EMERGENCIES AND GOVERNMENT LIABILITY ISSUES

by Charles M. K. Loopstra and Kevin J. Ryan

In planning for disasters, there is a myriad of statutory regulation and overlapping jurisdiction. The federal government has enacted the Emergencies Act 1 and the Emergency Preparedness Act 2 which establishes a legislative framework for programs and assistance in dealing with international, national and local emergencies.

In doing a statutory search of Ontario legislation, there are 210 statutes and regulations that use the word "emergency" with a total of 1411 references. This paper is intended only to highlight selected statutory schemes affecting local government, and the potential liability issues arising therefrom.

Ontario municipalities have a duty to implement an emergency management program, which includes an emergency plan. Municipalities also have a duty to provide adequate and effective police, fire, and ambulance services.

Policy decision immunity has been codified in the Municipal Act, 2001.3 Municipalities remain liable for acts and omissions with respect to the emergency management programs.4 However, municipalities are immune from the loss or reduction in the service of electricity which may arise in an emergency.5

The Federal Acts

The federal Emergencies Act provides that when there are reasonable grounds to believe that an emergency affecting public welfare exists, the Governor in Council may regulate in the region in which the emergency exists: (1) travel, (2) evacuation, (3) expropriation. (4) the use of any person or class of person to render their services, (5) the distribution of goods and resources, (6) the making of emergency payments, (7) the establishment of shelters and hospitals, (8) damage assessment and repair, and (9) convictions for breach of any of these regulations. Section 8(1) of the Emergencies Act states that:

1. the regulation or prohibition of travel to, from or within any specified area, where necessary for the protection of the health or safety of individuals;
2. the evacuation of persons and the removal of personal property from any specified area and the making of arrangements for the adequate care and protection of the persons and property;
3. the requisition, use or disposition of property;
   
   
4. the authorization of or direction to any person, or any person of a class of persons, to render essential services of a type that that person, or a person of that class, is competent to provide and the provision of reasonable compensation in respect of services so rendered
   
   
5. the regulation of the distribution and availability of essential goods, services and resources;
   
   
6. the authorization and making of emergency payments;
   
   
7. the establishment of emergency shelters and hospitals;
   
   
8. the assessment of damage to any works or undertakings and the repair, replacement or restoration thereof;
   
   
9. the assessment of damage to the environment and the elimination or alleviation of the damage; and
   
   
10. the imposition


(i) on summary conviction, of a fine not exceeding five hundred dollars or imprisonment not exceeding six months or both that fine and imprisonment, or

(ii) on indictment, of a fine not exceeding five thousand dollars or imprisonment not exceeding five years or both that fine and imprisonment,

The Emergencies Act expressly provides that nothing in the Act takes away from control of a province or municipality over its police force. Section 9(1) of the Emergencies Act provides that:

Similarly, the Governor in Council may regulate in respect of public order emergencies and international emergencies B see section 17(1) of the Emergencies Act. As above, the Governor in Council acting under its public order emergency and international emergency power cannot take away provincial or municipal jurisdiction over police. See section 20(1) of the Emergencies Act.

However, under the Governor in Council’s authority to regulate in respect of war emergencies, there is no provision expressly noting that provinces and municipalities maintain control over their police forces.

Consequently, a municipality, in a region where the Governor in Council has declared an emergency, may lose some of its sovereignty with respect to the deployment of its services.

The federal Emergency Preparedness Act charges the relevant Minister with the responsibility of coordinating emergency plans between the federal, provincial and international governments. Section 4 of the Emergency Preparedness Act provides that:

The Minister is also responsible for encouraging and supporting, through provincial governments, municipal emergency plans and programs. Section 5(1) provides, in part, that:

1. to develop policies and programs for achieving an appropriate state of national civil preparedness for emergencies;
2. to encourage and support provincial civil preparedness for emergencies and, through provincial governments, local civil preparedness for emergencies

 

Ontario Statutory Duties re Emergencies

Municipalities must develop and implement an emergency management program. Section 2.1(1) of the Emergency Management Act provides that:

Every municipality shall develop and implement an emergency management program and the council of the municipality shall by by-law adopt the emergency management program.

