



COURT OF APPEAL FOR ONTARIO

CITATION: Francis v. Ontario, 2021 ONCA 197

DATE: 20210331

DOCKET: C68403

Doherty, Nordheimer and Harvison Young JJ.A.

BETWEEN

Conrey Francis

Plaintiff (Respondent)

and

Her Majesty the Queen in
    Right of Ontario

Defendant (Appellant)

Alexandra Clark, Victoria Yankou, Hera Evans, Sean
    Hanley, Tanya Jemec and Matthew Chung, for the appellant

James Sayce, Charles Hatt and Nathalie Gondek, for the
    respondent

Matthew Horner and Insiya Essajee, for the intervener Ontario
    Human Rights Commission

Jonathan Lisus, Zain Naqi and Philip Underwood, for the intervener
    Canadian Civil Liberties Association

Heard: December 18, 2020 by video conference

On appeal from the judgment of Justice Paul M. Perell of
    the Superior Court of Justice dated April 20, 2020, with reasons reported at 2020
    ONSC 1644.

Doherty
    and Nordheimer JJ.A.:


I.

Overview

[1]

Her Majesty the Queen in Right of Ontario (Ontario) appeals from the
    summary judgment granted by the motion judge in which he found that Ontario
    owed a duty of care to the respondent, and his fellow class members, arising
    from the system of administrative segregation used in Ontarios correctional
    institutions between April 20, 2015 and September 18, 2018. The motion judge
    also found that Ontario had breached that duty of care. The motion judge further
    concluded that Ontarios system of administrative segregation breached the
    rights of the respondent, and his fellow class members, under ss. 7 and 12 of
    the
Canadian Charter of Rights and Freedoms
. As a consequence of these
    breaches, the motion judge awarded aggregate
Charter
damages against Ontario
    in the amount of $30 million.

[2]

Ontario raises three principal issues in its challenge to the motion
    judges conclusions:

1.

The motion judge erred in holding Ontario liable in negligence.

2.

The motion judge erred in finding that detaining seriously mentally ill
    inmates in administrative segregation violated ss. 7 and 12 of the
Charter
.

3.

The motion judge erred in awarding
Charter
damages.

[3]

For the following reasons, we would dismiss the appeal.


II.

Background

[4]

The use of administrative segregation in Ontarios correctional
    institutions is authorized by
General
, R.R.O. 1990, Reg. 778 (Regulation
    778) promulgated under the
Ministry of Correctional Services Act
,
R.S.O.
    1990, c. M.22, s. 60(1).

Section 34(1) of Regulation 778 grants the
    Superintendent of a correctional institution the authority to place an inmate
    in administrative segregation when:

a.

in the opinion
    of the Superintendent, the inmate is in need of protection;

b.

in the opinion
    of the Superintendent, the inmate must be segregated to protect the security of
    the institution or the safety of other inmates;

c.

the inmate is
    alleged to have committed a misconduct of a serious nature; or

d.

the inmate
    requests to be placed in segregation.

[5]

As found by the motion judge, the respondent suffers from serious mental
    illness. He was held in the Toronto South Detention Centre for over two years
    on remand while awaiting trial on charges relating to a bank robbery. He was ultimately
    acquitted of all charges.

[6]

During his incarceration, the respondent was placed in administrative
    segregation twice, once for eight days. On both occasions he was alleged to
    have refused to take mental health medication that had caused him negative
    side-effects in the past. Correctional officials considered this conduct to
    constitute refusing to follow an order, which they determined justified a
    placement in administrative segregation. As found by the motion judge, the
    respondents experience in administrative segregation was excruciating; his
    anxiety was out of control; he felt terrorized and was in a state of delirium
    and shock.

[7]

In 2017, the respondent commenced this proceeding as a class action. He
    sought declarations that his, and the class members, rights under the
Charter
had been infringed by Ontarios system of administrative segregation and that Ontario
    was liable in negligence. The respondent sought damages in negligence and under
    s. 24 of the
Charter
. He also sought punitive damages.

[8]

The class action was certified on consent by order dated September 18,
    2018. The class in this case is made up of two groups. One group is made up of inmates
    who are seriously mentally ill, such as the respondent (SMI Inmates). The
    other group is made up of those inmates, who may not be acutely unwell, but who
    were left in segregation for 15 or more consecutive days (Prolonged Inmates).

[9]

Administrative segregation in Ontario consists of isolation in a small
    cell for 22 hours or more with no meaningful human contact. The cells have hard
    metal doors with a slot or "hatch" through which food is passed and
    basic communication may occur. Some cells have a window, which is usually
    frosted. The evidence shows that the cells are often filthy and covered in
    bodily fluids. Inmates face indefinite isolation and have no effective means of
    influencing their fate. Administrative segregation in Ontario may fairly be
    described by its more common expression, "solitary confinement".

[10]

Ontario
    does not appeal any findings of fact about its practice of administrative
    segregation. The motion judge found the conditions of administrative segregation
    in Ontario were "the same or very similar" as those in the federal
    system, which this Court has twice found to constitute cruel and unusual
    treatment, in
Canadian Civil Liberties Association v. Canada (Attorney
    General)
,
2019 ONCA 243, 144 O.R. (3d) 641 (
CCLA
), leave
    to appeal granted but appeal discontinued, [2019] S.C.C.A. No. 96, and
Brazeau
    v. Canada (Attorney General)
,
2020 ONCA 184, 149 O.R. (3d) 705 (
Brazeau/Reddock
).

[11]

Ontario
    uses solitary confinement for varying reasons including managing inmates
    special needs and challenging behaviours. However, the mentally ill are
    markedly overrepresented among inmates subjected to administrative segregation.
    This overrepresentation is demonstrated by the fact that 43% of all admissions
    into segregation had a mental health alert on their file. These mentally ill
    inmates spend on average 30% more time in administrative segregation than other
    inmates. Considering this evidence, the motion judge found as a fact that
    Ontario "routinely placed inmates with mental health or suicide risk
    alerts on file in administrative segregation.

[12]

Over
    time, changes in the system of administrative segregation have been made by
    Ontario, at least some of which resulted from public interest remedies ordered
    by the Ontario Human Rights Tribunal as part of a settlement of other
    proceedings. Ontario also appointed an Independent Expert on Human Rights and
    Corrections, who found failings in Ontarios compliance with its own policies.
    Ontario undertook other reviews, which continued to find problems in the
    system.

[13]

For
    example, an internal review in 2016 noted the harms caused by solitary
    confinement; that Ontario's administrative segregation practices qualified as
    solitary confinement; and that there was a need for reforms. In mid-2018, the
    Ontario Legislature passed the
Correctional Services and Reintegration Act,
    2018
, S.O. 2018, c. 6, Sched. 2. Among other things the legislation: (a)
    banned administrative segregation for mentally ill and other vulnerable
    inmates; (b) imposed a cap on the duration of administrative segregation for all
    inmates; and, (c) provided an independent review of all segregation placements.
    The legislation received Royal Assent on May 7, 2018, but it has yet to be proclaimed
    into force.

[14]

In
    summarizing his view on the improvements in Ontarios system and practices, the
    motion judge observed that Ontarios good words were not always followed by
    corresponding good deeds.


III.

THE DECISION BELOW

[15]

The motion
    judge gave lengthy reasons for his conclusions. He spent considerable time
    reviewing the evidence that was before him, including the expert evidence. We
    do not need to repeat his review as there appears to be little dispute regarding
    what that evidence reveals.

[16]

Following
    that evidentiary review, the motion judge made a number of what he referred to
    as major findings of fact. Those findings (at para. 269) may be summarized as
    follows:

Administrative segregation

·

Administrative segregation as practiced in Ontario constitutes
    solitary confinement within the meaning of the United Nations Standard Minimum
    Rules for the Treatment of Prisoners (Nelson Mandela Rules).

·

The Nelson Mandela Rules promulgated by the United Nations
    represent an international consensus of proper principles and practices in the
    management of prisons and the treatment of those confined in prisons.

State of knowledge regarding solitary confinement

·

Well before year 2000, it was widely known across the world, in Canada,
    and in Ontario, that placing inmates into solitary confinement caused serious
    harm.

·

Before year 2000, it was known that an empowered independent
    review was needed of any placement in administrative segregation.

·

Before year 2000, it was known that mentally ill prisoners should
    not be placed in administrative segregation and that alternatives should be
    developed for them as necessary to maintain the security of the prison or
    penitentiary.

·

Before year 2000, and ultimately codified in 2001 by the Nelson Mandela
    Rules at a 15-day maximum, it was known that no prisoners should undergo
    prolonged administrative segregation.

·

Ontario knew about the growing condemnation of: (a) placing
    seriously mentally ill inmates in solitary confinement; and (b) placing inmates
    in prolonged solitary confinement. Ontario knew about the tragic incidents
    associated with prolonged solitary confinement, some of which had occurred
    within Ontario.

·

Ontario knew that there was a worldwide consensus that solitary
    confinement should be a last resort for securing the safety of a correctional
    institution.

The effects of solitary confinement

·

A placement in administrative segregation can and does cause
    physical and mental harm, particularly to inmates that have serious
    pre-existing psychiatric illness.

·

Negative health effects from administrative segregation occur
    within a few days in administrative segregation as it is practised in Ontario.

·

Some of the specific harms of administrative segregation include
    anxiety, withdrawal, hypersensitivity, cognitive dysfunction, significant
    impairment of ability to communicate, hallucinations, delusions, loss of
    control, severe obsessional rituals, irritability, aggression, depression,
    rage, paranoia, panic attacks, psychosis, hopelessness, a sense of impending
    emotional breakdown, self-mutilation, and suicidal ideation and behaviour.

·

Detaining an inmate in administrative segregation for more than
    15 consecutive days imposes psychological stress capable of producing serious,
    and even permanent, negative effects on mental health. The harmful effects of
    administrative segregation can occur within 48 hours.

·

Without exception, a placement in administrative segregation of an
    inmate with serious mental illness causes a minimum level of harm to the
    inmate.

·

Without exception, a placement in administrative segregation of
    an inmate for more than 15 days causes a minimum level of harm to the inmate.

Practice in Ontario regarding solitary confinement

·

Ontario routinely placed inmates with mental health or suicide
    risk alerts on file in administrative segregation.

·

Up until 2015, Ontario's Administrative Segregation Policy did
    not require a physician, psychiatrist, or other mental health worker to assess
    a segregated inmate's mental wellbeing.

·

Many inmates are placed in administrative segregation contrary to
    Ontario's own policy directives.

[17]

The
    motion judge then moved to consider whether there had been a breach of ss. 7
    and 12 of the
Charter
arising from Ontarios system of administrative
    segregation, both with respect to the respondent and with respect to the
    members of the class. He concluded that there had been. It does not appear that
    Ontario contested that breaches had occurred with respect to the respondent.
    Rather, Ontario submitted that such breaches had not been demonstrated on a
    class-wide basis. The motion judge disagreed.

[18]

The
    motion judge found that the evidence revealed that, once a placement in
    administrative segregation has become prolonged, the stress and anxiety is
    serious and thus the security of the person guaranteed by s. 7 of the
Charter
was engaged. The motion judge also concluded that administrative segregation
    creates an increased risk of suicide for all class members, thereby infringing
    the right to life under s. 7 of the
Charter
.

[19]

The
    motion judge moved to consider whether these infringements complied with the
    principles of fundamental justice. He concluded that they did not. The motion
    judge found that, while temporary segregation is rationally connected to the
    objective of security and safety, a mode of temporary segregation that amounts
    to solitary confinement is not rationally connected to the objective of security
    and safety; rather, this mode of segregation degrades security and safety. He
    therefore concluded that administrative segregation as practiced in Ontario was
    overbroad. The motion judge also found that the effects of administrative
    segregation were grossly disproportionate to the purposes of administrative
    segregation. Lastly, the motion judge found that, absent an independent timely
    review procedure, confinement in administrative segregation of any inmate
    violated procedural due process rights under s. 7 of the
Charter
.

[20]

The
    motion judge then considered s. 12 of the
Charter
, that is, whether
    Ontarios system of administrative segregation constituted cruel and unusual
    punishment. On this issue, the motion judge said, at para. 329:

To demonstrate a violation of section 12, a plaintiff must show
    that the treatment or punishment is grossly disproportionate in the
    circumstances, such that it would outrage society's sense of decency. Gross
    disproportionality is only made out in "extreme cases" where the
    connection between a law's effect and its purpose is "entirely outside the
    norms accepted in our free and democratic society." Demonstrating that a
    treatment or punishment was merely excessive is not sufficient to ground a
    finding that section 12 has been violated. [Footnotes omitted.]

[21]

The
    motion judge rejected Ontarios position that this determination was inherently
    an individual one that could not be made on a class-wide basis. He found that
    the evidence established that a placement in administrative segregation, as it was
    administered by Ontario during the class period, was a cruel and unusual
    treatment of the class members, both the serious mentally ill inmates and the inmates
    who were administratively segregated for 15 or more days. The motion judge found
    support for at least part of this conclusion in the decision of this court in
CCLA
,
    where administrative segregation placements of more than 15 consecutive days were
    found to infringe s. 12 of the
Charter
. The motion judge also
    concluded that these infringements were not saved under s. 1 of the
Charter
.

[22]

The
    motion judge moved from the
Charter
claims to consider the claim in
    negligence. On this issue, the motion judge considered Ontarios submissions
    that:

·

The duty of care alleged by the respondent was not a recognized
    duty of care that fell within the category of cases where a duty of care by
    correctional officers to inmates had been recognized.

·

In any event, the respondent had not proven the standard of care
    or a breach of the standard of care.

·

The respondents negligence claim was essentially a challenge to
    policy decisions that are immune from liability.

·

In addition to the common law principles relating to policy
    decisions, the respondents negligence claim was precluded by Crown immunity
    and was extinguished by s. 11 of the
Crown Liability and Proceedings Act,
    2019
,

S.O. 2019 c. 7, Sched. 17 (
CLPA
)
.

[23]

The
    motion judge rejected each of Ontarios submissions. He found that Ontario did
    owe a duty of care to the respondent and the class members. In doing so, the
    motion judge distinguished this courts decision in
Brazeau/Reddock
where
    it was found, at para 120, that a claim in systemic negligence could not be
    made out because the primary negligence claim was negligence at the
    policy-making level.

[24]

The
    motion judge rejected Ontarios claim that the decisions in question were
    policy decisions. Rather, he found that they were operational decisions that
    did not escape liability, if negligently undertaken.

[25]

Ultimately,
    the motion judge concluded that Ontario owed a duty of care to the respondent
    and the class members, which Ontario had breached. He said, at para. 468:

In the immediate case, (a) there is a duty owed to all the
    inmates in the way that Ontario runs its correctional institutions;
i.e.
,
    a responsibility across the corrections system for the collective of inmates in
    the system; (b) the standard of care for running the whole system, even an
    evolving standard of care, can be determined; and (c) there is a proven failure
    to meet the standard of care;
i.e.
there is systemic negligence.

[26]

Lastly,
    the motion judge found that the claim was not precluded by the
Proceedings
    Against the Crown Act
, R.S.O. 1990, c. P.27, (
PACA
), or extinguished
    by virtue of the
CLPA
, which replaced the
PACA

on July
    1, 2019 with retroactive effect
.

[1]

[27]

Having
    found liability both in negligence and under the
Charter
, the motion
    judge then dealt with the issue of damages. With respect to the
Charter
,
    the motion judge rejected Ontarios position that a declaration of
    constitutional invalidity would be sufficient relief. He found, based in part
    on this courts conclusions about
Charter
damages in
Brazeau/Reddock
,
    that damages were appropriate for the
Charter
breaches that he had
    found.

[28]

The
    motion judge considered the difficulty in assessing the proper amount to award
    for damages for a breach of the
Charter
. In the end, he concluded that
    an award of aggregate damages in the amount of $30 million was appropriate. The
    motion judge declined to separately assess the damages for negligence, other
    than to say that any amount for damages for negligence would be subsumed in the
    award of aggregate damages for the
Charter
breaches. The motion judge
    declined to award punitive damages.


IV.

Analysis

[29]

We
    begin our analysis with the issues raised respecting the alleged
Charter
breaches. We do so because, in our view, the present claims more appropriately
    find their foundation in the
Charter
,
than in the law of
    negligence.

CHARTER
ISSUES

[30]

Ontario submits that the motion judge erred in holding the
Charter
rights of SMI Inmates were infringed by detention of any length in
    administrative segregation. Ontario also contends the motion judge erred in
    awarding
Charter
damages.

A. Did the motion judge err in finding that detaining SMI
    Inmates in administrative segregation violated ss. 7 and 12 of the
Charter
?

[31]

As
    outlined above, the class consisted of inmates who had been held in
    administrative segregation in Ontario jails between April 2015 and September
    2018. The class was divided into two groups:

·

SMI Inmates who were subjected to administrative segregation for
    any period of time; and

·

Prolonged Inmates who were subjected to administrative
    segregation for 15 or more consecutive days.

[32]

SMI Inmates
    were defined using two criteria. First, they had been diagnosed, either before
    or during their incarceration, as suffering from one or more of the mental
    disorders listed in the class definition. Second, their disorders had
    manifested themselves in one of the ways set down in the appendix to the class
    definition. These disorders included chronic and severe suicidal ideation,
    chronic and severe self-injury, and significant impairment in judgment,
    thinking, mood or communication.

[33]

The
    motion judge found that
:

·

any confinement of SMI Inmates in administrative segregation
    violated their rights under ss. 7 and 12 of the
Charter
;

·

the confinement of any inmate in administrative segregation for
    more than 15 consecutive days infringed their rights under ss. 7 and 12 of the
Charter
;
    and

·

absent an independent timely review procedure, confinement in
    administrative segregation of any inmate violated procedural due process rights
    under s. 7 of the
Charter
.

[34]

Ontario
    accepts the motion judges finding that administrative segregation for more
    than 15 consecutive days violates ss. 7 and 12 of the
Charter
. Ontario
    also accepts that the absence of a timely independent review process violates
    s. 7 of the
Charter
. Both
    concessions reflect the decision in
CCLA
, at paras. 2 and
    68, in which this court held detention in administrative segregation for more
    than 15 consecutive days violated s. 12.

The
    application judge in
CCLA
had held the absence of a timely independent
    review process violated s. 7:
Corporation of the Canadian Civil Liberties Association
    v. Her Majesty the Queen
, 2017 ONSC 7491, 140 O.R. (3d) 342 (
CCLA
    (ONSC)
), at paras. 155-156, revd on other grounds, 2019 ONCA 243. That
    finding was not challenged on the appeal to this court.

[35]

Ontario
    does submit, however, that the motion judge erred in holding the s. 7 and s.
    12 rights of SMI Inmates were breached when those inmates were placed in
    administrative segregation, regardless of the duration of that placement.
    Counsel submits that none of the previous administrative segregation cases have
    held that detention in administrative segregation for any period of time
    constitutes a
Charter
violation
.
    These cases include the motion judges own ruling in
Brazeau v. Attorney
    General (Canada)
, 2019 ONSC 1888, 431 C.R.R. (2d) 136, (
Brazeau
(
ONSC
)
), at paras. 313-318, revd on other grounds, 2020 ONCA 184.
    In
Brazeau (ONSC)
, the motion judge found the s. 7 and s. 12 rights of
    SMI Inmates were breached after 30 or 60 days of administrative segregation,
    depending on whether the segregation was voluntary or involuntary. Neither
    party took issue with that finding on the appeal to this court:
Brazeau/Reddock
.

[36]

Ontario
    further submits this court specifically declined in
CCLA
to find
that subjecting an inmate with
    mental illness to administrative segregation of any length breached the s. 12
    right of those inmates: at paras. 62-67. Ontario contends that the motion judge
    was bound by
CCLA
unless the evidence in this case was materially different
    on the relevant issue. Ontario argues there was no meaningful difference in the
    evidence.

[37]

We
    do not read
CCLA
as deciding this issue. In
CCLA
, the
    applicant sought a declaration that the sections of the
Corrections and
    Conditional Release Act
, S.C. 1992, c. 20, authorizing administrative
    segregation were unconstitutional and rendered of no force and effect by s. 52
    of the
Constitution Act, 1982
. Benotto J.A., for the court, concluded that
    detaining any inmate in administrative segregation for more than 15 consecutive
    days breached that inmates constitutional rights under s. 12 of the
Charter
:
    at paras. 4-5. She next considered whether administrative segregation, as it
    applied to certain specific identified groups of inmates, contravened the
Charter
.
    One group was described as inmates suffering from mental illness. After
    reviewing the provisions and policies referable to mentally ill inmates,
    Benotto J.A. said, at para. 66:

While I agree with the application judges resolution of the apparent
    conflict between CD-709 and the Act, I do not share his confidence about the
    efficacy of s. 87(a) in preventing serious harm to inmates with a mental
    illness. In principle, I agree with the CCLA that those with mental illness
    should not be placed in administrative segregation.
However,
    the evidence does not provide the court with a meaningful way to identify those
    inmates whose particular mental illnesses are of such a kind as to render
    administrative segregation for any length of time cruel and unusual
. I
    take some comfort in my view that a cap of 15 days would reduce the risk of
    harm to inmates who suffer from mental illness  at least until the court has
    the benefit of medical and institutional expert evidence to address meaningful
    guidelines. This issue therefore remains to be determined another day.
    [Emphasis added.]

[38]

In
    this case, unlike
CCLA
, the nature of the mental illnesses suffered by
    the class members and the manifestation of those illnesses were part of the
    class definition of SMI Inmates. SMI Inmates all suffer from diagnosed serious
    mental disorders. Furthermore, those disorders have manifested themselves in
    significant impairments and/or chronic and severe suicidal ideation or
    self-injury. In short, SMI Inmates are clearly seriously mentally ill.

[39]

By
    virtue of the class definition, the motion judge was required to consider, not
    the impact of administrative segregation on all inmates who might suffer some
    form of mental illness, but rather the impact on those who fell within the
    specific limits of the definition provided. That definition allowed the motion
    judge to identify those inmates whose particular mental illnesses are of such
    a kind as to render administrative segregation of any length of time cruel and
    unusual, as this court put it in
CCLA
, at para. 66.

[40]

The
    motion judge repeatedly referred to seriously mentally ill inmates in his
    findings. He clearly appreciated that all of the SMI Inmates suffered from
    serious, active, ongoing mental illnesses. It was in respect of that specific
    group the motion judge found any time spent in administrative segregation
    constituted cruel and unusual treatment.

[41]

Nothing
    in
CCLA
is inconsistent with the motion judges finding in respect of
    the SMI Inmates. To the contrary, as counsel for the respondent submitted, the
    words from
CCLA
, at para. 66
quoted above, presaged the very finding made by the motion judge in respect of
    the SMI Inmates.

[42]

Ontario
    also relies on the motion judges ruling in
Brazeau (ONSC)
, released
    about a year before his decision in this case.
Brazeau (ONSC)
was a
    class action brought by seriously mentally ill inmates confined in federal
    jails. The class definition in
Brazeau (ONSC)
was very similar to the
    definition of SMI Inmates in this case: see
Brazeau (ONSC)
, at paras.
    4-8.

[43]

In
Brazeau
    (ONSC)
, the plaintiffs argued that any period of administrative
    segregation breached the s. 7 and s.12 rights of the seriously mentally ill
    inmates who made up the class
:
at para. 12. The evidence in
Brazeau (ONSC)
was much the same as the
    evidence in this case.

[44]

In his ruling in
Brazeau (ONSC)
, the motion judge
    described the harm caused by administrative segregation to seriously mentally
    ill inmates as beginning almost immediately after the doors are shut on the
    isolation cell: at para. 313. He went on, however, to find the evidence
    established a breach of ss. 7 and 12 of the
Charter
on a class-wide
    basis only after 30 or 60 days, depending on whether the inmate had voluntarily
    gone into administrative segregation:
at
    paras. 312-314.

[45]

This court decided
CCLA
after the motion judges ruling in
Brazeau (ONSC)
. As indicated above,
CCLA
placed a 15-day cap on administrative segregation
    for all inmates. The 15-day cap set in
CCLA
overtook the motion judges finding in
Brazeau
    (ONSC)
, setting a 30 or 60-day cap in
    respect of seriously mentally ill inmates. Clearly, the physical and
    psychological harm caused by administrative segregation is exacerbated by
    serious mental illness. It must follow from the holding in
CCLA
that if all inmates suffer cruel and unusual
    treatment after 15 consecutive days in administrative segregation, seriously
    mentally ill inmates suffer cruel and unusual treatment at some point before 15
    days. The 30 and 60-day caps fixed in
Brazeau (ONSC)
had to be adjusted downward in light of
CCLA
.

[46]

In his reasons in this
    case, the motion judge acknowledged, at paras. 333-334, that after
CCLA
the administrative segregation of any inmate for
    more than 15 days was unconstitutional. He proceeded to determine, that in
    respect of SMI Inmates, administrative segregation for any period of time violated
    ss. 7 and 12. In light of the 30 and 60-day caps he had set in
Brazeau
    (ONSC)
, it might have been helpful for
    the motion judge to indicate why a cap of something less than 15 days in
    respect of SMI Inmates would not satisfy constitutional requirements. His
    failure to address that specific question does not, however, amount to
    reversible error.

[47]

The question for this
    court is not whether the motion judges findings are entirely consistent with
    his earlier findings in
Brazeau (ONSC)
. Nor is this court ultimately concerned with whether
    the motion judge adequately explained any inconsistency that may exist in his
    factual findings in the two cases. This ground of appeal turns on whether the
    motion judges finding, that placing SMI Inmates in administrative segregation
    for any period violates ss. 7 and 12, is justified in law and reasonably
    available on the evidence.

[48]

Ontario does not suggest
    the motion judge misstated the law relating to s. 7 or s. 12 of the
Charter
. His factual findings in respect of the SMI Inmates
    are supported by the evidence. In particular, the evidence of Dr. Chaimowitz
    and Dr. Grassian, reviewed at length by the motion judge, supports the finding
    that administrative segregation of SMI Inmates for any period of time violates
    their
Charter
rights
    under ss. 7 and 12. Nor does the motion judges different finding in
Brazeau
    (ONSC)
on virtually the same evidence
    compel the conclusion that his finding in this case cannot reasonably be
    supported by the evidence. With the benefit of the decision in
CCLA
, the motion judges error, if there be one, lies
    in the considerable leeway given to the correctional authorities by the 30
    and 60-day caps established in
Brazeau (ONSC)
:
Brazeau/Reddock
, at para. 70.

[49]

We would not interfere
    with the motion judges holding that the s. 7 and s. 12 rights of the SMI Inmates
    were breached when those inmates were placed in administrative segregation.

B. Did the motion judge err in awarding
Charter
damages?

[50]

The motion judge awarded aggregate
Charter
damages of $30 million, without prejudice to the
    right of each class member to claim further compensation in an individual
    issues trial. The motion judge also indicated, at paras. 618-620, that any
    damage award for negligence would be included in, and not in addition to, the
    $30 million award for
Charter
damages.

(i)

The context

[51]

Before turning to
    Ontarios argument that damages were not an appropriate and just remedy under
    s. 24(1) of the
Charter
,
    it is helpful to describe the regulatory scheme under which administrative
    segregation operates in Ontario jails and the nature of the
Charter
breaches giving rise to the claim for
Charter
damages.

[52]

Ontarios administrative
    segregation regime is not the direct product of legislation. There is no
    statute compelling the creation or use of administrative segregation in Ontario
    jails. Those jails are created and operated under the authority of the
Ministry
    of Correctional Services Act
. Sub-sections
    20(1.1), (2), and (3) make the Superintendent or a designated deputy superintendent
    responsible for the administration of the jail and the custody and supervision
    of the inmates. Section 60(1) creates a broad regulation-making power in
    respect of the management of correctional institutions and the treatment and
    control of inmates.

[53]

Regulation 778 addresses
    many aspects of the management and operation of provincial jails. Section 2(1)
    makes the Superintendent responsible for the care, health, discipline, safety
    and custody of the inmates. Section 34(1) empowers the Superintendent to place
    an inmate in segregation for various reasons, including inmate safety, the
    safety of others, or the security of the institution. Section 34.0.1 goes on to
    provide for internal reviews of the status of persons held in administrative
    segregation. Section 34(5) of the regulation contemplated administrative
    segregation for more than 30 consecutive days but was deleted in November 2019 when
    Regulation 778 was amended by
General
, O. Reg. 363/19. As the motion judge noted, at
    paras. 149-150, beyond these few provisions, the regulation sheds no light on
    the specifics of the administrative segregation regime, as operated in Ontario
    jails. There is not even a definition of segregation.

[54]

Through
    the years, including during the class period, Ontario issued various
    ministerial directives and policies fleshing out the details of its
    administrative segregation regime, as summarized by the motion judge, at paras.
    154-173. These directives and policies have, to some extent, ameliorated the
    conditions and circumstances giving rise to the
Charter
breaches the
    motion judge found. Unfortunately, as observed by the motion judge, at para. 269:
    Many inmates are placed in administrative segregation contrary to Ontarios
    own policy directives.

[55]

Whatever
    changes Ontario has made to its administrative segregation regime, and however
    faithfully those changes have been implemented, five fundamental facts crucial
    to the constitutional arguments remained constant features of administrative
    segregation, as practised in Ontario jails throughout the claim period:

·

administrative segregation, as practised in Ontario, fell
    squarely within the widely accepted definition of solitary confinement;

·

SMI Inmates could be placed in administrative segregation;

·

placement of inmates in administrative segregation was
    indefinite;

·

there was no hard cap limiting the maximum time period for
    which an inmate could be held in administrative segregation; and

·

no inmate held in administrative segregation had access to
    timely, independent reviews of that status.

[56]

The
    five facts set out above were crucial to the motion judges ultimate conclusion
    that the s. 7 and s. 12 rights of all inmates within the class were routinely
    and consistently infringed throughout the entire class period. The nature and
    seriousness of the
Charter
breaches identified by the motion judge,
    particularly the s. 12 breach, were necessarily central to whether damages
    provided an appropriate and just remedy for those
Charter
violations:
Brazeau/Reddock
, at para. 72
.

(ii)

Applicable legal principles

[57]

An
    examination of any claim to
Charter
damages begins with the oft-quoted
    words of McLachlin C.J.C in
Vancouver (City) v. Ward
, 2010 SCC 27, [2010]
    2 S.C.R. 28, at para. 4:

I conclude that damages may be awarded for a
Charter
breach under s. 24(1) where appropriate and just.
    The first step in the inquiry is to establish that a
Charter
right has been breached. The second step is to show
    why damages are a just and appropriate remedy, having regard to whether they
    would fulfil one or more of the related functions of compensation, vindication
    of the right, and/or deterrence of future breaches.
At the third step, the state has the opportunity to
    demonstrate, if it can, that countervailing factors defeat the functional
    considerations that support a damage award and render damages inappropriate or
    unjust
. The final step is to assess
    the quantum of the damages. [Emphasis added.]

[58]

The
    third step identified in
Ward
is the focus of this case. As explained
    in
Ward
, the Crown may defeat an otherwise viable claim to
Charter
damages by demonstrating
countervailing
    factors, rendering damages an inappropriate or unjust remedy: at para. 33.
Ward
refers to the availability of alternative remedies and concerns for good
    governance as two examples of countervailing factors: at paras. 32-38. Ontario
    relies on good governance concerns in its argument that damages are an
    inappropriate remedy in this case.

[59]

Ward
uses the terms good governance and effective governance interchangeably. It
    does not offer a definition of either. Generally speaking, good governance
    concerns describe the potentially negative impact of
Charter
damage
    awards on the conduct of state actors charged with the responsibility of
    enacting laws and implementing and enforcing those duly enacted laws. The
    concern is that state actors will be deterred from performing those functions
    if they fear that, at some future point, a court will declare those duly
    enacted laws unconstitutional and award damages for acts done relying on the
    authority of the now unconstitutional laws:
Ward
, at paras. 39-41;
Henry
    v. British Columbia (A.G.)
, 2015 SCC 24, [2015] 2 S.C.R. 214, at paras.
    39-41.

[60]

Ward
makes it clear that good governance concerns do not necessarily defeat a claim
    for damages. State conduct that is sufficiently blameworthy will give rise to
Charter
damages despite good governance concerns. For example, a law passed in bad
    faith will not be immunized from
Charter
damages by good governance concerns. To the contrary, awarding
Charter
damages for state actions based on laws enacted in
    bad faith promotes good governance. The
blameworthiness threshold
    referred to in
Ward
is not a single bright line but will vary with the
    nature of the state conduct giving rise, both to the
Charter
violations and the good governance claim
:
    see
Ward
, at paras. 39-43;
Brazeau/Reddock
, at paras. 66-67.

(iii)

The
Brazeau/Reddock Charter
damages analysis

[61]

The
Ward
principles governing
Charter
damages were considered
in the context
    of administrative segregation in federal prisons in
Brazeau/Reddock
. In the cases of both Mr. Brazeau and Mr. Reddock,
    the motion judge had awarded aggregate
Charter
damages of $20 million for breaches of ss. 7 and 12
    of the
Charter
:
Brazeau
    (ONSC)
, at para. 445;
Reddock
    v. Canada (Attorney General)
, 2019
    ONSC 5053, 441 C.R.R. (2d) 1 (
Reddock (ONSC)
), at paras. 397, 486, revd on other grounds, 2020
    ONCA 184. In Mr.
Reddock
s appeal, this court upheld that award in respect of
    inmates held in administrative segregation for more than 15 consecutive days:
Brazeau/Reddock
, at paras. 102-104. In Mr.
Brazeau
s
    appeal, this court agreed that seriously ill inmates who had been
    unconstitutionally held in administrative segregation were entitled to
Charter
damages. The court further determined that the
    motion judge attached certain improper conditions to the damage award he made.
    The court remitted that issue to the motion judge for reconsideration. He subsequently
    confirmed an award of $20 million in aggregate damages:
Brazeau/Reddock
, at paras. 105-113;
Brazeau v.
    Canada (Attorney General)
, 2020 ONSC
    3272.

[62]

The evidence, arguments
    and findings in
Brazeau/Reddock
relevant to the
Charter
damage claims were very similar to the evidence,
    arguments and findings made here. As in this case, the appropriateness of
    damages as a
Charter
remedy in
Brazeau/Reddock
turned on whether good governance concerns should preclude a damage award and,
    if so, whether the state conduct was sufficiently blameworthy to override those
    concerns. Finally, as in this case, the regulatory scheme in
Brazeau/Reddock
giving rise to the
Charter
breaches was an amalgam of general statutory powers,
    a broadly worded regulation, and a series of policies and operational decisions
    implemented by the correctional authorities.

[63]

Ontario accepts the
Brazeau/Reddock
analysis with one important exception. Ontario
    argues that, when considering the blameworthiness of Ontarios conduct for the
    purposes of step three in
Ward
, the court must consider only prior judicial pronouncements referable
    to the constitutionality of the conduct in issue. Ontario argues that the court
    in
Brazeau/Reddock
erred in looking to non-judicial sources, such as international norms, and the
    opinion and reports of experts, when assessing the blameworthiness of Ontarios
    conduct.

[64]

The respondent submits
    that, if good governance concerns are engaged,
Brazeau/Reddock
applies and fully supports the damage award made by
    the motion judge. The respondent also submits, relying on
Conseil
    scolaire francophone de la Colombie-Britannique v. British Columbia
, 2020 SCC 13, 447 D.L.R. (4
th
) 1 (
CSF
), that good governance concerns are not even in
    play because Ontarios administrative segregation regime is a product of executive
    decision-making and not any duly enacted laws.

(iv)

Is the
Brazeau/Reddock
analysis determinative?

[65]

The
Brazeau/Reddock
analysis is central to the
Charter
damage
arguments made
    in this case.
Brazeau/Reddock
follows the four-step trail cut in
Ward
:
Brazeau/Reddock
, at paras. 39-40, 46-72, 100-101. The court,
    applying earlier authority, accepted good governance concerns were not limited
    to actions flowing directly from the enactment of legislation, but could arise
    in the context of a regulatory scheme involving statutes, regulations, and
    government policies. The court said, at paras. 56 and 59:

We accept that at the third
    stage of the Ward test, the more general good governance concern does come into
    play in both
Brazeau
and
Reddock
. These are class-wide claims that do not rest upon
    proof of individual or specific acts of maladministration. They challenge the
    regulatory scheme and the systemic practices and policies adopted by the
    correctional authorities in the application of the [relevant legislation].



When a regulatory scheme is challenged, the state is entitled
    to assert that concerns for good governance immunity must be considered. The
    regulatory regime is the sort of policy choice for which, in the words of
Ward
,
    the state might seek to show that s. 24(1) damages would deter state agents
    from doing what is required for effective governance. [Citation omitted.]

[66]

Having determined that state
    actions done in the implementation of a regulatory scheme could give rise to
    good governance concerns, the court next considered, at para. 67, when those
    state actions would be viewed as sufficiently blameworthy to remove any
    legitimate good governance concerns:

As we are dealing with a regulatory
    regime premised on administrative segregation of indeterminate duration rather
    than legislation requiring that result, we consider it appropriate to apply the
    minimum threshold of fault described in
Ward
, namely, a clear disregard for the claimants
Charter
rights. [Citation omitted.]

[67]

Brazeau/Reddock
analogized the clear disregard standard to criminal law notions of
    recklessness and wilful blindness. Both concepts contemplate knowledge of a
    risk and unjustifiable risk-taking:
Brazeau/Reddock
, at para. 87.

[68]

Finally,
    the court turned to the evidence relevant to whether the correctional
    officials, on an institutional level, had been reckless or wilfully blind as to
    the unconstitutional effects of administrative segregation. The court referred
    to evidence offered by the respondent from a wide variety of international and domestic
    sources. That evidence revealed a well-established, longstanding consensus that
    prolonged administrative segregation, as well as administrative segregation of
    seriously mentally ill inmates, resulted in serious physical and psychological
    harm to those inmates:
Brazeau/Reddock
, at paras. 74-99. The court
    concluded, at para. 100:

In our view, Canadas failure to alter its administrative
    segregation policies in the face of this mounting and concerted criticism from
    the medical profession, a Royal Commission, a coroners inquest, the Correctional
    Investigator, and various international agencies meets the standard of a clear
    disregard for
Charter
rights.

