Municipal Liability Issues and West Nile Virus

August 1, 2004
Author: Charles M.K. Loopstra, Q.C.

On July 17, 2004, Madame Justice Gertrude Spiegel of the Ontario Superior Court allowed a $75,000,000.00 group-action lawsuit launched by 40 families claiming that the Province was negligent in its handling of West Nile Virus ("WNV") to proceed to trial. It is acknowledged that the decision of Justice Spiegel in Eliopoulis et. al. v. Ontario (Ministry of Health and Long Term Care) [2004] O.J. No. 3035 was with respect to a motion under Rule 21 of the Rules of Civil Procedure (Ontario). 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 is not determinative of the merits of the group’s allegations.

The defendants submitted that a private law duty cannot be imposed on the Province of Ontario since the impugned actions and decisions of government were of a policy nature, rather than an operational nature, and, as such, no liability may be imposed unless the plaintiffs allege that the policy decisions themselves were not abona fide exercise of discretion. The plaintiffs submitted that the government actions leading to liability were of an operational nature and, absent a statutory exemption from liability, a duty of care exists. The factual basis for their claim is founded on the government’s creation of a document called West Nile Virus : Surveillance and Prevention in Ontario, 2001. The plaintiffs also argued that even if the government actions were of a policy nature, a duty of care may still be found because the policy decisions were not a bona fide exercise of discretion.

The motion judge noted in her decision that "the absence of a full factual record that makes a conclusion on a point of law impossible on a Rule 21 motion, should not stop the litigation in its tracks". Had the motion been brought as a summary judgment motion, with supporting evidence, the result may have been different. Nevertheless, it is apparent that WNV litigation may be the next wave in seeking damages from deep pocket defendants.

Municipal officers should be made aware of the risk of possible litigation and should take steps to ensure that their risk management strategy with respect to WNV does not expose them to unnecessary liability in the event they are targeted by future litigants.

A proper WNV risk management strategy will require a solid foundational understanding of the statutory and private law duties owed to the public by a municipality under these circumstances. In Ontario, the statutory obligations on the municipality stem primarily from two pieces of legislation: the Municipal Act, 2001 S.O. 2001, c.25("Municipal Act") and the Health Protection and Promotion Act, R.S.O. 1990, c.H.7 ("HPPA"). The common law responsibilities on the municipality stem from the extensive jurisprudence surrounding liability of public authorities. The effect of the private law and statutory duties will be different depending on the class of municipality in question.

Regulation 231/03 of the HPPA mandates that municipalities that operate a health unit take steps to control the spread of WNV. It states:

S.1 A medical officer of health shall make a determination whether action is required by a municipality to decrease the risk of West Nile Virus to persons either inside or outside the health unit served by the medical officer of health, based upon a local risk assessment in accordance with the document entitled West Nile Virus Preparedness and Prevention Plan for Ontario, published by and available from the Ministry of Health and Long-Term Care, and as revised on May 27, 2003.

Once the medical officer of health has made a determination that some action is required, the municipality must take measures to control the spread of the virus. While Regulation 231/03 suggests various control strategies that the municipality may wish to adopt, it does not state any specific courses of action which must be taken once a determination has been made by the medical officer of health. The municipality is given discretion to determine what appropriate measures should be taken with respect to controlling the spread of the virus. The municipality must realize that once the course of action is selected, it is imperative that the action be carried out without negligence.

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

Those municipalities that do not operate a health unit are not subject to the requirements of the HPPA and are therefore not statutorily required to take measures to control the spread of WNV. This fact does not mean that a municipality that does not fall under the scope of the HPPA has no need to be concerned with the implications of WNV.

The Municpal Act clearly gives a municipality 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. Section 128(1) of the Municpal Act states:

S.128(1) A local municipality may prohibit and regulate with respect to public nuisances, including matters that, in the opinion of council, are or could become or cause public nuisances

Similarly, Section 130 of the Municipal Act states:

S.130 A municipality may regulate matters not specifically provided for by this Act or any other Act for purposes related to the health, safety and well-being of the inhabitants of the municipality.

