In Roberts v. Canada (Attorney General), 2025 BCSC 995, Justice Michael Tammen rejected the Crown’s argument that the negligence claim was bound to fail because it was based on national policy guidance or core policy for which the Crown could not be found liable.
“The test for certification is identical to an application to strike. I cannot say that the decisions with which we are here concerned are obviously policy decisions,” the judge wrote, noting that the court may find at trial that key decisions related to the policy made by individuals were not protected by core policy considerations.
The plaintiff, Dean Christopher Roberts, an inmate at a federal facility, claimed that the policies and practices of the Correctional Service of Canada (CSC) during the pandemic led to a large number of federal inmates being subjected to what amounted to solitary confinement.
He commenced a class action on behalf of inmates who were isolated for 20 or more hours per day and deprived of the opportunity to interact with others for a minimum of two hours a day.
Roberts alleged that the federal government owed a duty of care to prisoners and was negligent in implementing and maintaining medical isolation practices during COVID-19 outbreaks, resulting in prolonged confinement and deprivation of meaningful human contact.
In his affidavit, Roberts submitted that he had come across inmates who had scarred their own faces and slammed their heads against the wall, with one even sewing his own lips shut, during solitary confinement imposed at a facility in the early months of the pandemic.
The Crown argued that it was “plain and obvious” that the claim of systemic negligence had no prospect of success because it concerned core policy for which the Crown cannot be found liable.
The plaintiff cited Francis v. Ontario, 2021 ONCA 197, an appeal of a decision to award Charter damages based on the implementation of administrative segregation in the Ontario provincial correctional system.
In Francis, the court held that because the key decisions related to implementation of the segregation policy were left to individual institution superintendents, they were not protected by core policy considerations.
Justice Tammen noted that the Supreme Court had ruled that cases in which it is unclear whether the degree of “policy” involved is sufficient to protect against liability for negligence must be permitted to go to trial unless it is “plain and obvious” that an impugned government decision is a policy decision.
“I cannot say that the decisions with which we are here concerned are obviously policy decisions. The plaintiff’s claim of systemic negligence is not doomed to fail on the basis that it is impugns ‘core policy,’” Justice Tammen wrote.
He noted that the plaintiff had submitted that the CSC policy on management of inmates on medical isolation during the pandemic was a fundamentally flawed instrument, which when implemented by those in charge of individual institutions resulted in foreseeable harm to the entire class of plaintiff inmates.
“Based on the reasoning in Francis, the plaintiff’s claim may well succeed. Equally, it may not. Whether or not the claim ultimately succeeds is an issue for trial,” the judge wrote, noting that the claim was not bound to fail.
Canada also argued that case law concerning administrative segregation was of no assistance because the case at bar concerned medical isolation, which was both medically necessary, informed by medical advice and entirely different from administrative segregation.
The plaintiff had relied on a series of cases, from both Ontario and B.C., in which causes of action in negligence and for breaches of ss. 7 and 12 of the Charter had been certified as class proceedings based on prolonged periods of separate confinement imposed on prison inmates.
Justice Tammen noted that this issue should be decided at trial.
“However, at first blush, that argument seems to be meritless. The label attached to the separate confinement is largely irrelevant. It is the treatment endured by the inmate which is important,” the judge wrote.
Canada also argued that a class-wide Charter analysis was impossible.
Justice Tammen cited Ewert v. Canada (Attorney General), 2022 BCCA 131, which concerned a class action brought by an inmate in relation to a 12-day lockdown.
In Ewert, the Court of Appeal found that the claims in respect of ss. 7, 12 and 24(1) of the Charter, which implicated rights that were inherently personal in nature, were likely to break down into individualized investigations and therefore lacked the commonality required for certification.
Justice Tammen noted that in Ewert, the court found that many of the things set out as “failures,” said to constitute breaches of the standard of care, did not address experiences that would have been common to all class members.
The court, however, found that the case at bar was rooted in commonality of experience among all class members caused by the blanket imposition of separate confinement.
“There is no need to explore the individual interactions between CSC staff and various class members to determine the central question. Indeed, part of the claim is that there was no meaningful interaction with anyone, including CSC staff; it is alleged that even the daily wellness checks of inmates were extremely perfunctory,” the judge wrote.
The court certified the action as a class proceeding in a decision dated May 30. The decision was posted to the court’s website on June 2.
A spokesperson for the CSC declined to comment on the specifics of the case but stated that CSC’s measures to contain the spread of COVID-19 had been developed through consultation with public health experts, the Public Health Agency of Canada (PHAC), local public health agencies, labour partners and stakeholders.
Counsel for the plaintiff were Patrick Dudding, Danielle Toth and Keith Schille of Acheson Sweeney Foley Sahota LLP.
Counsel for Canada were Banafsheh Sokhansanj, Aileen Jones, Alison Brown and Anamaria Baboi of Justice Canada.
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