The emergency management program must include an emergency plan for the provision of services during the emergency and for the deployment of municipal employees and other persons who will respond to the emergency. Section 3 of the Emergency Management Act provides that

Every municipality shall formulate an emergency plan governing the provision of necessary services during an emergency and the procedures under and the manner in which employees of the municipality and other persons will respond to the emergency and the council of the municipality shall by by-law adopt the emergency plan.

The Solicitor-General may regulate the development and implementation of emergency management programs and plans. Section 14(1) of the Emergency Management Act provides that:

The Solicitor General may make regulations setting standards for the development and implementation of emergency management programs under sections 2.1 and 5.1 and for the formulation and implementation of emergency plans under sections 3 and 6.

To date, there are no regulations made under this Act.

Interestingly, while the Emergency Management Act imposes a duty on municipalities to prepare emergency management programs and corresponding plans, the provisions imposing these duties do not include qualitative language. That is, the Emergency Management Act imposes a duty to prepare an emergency management program but does not expressly require that such a program be adequate or effective.

The federal Emergencies Act does not appear to impose any statutory duties on municipalities.

 

Police

Municipalities have a duty to provide adequate and effective police services. Section 4(1) of the Police Services Act 6 provides that:

Every municipality to which this subsection applies shall provide adequate and effective police services in accordance with its needs.

If the municipality fails to provide adequate and effective police services, the Ontario Provincial Police will provide such services at the expense of the municipality. Section 5.1(1) of the Police Services Act provides that:

If a municipality does not provide police services by one of the ways set out in section 5, the Ontario Provincial Police shall provide police services to the municipality.

And section 5.1(2) provides that:

A municipality that is provided police services by the Ontario Provincial Police under subsection (1) shall pay the Minister of Finance for the services, in the amount and the manner provided by the regulations.




Fire

Municipalities have a duty to provide the necessary fire protection services and to establish programs to educate the public with respect to fire prevention and fire safety. Section 2(1) of the Fire Protection and Prevention Act 7 provides that:

Every municipality shall,

1. establish a program in the municipality which must include public education with respect to fire safety and certain components of fire prevention; and
   
   
2. provide such other fire protection services as it determines may be necessary in accordance with its needs and circumstances.

Ambulance

Municipalities have a duty to provide, and pay for, the necessary ambulance services. Section 6 of the Ambulance Act 8 provides that:

1. on and after January 1, 1998 and except as otherwise provided by regulation, be responsible for all costs associated with the provision of land ambulance services in the municipality, subject to any grant made to the municipality under subsection 4 (3); and
   
   
2. on and after January 1, 2001, be responsible for ensuring the proper provision of land ambulance services in the municipality in accordance with the needs of persons in the municipality.
   

When the Emergency Management Act is read in light of the qualitative requirements in respect of police, fire and ambulance services, the required quality of emergency management programs and plans may become evident. That is, if municipalities are required to provide adequate police, fire and ambulance services as necessary in the circumstances and are also required to plan for the deployment of those services in an emergency, then qualitatively, a municipality may be under a duty to provide an adequate and effective emergency management program and plan. Since adequacy of the provision of police, fire and ambulance services appears to be a question of fact depending on the needs and circumstances, it may be that the adequacy of the emergency program and plan is also a question of fact.

Statutory Immunity re Emergencies

Municipalities are expressly not relieved of liability in acting, or neglecting to Act in the implementation, or the intended implementation, of an emergency management program or emergency plan. Section 11(3) of the Emergency Management Act provides that:

However, municipalities are not liable for damages caused by the loss or reduction of electricity as a result of an emergency. Section 82(1) of the Municipal Act 2001 provides that:

Municipalities continue to be protected from liability with respect to emergency fire service plans adopted before January 1, 2003. Section 467 of the Municipal Act, 2001 provides that:

The federal Emergencies Act does not appear to restrict the liability of municipalities.

Government Liability in time of Crisis

Litigation involving the tainted blood scandal is helpful in identifying some liability principles applicable to government in time of crisis. One of the questions to be considered is that if the government has regulatory authority over a particular area, to whom does it owe a duty in time of crisis and what is the nature of that duty?