[69]

On
    the findings of the motion judge in
Brazeau (ONSC)
and
Reddock
    (ONSC)
,
as confirmed by
    this court in
Brazeau/Reddock
, Canada maintained an administrative
    segregation regime in the face of overwhelming evidence that the regime
    imperiled the constitutional rights of inmates. Given the reckless disregard
    for those rights, Canada could not successfully advance good governance
    concerns in answer to the damage claim advanced by the inmates.

[70]

As
    set out above, Ontario takes issue with the
Charter
damage analysis in
Brazeau/Reddock
, only to the extent that the court looked to sources
    other than
Canadian judicial precedents when determining whether
    the state conduct showed a clear disregard for the constitutional rights of
    inmates. Ontario argues that the blameworthiness of its conduct had to be
    measured only against what Canadian courts had said about the constitutionality
    of administrative segregation. Ontario maintains the unconstitutionality of
    administrative segregation in Canada was not apparent until this courts
    decision in
CCLA
in March 2019, after the close of the class period.
[2]

[71]

Ontario,
    as an intervener, unsuccessfully made this argument in
Brazeau/Reddock
.
    Assuming we can and should reconsider the merits of the argument on this
    appeal, we are satisfied the argument must fail.

[72]

State conduct showing a clear disregard for the
    unconstitutional consequences of that conduct is the antithesis of good
    governance. As explained in
Brazeau/Reddock
, a finding that the state
    clearly disregarded the unconstitutional consequences of its actions is
    predicated on a finding of recklessness or wilful blindness. Both require an
    appreciation of the risk that the impugned state action will infringe
    constitutional rights. When deciding whether correctional authorities acted
    with a clear disregard for the unconstitutional consequences of their
    actions, it is appropriate to take into account reliable information available
    to correctional authorities which, as a matter of common sense and logic, sheds
    light on the existence and degree of the risk of unconstitutional consequences
    flowing from administrative segregation.

[73]

For
    example, there was a great deal of expert evidence speaking to the longstanding
    knowledge in Canada, and internationally, of the very serious harmful effects
    of solitary confinement, particularly on the seriously mentally ill. Similarly,
    the evidence was replete with studies, reports and recommendations indicating
    the consequences of solitary confinement fell within the meaning of cruel and
    unusual treatment, as the phrase is used internationally and in the
Charter
.
    Most of that information was readily available to correctional authorities and
    would inform their appreciation of the risk that administrative segregation in
    provincial jails caused physical and mental consequences falling within the
    meaning of cruel and unusual treatment and denied inmates procedural due
    process.

[74]

Ontario
    contends that, as only the courts can interpret and apply the constitution,
    only judicial pronouncements are relevant to whether state conduct shows a
    clear disregard for constitutional rights. There is no doubt only courts can
    authoritatively interpret the constitution. Constitutional interpretation is,
    however, not the same thing as assessing the degree of risk that a certain
    course of conduct will result in the infringement of constitutional rights. Ontario
    cannot turn a blind eye to overwhelming evidence of the unconstitutionality of
    its actions just because a court has yet to pronounce on that which is obvious.

[75]

Judicial
    pronouncements on the constitutionality of government action go further than
    identifying a risk of a constitutional violation. They establish the reality of
    the violation. Other kinds of evidence, while not capable of establishing a
    violation, provide a basis against which the risk that certain state conduct
    violates well-established constitutional norms can be assessed. Ontarios
    submission operates from the faulty presumption that the risk of constitutional
    breach can be measured only after the breach is formally proclaimed by way of
    judicial pronouncements.

[76]

Applying
    the third step in
Ward
, the motion
    judge had to
consider whether Ontario had demonstrated that good
    governance concerns made damages inappropriate. To establish the countervailing
    good governance concerns, Ontario had to show its conduct was not sufficiently
    blameworthy to negate any good governance concerns. In the context of a
    regulatory scheme, blameworthiness is equated with a clear disregard for the
    unconstitutional consequences of administrative segregation. To assess
    blameworthiness, the motion judge needed evidence about the physical and mental
    effects of administrative segregation on inmates, and what the correctional
    authorities could reasonably be taken to have known about those effects.

[77]

The
    respondent produced a substantial body of evidence from both national and
    international sources, demonstrating the serious harms flowing from
    administrative segregation. Much the same evidence was heard in
Brazeau/Reddock
.
    Like the motion judge in this case, and the court in
Brazeau/Reddock
,
    we are satisfied that Ontario was aware of the very real risk, if not the very
    real likelihood, that administrative segregation, as practised in Ontario
    jails, routinely violated the constitutional rights of inmates.

[78]

The information relied on in
Brazeau/Reddock
and by
    the motion judge in this case was properly considered in assessing the
    blameworthiness of Ontarios actions at the third step of the
Ward
inquiry. That material fully justified the conclusion that Ontarios clear
    disregard for the
Charter
rights
    of the inmates precluded any reliance on those good governance concerns.

[79]

The analysis to this point is enough to dispose of Ontarios
    appeal from the damages award. Simply put,
Brazeau/Reddock
controls.
    On that authority, damages for the
Charter
breaches were an appropriate and just remedy. We would affirm the
    damage award made by the motion judge. We note that the quantum of the damage
    award was not challenged on appeal.

(v)

Are good governance
    concerns in play?

[80]

While it is unnecessary
    for the purpose of determining the appeal, we will briefly address the
    respondents argument that good governance claims are not germane on the
    evidence adduced in this case. The respondent submits that administrative
    segregation in Ontario is the product of ministerial policies and management
    level operational decisions, rather than any specific statutory mandate. The
    respondent contends that good governance concerns arise only where state actors
    engage in conduct dictated by a statute which is subsequently held to be
    unconstitutional: see e.g.
Mackin v. New Brunswick (Minister of
    Finance)
, 2002 SCC 13, [2002] 1 S.C.R.
    405.

[81]

The motion judge
    accepted this argument, at para. 571:

[I]n the immediate case,
    Ontarios civil servants cannot take cover with the argument that they thought
    they were acting in accordance with a lawful law. The very rudimentary
    legislation, regulations, and policy directives, in Ontario that did authorize
    administrative segregation, did not compel the civil servants to operate
    administrative segregation in ways that breached sections 7 and 12 of the
Charter
. Thus,
Mackin
does not apply in the circumstances of the immediate case.

[82]

The
    motion judge is correct in indicating that there is no statutory provision
    mandating administrative segregation in Ontario jails. There is no statute that
    directs correctional authorities to use administrative segregation or directs
    correctional authorities as to how administrative segregation is to be used in
    controlling the prisoner population.

[83]

We also accept that, in cases in which there is a direct
    cause and effect between the statutory provision and the unconstitutional
    conduct, good governance concerns operate at their strongest: see e.g.
Mackin
.
    In
Brazeau/Reddock
, and other cases, this court has accepted the
    relevance of good governance arguments when unconstitutional state conduct is
    traced to a regulatory scheme that is part statute, part regulation, and part policy.
    The respondent submits the recent decision of the Supreme Court of Canada in
CSF
makes it clear that the good governance concerns
    identified in
Ward
apply only to actions taken to enforce a statutory provision.

[84]

CSF is the French
    language school board in British Columbia. It sued the British Columbia
    government, alleging that several aspects of the provincial educational funding
    provided to CSF infringed minority language educational rights under s. 23 of
    the
Charter
. The case
    was factually complex, to put it mildly. The trial judge found several
Charter
breaches, including one based on the failure of the
    government to adequately fund the transportation needs of CSF. The trial judge
    awarded
Charter
damages for that breach. The British Columbia Court of Appeal reversed, holding
    that good governance concerns rendered
Charter
damages an inappropriate remedy:
CSF
, at para. 49.

[85]

Wagner C.J.C., speaking
    for a seven-person majority, restored the trial judges award. The Chief
    Justice drew a distinction between actions or decisions made under laws that
    were duly enacted, but subsequently declared to be invalid, and actions taken
    pursuant to the governments own policies. He explained, at para. 177, that only
    actions taken under duly enacted legislation could be shielded from
Charter
damages by good governance concerns:

The enactment of laws is
    the fundamental role of legislatures, and the courts must not act so as to have
    a chilling effect on the legislatures actions in this regard. When the
    legislative branch enacts a law, it confers powers on the executive branch. In
    contrast, a ministers decisions respecting school transportation are not a
    source of duty for the government in the same way as a law. When the
    executive branch adopts a government policy, it confers powers on itself. In
    light of this distinction, there is good reason not to extend the limited
    government immunity to government policies.

[86]

The
    two-person dissent took issue with the distinction made between laws and
    government policies. The dissent saw good governance concerns as relevant to
    state action intended to carry out the functions of government. Those functions
    could be carried out by way of statutory enactments, but also by way of government
    policies. The minority opined, at para. 294:

Again, the focus should not be on the
vehicle
of
    state action but rather the
purpose
of the immunity. Whether the state
    acts through legislation, regulations, or policies, the rationale behind the
    immunity is that the state should be able to carry out its functions without
    the threat of damages, absent some threshold of misconduct. Policymaking is
    clearly a key state function.

[87]

The
    Chief Justices reasons in
CSF
, distinguishing between actions in
    furtherance of a statutory authority and government policies, make the argument
    advanced by the respondent and accepted by the motion judge more formidable. It
    is difficult, however, to know, based on
CSF
, where the line is drawn
    between state action taken in furtherance of policies and state action made or
    taken under laws. In
CSF
, at para. 169, the Chief Justice quoted, with
    approval, from
Ward
, at para. 40:

[T]he state must be afforded some immunity from liability in
    damages resulting from the conduct of certain functions that only the state can
    perform.
Legislative and policy-making functions are one
    such area of state activity. The immunity is justified because the law does not
    wish to chill the exercise of policy-making discretion
. [Emphasis
    added.]

[88]

In
CSF
,
    at para. 169, the Chief Justice explained that the references to
    policy-making in
Ward
referred to government policies that are
    based on laws.
CSF
contemplates that some action based on government
    policies can raise good governance concerns.