A municipality may decide, even in the absence of a statutory requirement, that it wishes to take measures under the authority of the above-referenced sections to control the spread of WNV within the community. This decision should not be made without thoughtful consideration as to the risk management strategy to be adopted by the officers. This is due to the fact that any policy decision to take measures to combat the spread of WNV will expose the municpality to liability in the event the operational measures giving effect to the policy decision are carried out negligently. As the vast majority of municipal officers are aware, policy decisions are de facto insulated from any allegations of liabilty. This principle was codified in Section 331.3 of the Municipal Act which provides:

S.331.3 No proceeding based on negligence shall be commenced against a municipality, a member of a municipal councilor an officer or employee of a municipality in connection with the exercise or non-exercise of a discetionary power or the performance or non-performance of a discretionary function if the action or inaction results from a policy decision made in a good faith exercise of the discretion.

It is important to note that this section applies only with respect to the exercise or non-exercise of a discretionary power or the performance or non-performance of a discretionary function. Should the municipality choose to exercise its discretionary powers under sections 128 and 130 of the Municipal Act to control the WNV, it has effectively made a policy decision to attempt to regulate the spread of the disease through the by-laws it passes under the authority of those sections. 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 to ensure by-law compliance, 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 would follow that once the municipality has made a decision to attempt to regulate in this area it must 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 WNV, 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 WNV control policy, it has assumed a legal duty to do so effectively and without negligence.

It may appear that the risks associated with adopting a WNV policy are such that no rational municipality that was not statutorily mandated to do so, would adopt a policy with respect to this issue. However, the "no policy-no risk" approach is not always an adequate solution. A policy of inaction may bring about liability in itself. A policy decision that is found to be for an improper purpose or bad faith, or where it is found to be so unreasonable that it cannot be said to be a bona fide exercise of discretion at all may give rise to liability. In Brown v. British Columbia (Ministry of Transportation and Highways), [1994] 1 S.C.R. 420 at 441-42 Cory J. noted that it is always open to a plaintiff to establish on a balance of probabilities that the policy decision was not bona fide or was so irrational or unreasonable as to constitute an improper exercise of governmental discretion. Cory did not consider this to be a novel concept citing the following passage from Kamloops (City) v. Neilsen [1984] 2 S.C.R. 2:

In my view, inaction for no reason or inaction for an improper reason cannot be a policy decision taken in the bona fide exercise of discretion. Where the question whether the requisite action should be taken has not even been considered by the public authority, or at least has not been considered in good faith, it seems clear that for that very reason the authority has not acted with reasonable care.

Applying this to municipal measures to combat the spread of the WNV, potential litigants would face the challenge of proving that a policy decision to take certain measures was "unreasonable" or in "bad faith". Since the incidence of humans having contracted the WNV is relatively small, it is likely that the courts will not require municipalities that do not operate a health unit to undertake drastic measures in order to satisfy the "reasonableness" and "good faith" standard. The scope of the risk posed by the WNV at this point is sufficiently small that a decision not to take measures to control spread of the virus would likely not attract liability under the "improper purpose", "bad faith" or "unreasonable" test in Brown v. British Columbia.

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 the author’s 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. Accordingly, 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 would not likely be found 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 WNV 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, it is the author’s opinion that there is not 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 theOccupier’s Liability Act. The municipality may be liable to persons visiting its property if the danger created by the existence of the WNV 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 WNV 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 [2001] 1 S.C.R. 647, (the tainted blood case), the Supreme Court of Canadaheld that the proper test for causation in these types 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.

Conclusion

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.

At the present time, the incidence of humans having contracted WNV 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. Therefore, 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 WNV, 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 WNV. 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.

CHARLES M. LOOPSTRA, Q.C. is a senior partner in Loopstra Nixon LLP, a Toronto law firm. He is a member of the Canadian Bar Association, the Advocates’ Society, the Association of Trial Lawyers of America, the Ontario Expropriation Association, the Metropolitan Toronto Lawyers Association and the International Municipal Lawyers Association. Mr. Loopstra frequently advises public and private sector clients in administrative, municipal and environmental law matters and has represented all levels of government. He was appointed Queen’s Counsel in 1985. He regularly acts as counsel before administrative tribunals and in the courts, including appellate work. He has lectured at local and international conferences, and published a number of articles on municipal liability and environmental issues.

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