In Robb Estate v. Canadian Red Cross Society 9 the plaintiffs claimed in negligence against the Red Cross and the Province of Ontario. The plaintiffs alleged that the Red Cross and Province of Ontario were negligent by failing to implement an adequate blood donor screening test and by failing to implement heat treatment of concentrates in a timely fashion. The plaintiffs alleged that the Red Cross and Province of Ontario failed to adequately prioritize safety considerations and breached their duty to warn of the possibility that HIV could have been transmitted through the concentrates. The plaintiffs alleged that the Red Cross was the agent of the Province of Ontario or that the Province of Ontario exercised control over the Red Cross.

The plaintiffs claimed against Bayer Corporation for breach of duty to warn and breach of duty of care. The plaintiffs alleged that Bayer Corporation breached its duty to warn and duty of care by committing acts that delayed the delivery of heat-treatment products to Canada.

The plaintiffs contracted HIV in the course of their treatment for hemophilia. This treatment involved a blood-clotting agent supplied by Bayer to the Red Cross, which was in turn distributed to hospitals. In November of 1984, the Bureau of Biologics in the Health Protection Branch of the Department of National Health and Welfare issued a directive to the Red Cross to begin using heat-treated products as soon as possible to inactivate any HIV present in the concentrates. Each of the plaintiffs was subjected to non-heat-treated concentrates as late as June or July 1985.

The Red Cross cross-claimed against the Province of Ontario and Bayer Corporation, and brought a third-party claim against Canada for delaying regulatory approval of heat-treated blood products. Bayer Corporation cross-claimed against the Red Cross and the Province of Ontario, and claimed contribution and indemnity from Canada. The Province of Ontario cross-claimed against the Red Cross and Canada.

The trial judge found in favour of the plaintiff with respect to its claim against the Red Cross only, dismissing the plaintiffs claim against the Province of Ontario and Bayer Corporation.

The court dismissed the cross-claims of the Red Cross against the Province of Ontario and Bayer Corporation, but allowed the third-party claim of the Red Cross against Canada.

On appeal, the Ontario Court of Appeal found that the Red Cross owed a duty of care to the plaintiffs but that the trial judge put it to a standard of care that was too high. The Court of Appeal also set aside the judgment against Canada because Canada did not have an opportunity to dispense with regulatory requirements. Specifically, the Court of Appeal held that, though Canada might have had a duty to expedite its regulatory process, on the particular facts Canada was unable to expedite its regulatory process because it was waiting on biological data from the manufacturer of the blood-clotting agent.

Leave to appeal to the Supreme Court of Canada was refused.

The Court of Appeal addressed the duty of care and standard of care in the following general terms:

The following principles on government liability can be derived from the Rob Estate decisions:

Firstly, where a government body asserts regulatory authority over a particular subject matter, it will owe a duty to those who are dependent on the government body where such dependents can be identified as a class. In Robb Estate the court found that Canada owed a duty hemophiliacs because hemophiliacs were completely reliant on Canada’s regulatory authority. The court in Robb Estate, at para 139, said that:

This issue was not raised on appeal. None of the defendants denied owing a duty of care to the plaintiffs.

Secondly, a government’s bureaucratic delay in responding in a crisis to those dependant on it may amount to a breach in its duty of care. Government bodies may be expected to respond with the haste demanded by the particular circumstances. The court in Robb Estate, at para 140, said that:

On the facts in Robb Estate, because the government had issued a directive to the Red Cross in respect of heat treating the concentrates, the content of Canada’s duty to the hemophiliac population was to expedite the regulatory process to enable the Red Cross to follow Canada’s directive. In short, Canada failed to respond to the AIDS crisis in a manner that was appropriate to the urgency of the crisis.