[89]

We
    would think that most government policies are based on laws in some way or
    another. The connection between a duly enacted law and a policy may be much
    more tenuous in some circumstances than others. Certainly, the link between
    Ontarios administrative segregation regime and any statutory authority is
    tenuous. It may be, as the link between government action and duly enacted
    legislation becomes more tenuous or indirect, the level of blameworthiness of
    the state conduct needed to negate good governance concerns will decrease.

[90]

In
    some cases, the evidence may go so far as to show no meaningful connection
    between any statutory authority and the governmental policies giving rise to
    the unconstitutional actions. In that case, it cannot be said that any state
    actor relied on a statutory authority to do anything. The good governance
    concerns described in
Ward
are predicated on an assumed reliance on
    some statutory authority as the justification for the impugned state conduct.

[91]

It
    may be that the majority in
CSF
intended to limit good governance
    concerns to cases like
Mackin
,
    where the unconstitutional conduct is compelled by the terms of the statute
.
    The majority does not, however, say so, and its approving reference to passages
    from
Ward
, which specifically include government policies, suggests
    otherwise. Nor does the analysis of the majority in
Henry
, a case
    where the unconstitutional conduct flowed from prosecutorial misconduct,
    support limiting good governance concerns to cases like
Mackin
.

[92]

In
    our view, the law in Ontario remains as set down in
Brazeau/Reddock
. Good governance concerns
at step three
    of
Ward
may be raised
if government policies, which precipitated unconstitutional actions, can be
    sufficiently connected to statutory provisions (or perhaps provisions in a
    regulation): see
CSF
, at para. 178.

[93]

As
    it is unnecessary to attempt a definitive interpretation of
CSF
for
    the purposes of this appeal, we decline to do so. The
Charter
damages
    award is fully justified on the
Brazeau/Reddock
analysis.

THE
    NEGLIGENCE CLAIM

[94]

While
    it is not technically necessary to consider the negligence claim in light of
    our conclusions regarding the
Charter
claim, we do so for the sake of
    completeness, recognizing that the matter was analyzed in detail by the motion
    judge and was fully argued before us. We are also conscious of the fact that
    another court might reach a different conclusion on the
Charter
issues
    and would then need to address the claim in negligence. It may also transpire
    that another court would take a different view of whether the damages award for
Charter
breaches should or should not subsume the damages award for
    negligence.

C. Did the motion judge err in holding Ontario liable in
    negligence?

[95]

Ontario
    submits that the motion judge erred in finding that a duty of care arose out of
    Ontarios statutory duties and in finding that the respondents claim was not
    extinguished or precluded by the
CLPA
or the
PACA
respectively.

(vi)

The foundation for the negligence claim

[96]

The
    motion judge undertook a lengthy review of the arguments surrounding whether a
    systemic negligence claim could be made out against Ontario on the facts of
    this case. He ultimately concluded that it could. The motion judge found that a
    duty of care arose from Ontarios statutory duties and its relationship with
    the inmates.

[97]

Ontario
    challenges that conclusion largely on the basis that this court had already
    determined in
Brazeau/Reddock
that a systemic negligence claim could
    not be established. We note that
Brazeau/Reddock
dealt with the
    federal correctional system, not the provincial correctional system.

[98]

We
    do not agree that this courts decision in
Brazeau/Reddock
has
    predetermined the outcome in this case. The decision in
Brazeau/Reddock
turned principally on the way in which the plaintiff had pleaded his case. In
    particular, this court found that the plaintiff had rested his systemic
    negligence claim on a pleading that challenged what this court found to be
    policy decisions. Since policy decisions are immune from suit, the negligence claim
    in that case had to fail. This court said, at para. 120:

The primary negligence claim in the amended statement of claim
    is negligence at the policy-making level. Negligence at the operational level
    is alleged as an alternative and that would turn on individual circumstances.
    Negligence at the policy level leads directly to the
Edwards
,
Cooper
,
    and
Eliopoulos
exclusion of a duty of care for matters of policy.

[99]

The
    pleadings in this case are different from the ones in
Brazeau/Reddock
.
    That difference arises in two respects. The first involves the class definition
    in this case. The class comprises two groups, as we have set out above  SMI Inmates
    who were subjected to administrative segregation for any length of time and Prolonged
    Inmates who were subjected to administrative segregation for periods of 15 or
    more consecutive days. The class does not include all the other inmates who may
    have been subject to administrative segregation in different circumstances or
    for different reasons.

[100]

The second difference
    is that the amended statement of claim in this case focuses on the
    implementation of administrative segregation in Ontario institutions. It relies
    on decisions and actions that are of an operational nature. Indeed, the amended
    statement of claim makes frequent reference to Ontarios responsibility for the
    operation of its correctional facilities. Specific allegations are made
    respecting negligence in operational decisions including:

·

failing to remove class members from administrative segregation
    in a timely fashion in order to avoid permanent injury;

·

over-relying on administrative segregation for administrative
    purposes within the correctional institutions;

·

failing to investigate or report ongoing harm suffered by class
    members;

·

failing to adequately supervise the correctional institutions,
    including their administration and activities;

·

failing to adequately, properly, and effectively, supervise the
    conduct of its employees, representatives, and agents to ensure that the class
    members would not suffer unreasonable harm; and

·

failing to properly exercise discretion in determining an
    appropriate length of time for class members to spend in administrative segregation.

[101]

Based on these, and
    other, allegations of negligence, and in reliance on the evidence before him,
    the motion judge concluded, at para. 449:

In the immediate case, Ontario was systemically and routinely
    negligent in the operation of administrative segregation in violation of
    Ontarios own policies and practices.

[102]

As we have said, the
    motion judge engaged in a lengthy analysis of whether a duty of care arose in
    this case. We generally agree with that analysis. On the first branch of the test
    from
Cooper v. Hobart
, 2001 SCC 79, [2001] 3 S.C.R. 537, the
prima

facie
duty test, there is clearly a close relationship between
    Ontario and the inmates (i.e. proximity) that would support a basis for finding
    a duty of care. It is well-established that governments owe a duty of care to
    individuals while they are in custody:
MacLean v. The Queen
,
[1973]
    S.C.R. 2, at p. 7. Ontario does not dispute that is the case.

[103]

It follows, from the
    nature of the relationship, that actions taken which result in injury to an
    inmate could be reasonably foreseeable. Again, that is accepted to be the case
    on an individual basis, and we see no principled reason why that could not be
    the case on a class basis. If identical action is taken regarding the inmate
    population, or a subset of that population, and harm results, it is as
    foreseeable on a group-wide basis as it is on an individual basis.

[104]

That then leads to the
    second branch of the
Cooper v. Hobart
test, which is whether there are
    residual policy considerations that would militate against a finding of a duty
    of care. Those considerations lead to the issue of policy versus operational matters,
    about which we will have more to say when we come to the next issue, that is, the
    application of the
CLPA
. At the risk of foretelling our conclusion on
    that issue, we will say that we view the actions taken in this case, that form
    the basis of the negligence claim, to be tied to operational as opposed to
    policy matters.

[105]

As earlier noted, this
    court ruled against a systemic negligence claim in
Brazeau/Reddock
because
    it found, at para. 120: Rather, the duty alleged arises from different acts in
    different circumstances and in relation to different individuals.

[106]

As we have mentioned
    above, the actions alleged in this case do not constitute different acts in
    different circumstances. Rather, what is challenged, at the very core of this
    claim, is the same act being undertaken, that is, placing inmates in
    administrative segregation in two specific circumstances where it is said that injury
    will naturally result. The first circumstance is where SMI Inmates are placed
    in administrative segregation for any length of time. The second circumstance
    is where Prolonged Inmates are placed in administrative segregation for a
    period of 15 or more consecutive days. The expert evidence establishes that both
    of these actions will give rise to injury or harm to each and every involved individual.

[107]

There is no reason in
    principle to adopt an approach to these claims that requires each individual
    inmate to commence their own action in order to seek relief for the resulting
    harm. Indeed, such a result would run counter to the very purpose behind the
Class
    Proceedings Act, 1992
, S.O. 1992, c. 6.

[108]

Such a result would
    also be contrary to the approach taken in other similar types of claims. The
    motion judge refers to two such examples. In
Rumley v. British Columbia
,
    2001 SCC 69, [2001] 3 S.C.R. 184, the Supreme Court of Canada upheld a class
    action which alleged systemic negligence in the operation of a residential
    school for the deaf and blind. Similarly, in
Cloud v. Canada (Attorney
    General)

(2004), 73 O.R. (3d) 401 (C.A.), leave to appeal refused,
    [2005] S.C.C.A. No. 50, this court certified a class action involving a claim
    of systemic negligence in the operation of a residential school.

[109]

In both of those
    cases, the same obstacle was sought to be erected to allowing a class claim,
    that is, that the individual circumstances would have to be examined in order
    to determine whether the duty of care had been breached. In both cases, that effort
    failed. As McLachlin C.J.C. said in
Rumley
, at para. 30:

The respondents assert, for example, that JHS did not have
    policies in place to deal with abuse, and that JHS acted negligently by placing
    all residential students in one dormitory in 1978. These are actions (or
    omissions) whose reasonability can be determined without reference to the
    circumstances of any individual class member.

[110]

Similarly, in this
    case, the actions of Superintendents directing, or allowing, the SMI Inmates
    and the Prolonged Inmates to be subjected to administrative segregation can be
    determined without reference to their individual circumstances. In other words,
    those actions are capable of being determined on an institution-wide basis
    through the institutions own records. The institution's records will establish
    which inmates were subjected to administrative segregation and, of those
    individuals, who falls within either the SMI Inmates or Prolonged Inmates
    groups. We repeat that the expert evidence then establishes that harm will be
    occasioned to each and every individual in both of those groups. While
    individual circumstances may ultimately be relevant to the proof of individual
    levels of damages, they are not required for proof of a breach of the duty of
    care on a system-wide basis, nor are they required for determining a base level
    of damages applicable to all:
Good v. Toronto (Police Services Board)
,
    2016 ONCA 250, 130 O.R. (3d) 241, at para. 75, leave to appeal refused, [2016]
    S.C.C.A. No. 255.

