Ontario Court of Appeal: Phixaykoune v. Ontario CLPA s. 17 on Officer Tort Claims

• An inmate suffered severe brain injuries after an assault by fellow prisoners at Maplehurst Correctional Complex, with correctional officers absent during the incident.
• The inmate sued the officers, alleging negligence, gross negligence, recklessness, breach of fiduciary duty, and bad faith.
• A motion judge initially ruled that leave was required under Section 17 of Ontario's Crown Liability and Proceedings Act, 2019, and denied it, citing statutory immunity for good faith acts.
• The Ontario Court of Appeal overturned this decision, clarifying that CLPA Section 17(1) does not apply to negligence claims, only to torts specifically "based on bad faith" or misfeasance in public office.
• This ruling means negligence claims against correctional officers do not require prior leave under Section 17, removing a significant procedural barrier.

The appellate panel clarified that, on its face, Section 17(1) of the Crown Liability and Proceedings Act does not encompass claims merely "based on bad faith."

A man, identified as the appellant in Phixaykoune v. Ontario, 2026 ONCA 773, sustained severe injuries following an assault by other inmates at the Maplehurst Correctional Complex. His head struck the concrete ground with considerable force, necessitating an emergency craniectomy for a brain bleed. He remained on life support for eleven days and now lives with lasting impairments as a result of the incident. Surveillance footage revealed that several correctional officers had departed the unit shortly before the assault began and did not intervene during its occurrence. It was approximately one hour and forty minutes after their departure that officers returned to remove the injured appellant from the unit.

Following the traumatic event, the appellant initiated legal proceedings against multiple parties, including the Crown, his assailants, his healthcare providers, and the correctional officers involved. Initially, his statement of claim identified the officers as "A," "B," and "C" due to unknown identities. Upon discovering their names, he sought to amend his claim to include discovery rights against them. The proposed amended statement of claim attributed the assault to a complete absence of unit supervision and linked his injuries to the officers' alleged negligence, gross negligence, recklessness, and breach of fiduciary duty. Furthermore, the appellant asserted that the officers' conduct demonstrated bad faith, highlighting a pattern of continuous non-supervision and non-monitoring that exacerbated his injuries by delaying access to medical care.

The Crown contended that the appellant's action against the correctional officers required leave to proceed under Section 17 of Ontario's Crown Liability and Proceedings Act, 2019 (CLPA). This specific section mandates leave for claims involving "a tort of misfeasance in public office or a tort based on bad faith." If applicable, Section 17(2) of the CLPA would automatically impose a stay on the entire action until a court granted leave, based on the criteria outlined in Section 17(7). This test requires a claimant to demonstrate both good faith in bringing the proceeding and a reasonable possibility of success.

On July 5, 2024, Justice Janet E. Mills of the Ontario Superior Court of Justice permitted the appellant to amend his initial statement of claim as proposed. However, the motion judge subsequently determined that Section 17 of the CLPA was indeed applicable, thereby requiring leave to lift the automatic stay. Despite acknowledging that the appellant had brought his claims in good faith, the judge concluded that he did not possess a reasonable possibility of success. This determination was partly based on Section 12(1) of Ontario’s Ministry of Correctional Services Act, 1990, which provides statutory immunity to correctional officers for acts performed in good faith during the actual or intended execution of their duties. The judge ultimately decided that, at their highest, the officers' actions amounted to negligence in the performance of their responsibilities, leading to the claims against them being stayed.

The Ontario Court of Appeal allowed the appellant's challenge against the motion judge's decision to deny leave, effectively overturning the lower court's ruling. The appellate court also approved a reasonable request for costs totaling $5,400. In its decision, the Court of Appeal for Ontario determined that the motion judge had made an error in interpreting the phrase "a tort based on bad faith" within the context of Section 17(1) of the CLPA, specifically by including negligence claims under this definition. The court further concluded that Section 17 was not applicable to the case at hand.

The appellate panel clarified that, on its face, Section 17(1) of the Crown Liability and Proceedings Act does not encompass claims merely "based on bad faith." Instead, the provision specifically covers claims made "in connection with torts based on bad faith." This distinction is crucial, as it limits the types of actions requiring leave under this section, thereby impacting inmate injury correctional officer liability cases. The ruling from the Ontario Court of Appeal Phixaykoune provides important guidance on the precise application of this statutory requirement.

This ruling from the Ontario Court of Appeal carries significant implications for individuals pursuing claims against public officials, particularly in cases involving alleged negligence by correctional officers. The decision clarifies that Section 17(1) of Ontario's Crown Liability and Proceedings Act, 2019, which mandates leave to proceed, is not intended to apply to general negligence claims. Instead, its application is restricted to torts specifically categorized as misfeasance in public office or those genuinely "based on bad faith." This distinction is vital for understanding the procedural requirements for bringing a negligence claim against correctional officers.

By narrowing the interpretation of "a tort based on bad faith," the appellate court has effectively removed a substantial procedural hurdle for plaintiffs seeking redress for negligence against public officials in Ontario. Lawyers advising clients on such matters should note that actions alleging negligence against correctional officers may now proceed without the initial requirement of obtaining leave under CLPA s. 17. This decision streamlines the process for certain types of claims, ensuring that the stringent leave requirements are reserved for the specific torts they were designed to address, rather than broadly encompassing all claims that might imply some level of culpability.

This ruling clarifies that Section 17(1) of Ontario's Crown Liability and Proceedings Act, 2019, which requires leave to proceed, does not apply to negligence claims against correctional officers, only to torts specifically 'based on bad faith' or misfeasance in public office. Lawyers advising clients on claims against public officials in Ontario should note this distinction, as it may remove a significant procedural hurdle for negligence-based actions against correctional officers.

Source: Original reporting via Canadian Lawyer Magazine