An appropriate response to a crisis ought to include a flexible bureaucracy that is able to respond to varying factual circumstances. In Robb Estate, Canada’s own directive indicated that the current practices in regard to the supply of the concentrates was unacceptable, Canada was found to have breached its duty of care by failing to adjust its regulatory system to a crisis it concluded was unacceptable. The court in Robb Estate, at para 146 said that:

The issue of Canada’s duty to expedite the regulatory process was not interfered with on appeal because the Ontario Court of Appeal found that since Canada was waiting for information from the manufacturer of the blood-clotting agent, Canada was not in a position to expedite the process in any event.

Where a non-governmental agency undertakes to provide a service in a time of crisis, government funding of that non-governmental agency will not automatically create an agency or implied contractual relationship. In Robb Estate, the Province of Ontario provided discretionary grant funding to the Red Cross. The court found that such funding, in of itself, was not sufficient to give rise to a agency or implied contractual relationship. The court in Robb Estate, at para 150, said that:

Government funding of services during a crisis does not equate the government to a provider of those services. In Robb Estate the funding the Province of Ontario provided to the Red Cross did not make the Province a "provider" of the services. The court in Robb Estate at para 151, said that:

Moreover, the government is not a provider of services even where the government is obliged to pay for the provision of critical services. The court in Robb Estate, at para 151, said that:

Absent express statutory provisions, in making the determination as to whether the government is a provider of services by virtue of agency in a time of crisis, the proper inquiry is into government de jure control, as opposed to government de facto control. That is, in determining whether a service provider is an agent of the government, thereby making the government the provider of the service, the inquiry should be into the extent of the control that the government body is lawfully entitled to exercise not into how much control the government, in fact, exercised over the provider. The court in Robb Estate, at para 156, said that:

In Robb Estate, the court found that the Red Cross was not an agent of the Province of Ontario despite the de jure control the Province may have been able to exercise over the Red Cross by virtue of the Province’s funding of the Red Cross. The Province of Ontario simply had no de jure control. The court in Robb Estate, at para 158, said that:

The issue of agency and implied contractual relationships was not raised on appeal.

Economic Loss

Most disasters result in "economic loss" claims. To recover economic loss from a municipality, there must be a private law duty owed by the municipality to the plaintiff. To be compensable, the economic loss must arise from an operational decision or a mala fide policy decision. Moreover, the economic loss must be a type of loss that the relevant statute intended to guard against. Wilson J. for a majority of the Supreme Court of Canada in Kamploops v. Nielsen,11 said that:

Pure economic loss is recoverable where there is sufficient proximity between the negligent act and the loss. McLachlin J for a majority of the Supreme Court of Canada in Canadian National Railway Co. v. Norsk Pacific Steamship Co.12 said that:

For an example of this principle, see Twin City Mechanical, a division of Babcon of Waterloo Ltd. v. Bradisl (1967) Ltd.13

There are five categories under which economic losses may be properly awarded. They are: (1) the independent liability of statutory public authorities; (2) negligent misrepresentation; (3) negligent performance of a service; (4) negligent supply of shoddy goods or structures; and (5) relational economic loss. See Canadian National Railway and Hughes v. Sunbeam Corp. (Canada) Ltd.14

If a particular claim does not fit within one, or more, of the five categories, the claim is not necessarily dead. Instead, the claim for economic loss is put through the two-step Anns test to determine the appropriateness of the claim for economic loss B see Pantlin v. Toronto (City).15 See also Robinson v. Ontario New Home Warranty Program.16

This principle was revisited by the Supreme Court of Canada Cooper v. Hobart.17 Commentary on the decision indicates that this decision is part of a departure from fact-specific proximity, towards category-specific proximity. It remains to be seen whether categories of proximity link to the categories of economic loss.

The West Nile Virus

In light of the Walkerton crisis and the tainted blood scandal, municipalities are raising concerns about potential liability as a result of the West Nile Virus. We have examined both the private law duties and the statutory duties owed by a municipality under the circumstances.

Municipalities that operate a Health Unit are governed by the Health Protection Promotion Act18 ("HPPA") and must comply with the statutory duties imposed pursuant to the HPPA. The HPPA creates a statutory duty on municipalities that operate a Health Unit to take steps to control the spread of West Nile Virus in their areas through Ont. Reg. 231/03. This imposes on the municipality operating a Health Unit a duty to take measures to prevent the spreading of the disease. It is still within the purview of the individual municipality to adopt policy decisions to the extent in which it will adopt such measures, but once the measures have been adopted the program must be carried out without negligence.

