Municipal Liability Issues and West Nile Virus - an Update

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

Introduction

In the first article on Municipal Liability Issues and West Nile Virus,1 we conducted a review of private law and statutory duties relating to this issue. We pointed out a distinction between those municipalities that operate a health unit that are mandated to control the spread of the West Nile Virus ("WNV") pursuant to the Health Protection and Promotion Act2 ("HPPA") and Regulation 231/03, and those that do not.

For those municipalities that do not operate a health unit, they are not subject to the requirements of the HPPA, but they have the power to regulate public nuisances as well as regulating with respect to the health, safety and well being of the inhabitants of the municipality pursuant to s. 128(1) of the Municipal Act, 2001.3 However, they must do so without negligence.

Finally, we reviewed the various private law duties which may expose the municipality to risk. We concluded that if a reasonable warning is given of the potential harm, assuming that there is no operational negligence in carrying out any policy decisions adopted by the municipality with respect to WNV, the courts are not likely to find liability in these circumstances.

The Eliopoulos Case

At the time of the writing of the first article, Justice Spiegel of the Ontario Superior Court had allowed a $75,000,000.00 group action lawsuit launched by 40 families claiming that the Province of Ontario was negligent in its handling of WNV to proceed to trial.4 The decision was with respect to a motion under Rule 21 of the OntarioRules of Civil Procedure seeking to dismiss the claim on the basis that the pleadings disclosed no reasonable cause of action.

On October 28, 2004, Justice Pitt of the Ontario Superior Court of Justice, on an Application by the Ontario Minister of Health and Long Term Care, granted leave to appeal the decision of Justice Spiegel.5 Justice Pitt found that there were conflicting decisions on the issue of whether a public authority could be found liable in tort for preventing the spread of a disease and he felt that it was desirable to grant leave to resolve this issue. He also found there were good reasons to doubt the correctness of the order made by Justice Spiegel because of her failure to analyze two statutes that were applicable.6

The Divisional Court Decision 7

The Ontario Divisional Court heard the matter on April 18, 2005 and released its judgment on June 3, 2005. The Divisional Court upheld the decision of Justice Spiegel refusing to dismiss the action against the Province of Ontario on a Rule 21 motion. As previously stated, on such a motion the court must only be satisfied, assuming all the facts are true, that it is plain and obvious that the pleadings disclose no reasonable cause of action. As such, the decision of Justice Spiegel and the Ontario Divisional Court is not determinative of the merits of the group’s allegations against the Province of Ontario.

In dismissing the appeal, the Divisional Court concluded:

a) Justice Spiegel properly exercised her function with respect to Rule 21 motions;

b) the threshold for resisting a Rule 21 motion is quite low. The Rule is primarily to be used as a mechanism for preventing abuses of process and even a "germ" or "scintilla" of a cause of action will suffice to maintain the claim;

c) it was at least reasonably arguable that the Province owed a duty of care to the Plaintiffs;

d) the provisions of the HPPA could reasonably support the Plaintiffs’ position, subject to the meeting of the Anns test;

e) the HPPA confers wide powers on the government and local boards to make policy decisions and to make and implement operational decisions, sufficient to find a private law duty of care if the Anns test is met and if it can be held that the alleged negligent acts and omissions of the government arose as a result of the government implementing policy at the operational level.

Mitchell Distinguished

In Mitchell (Litigation Administrator of) v. Ontario,8 the Ontario Divisional Court, on a Rule 21 motion, dismissed the Plaintiffs’ claim for damages as a result of the death of an infant while receiving care at the hospital emergency department. The Plaintiffs alleged that the child did not receive proper treatment quickly enough and that the overcrowded conditions were caused by reductions in hospital funding and restructuring decisions by the Province of Ontario. The Plaintiffs alleged negligence, breach of contract, abuse of public office and breach of fiduciary duties.

