City of Toronto Avoids Sars Liabilty

November 1, 2005
Author: Charles M.K. Loopstra, Q.C.

In the recent article on Municipal Liability Issues and West Nile Virus – an Update (2004-05) 6 Mun. L. R. Mgt. we noted that where there is a serious risk to public health, the courts are inclined to give the injured party every opportunity to pursue a legal remedy, provided the remedy is founded on a breach of a private law duty of care and the breach caused or materially contributed to the injury.

A case of particular interest was the class action suit brought against the governments of Canada and Ontario, and the City of Toronto with respect to the SARS outbreak in 2003. In Williams v. AG (Canada) et al, Ontario Court File No. 03-CV-259366 CP, the plaintiff brought a negligence action against the defendants as a result of having contracted SARS. The allegations against the City of Toronto include failing to co-ordinate and integrate its response to the SARS crisis with the governments of Canada and Ontario, failure to upgrade software appropriate for response to a public health emergency, issuing confusing or contradictory directives to hospitals and, through the mayor, prematurely declaring that the SARS outbreak was at an end, favouring the City’s public image over its public health responsibilities. It was also pleaded that the defendants failed to take appropriate preventative measures and breached their duty to warn the public of the risks to public health. Finally, there was an allegation that the defendants failed to implement reasonable and effective public health emergency plans.

Each of the defendants brought a motion to strike portions of the statement of claim pursuant to Rule 21 of the Ontario Rules of Civil Procedure. The decision was deferred pending appeals to the Divisional Court in Larcade v. Ontario (Minister of Community and Social Services), [2005] O.J. No. 1924 and Eliopoulos v. Ontario (Minister of Health and Long Term Care, [2005] O.J. No. 2225. An extensive discussion of the Eliopoulos case took place in the article on West Nile Virus (“WNV”) mentioned above. In a Rule 21 motion the court must only be satisfied, assuming all facts pleaded to be true, that it is plain and obvious that the plaintiff cannot succeed.

Mr. Justice Cullity held that the claims in negligence against the Federal Crown had no possibility of success. He noted there was nothing in the federal statutes that imposed a private law duty of care on the Crown. He also dismissed the claims relating to policy decisions which were pleaded to have been made irrationally or in bad faith on the basis that a bald pleading of irrationality or bad faith cannot save an otherwise deficient pleading.

The claims against the Province of Ontario were partially struck, but on the basis of Elipoulos and Mitchell (2004) 71 O.R. (3d) 571 Mr. Justice Cullity held that there was a triable case:

Although, as the Divisional Court held in Mitchell, private law duties may not have arisen solely from the provisions of statutes, it does not follow that proximity between the Provincial Crown and the class members could not arise from the manner in which policy decisions made pursuant to the statutory powers and duties were implemented. The Minister and other Provincial officials acted specifically to prevent the infection of persons who would otherwise have been at risk of contracting SARS. Arguably, their decision to do this, and their allegedly premature decision to reduce, or withdraw the preventative measures in place, were sufficient to create a relationship of proximity with such persons.

With respect to the claims against the City of Toronto, the plaintiff pleaded operational negligence by the City as well as vicarious liability for the negligence of the Toronto Health Unit. It was specifically pleaded that the City has a duty to protect the plaintiff from the spread of diseases in Toronto and to conduct surveillance and analysis in relation to the monitoring of new diseases.

Although the Toronto Health Unit is funded by the City, it is a separate legal entity operating under provincial statute. Since it was not pleaded that the Toronto Health Unit or the Medical Officer of Health is a servant of the City, Mr. Justice Cullity found that there was no basis for vicarious liability. Even if such a fact was pleaded, it is doubtful that in the absence of material facts to support such a pleading, the result would have been any different.

With respect to direct liability on the part of the City, the motion judge held:

There is…no statutory basis for a finding that the City has the duties attributed to it…and no duties of care or negligence are pleaded against…employees of the City other than the Mayor…If the statement attributed to the Mayor is to be considered negligent misrepresentation…the pleading is quite inadequate to disclose any such cause of action. Neither reasonable reliance – nor any reliance – by anyone has been pleaded and I do not regard the general statement that “the operational negligence of Toronto as stated in the statement of claim has [led]to damages, including the infection of class members” with SARS is anything like sufficient.

The City of Toronto was completely successful on the motion, and all claims were struck against it, without leave to amend. As pointed out in the previous article on WNV, the result may have been different if a separate cause of action had been pleaded against the Toronto Health Unit. However, such a cause of action in relation to SARS is more than likely statute barred at this stage as a result of the operation of limitation periods for such claims.

Charles M. Loopstra, Q.C.

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