All municipalities have the power to regulate public nuisances and all other matters not specifically provided for by the Municipal Act or any other Act for purposes related to the health, safety and well-being of the inhabitants of the municipality (sections 128 and 130 of the Municipal Act, 2001. If a municipality has purported to regulate in this area which is directly relevant to the control of the West Nile Virus (even if it does not operate a Health Unit), the municipality has an obligation to do so without negligence. If the municipality has made a policy decision not to regulate in this area, it cannot be held liable for failure to do so, simply because it had the discretion and statutory authority for regulating within this area. However, it may nevertheless be found liable for breach of a private law duty even where it has not specifically elected to regulate in an area over which it has jurisdiction.

There are a number of private law duties applicable to all municipalities with respect to potential liability, including nuisance, negligence and occupier’s liability. On the assumption that no specific policy was adopted by the local municipality to eradicate the West Nile Virus, the liability exposure for nuisance, negligence or occupier’s liability is limited, except in cases where a clear unusual or imminent danger has been identified. Even in those circumstances, warnings may be sufficient.

Exercise of Statutory Powers where a Municipality does not Operate a Health Unit

Municipalities have the discretionary power to regulate public nuisances under section 128 of the Municipal Act, 2001 and the health, safety and well-being of the inhabitants of the municipality under section 130 of the Municipal Act, 2001. These general powers are often exercised through "yard by-laws" or similar by-laws (such as property standards by-laws) applicable to private lands. Should the municipality exercise its discretionary statutory powers to control West Nile Virus through this means, it has effectively made a policy decision to attempt to regulate the spread of this disease. There is no specific duty upon a municipality to enforce a by-law passed in the exercise of a discretionary power. However, once it has made a policy decision, it must implement the decision without negligence. This implies that if a municipality adopts an inspection system, it must act on evidence of potential risk or harm. In the case of an effort by a municipality to regulate the spread of a communicable disease, it is our opinion that once the municipality has made a decision to attempt to regulate in this area, it must also adopt a proper inspection and enforcement program. Failure to properly carry out such an adopted inspection and enforcement program could result in a finding of negligence.

An upper tier municipality operating a Health Unit may suggest a collaborative effort with local municipalities to respond to public concerns about significant areas of artificial standing water such as tire piles and unused swimming pools. In many cases, local municipalities already address these issues through their yard or property standards by-laws passed pursuant to their discretionary powers. However, if a local municipality makes a policy decision to enforce such by-laws to respond to the risk of West Nile Virus, it has now adopted some legal liability for failure to do so. The existence of the by-law itself with discretionary enforcement powers, does not present a significant liability risk. But if council adopts a policy in collaboration with an upper tier municipality that operates a Health Unit to control the Virus through an inspection and enforcement program, the risk of liability for negligence becomes significant. For example, if a local municipality gets involved in any larviciding or adulticiding program to control mosquito infestation as part of a West Nile Virus control policy, it has assumed a legal duty to do so effectively and without negligence.

Private Law Duties

Private law duties are obligations, recognized by law, to avoid conduct fraught with unreasonable risk of danger to others. The duty is owed to persons who might reasonably and probably be injured if the duty was not observed. The existence of a duty of care is a question of law. In other words, it is a legal duty and not merely a moral one. Where the law has not seen fit to impose a duty, there can be no negligence.

At first glance, it is our opinion that a duty to control the risk of disease from natural phenomena, in the absence of a specific statutory duty, or the exercise of a statutory power, is a type of situation in which the scope of duty would be limited by the courts under the Anns/Kamloops test. It is, therefore, our opinion that where a municipality does not operate a Health Unit, or has made a policy decision not to regulate in this area under its powers granted pursuant to the Municipal Act it is not in breach of a prima facie duty of care, which would result in a finding of negligence.