(vii)

The
Crown

Liability

and Proceedings
    Act, 2019

[111]

Having determined that
    a claim of systemic negligence does lie in this case, we must address Ontarios
    submission that any such claim is barred by virtue of the
CLPA
.

[112]

On April 11, 2019, the
    provincial government tabled Bill 100,

An Act to implement Budget
    measures and to enact, amend and repeal various statutes
, 1st Sess., 42nd
    Parl., Ontario, 2019,

its omnibus budget bill, the short title of which
    was 
Protecting What Matters Most Act (Budget Measures), 2019
. In
    keeping with what appears to have become a practice in recent times, Bill 100 did
    not deal solely with budget matters. Rather, the Bill was 178 pages long,
    contained 61 schedules, and affected 199 separate statutes. Included in Bill
    100, as schedule 17, was the
CLPA
. Bill 100 received Royal Assent on
    May 29, 2019.

[113]

Sections 11(4) and 11(5)
    of the
CLPA
are of particular relevance to the issue in this case.
    They read:

(4) No cause of action arises against the Crown or an officer,
    employee or agent of the Crown in respect of any negligence or failure to take
    reasonable care in the making of a decision in good faith respecting a policy
    matter, or any negligence in a purported failure to make a decision respecting
    a policy matter.

(5) For the purposes of subsection (4), a policy matter
    includes,

(a)  the creation, design, establishment, redesign or
    modification of a program, project or other initiative, including,

(i)  the terms, scope or features of the program, project
    or other initiative,

(ii)  the eligibility or exclusion of any person or entity
    or class of persons or entities to participate in the program, project or other
    initiative, or the requirements or limits of such participation, or

(iii)  limits on the duration of the program, project or
    other initiative, including any discretionary right to terminate or amend the
    operation of the program, project or other initiative;

(b)  the funding of a program, project or other initiative,
    including,

(i)  providing or ceasing to provide such funding,

(ii)  increasing or reducing the amount of funding
    provided,

(iii) including, not including, amending or removing any
    terms or conditions in relation to such funding, or

(iv)  reducing or cancelling any funding previously
    provided or committed in support of the program, project or other initiative;

(c)  the manner in which a program, project or other initiative
    is carried out, including,

(i)  the carrying out, on behalf of the Crown, of some or
    all of a program, project or other initiative by another person or entity,
    including a Crown agency, Crown corporation, transfer payment recipient or
    independent contractor,

(ii)  the terms and conditions under which the person or
    entity will carry out such activities,

(iii)  the Crowns degree of supervision or control over
    the person or entity in relation to such activities, or

(iv)  the existence or content of any policies, management
    procedures or oversight mechanisms concerning the program, project or other
    initiative;

(d)  the termination of a program, project or other initiative,
    including the amount of notice or other relief to be provided to affected
    members of the public as a result of the termination;

(e)  the making of such regulatory decisions as may be
    prescribed; and

(f)  any other policy matter that may be prescribed.

[114]

The
    legislation speaks to whether it applies to any current or future claim.
    Section 11(8) provides that a proceeding that may not be maintained under
    subsection (7) is deemed to have been dismissed, without costs, on the day on
    which the cause of action is extinguished under subsection (1), (2), (3) or (4).
    Further, s. 31(4)
provides that [s]
ection 11 and the
    extinguishment of causes of action and dismissal of proceedings under that
    section apply with respect to proceedings commenced against the Crown or an
    officer, employee or agent of the Crown before the day this section came into
    force. Simply put, the legislation has immediate and retroactive effect.

[115]

The motion judge
    considered the application of the
CLPA
and concluded that it did not
    preclude the respondents claim for systemic negligence. In reaching that
    conclusion, the motion judge found that the
CLPA
simply codified the
    existing law regarding Crown immunity and the policy/operational dichotomy that
    rendered the Crown immune from liability for the former, but not the latter.
    The motion judge also found that Ontarios conduct in this case was operational
    in nature, not a policy matter.

[116]

Ontario challenges the
    motion judges conclusion that the
CLPA
simply codifies the existing
    law on Crown immunity. Ontario says that, while a goal of the statute was to
    codify existing law, it was also a goal of the statute to clarify the
    existing law. In particular, Ontario argues that the statute intended to
    clarify what constitutes a policy matter as opposed to an operational matter.

[117]

In support of its
    submissions on the proper interpretation, Ontario points to one case that has
    since been decided under the
CLPA
, namely,
Seelster Farms v. Her
    Majesty the Queen and OLG
, 2020 ONSC 4013, 68 C.C.L.T. (4th) 104, where
    Emery J. said, at para. 117:

The
CLPA
removes the distinction between decisions
    that are policy decisions, and decisions that are operational in nature, made
    for the purpose of implementing or carrying out a government policy or program.
    The language used in [subsection 11(5)(c)] extends the traditional immunity
    afforded to policy decisions to those decisions made to implement a policy
    matter to decisions that include the termination of that policy, and any notice
    or other relief claimed by affected parties. The lines of analysis have been
    moved by the
CLPA
for the purpose of determining Crown immunity from
    questioning whether the decision was one of policy or if it was operational in
    nature, to whether it was made in good faith.

[118]

With respect, the
    above language does not clarify the policy/operational dichotomy; it eliminates
    it.

[119]

The respondent says
    that the decision in
Seelster Farms
stands alone in its interpretation
    of the
CLPA
. The intervener, Canadian Civil Liberties Association,
    agrees. It points to three other cases 
Barker v. Barker
, 2020 ONSC
    3746, at paras. 1262-1263;
Cirillo v. Ontario
, 2020 ONSC 3983, at para.
    13; and
Leroux v. Ontario
, 2020 ONSC 1994, 63 C.C.L.T. (4th) 219, at
    para. 29  in which the opposite conclusion was reached or, at least, intimated.
    As will become apparent, we do not share the view expressed in
Seelster

Farms
as to the effect of the legislation, although we understand
    how that view could arise on the face of the wording used in s. 11.

[120]

The respondent buttresses
    his position as to the intention of the legislation by pointing to the
    explanation given by the Attorney General at the time that the legislation was
    introduced. The Attorney General told the Legislature, in part, that: In this
    case what the legislation does is it codifies existing case law set by the
    Supreme Court that states that good faith policy decisions by governments are
    not judiciable in this case.
[3]

[121]

Ontario responds by
    saying that the comments made by the Attorney General must be read in their
    entire context and repeats the fact that the Attorney General also explained
    that the legislation was intended to clarify the current state of the law.

[122]

We approach our
    analysis of this issue with two specific principles of statutory interpretation
    in mind. They are:

·

The words of an Act are to be read in their entire context and in
    their grammatical and ordinary sense harmoniously with the scheme of the Act,
    the object of the Act, and the intention of Parliament:
Rizzo & Rizzo
    Shoes Ltd. (Re)
,
[1998] 1 S.C.R. 27, at para. 21.

·

There is a presumption that the common law remains unchanged
    absent a clear and unequivocal expression of legislative intent:
Canada (Attorney
    General) v. Thouin
,
2017 SCC 46, [2017] 2 S.C.R. 184, at para. 19.

[123]

In considering the
    proper interpretation of the statute, we are also mindful of the genesis of
    statutes that address the issue of Crown immunity from suit. That genesis was explained
    in
Just v. British Columbia
, [1989] 2 S.C.R. 1228, where Cory J. said,
    at p. 1239:

The early governmental immunity from tortious liability became
    intolerable. This led to the enactment of legislation which in general imposed
    liability on the Crown for its acts as though it were a person. However, the
    Crown is not a person and must be free to govern and make true policy decisions
    without becoming subject to tort liability as a result of those decisions. On
    the other hand, complete Crown immunity should not be restored by having every
    government decision designated as one of "policy".

[124]

In our view, Ontarios
    submission as to the proper interpretation of the
CLPA
comes
    perilously close to adopting precisely what Cory J. cautioned against, that is,
    characterizing every government decision as policy. This results from the interpretation
    that Ontario asks be given to s. 11, and, more particularly, to these words
    from s. 11(5)(c): the manner in which a program, project or other initiative
    is carried out.

[125]

Ontarios
    interpretation would give those words almost limitless application which would,
    in turn, dramatically change the current state of the law. Indeed, Ontario accepts
    that, at common law, decisions as to how government programs are to be carried
    out might well have been characterized as operational decisions to which no
    immunity applies. However, Ontario submits that the intent of s. 11(5)(c) is to
    reverse that situation. That result would give a rather expansive meaning to
    the word clarify.

[126]

Ontario then attempts
    to limit the consequences of this submission by saying that it does not seek to
    immunize all government action from negligence claims as many government acts
    and omissions do not fall within its ambit. Ontario does not, though, explain how
    its submission as to the proper interpretation of the statute would allow for
    that result.

[127]

It is s. 11(5)(c) of
    the
CLPA
that is at the heart of the interpretive issue. We would not
    give it the broad interpretation that Ontario urges in this case. We reach that
    conclusion for a number of reasons. First and foremost is the principle, that we
    set out above, that there is a presumption that the common law remains
    unchanged absent a clear and unequivocal expression of legislative intent. In our
    view, the combination of ss. 11(4) and (5) fails to achieve that clear and
    unequivocal expression. Sub-section 11(4) expressly references matters of
    policy. Sub-section 11(5) then purports to define what a policy matter may include.
    It follows that this definition must be predicated on maintaining the
    policy/operational separation. Had the intention been to do otherwise, the
    legislation could have expressly said so. For example, s. 11(5)(c) could have
    opened with the manner in which a program, project or other initiative is
    carried out,
including operational decisions regarding
, if the intent
    had been to expand the policy label to the extent that Ontario now submits.

