Man claims gross negligence, recklessness, breach of fiduciary duty against correctional officers
The Ontario Court of Appeal has allowed an appeal brought by a man, whom fellow inmates assaulted at the Maplehurst Correctional Complex, against a motion judge’s order denying leave to proceed with claims against correctional officers.
The case was Phixaykoune v. Ontario, 2026 ONCA 773. Other inmates beat up the appellant, whose head hit the concrete ground with substantial force.
The surveillance video showed that a number of correctional officers left the unit shortly before the appellant’s assault and did not come to his aid while it occurred. Almost an hour and 40 minutes after leaving, officers returned and took the appellant out of the unit.
The appellant had an emergency craniectomy for a brain bleed and remained on life support for 11 days. Due to the incident, he had lasting impairments.
The appellant commenced proceedings against the Crown, his attackers, his healthcare providers, and the correctional officers, who were the respondents in the present appeal.
In his original statement of claim, the appellant named correctional officers “A”, “B”, and “C” because he did not know their identities. Upon learning their identities, he moved to amend the claim to obtain discovery rights regarding the officers.
In his proposed amended statement of claim, the appellant blamed the assault on the complete lack of supervision of his unit and attributed his damages to the officers’ negligence, gross negligence, recklessness, and breach of fiduciary duty.
The appellant also asserted bad faith in the officers’ conduct, a pattern of ongoing non-supervision of inmates, and non-monitoring, which delayed his access to medical care and worsened his injuries.
The Crown alleged that leave was necessary to proceed against the officers under s. 17 of Ontario’s Crown Liability and Proceedings Act, 2019 (CLPA), which required leave for an action with a claim for “a tort of misfeasance in public office or a tort based on bad faith.”
If so, s. 17(2) would automatically stay the whole action until the court’s grant of leave under the test in s. 17(7), which called for a claimant to bring the proceeding in good faith and required a reasonable possibility of the proceeding’s resolution in the claimant’s favour.
On July 5, 2024, Justice Janet E. Mills of the Ontario Superior Court of Justice gave leave for the appellant to amend the initial statement of claim in line with the proposed amended statement of claim.
Next, the motion judge found s. 17 of the CLPA applicable, which meant that leave was necessary to lift the automatic stay. Upon finding that the case did not satisfy the test for leave in s. 17(7), she stayed the claims against the officers.
The judge acknowledged that the appellant had brought the claims in good faith. However, the judge determined that he lacked a reasonable possibility of success.
Under s. 12(1) of Ontario’s Ministry of Correctional Services Act, 1990, correctional officers had statutory immunity for acts committed in good faith in the actual or intended execution of their employment.
Here, at their highest, the judge decided that the officers were negligent in executing their duties.
The Court of Appeal for Ontario allowed the appellant’s appeal against the motion judge’s denial of leave. The appeal court granted the parties’ reasonable request for costs of $5,400, all in.
The appeal court ruled that the judge erred in interpreting “a tort based on bad faith” as including negligence claims in the context of s. 17(1) of the CLPA, as well as erred in finding that s. 17 applied in this case.
On its face, the appeal court pointed out that s. 17(1) did not catch claims based on bad faith. The appeal court explained that s. 17(1) instead covered claims in connection with torts based on bad faith.
The appeal court added that a claim framed in negligence that contained factual bad faith allegations did not constitute a claim in respect of a tort based on bad faith.
“The elements of a negligence claim do not change in the face of a statutory immunity clause,” wrote Associate Chief Justice J. Michal Fairburn of the appeal court. “The purpose of the allegation of bad faith is rather to fend off good faith statutory immunity.”
The appeal court held that this narrower interpretation of “a tort based on bad faith” aligned with the English and the French wording alike.
According to the appeal court, if the legislature had wanted s. 17 to encompass all bad faith allegations made in light of employment-related tort claims filed against the Crown or its officers, the legislature could have clearly expressed this when drafting s. 17(1).
In October 2025, the appeal court affirmed the certification of a class action filed against the Canadian government by immigration detainees who claimed that the Canada Border Services Agency had breached Charter rights by incarcerating them in provincial prisons.
In proceedings where a police officer was charged with failing to provide a detainee’s necessities of life, the appeal court issued a February 2025 order for the cross-examination of prosecutors who had potentially complained about a trial judge’s conduct.
Enjoy this story? Read the latest personal injury law news on the main page!
