Canada: Developmental Services Waitlist Class Action Versus Ontario Government Achieves Certification

Leroux v. Ontario

Belobaba J. recently certified a proposed class action against the Ontario government over the operation and administration of a provincial social assistance program for developmentally disabled persons. The decision is noteworthy in that the Court certified a fairly novel claim against the Ontario government under section 7 of the Canadian Charter of Rights and Freedoms.

The decision demonstrates the benefit, from the plaintiff's point of view, of advancing relatively narrow claims and common issues on a certification motion.

Brief Facts

With the enactment of the Services and Supports to Promote the Inclusion of Persons with Developmental Disabilities Act, 2008 ("the 2008 Disabilities Act"), developmentally disabled persons who turn 18, must apply to the Ministry of Community and Social Services  in order to receive government funded support and services. Once assessed and approved, applicants are placed on a waitlist without an estimate as to how long they must wait for services.

Marc Leroux, litigation guardian for his daughter Briana, brought a proposed class action on behalf of all developmentally disabled persons who had turned 18 and had been governmentally-approved to receive support and services, but remained on a waitlist. The plaintiff advanced three causes of action: negligence, breach of fiduciary duty, and breach of s. 7 of the Charter (primarily the right to "security of the person").

Preliminary Observations

Before turning to the certification analysis, Belobaba J. made two preliminary observations. First, he clarified that the plaintiff's claim was not concerned with inadequate funding or the need for greater allocation of governmental resources. Rather, the claim alleged the negligent utilization and administration of existing resources. Second, Belobaba J. found that there was sufficient evidence of a class-wide commonality based on recent public reports filed by the plaintiff, cataloguing frustrations with the social services system wait-lists.

Reasons for Certification

In considering whether the plaintiffs had satisfied s. 5(1)(a) of the Class Proceedings Act, Belobaba J. concluded that two of the plaintiff's claims satisfied the requirement for a tenable cause of action: the negligence claim and the s. 7 Charter claim. The claim for breach of fiduciary duty, however, was doomed to fail and was struck.

On the negligence claim, Belobaba J. accepted that sufficient proximity could exist between the proposed class members and the defendant, given that every proposed class member directly interacted with the defendant through the receipt of services before turning 18, and had further contact after turning 18 and receiving formal approval for continuing support and services.

On the Charter argument, Belobaba J. was persuaded that there could be some state conduct involved in the matter on the facts as pleaded. He found it conceivable that the conduct of the defendant could deprive the plaintiff of some measure of security of the person. The term "deprivation" as defined in the case law was broad enough to embrace withholding of services that has the effect of erecting barriers, and there was case law standing for the proposition that governmental delay could constitute deprivation for the purposes of s. 7. Finally, given the early stage of the proceeding, it would be inappropriate to find that the plaintiff's allegation of procedural fairness/arbitrariness had no chance of success.

Unlike the claims for negligence and breach of s. 7, the claim for breach of fiduciary duty was "doomed to fail" and was struck. Belobaba J. stated that discretion and vulnerability can exist without triggering a fiduciary standard. Here, there was no claim that the defendant had given an undertaking of responsibility or was legislated to act in the best interest of a beneficiary; the facts as pleaded did not demonstrate a degree of discretionary control over interests; and the plaintiff failed to plead that the defendant had put its own interests ahead of the plaintiff's.

Belobaba J. found that there was a sufficiently identifiable class, and that there were common issues sufficient to meet the s. 5(1)(c) threshold. Specifically, Belobaba J. certified the common issues that asked about a breach of a duty of care, breach of s. 7 of the Charter, and the availability of punitive damages. Belobaba J. rejected the award of aggregate damages and the quantification of punitive damages as common issues, because such amounts could not be determined and quantified based on the current evidence.

Belobaba J. was also satisfied that the resolution of the certified common issues would advance the litigation for all class members sufficiently to meet the s. 5(1)(d) threshold. A challenge to the 2008 Disabilities Act would likely never materialize if the litigation guardian of a developmentally disabled person had to incur the costs of litigation himself or herself.

Finally, the proposed litigation plan was a workable method of advancing the proceeding on behalf of the class, as required by s. 5(1)(e).

About BLG

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions