The Ontario Court of Appeal's decision in Cirillo v Ontario, 2021 ONCA 353, clarifies that sections 11(4) and (5) of the Crown Liability and Proceedings Act (CLPA) do not represent substantive changes to the common law on Crown immunity, although these sections do "codify and more clearly define" the types of decisions for which the Crown is immune.

Applying the principles of Crown immunity to this case, the Ontario Court of Appeal upheld the motion judge's decision that there is no cause of action in negligence when the claims are attacks on the government's core policy decisions, as these decisions are insulated from tort liability. The Court also reiterated that a proposed class action will not be certified if there are no common issues and a class action is not the preferable procedure.


The plaintiff appealed the motion judge's refusal to certify her proposed class action that sought relief for the Crown's failure to hold timely bail hearings for accused persons. The plaintiff's claims were for negligence, breach of fiduciary duty and breach of the Canadian Charter of Rights and Freedoms. The plaintiff also appealed a second order of the motion judge dealing with the application of the CLPA.

The plaintiff was arrested. After being detained in a holding cell at the police station overnight, the plaintiff claimed that she arrived at the courthouse at around 12:30 p.m. the next day, expecting to be released on consent. However, duty counsel was not ready to proceed with the plaintiff's matter until 5:24 p.m. The justice of peace then adjourned the matter to the next day as the court day was over.

The plaintiff was transported back to detention and returned to the court the next day. She was then released on consent.

The Proposed Class Action

The plaintiff commenced the action on behalf of a proposed class of persons who were arrested and detained for a period of more than 24 hours before any bail hearing was available, irrespective of whether the cause was the matter not being reached, lack of transportation from detention to bail hearing, interpretive services not present, the accused not getting the opportunity to speak with counsel prior to arriving at the bail hearing or the Crown not being willing to proceed with a hearing.

The plaintiff challenged the Crown's operational failure in carrying out its constitutional and statutory duty to ensure a bail hearing within 24 hours, as required by the Criminal Code and the Charter. The plaintiff's claims rested on allegations of systemic negligence based on the Crown's mismanagement of the bail system, failure to provide adequate resources and policies related to Crown prosecutors. The plaintiff also alleged that the Crown's actions violated the putative class members' due process rights under the Charter. She sought both declaratory relief and damages.

The motion judge denied certification on the grounds that: (a) a claim for negligence was not justiciable; (b) the breach of fiduciary duty claim had no prospect of success; (c) the plaintiff's claims for breach of Charter rights were not common to class members; and (d) a class proceeding was not the preferable procedure.

The motion judge also held that the impugned government decisions were policy decisions under the common law before the enactment of the CLPA in 2019, and that nothing in the CLPA affected this conclusion. The Ontario Court of Appeal consolidated the two appeals.


On the negligence appeal, the plaintiff argued that her claims related to operational decisions, not policy choices. The Court of Appeal rejected this submission, finding that the "claims on their face relate to core policy decisions."

In arriving at this conclusion, the Court of Appeal cited the Supreme Court of Canada's decision in Imperial Tobacco that the type of policy decisions that cannot ground an action in tort include "discretionary legislative or administrative decisions and conduct that are grounded in social, economic, and political considerations ... The weighing of social, economic, and political considerations to arrive at a course or principle of action is the proper role of government, not the courts. For this reason, decisions and conduct based on these considerations cannot ground an action in tort."

The Court of Appeal observed that the plaintiff's negligence claims against the Crown in this proposed class action were aimed at core policy decisions as they focused on the role of the government's executive authority to determine the allocation and adequacy of resources devoted to the criminal justice system.

The Court also rejected the plaintiff's submission that the motion judge had erred by inserting an analysis of resource allocation and underfunding into the proximity stage of the Anns duty of care analysis rather than consider them at the second residual policy stage of the Anns test, as it made no practical difference here. The result is the same no matter the stage at which policy immunity is considered.

The plaintiff also argued that the motion judge failed to consider that the alleged operational failures were taken in bad faith. However, the Court of Appeal rejected this argument, finding that the motion judge had correctly found that the plaintiff had not pleaded bad faith. The plaintiff's witnesses also acknowledged that there was no allegation of bad faith.

As a result, the Ontario Court of Appeal concluded that it was plain and obvious that the claims in negligence did not disclose a cause of action. In any event, the negligence claims would not satisfy the remaining criteria in subsection 5(1)(b) and (d) of the Class Proceedings Act, mainly for the same reasons as set out below in relation to the Charter claims.

Charter Claims

Although the motion judge accepted that the Charter claims could satisfy the cause of action criterion, the claims raised no common issues, and thus a class proceeding was not the preferable procedure. The motion judge also doubted that there was an identifiable class. The Ontario Court of Appeal accepted the motion judge's findings on common issues and identifiable class and, as such, concluded that it did not need to address the viability of the cause of action for the Charter claims.

Class Proceedings Act, Section 5(1)(b): Identifiable Class

The Court of Appeal cited the Supreme Court's decision in Hollick v. Toronto, 2001 SCC 68, that states a class definition must be defined by reference to objective criteria and without reference to the merits of the action. When there is a causation element in the class action, courts will not certify the class proceeding because a causation criterion is inherently merit-based.

Here, a factual determination was required as to the cause of the delay beyond 24 hours. While the plaintiff argued that the right to a hearing is actually "within a reasonable time," the Court of Appeal found this to be problematic as the class definition would then depend on individual assessments and would be incapable of objective determination.

Section 5(1)(c): Common Issues

The plaintiff argued that the question to be asked is whether there is "some basis in fact" supporting a conclusion that the proposed common issues are common to all class members in the sense that their resolution will avoid duplication of fact-finding or legal analysis. The reasonableness inquiry did not preclude a common determination as all class members shared an interest in whether the Crown's conduct offended the Charter, despite the significant level of difference among the class members.

In rejecting the plaintiff's arguments, the Court of Appeal observed that in this case there was no single course of conduct leading to the alleged breaches.

The Charter claims were simply not capable of common determination as, for example, claims for breach of subscection 7 and 9 of the Charter would require a determination of why adjournment and remand orders were made in each case. Similarly, claims for breach of section 11(e) of the Charter would require an individual determination of whether bail was "reasonable", including whether the terms of the release were reasonable. Lastly, the pleading contained no factual allegation to support a claim for breach of section 12 of the Charter. Detention under a court order by itself did not constitute cruel and unusual punishment. As much as any putative class member had a claim for cruel and unusual punishment, "the facts that would support it would be necessarily individual."

Section 5(1)(d): Preferable Procedure

Even if the class definition and common issue requirements were satisfied and despite the allegation of a systemic wrong, the Ontario Court of Appeal held that in this case that a class proceeding was not the preferable procedure as a "general finding of "systemic wrong" would not avoid the need for protracted individualized proceedings into the vulnerability and circumstances of each class member. A more efficient and expeditious way to adjudicate these claims would be to proceed directly by way of individual actions as it is inevitable that a class proceeding would break down into individual proceedings in any event."

We previously discussed the CLPA in our blog on Francis v. Ontario, 2021 ONCA 197.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.