Appeal accordingly dismissed the appeal.