On August 23, 2016, Justice Grace released his decision, Johnson v. Ontario,[1] certifying a class of inmates in their action against the Ontario Government. The plaintiff class claims against the Ontario Government for systemic negligence, assault, battery, breaches of fiduciary duty and breaches of sections 7 and 12 of the Canadian Charter of Rights and Freedoms. Johnson is one of a long line of institutional abuse cases certified in Canada and has implications for class actions against governments alleging systemic wrongdoings.

The action arises out of facts reminisce of HBO’s latest series “The Night Of”, a crime drama that explores the institutional issues within the United States’ prison system. Instead of Rikers Island in New York, Johnson deals with the Elgin-Middlesex Detention Centre (“EMDC”) in London, Ontario. The representative plaintiff, Mr. Johnson, alleges that he was subject to threats, assaults, inadequate medical attention and overcrowding while housed at EMDC.

Justice Grace certified the issues of systemic negligence and breaches of ss. 7 and 12 of the Charter, since these issues met all of the requirements of section 5(1) of the Class Proceedings Act (“CPA”).[2]

The decision has two important lessons for class actions brought against government institutions.

Implementations of government policy decisions are justiciable

Generally, policy decisions by a government entity are not justiciable and cannot give rise to a tort liability.[3] However, this limit does not apply when the government has acted irrationally or in bad faith.

In Johnson, the Province argued that the Plaintiffs did not disclose a reasonable cause of action in negligence, since they were ultimately attacking a policy decision regarding the funding of prisons in Ontario. The Court disagreed, and instead found that the pleadings challenged the operational implementation of policies in Ontario, and not the policies themselves.[4]

There is a fine line between a bona fide policy decision, and the implementation of that policy decision. Justice Grace in Johnson referred to a decision of Justice Cory where the distinction was illustrated:

For example, at a high level there may be a policy decision concerning the inspection of lighthouses. If the policy decision is made that there is such a pressing need to maintain air safety by the construction of additional airport facilities with the result that no funds can be made available for lighthouse inspection, then this would constitute a bona fide exercise of discretion that would be unassailable. Should then a lighthouse beacon be extinguished as a result of the lack of inspection and a shipwreck ensue no liability can be placed upon the government agency…

On the other hand, if a decision is made to inspect lighthouse facilities the system of inspections must be reasonable and they must be made properly…Thus, once the policy decision to inspect has been made, the Court may review the scheme of inspection to ensure it is reasonable and has been reasonably carried out in light of all the circumstances, including the availability of funds, to determine whether the government agency has met the requisite standard of care.[5]

When bringing an action against the government, careful Plaintiff’s counsel can plead around this issue by ensuring that their claim relates to systemic issues involving the implementation of policy decisions.

Systemic wrongdoings can be common to the class even if individual circumstances of the class vary widely

The core issue the certification stage is whether the class can truly be said to have issues in common. The plaintiffs usually highlight the cohesiveness of the group, while the defendants show how many subdivisions and differences there are between the class members. Section 1(1) of the CPA makes clear that “common but not necessarily identical” issues of fact or law will be sufficient for there to be a certifiable common issue.

In Johnson, the Province argued that the inmates did not have issues in common since all of their experiences would have been different, especially since they were separated into different units within the EMDC, the range of complaints was wide and the time period of the defined class was over three years.

The Court held that while there are some cases where that argument succeeded that there was a “lengthy list of cases at their disposal which have concluded that issues of systemic wrongdoing are common even though the individual circumstances of the class members may have varied widely”.[6] Although the Court agreed that the “permutations and combinations of systemic negligence cases seem almost infinite”, the liability questions in this case were broad ones which raised issues that were common to the class.

This result is consistent with the long line of institutional abuse cases that have been certified in Canada.[7] Johnson follows this authority in confirming that allegations of systemic negligence, even if that negligence may have impacted class members differently, are often suitable for certification.

What does this all mean?

Johnson confirms two important issues in respect of class actions brought against government institutions:

  1. implementations of government policy issues may be justiciable so long as they are pleaded properly; and
  2. systemic wrongdoings can be considered common issues even if individual circumstances of the class vary widely.