In Mitchell, the Plaintiffs did not allege that the Province directly caused physical harm to the deceased, rather it was argued that the funding cuts and restructuring caused delay, which in turn was the cause of her death. The court concluded that this was not a claim that falls within one of the recognized categories of duty of care as listed by the Supreme Court of Canada in Cooper v. Hobart9 which includes the following categories:

a) where the defendant’s act forseeably causes physical harm to the plaintiff or the defendant’s property;

b) negligent misstatement;

c) misfeasance in public office;

d) where a duty to warn of the risk of danger has been recognized;

e) where a province has undertaken a policy of road maintenance; and

f) relational economic loss related to a contract’s performance.

The court therefore concluded that it must be determined whether a new duty of care should be recognized and whether it is "just and fair" to impose such a duty. The court concluded that:

Therefore, a consideration of the statutory framework makes it clear that the requisite proximity in the relationship between the plaintiffs and the defendant has not been established so as to give rise to a private law duty of care. The overall scheme of the relevant Acts confers a mandate on the Minister of Health to act in the broader public interest and does not create a duty of care to a particular patient. Similarly, any power over funding that the Premier might have is a power to be exercised in the public interest.

In Eliopoulos, the Divisional Court concluded that:

Unlike in Mitchell, it was not necessary for the motion judge to determine whether a new duty of care should be recognized. Nor is it necessary for us to do so. The respondents’ claims, as pleaded, fall within the scope of a traditionally recognized category, namely, circumstances that disclose reasonably foreseeable harm and proximity sufficient to establish a prima facie duty of care.

In making this finding, the Divisional Court noted that the Plaintiffs had pleaded that the Province had caused physical harm to the deceased plaintiff, that the Province was negligent and that the negligence contributed to the death of the deceased plaintiff and that the Province made a policy decision with respect to implementing the Plan to reduce the risk of contracting WNV for Ontario residents and then breached its duty to carry out the Plan in a non-negligent fashion.

Lessons from Eliopoulos

It is clear from Eliopoulos that the courts will rarely strike a cause of action on a Rule 21 motion where the defendant must show that it is plain, obvious and beyond doubt that the plaintiff could not succeed. To a large extent the creativity of the plaintiff’s lawyer in preparing the pleading will make the difference on a Rule 21 motion. The allegations of fact in the statement of claim, unless patently ridiculous or incapable of proof, must be accepted as proven and a claim will not be dismissed simply because it is novel. Moreover, the statement of claim must be read generously with an allowance for inadequacies due to drafting deficiencies.

The Merits of Eliopoulos

In Eliopoulos, the Province argued that it has no duty of care to the plaintiff because:

a) there is no statutory duty on the Province to prevent the spread of WNV;

b) there is no relationship or proximity between the parties;

c) the plaintiffs seek compensation for policy decisions made by the Province that are not actionable; and

d) there are important policy reasons why liability should not be imposed.

In its factum to the Divisional Court, the Province argued that the three statutes that could govern the Province’s responsibility with respect to WNV do not disclose that the legislature intended to provide a private remedy in the form of compensation to individuals such as the plaintiffs. As such, the acts imposed broad public law duties only when setting out responsibilities for public health and conferring broad discretionary powers on the Minister and other provincial officials to take steps in the interest of the public at large. They do not impose duties in the nature of private law duties that are actionable.

Under the HPPA, the Minister is empowered to take steps in a variety of areas but is under no statutory duty to take any specific steps in any specified circumstances. The Minister’s oversight of the local boards of health is within his/her discretion as are his/her decisions with respect to public laboratories of health and decisions about public health risks. The Province argued that the HPPA provides for multiple and flexible means to reduce health risks, but does not purport to eliminate the risk of illness or disease to specific members of the public, such as the plaintiff. The Province also argued that the HPPA provides that the boards of health are separate suable entities and can be liable in tort for any negligence on the part of any of their members. There is nothing in the Act that makes Ontario responsible in law for those matters assigned to the local boards of health.

The statutory framework under the HPPA is similar to that of the Police Services Act.10 Under that Act, the day-to-day operations of municipal police forces are delegated to the municipalities. In Odhavji Estate v. Woodhouse,11 the Supreme Court of Canada concluded that the statutory framework could not impose a private law duty of care on Ontario in relation to the supervision and training of municipal police forces, as those responsibilities are vested in another agency.