Even if the courts found a primary duty of care in these circumstances, it may be sufficient for the municipality to simply warn of the danger associated with the harm to satisfy its legal obligation imposed by the duty of care. Accordingly, it may be appropriate for lower tier municipalities to undertake an advertising program to warn the public of the dangers of the West Nile Virus and measures that can be taken to prevent any risk of contracting the disease. If this is already being done by the upper tier municipality, additional advertising may be unnecessary. However, out of an abundance of caution, where the Health Unit has identified a real and imminent risk within the area of the local municipality, at the very least, the local municipality may wish to advertise warnings associated with the use of its outdoor parks and recreational facilities. In this case it should coordinate such advertising in conjunction with the policies and programs of the Health Unit and refer inquiries to them, rather than to local staff.

Private Nuisance

A private nuisance is a behaviour that causes significant interference with the beneficial use or some injury to the plaintiff’s lands. Accordingly, the municipality could be held liable for a private nuisance if it allowed a condition to exist on its own lands which could have a harmful effect on private property. This must be distinguished from statutory nuisances, namely, the breach of legislation dealing with the environment, public health, and public nuisances.

In reviewing the law of private nuisance, we do not believe that there is a positive duty on the municipality to drain surface water from its property to avoid the infestation of mosquitoes. There is jurisprudence to the effect that the natural flow of water across land cannot be the basis of a claim in nuisance. Mosquitoes are likely to be construed as part of the natural process or environment of the lands. Generally, occupiers have not been found liable in nuisance for natural phenomena occurring on their property such as the migration of weeds, the spread of fires accidentally started, or the normal growth of trees. It would appear that the breeding of mosquitoes should fall under the same consideration and is analogous to the above examples. The case law reveals no jurisprudence relating to a nuisance claim being founded on mosquitoes or similar insects breeding on the lands of another property.

Occupier’s Liability

The municipality as the owner of lands throughout the municipality and the operator of numerous parks and recreational facilities, is subject to the provisions of the Occupiers’ Liability Act.19 The municipality may be liable to persons visiting its property if the danger created by the existence of the West Nile Virus and mosquito population was such that it created a danger which a reasonable person would consider unacceptable. However, in the absence of evidence that a particular property is subject to a special or unusual danger, it is unlikely that the presence of mosquitoes per se would create any sort of unreasonable or unusual danger resulting in liability under the Act. However, if the municipality has identified the presence of West Nile Virus on its property (such as the finding of a diseased bird), there may be sufficient evidence of a reasonable or unusual danger. In such a case, there would, at the very minimum, be a duty to warn the public that there is increased risk. In such a case, a larvicidal or adulticidal program may also be indicated to minimize the risk.

It should be noted that any warning given which required positive action would equally apply to a municipality. Accordingly, suggestions that an owner should remove stagnant water from his property may not be productive given the possibility that the municipality would not be complying with this requirement itself. On the other hand, a warning to wear protective clothing and apply insect repellant would not attract a similar double standard.

Negligence

A potential negligence claim will more than likely arise as a result of the municipality’s failure to negligently carry out an operational duty resulting from a policy decision. For example, if the municipality makes a policy decision to eradicate stagnant water from its property or pass by-laws to regulate the same on private lands and adopt an inspection system for this purpose, the municipality increases its exposure to a negligence claim.

Even where a municipality is found to be negligent by breaching a private law duty, liability should still be examined in the context of causation and foreseeability. However, the usual test for causation does not apply to these types of cases. Ordinarily, one would have to establish that there was a connection between the municipality’s breach of duty (such as eradicating disease bearing mosquitoes) and the injury suffered (the bite that caused the disease). In most cases, this would be impossible to establish.

The Supreme Court of Canada has laid down a different test for causation in these circumstances. In Walker Estate v. York Finch General Hospital 20 (the tainted blood case), the Supreme Court of Canada held that the proper test for causation in these type of cases is whether the defendant’s negligence "materially contributed" to the occurrence of the injury. A court could easily conclude that where evidence of the disease was present in the area, the municipality’s failure to control the spread of the disease (where it had adopted a policy to do so) materially contributed to the injury caused.