[128]

Second, to adopt
    Ontarios expansive meaning of s. 11(5)(c) of the
CLPA
would directly
    offend the purpose behind statutes limiting Crown immunity, as explained by
    Cory J. in
Just
. There is, in fact, no limitation to the effect of the
    expansive meaning urged by Ontario in this case. Its logical conclusion would
    include virtually any step taken by the provincial government in carrying out any
    program, project or other initiative. Indeed, this is precisely the conclusion
    reached in
Seelster

Farms
. The difficulty with that
    approach is aptly expressed by McLachlin C.J.C. in
R. v. Imperial Tobacco
    Canada Ltd.
,
2011 SCC 42, [2011] 3 S.C.R. 45, at para. 76: [e]xempting
    all government actions from liability would result in intolerable outcomes.

[129]

Third, to adopt
    Ontarios expansive meaning would require a conclusion either that the Attorney
    General, at the time, did not understand the effect of the legislation being
    introduced, or that she misled the Legislature as to its intention and effect.
    Neither of those conclusions should be drawn absent there being no alternative
    explanation. In contrast, an interpretation of the
CLPA
that maintains
    the existing separation between policy decisions and operational decisions takes
    the Attorney General at her word.

[130]

Applying that approach
    to this case, we accept that the provincial government can adopt a policy of
    using administrative segregation in its correctional facilities. That is a
    policy matter, and its advisability is a matter for the government alone to
    determine, albeit within limits. We also consider it to be a policy matter for
    the government to decide who will implement administrative segregation, in the
    sense that it is open to the government to delegate the details and manner of
    implementation of the policy to the Superintendents of the various correctional
    facilities, as opposed to having those details determined, for example, by the
    relevant Ministry officials.

[131]

However, how the
    policy is actually applied, that is, its process at ground level, is not a policy
    matter. That is an operational matter, like any number of other operational
    matters that the Superintendent of a correctional institution has to determine
    on a day-to-day basis.

[132]

This line between
    policy and operational matters may be illustrated by adapting an example used
    by counsel for the Canadian Civil Liberties Association. If the provincial
    government decides that it wishes to provide public transit between two towns
    in Ontario, that is a policy decision. If the provincial government decides that
    it is going to provide that public transit through buses rather than trains,
    that is also a policy decision. However, how those buses actually transport
    people is an operational matter.

[133]

This conclusion is, in
    our view, consistent with the prevailing authorities on the distinction between
    policy and operation  admittedly a distinction that courts have found
    notoriously difficult to decide:
Imperial Tobacco
,

at para. 78.

[134]

A review of the case
    law demonstrates that government immunity from tort claims relates only to what
    is referred to as true or core policy decisions. The rationale for this
    immunity was to allow governments ample scope to make decisions based upon
    social, political and economic factors, without being exposed to tort liability
    for those decisions.

[135]

In discussing this
    point in his reasons in
Just
, at pp. 1241-42, Cory J. references the
    decision of the High Court of Australia in
Sutherland Shire Council v.
    Heyman
, [1985] HCA 41, 157 C.L.R. 424, at paras. 38-39,
per

Mason
    J., which also discussed the policy/operation distinction. In that decision, it
    was noted that budgetary allocations and constraints cannot be the subject of a
    tort claim. However, the court noted that it would be different when a court is
    called upon to review action or inaction that is merely the product of
    administrative direction.

[136]

The decision in
Just
went on to consider other situations, including the inspections of lighthouses or
    aircraft manufacturing, and the difference between decisions regarding the
    funding of such inspections (policy) and the conduct of those inspections
    (operation). In applying these principles to the facts of the case before him,
    which was the inspection of a rock slope beside a highway, Cory J. found that
    the inspections were manifestations of the implementation of the policy
    decision to inspect and were operational in nature: at p. 1246.

[137]

The policy/operation
    distinction was also discussed in
Imperial

Tobacco
. In
    explaining the distinction, McLachlin C.J.C. again focussed on whether the
    decision in question was the result of social, economic, and political
    considerations: at para. 87. McLachlin C.J.C. concluded on the issue of policy
    as follows, at para. 90:

I conclude that "core policy" government decisions
    protected from suit are decisions as to a course or principle of action that
    are based on public policy considerations, such as economic, social and
    political factors, provided they are neither irrational nor taken in bad faith.

[138]

McLachlin C.J.C. also repeated
    the observation, from U.S. case law, that employees working at the operational
    level are not usually involved in making policy choices: at para. 89.

[139]

In our view,
    Superintendents (or their staff) are such employees. Regulation 778 reflects a
    policy of permitting administrative segregation. However, in deciding to place class
    members in administrative segregation, Superintendents were implementing that
    policy and, thus, their decisions were operational in nature. In doing so, we
    would note, their decisions did not revolve around social, economic or
    political considerations.

[140]

In this case, s.
    11(5)(c) of the
CLPA
does not protect Ontario from the actual results
    that flow from the implementation of its administrative segregation policy. On
    that point, we note that Regulation 778 does not contain any definition of what
    constitutes segregation, nor does it impose any caps on the length of such
    segregation or stipulate the manner in which segregation is to be affected, nor
    does it cover a myriad of other matters regarding how segregation will actually
    be employed. All of these details are left for the individual Superintendent to
    determine.

[141]

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. This negligence could include applying segregation in
    a manner that constitutes solitary confinement; applying segregation to
    seriously mentally ill inmates; imposing segregation for periods of 15 days or
    more on any inmate; and other like decisions that run contrary to established
    medical evidence as to the consequences. Such a result is beyond the reach of any
    expanded definition of policy contained in s. 11(5)(c) of the
CLPA
as we
    would interpret it.

(viii)

The
Proceedings Against the Crown Act

[142]

One last technical
    point needs to be addressed with respect to this issue. Ontario asserts that
    the respondents claim is fundamentally flawed because it does not advance
    specific allegations of tortious conduct by individual Crown servants, for whom
    Ontario would be vicariously liable. Rather, Ontario says that the claim
    advanced is effectively one of direct liability from which Ontario is immune
    under s. 5 of the
PACA
.
[4]
Ontario is only liable for indirect claims, under s. 5(1), which reads, in
    part:

[T]he Crown is subject to all liabilities in tort to which, if
    it were a person of full age and capacity, it would be subject,

(a) in respect of a tort committed by any of its servants or
    agents;

[143]

The motion judge addressed
    this argument in his reasons and rejected it. He said, at para. 485:

The discussion above shows that the case at bar is about the
    operational decisions of Ontario's civil servants not about core policy
    decisions, which is another way of saying that the case at bar is not a direct
    negligence claim precluded by Crown immunity. The discussion above about
    systemic negligence reveals that it is not necessary to name the individual
    civil servants whose collective conduct led to a system-wide breach of the duty
    of care and system-wide harm to the collective of inmates.

[144]

We agree with the
    motion judges determination of this issue. On a fair reading of the amended
    statement of claim, it is clear that the allegations being made against Ontario
    arise from its vicarious liability for the negligent acts of its servants. The
    amended statement of claim expressly references Regulation 778, by which
    administrative segregation decisions are left to the individual
    Superintendents. It is also clear from the amended statement of claim that the
    negligent acts are those of servants of Ontario. It is axiomatic to point out
    that Ontario can only operate through the actions of individuals.

[145]

There is no absolute
    requirement that the individual servants of the Crown, who undertake the
    negligent acts, must be named in the proceeding. Section 5(2) of the
PACA
simply says that no proceeding can be brought against the Crown unless a
    proceeding in tort in respect of such act or omission
may
be brought
    against that servant or agent (emphasis added). The section does not require
    that the proceeding
must
be brought against that servant or agent.

[146]

We accept that best
    practices in pleadings might suggest that the negligent individual, from whom
    vicarious liability arises, be named as a party, at least in a case where only
    one event or individual is involved. However, this is a class proceeding in
    which collective claims are made. As the motion judge pointed out, it is
    impractical to expect a representative plaintiff, advancing a claim covering a
    class period of almost three and one-half years, with class members in 32
    correctional institutions, to name all of the individuals involved in the
    collectively negligent acts.

[147]

As an alternative,
    best practices in pleadings might suggest naming a John and Jane Doe to
    represent all of those individuals in such situations, but the failure to do so
    is not fatal to the claim. On this point, we repeat the often-cited principle
    that a statement of claim is to be read as generously as possible and to
    accommodate any inadequacies in the form of the allegations which are merely
    the result of drafting deficiencies
: Operation Dismantle Inc. v. The Queen
,
    [1985] 1 S.C.R. 441, at p. 451.


V.

CONCLUSION

[148]

The appeal is dismissed.
    The respondent is entitled to his costs of the appeal in the agreed amount of
    $50,000 inclusive of disbursements and HST.

Released: March 31, 2021 D.D.

Doherty J.A.

I.V.B. Nordheimer
    J.A.

I agree. Harvison
    Young J.A.





[1]
As discussed later in these reasons, s. 11 of the
CLPA

extinguishes certain claims that
    were commenced before the
CLPA

came
    into force.



[2]
It should be noted that the applica
tion judge in
CCLA
had found a breach
    of inmates procedural due process rights in his reasons released in December
    2017:
CCLA (ONSC)
, at para. 155.



[3]
Ontario, Legislative Assembly,
Official Reports of Debates (Hansard)
, 42nd
    Parl., 1st Sess., No. 97 (29 April 2019), at p. 4555 (Hon. Caroline Mulroney).



[4]

Section 31(3) of the
CLPA

continues the
    application of the
PACA
to claims made prior to s. 31 coming into force.