The Province also argued that there is an insufficient degree of proximity between the plaintiff and the Province to establish a private law duty of care and that a private law duty of care cannot be owed to the general public or to a large undefined class of people. The statutory powers exercisable and the broad public interest did not give rise to a private law duty of care in the absence of a "special relationship of proximity" between the parties.12

In the Rule 21 motion, Justice Spiegel had found that the identification of "hot spots" being geographical areas where birds infected with WNV were detected formed the basis for a special relationship of proximity. This would suggest that the identification of "hot spots" would lead to the creation of a "special group" owed a private law duty of care by Ontario to prevent WNV. The Province argued that the "hot spots" analysis disregards the fact that the local boards of health, rather than Ontario, undertakes surveillance of dead birds and makes decisions as to what measures might be put in place to respond to the finding.

The Province has strong arguments on the merits that it should not be found liable. On the other hand, the courts appear to be reaching for new private law duties in the context of serious threats to public health and welfare. At the very least, the threshold for taking a case to trial appears to be relatively low. If at trial, there is a finding of a breach of a private law duty to the plaintiff, the test for causation as laid down by the Supreme Court of Canada in these types of cases is whether the defendant’s negligence materially contributed to the occurrence of the injury.13

Are Municipalities the Next Defendant?

Eliopoulos did not name local boards of health or municipalities as defendants. Clearly, such defendants would be more likely at risk for negligently carrying out an operational duty. However, the plaintiff must plead the particulars of the negligence and, at trial, prove, on a balance of probability, that the negligent act caused or materially contributed to the occurrence of the injury.

One case that may be of interest is a class action suit involving SARS brought against all three levels of government, including the City of Toronto.14 All three defendants brought Rule 21 motions on the basis that each defendant does not owe a private law duty to the plaintiff. The motion has been argued and no decision has been released. The City of Toronto has argued:

a) the City owes no private law duty of care to the plaintiff and it is not enough to simply plead that such a duty is owed;

b) the City of Toronto Act, 1997 (No. 2)15 ("COT") and the HPPA pleaded by the plaintiff do not give rise to a private law duty of care;

c) although the City under the COT and the HPPA establishes a local board of health, the board is a separate legal entity under ss. 52(1) of the HPPA;

d) the Province, not the City, has oversight powers over the board; and

e) a local board of health is not a statutory agent or servant of the City and the City is not liable for its negligent or wrongful acts.

As a practical matter, even if the City of Toronto is successful on its Rule 21 motion, subject to any limitation periods, a separate cause of action may exist against the Toronto Health Unit. Generally, these boards or health units are funded and insured by the municipality.

Conclusion

There is no doubt that where there is a serious risk to public health (WNV, SARS, tainted blood), the courts are inclined to give the injured party every opportunity to pursue a legal remedy. However, the legal remedy must be founded on the breach of a private law duty of care and the breach must be found to have caused or materially contributed to the injury. No doubt, the courts will be defining these areas further in the context of WNV.

September 2004, Vol. 5, No. 6
R.S.O. 1990, c.H. 7
S.O. 2001, c. 25
Eliopoulos v. Ontario (Minister of Health and Long Term Care), [2004] O.J. No. 3035
Eliopoulos v. Ontario (Minister of Health and Long Term Care), [2004] O.J. No. 4396
Ministry of Health and Long Term Care Act, R.S.O. 1990, c.M. 26 and Pesticides Act, R.S.O. 1990, c.P. 11
Eliopoulos v. Ontario (Minister of Health &Long Term Care), [2005] O.J. No. 2225
(2004), 71 O.R. (3d) 571
[2001] 3 S.C.R. 537
R.S.O. 1990, c.P. 15
[2003], 3 S.C.R. 263
Doe v. Metropolitan Toronto (Municipality) Commissioners of Police (1990), 58 D.L.R. (4th) 580
Walker Estate v. York Finch General Hospital, [2001] 1 S.C.R. 647
Williams v. AG (Canada) et al., Court File No. 03-CV-259366 CP
S.O. 1997, c. 26