A $100 Million dollar class action lawsuit was brought against the Province of Ontario by 34 families of West Nile victims. We are not aware that any municipalities have been named in the suit or any other suit. The new liberal government has elected to go to mediation in May of 2004 in an effort to settle the suit.

Municipal Response

The reasonable person must act so as to avoid conduct involving an unreasonable risk of harm. In determining whether a risk is unreasonable, three factors must be considered:

1. The magnitude of the risk;
   
   
2. The importance of the conduct; and
   
   
3. The cost of limiting the risk.

It is our understanding that at the present time, the incidence of humans having contracted West Nile Virus is relatively small. On the other hand, the cost of controlling mosquito infestation is relatively large. Moreover, with an appropriate warning program in place, the inhabitants can take steps to protect themselves against mosquito bites at a relatively low cost. We would, therefore, conclude that if reasonable warning is given of the potential of harm, and assuming that there is no operational negligence in carrying out any policy decisions adopted by the municipality with respect to West Nile Virus, the courts are not likely to find liability in these circumstances.

With respect to municipalities operating Health Units, the duties are more critical. There is a mandatory duty to make a determination with respect to West Nile Virus. Once a positive determination has been made, a program must be instituted in accordance with certain guidelines. Failure to comply with the guidelines or provide adequate warning may result in a finding of negligence.

SARS

The international outbreak of the Severe Acute Respiratory Syndrome hit Canada, and particularly Toronto, with considerable impact in 2003. Jane Speakman and Leslie Mendelson, both solicitors with the City of Toronto legal department wrote an excellent review on the City’s response to SARS in Municipal Lawyer.21

The Province of Ontario identified SARS as a communicable disease subject to orders under the Health Protection and Promotion Act. These orders are carried out by the health units in Ontario which are under municipal jurisdiction. Speakman and Mendelson make the point in their article that legal preparedness is essential in time of crisis in order to be able to respond quickly and effectively. Some suggestions they make:

1. Know the legislation

2. Consider possible practical problems

3. Remember privacy issues

4. Draft documents in advance

5. Prepare for the necessary court processes

Conclusion

Acting for public authorities presents numerous challenges. In many cases, the plaintiff’s agenda is driven by the theory that because he or she has suffered damages, the public authority is at fault. The courts, for reason of public policy, or in some cases out of sympathy for the plaintiff, will find a basis for finding the public authority liable.

In defending a public authority in cases arising out of emergencies, it is important to use all of the tools available to avoid liability and damages. In the case of a crisis, it is not the cause of the crisis that may lead to liability and damages, but the appropriateness of the response. Public authorities must be flexible and able to respond quickly to varying circumstances.

1. Emergencies Act R.S.C, 1985, c.22 (4th Supp.).
   
2. Emergency Preparedness Act R.S.C. 1985, c.6 (4th Supp.).
   
3. Municipal Act 2001, S.O. 2001, c. 25.
   
4. Emergency Management Act R.S.O. 1990, c. E.9, s. 11(3).
   
5. Supra note 3, s. 82(1).
   
6. Police Services Act R.S.O. 1990 c. P.15.
   
7. Fire Protection and Prevention Act 1997, S.O. 1997 c. 4.
   
8. Ambulance Act R.S.O. 1990 c. A.19.
   
9. (2000), 1 C.C.L.T. (3d) 70; varied on appeal (2001), 9 C.C.L.T. (3d) 131 (C.A.); leave to appeal to SCC refused.
   
10. See Lapointe v. Hopital Le Gardeur, [1992] 1 S.C.R. 351.
    
11. [1984] 2 S.C.R. 2.
    
12. (1992), 91 D.L.R. (4th) 289.
    
13. [1996] O.J. No. 4587.
    
14. [2002] O.J. No. 3457.
    
15. [2002] O.J. No. 2740.
    
16. [1994] O.J. No. 915.
    
17. 17 [2001] S.C.J. No. 76
18. Health Protection Promotion Act, R.S.O. 1990, c. H.7.
    
19. Occupiers' Liability Act, R.S.O. 1990, c. O.2.
    
20. [2001] S.C.J. No. 24
    
21. September/October 2003 Vol. 44, No. 5
    
    

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